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Bosner v. State

Alabama Court of Criminal Appeals

July 13, 2018

William Lane Bosner
v.
State of Alabama

          Appeal from Blount Circuit Court (CC-15-270 and CC-15-271)

          KELLUM, JUDGE

         The appellant, William Lane Bosner, was convicted of murder made capital because it was committed during the course of a robbery in the first degree, a violation of § 13A-5-40(a)(2), Ala. Code 1975, and murder made capital because it was committed during the course of a burglary in the first degree, a violation of §13A-5-40(a)(4), Ala. Code 1975, for the killings of Gary "Sambo" Hazelrig and Breann Sherrer. The circuit court sentenced Bosner to life imprisonment without the possibility of parole for each conviction and ordered that the sentences were to run concurrently. The circuit court ordered Bosner to pay a $2, 000 fine, $7, 030 to the crime victims compensation fund, $924 in restitution, attorney fees, and court costs.

         The record indicates the following pertinent facts. Hazelrig, Bosner's drug supplier, lived with Sherrer, his girlfriend, on Deavers Town Road in Locust Fork. Michael Dooley testified that he drove Bosner and Paul Trull to Hazelrig's house at approximately 12:30 a.m. on September 14, 2015, with the intent to steal certain items, drugs, and money. Each of them wore a mask and carried at least one weapon. Specifically, Dooley testified that Bosner carried a .22-caliber rifle with a 10-round factory clip, admitted into evidence as State's Exhibit No. 12-A; Dooley carried a .22-caliber rifle with a banana clip, admitted into evidence as State's Exhibit No. 13-A; and Trull carried a .20 gauge "short shotgun," admitted into evidence as State's Exhibit No. 14-A, and an aluminum "tire checker baseball bat," admitted into evidence as State's Exhibit No. 58-A. (R. 631.) When they arrived, Dooley dropped off Bosner and Trull at the end of Hazelrig's driveway and parked his car in a nearby field. As Dooley walked toward Hazelrig's house, he saw the front door open and heard a gunshot followed by a "ding." (R. 631.) Shortly thereafter, Hazelrig and Sherrer emerged from the house and stood on the front porch. Meanwhile, Trull stood in the doorway and kept them there at gunpoint. According to Dooley, Hazelrig and Sherrer appeared to be injured. Specifically, "Ms. Sherrer had grabbed her butt and Mr. Hazelrig had [] a stream of blood coming down maybe right there (Indicating to side of face.)" (R. 636.)

         While Trull held Hazelrig and Sherrer at gunpoint, Dooley inspected a four-wheeled all-terrain vehicle ("ATV"), located in Hazelrig's driveway. The ATV, a hunter-green "Yamaha Wolverine," was missing an ignition switch and a tire. (R. 639.) Dooley spent the next several minutes affixing a spare tire to the ATV while Hazelrig and Sherrer remained on the front porch. Dooley testified that Hazelrig and Sherrer were not "crying out or nothing," though Hazelrig said that Sherrer needed medical assistance. (R. 639.)

         While Dooley worked on the ATV, he saw Bosner walking inside the house "from the right [side] to the left [side] past the door." (R. 639.) At some point, Trull apparently ordered Hazelrig and Sherrer back inside the house. After Dooley repaired the ATV, he told Trull to "[g]et whatever you're going to get. We need to go." (R. 640.) Dooley testified that Trull turned and called Bosner's name. According to Dooley, Bosner became very nervous because he believed that Hazelrig and Sherrer heard Trull say his name. Dooley told Bosner, "Man don't worry about it. We are leaving. They don't really know who it is. Don't worry about it." (R. 641.) Dooley continued tinkering with the ATV when he heard "stomping" on the front porch. (R. 641.) When he looked up, Dooley saw Bosner walk inside the house and fire his rifle. Dooley testified that Sherrer fell to the ground. Immediately thereafter, Dooley heard "about three shots" from Bosner's rifle and one shot from Trull's shotgun. Dooley ran to the front porch and looked through the doorway. He saw Bosner and Hazelrig "fighting it up" on the floor. (R. 643.) During the fight, Trull struck Hazelrig's head with the butt of his shotgun. After Hazelrig was incapacitated, Bosner and Trull picked up their bags and walked to Dooley's car.

