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12/29/94 CHRISTOPHER D. BARBOUR v. STATE

December 29, 1994

CHRISTOPHER D. BARBOUR
v.
STATE



Appeal from Montgomery Circuit Court. (CC-92-1544). William Gordon, TRIAL JUDGE.

Rule 39(k) Motion Denied March 3, 1995. Rehearing Overruled March 3, 1995. S.C. Granted Cert. August 18, 1995. S.C. Denied Rehearing October 20, 1995. Released for Publication May 23, 1996.

Taylor, Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Christopher Barbour, was convicted of murder made capital because the murder was committed during the commission of a rape, a burglary, and arson. See §§ 13A-5-40(a)(3), 13A-5-40(a)(4), and 13A-5-40(a)(9), Code of Alabama 1975. The jury, by a vote of 10 to 2, recommended that the appellant be sentenced to death. The court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

The state's evidence tended to show that on March 21, 1992, 16-year-old, William Roberts found the naked and partially burned body of his mother, Thelma Bishop Roberts, lying on the floor of her bedroom. There was a white plastic trash bag over her head and a knife protruding from her chest. William Roberts testified that when he saw his mother's body he removed the knife out from her chest and threw it across the room. He also removed the trash bag from her head and called the emergency police telephone number. William Roberts also testified that the jewelry that his mother always wore was missing.

Dr. Alan Stilwell, medical examiner for the Alabama Department of Forensic Sciences, performed an autopsy on the victim. It was his opinion that Thelma Roberts died as a result of nine stab wounds to her chest, one of which penetrated her left lung and one of which penetrated her heart, causing extensive internal bleeding. Two of the wounds had been inflicted with such force that they pierced her back. Dr. Stilwell further testified that the victim's eyes were swollen from repeated blows to her head.

Barbour confessed and gave a detailed account of the facts surrounding Roberts's murder. Barbour told police that on March 20, 1992, he, Chris Hester, and Mike Mitchell went to see, "Koon," who was a friend of Hester's and who lived on Manley Drive in Montgomery. Hester talked with someone at the door and discovered that Koon was not home. The three then went across the street to the victim's house. Barbour stated that they entered the house, sat down in the living room, and started drinking beer. Hester and the victim started talking. Later, the victim left the living room and went to the back of the house. A few minutes later, Hester also went to the back of the house. Hester and the victim remained there for several minutes while Mitchell and Barbour stayed in the living room. A short while later, Barbour and Mitchell heard loud noises coming from the back and went to investigate. They entered the bedroom and saw that the victim was naked and that Hester was wearing only his pants. Hester then hit the victim, and Barbour and Mitchell started hitting her about the head. The victim fell to the floor. Barbour and Mitchell got on either side of her and held her down while Hester had sex with her. After Hester got up and pulled on his pants, Barbour told the others that they could not leave because she could identify them. Barbour confessed that he then went to the kitchen, grabbed a knife, and returned to the bedroom. He got on his knees and forcibly stabbed the victim several times. He left the knife in her body, stood up, walked to the closet, threw some things from the closet around her body, and set them on fire. As they fled from the house Barbour grabbed the smoke detector off the wall in the hallway and threw it in the living room.

Because this case involves the death penalty, this court is obliged under Rule 45A, Ala.R.App.P., to search the record for plain error. Rule 45A, Ala.R.App.P., states:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

I

Barbour initially contends that Alabama's system for compensating attorneys appointed to represent indigent defendants, set out in § 15-12-21, Code of Alabama 1975, is unconstitutional. Specifically, he contends that the $1,000 cap on the amount that those attorneys can receive results in a deprivation of property without just compensation and is therefore unconstitutional.

Section 15-12-21(d), states:

"(d) Counsel appointed in [indigent] cases ... shall be entitled to receive for their services a fee to be approved by the trial court. The amount of such fee shall be based on the number of hours spent by the attorney in working on such case and shall be computed at the rate of $40.00 per hour for time expended in court and $20.00 per hour for time reasonably expended out of court in the preparation of such case. The total fees to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not, however, exceed $1,000.00, except as follows: In cases where the original case involves a capital offense or a charge which carries a possible sentence of life without parole, the limits shall be $1,000.00 for out-of-court work, plus payment for all in-court work, said work to be billed at the aforementioned rates. Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court. Retrials of a case shall be considered a new case."

This court in May v. State, 1993 Ala. Crim. App. LEXIS 1076 [Ms. CR-92-350, September 3, 1993] So. 2d , (Ala. Cr. App. 1993), addressed the constitutionality of this Code section.

