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September 27, 1996


Appeal from the St. Clair Circuit Court, Robert Austin, J. [697 So2d Page 801]

The opinion of the court was delivered by: McMILLAN, Judge.

The appellant, James Michael Moore, was convicted of capital murder, see § 13A-5-40(a)(10), Code of Alabama 1975, two or more persons murdered by one act pursuant to one scheme or course of conduct. The appellant waived the sentencing phase of his trial, and the trial court sentenced him to life imprisonment without the possibility of parole.


The appellant argues that the trial court committed reversible error in allowing the indictment to proceed on the "one scheme" or "course of conduct" theory. The appellant argues that the evidence did not indicate that he committed the two murders pursuant to a plan or scheme or a pattern of conduct evidencing a continuity of purpose.

The indictment against the appellant charged:

". . . the Grand Jury of said County charges that before the finding of this Indictment, JAMES MICHAEL MOORE, whose true name is otherwise unknown to the Grand Jury, pursuant to one scheme of course of conduct, did intentionally cause the death of Judy Kay Lumpkin by striking her head with a blunt instrument, and did intentionally cause the death of Jerry Michael Estill, by striking his head with a blunt instrument, in violation of Sec. 13a-5-40(a)(10) of the Code of Alabama."

However, the extensive evidence presented by the State revealed that the appellant and an accomplice left together at two o'clock in the afternoon to go play pool. They encountered Jerry Michael Estill at the bar where they were playing pool and, shortly thereafter, met Judy Kay Lumpkin at the next bar they visited. These four left that bar together in the accomplice's vehicle. The appellant killed Estill by beating him on the head with a car tool, while the accomplice had sex with Lumpkin. It was unclear whether Lumpkin was aware that Estill had been killed. Following Estill's death, the remaining three visited a mobile home belonging to the accomplice's father, left to purchase beer for the father, and took a detour on their return trip after buying the beer. During the detour, the accomplice again had sex with Lumpkin but, when she left the car, the appellant attempted to beat her to death, because he believed that she might have seen him kill Estill. The appellant then dragged her to the water and threw her in, but when she hit the water, she revived and grabbed at his crotch. He stated that she told him that she knew he would kill her, but that she would come back "to get him." The appellant [697 So2d Page 802]

then forced her head between his legs and began to beat her head with a concrete block. He then threw her body in the water. Apparently, prior to disposing of the body he had removed some of Lumpkin's jewelry. The appellant got fresh clothes from the accomplice's father and disposed of the clothes he had been wearing. The appellant and the accomplice drove to a friend's house to sell the stolen jewelry. They got $60 in cash and some marijuana in return for the jewelry. The accomplice then also got some money his employer owed him. They disposed of certain evidence of the killings and left for Miami, where the accomplice's mother lived.

This evidence was clearly sufficient to indicate that the killings occurred as the result of one course of conduct that began one evening and was completed in the early morning hours of the following day. " 'An indictment is sufficient if it apprises the accused with a reasonable certainty of the nature of the accusation against him so that he may prepare his defense and plead the judgment of conviction as a bar to any subsequent prosecution for the same offense.' " Moore v. State, 659 So.2d 205, 208 (Ala.Cr.App. 1994), quoting Rice v. State, 620 So.2d 140, 142, (Ala.Cr.App. 1993).

" 'One of the functions of an indictment is to adequately inform the accused of the crime charged so that a defense may be prepared. Ex parte Washington, 448 So.2d 404, 407 (Ala. 1984). A variance in the form of the offense charged in the indictment and the proof presented at trial is fatal if the proof offered by the State is of a different crime, or of the same crime, but under a set of facts different from those set out in the indictment. Ex parte Hightower, 443 So.2d 1272, 1274 (Ala. 1983).' "

Ex parte Hamm, 564 So.2d 469, 471 (Ala.), cert. denied, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 (1990).

" '. . . "[T]here must be material variance between indictment and proof before a conviction will be overturned for that reason." Ex parte Collins, 385 So.2d 1005, 1009 (Ala. 1980)(emphasis in original). "The law of this state is well settled that '[t]here is no material variance where there is proof of so much of an indictment as shows the defendant committed a substantial offense specified therein.' " House v. State, 380 So.2d 940, 943 (Ala. 1979). Compare Ex parte Hightower, 443 So.2d 1272 (Ala. 1983) (fatal variance between indictment charging sexual misconduct without consent and proof of sexual misconduct with consent obtained by artifice.)'

"Lipham v. State, 616 So.2d 396, 397 (Ala.Cr.App. 1993)."

Pace v. State, 652 So.2d 321, 324-25 (Ala.Cr.App. 1994), cert. denied, 652 ...

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