         Dooley, Bosner, and Trull placed the stolen items in the trunk of Dooley's car. Before leaving, they walked back to Hazelrig's house to collect shell casings and recover the tire checker Trull had apparently forgotten. They found the tire checker but were unable to collect any shell casings. Dooley testified that he, Bosner, and Trull pushed the ATV down Hazelrig's driveway toward Deavers Town Road. Bosner and Trull waited in the driveway while Dooley retrieved his car. Dooley picked up Bosner and Trull and pulled the ATV behind his car to a hiding spot off a nearby road. During the drive back to Dooley's house, Bosner produced several stolen cellular telephones from his pockets. Dooley decided to dispose of the telephones. Dooley drove to a bridge near Zuber Road, and Bosner threw the telephones out of the car window.

         Bosner, Trull, and Dooley arrived at Dooley's house at approximately 3:00 a.m. and divided the money and items they had taken from Hazelrig's property. According to Dooley, the stolen items included pocketknives, a small safe, a black- powder pistol, an acoustic guitar, an "iPod" MP3 player, a digital video recorder ("DVR"), a television, and several grams of methamphetamine.

         A few hours later, Dooley and Bosner returned to where they had parked the ATV and towed it to Dooley's house. When they returned, Dooley's girlfriend, Carolyn Busby, came to Dooley's house. Dooley testified that he and Busby "[s]at there for a while" and talked. (R. 654.) At approximately 9 or 10 p.m., Dooley drove Bosner to Bosner's girlfriend's house. Bosner carried a backpack and the shotgun Trull used the night before. About a week later, Dooley placed evidence of the Hazelrig-Sherrer murders in a large black box he bought from a Home Depot hardware store. Specifically, the box contained the .22-caliber rifles Dooley and Bosner carried, a stolen safe, television, and black-powder rifle, and various other items both related and unrelated to the crimes. Dooley attached a lock to the box and placed it in the woods off of Zuber Road -- the same location where Bosner had thrown the cellular telephones. Dooley testified that he dropped Hazelrig's DVR and a bag containing Trull's gloves into a lake near the border of Blount County and Jefferson County.

         Trull testified that he walked to Dooley's house in the evening of September 13, 2015, to talk and to smoke marijuana. He testified that Bosner was already at Dooley's house when he arrived. Trull testified that he had recently received a paycheck and that he wanted to purchase a new guitar. Bosner told Trull that Hazelrig had several guitars for sale. Consequently, Trull drove with Bosner and Dooley to Hazelrig's house. Trull testified that he and Bosner got out of Dooley's car at the end of Hazelrig's driveway. Bosner opened the trunk and pulled out a backpack "and something else," and proceeded toward Hazelrig's house. (R. 493.) Trull testified that he saw Bosner walk through Hazelrig's front door and heard "a bit of commotion and then a loud bang." (R. 493.) Moments later, Bosner walked out of the house and handed Trull a .20 gauge sawed-off shotgun. Trull identified the shotgun as State's Exhibit No. 14-A. At this point, Trull noticed that Bosner was carrying a rifle. Trull testified that Bosner ordered him to come inside the house. When he walked inside, Trull saw Hazelrig and Sherrer and noticed that they were injured. Specifically, Trull testified that Hazelrig was bleeding from the top of his head and Sherrer was bleeding from the back of her leg. Bosner ordered Hazelrig and Sherrer to stand on the front porch and told Trull to hold them there at gunpoint. Trull testified that he watched Hazelrig and Sherrer for 10 to 15 minutes while Bosner "rifl[ed] through the house." (R. 503.) Trull testified that he wanted to leave and said "Lane, we need to go." (R. 506.) After Trull spoke Bosner's name, Bosner told Hazelrig and Sherrer to turn around. Trull testified that Bosner placed the barrel of his gun against the back of Sherrer's head and pulled the trigger. According to Trull, Sherrer "was dead before she hit the ground." (R. 509.) Trull testified that Hazelrig charged Bosner and Bosner shot at Hazelrig eight or nine times. While they were fighting, Bosner bumped into Trull and knocked him to the ground, causing Trull's shotgun to discharge and hit Hazelrig. Trull testified that he got up and ran outside after the fight. Bosner emerged from the house a few moments later and helped Dooley push the ATV to the end of Hazelrig's driveway. Before leaving, Dooley went inside the house and retrieved Hazelrig's DVR. Upon returning to Dooley's house, Trull immediately left and walked home. When Trull went back to Dooley's house later that day, Busby already "knew everything" that had occurred the night before. (R. 536.) Trull testified that he assisted Dooley in loading evidence into Dooley's black box.