"The Alabama Supreme Court in Ex parte Grayson, 479 So. 2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 157 (1985), specifically held that Alabama's system for compensating appointed attorneys does not violate principles of due process or equal protection. Moreover, the Alabama Supreme Court in Sparks v. Parker, 368 So. 2d 528 (Ala. 1979), appeal dismissed, 444 U.S. 803, 100 S. Ct. 22, 62 L. Ed. 2d 16 (1979), held that § 15-12-21 does not constitute an unlawful taking of property in violation of the Fifth Amendment. All of the constitutional issues raised by the appellant have been reviewed and decided by the Alabama Supreme Court. Our court is bound by these decisions.

"Section 12-3-16, Code of Alabama 1975, provides:

"'The decisions of the supreme court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the supreme court as provided by constitutional amendment No. 328.'

"While setting a 'cap' on the amount of money that appointed attorneys may receive for representing indigent defendants has been held to be constitutional, such a practice may become unconstitutional when the 'cap' is set too low. A rule of law may be constitutional as written, but become unconstitutional in application. Sparks v. Parker and Ex parte Grayson were released in 1979 and 1985, respectively. In the meanwhile, inflation has diminished the purchasing power of the dollar and has therefore affected the fee amount set in § 15-12-21. This $1,000 'cap' for trial work was established in 1981. The real value of $1,000 is considerably less today than was intended when the statute was enacted and is certainly unreasonable. We urge the Supreme Court to grant certiorari review in this case and reconsider the constitutionality of the 'cap' as now set by law."

On September 1, 1994, the Alabama Supreme Court granted certiorari review in May. However, under current law, Alabama's system for compensating attorneys appointed to represent indigent defendants is not unconstitutional.

II

Barbour next contends that the trial court erred in denying two of his discovery motions and that the trial court's denial violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

Barbour filed a motion to require the state to produce a copy of any contract that existed between Dr. Karl Kirkland and the state. Dr. Kirkland, a licensed psychologist, was employed by Montgomery County to conduct mental status evaluations of prisoners in the Montgomery County jail. Dr. Kirkland evaluated Barbour but did not testify at trial. Barbour has not shown how this evidence was either exculpatory or material. The trial court did not violate Brady by denying this motion.

Barbour next contends that the court erred in denying his motion to require the state to produce the names of other persons who had been interviewed by Detective Danny Carmichael in the past two years. Barbour contended that Carmichael used physical coercion during the interview in which he confessed to the killing and he hoped to prove that this had happened to other persons Carmichael interviewed. The motion was filed in order to find out if there had been previous incidents of physical assault by Carmichael. The trial court held a hearing on the issue and the denied the motion. The court's order denying the motion stated:

"Barbour has also filed a motion for the state to disclose the names, addresses, telephone numbers and places of employment of all persons who have been interrogated by Detective Danny H. Carmichael within the last two years who were subsequently charged with a felony. Barbour alleges that Carmichael engages in a 'consistent course of committing physical assaults upon persons accused or suspected of crimes in order to induce said persons to involuntarily confess commission of such crimes.' In support of the motion for disclosure Barbour offered the testimony of his grandfather [Mr. Brown] and Barbour's attorney's representation concerning a client who claimed to have been assaulted by Detective Carmichael.

"Mr. Brown's testimony is vague and uncertain. The Court accepts counsel's representation as truth; however, the Court finds that reports of two incidents of abuse apparently separated by many months are insufficient to order the requested disclosure."

The trial court did not err in denying Barbour's motion. "Absent clear error, the trial court's credibility choices at [motion] hearings are binding on this court." Powell v. State, 624 So. 2d 220, 228 (Ala. Cr. App. 1993). The standard of review is whether the trial court's finding was "manifestly contrary to the great weight of the evidence." Powell, 624 So. 2d at 228. The trial court was in the best position to evaluate the evidence and to observe the witnesses at the hearing. The court's ruling is supported by the evidence, and we will not disturb its ruling on appeal.

"'A motion for discovery is not a mere "fishing expedition." ... The accused is simply not entitled to pursue a "scatter gun" approach in his motion to produce.' Perry v. State, 371 So. 2d 969, 970 (Ala. Cr. App.), cert. denied, 371 So. 2d 971 (Ala. 1979) (citations omitted). Brady 'did not envision the type "fishing expedition" requested by appellant.' Giddens v. State, 333 So. 2d 615, 618 (Ala. Cr. App. 1976)."

Timmons v. State, 487 So. 2d 975, 982 (Ala. Cr. App. 1986). See also Killough v. State, 438 So. 2d 311, 316 (Ala. Cr. App. 1982), rev'd on other grounds, 438 So. 2d 333 (Ala. 1983); and Perry v. State, 371 So. 2d 969 (Ala. Cr. App.), cert. denied, 371 So. 2d 971 (Ala. 1979).

III

Barbour further contends that the court erred in denying his motion to suppress his videotaped confession. Specifically, Barbour contends that he was manipulated and deceived ...


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