         Charles Ennis, a long-time friend of Hazelrig's, testified that he went to Hazelrig's house on September 15, 2015, to bring Hazelrig food and to check his blood-sugar level. Ennis testified that he looked in a window and saw Sherrer lying on the floor. Ennis telephoned the police and waited for them to arrive. Deputy Jarod Eakes with the Blount County Sheriff's Department responded to the call and taped off the area. Charles Underwood with the Crime Scene Department of the Blount County Sheriff's Department testified that he photographed, measured, diagrammed, and gathered evidence at Hazelrig's house. He testified that there was a large amount of blood at the entrance of the house and on the front door. He testified that there was a blood swipe on the edge of Hazelrig's couch. Underwood recovered multiple .22 shell casings but did not recover any blood, fluid, or fingerprints on the firearms taken into evidence.

         On September 26 or 27, 2015, Fred Cochran, a sergeant with the Blount County Sheriff's Department at the time, testified that he received a telephone call from Busby's daughter implicating Dooley in the Hazelrig-Sherrer murders. On September 28, 2015, police interviewed Busby and Dooley. Dooley's taped interviews were admitted into evidence as State's Exhibits No. 62-65. In his first interview that began at approximately 1:45 p.m., Dooley denied any involvement in the crimes. Dooley told police that he drove Bosner to Bosner's girlfriend's house in the evening of September 14, 2015, after they had spent the day mowing a lawn in Lincoln, Alabama. Busby, however, told police that Bosner and Dooley perpetrated the crimes and gave credible information to that effect. Specifically, Busby identified where Sherrer sustained gunshot wounds. She also informed police about the stolen ATV in Dooley's possession. Consequently, Cochran dispatched two investigators to "go and find" Bosner. (R. 390.)

         In Dooley's second interview beginning at approximately 7:00 p.m., Dooley confessed to the crimes and implicated Bosner. Dooley told police about the stolen cellular telephones and the black box containing evidence located off of Zuber Road. Cochran testified that Dooley led police to the black box and gave them a key to open it. Michael Blackwood with the Blount County Sheriff's Department testified that Dooley told police the location of the lake where he disposed of Hazelrig's DVR. A dive team subsequently recovered the DVR, a DVD player, and a backpack. Scott Kanaday with the Blount County Sheriff's Department testified that he recovered the ATV located on Dooley's property.

         Bosner's girlfriend, Christina Sturgeon, testified that she was in a dating relationship with Bosner at the time of his arrest. Sturgeon lived with her father, Carl Chapman, in Jefferson County. Sturgeon testified that Bosner occasionally stayed with her at Chapman's house. In the beginning of September 2015, Sturgeon ousted Bosner from the house following an argument. On or around September 21, 2015, Bosner moved back in with Sturgeon. According to Sturgeon, Bosner "was not there a full week before they arrested him." (R. 954.) Sturgeon testified that Bosner brought a backpack with him when he moved back in with her. Sturgeon testified that she did not know the contents of the backpack and that she never opened it. According to Sturgeon, Bosner acted emotional, temperamental, and confrontational in the days preceding his arrest. Two days before Bosner was detained, Sturgeon and Bosner got into an argument. During the argument, Bosner twisted Sturgeon's arm behind her back and "got in [her] face." (R. 948.) Bosner said to Sturgeon: "Just go ahead and call the county on me. You hate me anyway." (R. 948.) Before this occasion, Sturgeon testified, Bosner never acted violently toward her. Sturgeon speculated that Bosner spoke those words because he had Sturgeon's arm pinned behind her back. Sturgeon testified that Bosner never mentioned the Hazelrig-Sherrer murders and that she had no reason to believe he was involved in them.

         On September 28, 2015, police located Bosner at Chapman's house and detained him on an "investigative hold." Chapman testified that a "whole lot of police officers" entered his house with their weapons drawn. Chapman testified that police told him "[w]e don't want you. We just want him." (R. 463.) Subsequently, Chapman gave police permission to search his house. He testified that his signature was on the consent-to-search form, though he could not recall signing the document. The consent-to-search form was signed at 5:16 p.m. (C. 860.) Chapman testified that he did "whatever [police] asked [him] to do." (R. 462.)

         Deputy Jerry Hughes with the Blount County Sheriff's Department testified that he went to Chapman's house on September 28, 2015, to detain Bosner. He testified that he asked Chapman for consent to search the house. Deputy Hughes stated that he did not have his weapon drawn when he asked for consent. After Chapman consented to the search, police located Bosner's backpack in Sturgeon's bedroom. At trial, Deputy Hughes identified the contents of the backpack, which included a sawed-off shotgun and a wooden box containing several knives. Trull identified the backpack as the same backpack Bosner carried during the Hazelrig-Sherrer murders. The backpack was admitted into evidence as State's Exhibit No. 18-A. Charles Ennis testified that he gifted Hazelrig one of the knives recovered from Bosner's backpack approximately a year before Hazelrig's death. Ennis testified that he did not know Bosner. The knife was admitted into evidence as State's Exhibit No. 4. Another friend of Hazelrig's, Shane Rush, testified that a black knife recovered from Bosner's backpack also belonged to Hazelrig. Rush testified that he had previously witnessed Hazelrig pull the knife out of a small wooden box. Rush identified the box as the same one found in Bosner's backpack. The box and the knife were admitted into evidence as State's Exhibits No. 9 and 8, respectively. Scottie Hazelrig, Hazelrig's brother, identified a knife with a broken tip recovered from Bosner's backpack. According to Scottie, the knife belonged to Hazelrig. The knife was admitted into evidence as State's Exhibit No. 11.

         Dancy Sullivan, a forensic scientist assigned to the Firearms and Tool Mark Section of the Alabama Department of Forensic Sciences, testified that seven of the eight shell casings recovered from Hazelrig's house matched engravings on test bullets fired from the .22-caliber rifle Bosner allegedly carried on the night of the Hazelrig-Sherrer murders. Sullivan testified that the bullets recovered from the crime scene were .22-caliber class bullets "consistent with bullets loaded in .22 long or long rifle caliber cartridges." (R. 807.) Sullivan testified that she could not determine the origin of the shotgun projectiles police recovered.

         Kathy Enstice, a medical doctor and forensic pathologist with the Alabama Department of Forensic Sciences, testified that Hazelrig sustained 10 gunshot wounds, including a shotgun wound. She testified that Hazelrig also sustained blunt-force head trauma. Dr. Enstice testified that the combination of gunshot wounds and blunt-force head trauma caused Hazelrig's death. Dr. Enstice testified that Sherrer sustained three gunshot wounds. Sherrer died as a result of a contact gunshot wound to the back of her head.

         Teresa Bray, Bosner's mother, testified that she received an e-mail from Bosner while he was incarcerated awaiting trial. The e-mail, admitted into evidence as State's Exhibit No. 74, stated, in pertinent part:

"Date: 8/7/2017 9:11:40 AM
"hey nigga don't frget to call or text ina n see if shell get me some b day money kem n kevin to please I love n miss u look go online to donaldson corrections west jefferson n hollman give me a name out of each camp please n thk u I love n miss yall give rose hugs n kisses ima try to go for st clair if I have to go closer to home."

         (C. 857.) Bray testified that Donaldson, West Jefferson, Holman, and St. Clair are prisons in Alabama.

         Timothy Calhoun testified that he was living at Chapman's house in September 2015. Two days before Bosner was detained, Calhoun overheard a conversation between Bosner and Sturgeon. On September 28, 2015, Calhoun gave a statement to police, which was admitted into evidence as State's Exhibit No. 75. Calhoun wrote:

"I, Timothy Calhoun, woke up hearing Christina Chapman [sic] and Lane arguing. I heard him say something to Christina, 'If you hate me so much, why don't you just call Blount County and tell them where I am and that you know who killed blank and blank?' I don't remember the names. Before that he tried to get me to see if I could get someone to trade a pistol for his sawed-off shotgun. I only saw it wrapped up in a blue shirt. I noticed after him and Christina were arguing, he was crying. Other than that, if I heard anything else I didn't pay attention or I can't remember. If I hear or find anything else out I'll be willing to tell, or if I remember. The argument took place on 08/26/15 [sic]."

(C. 858; R. 874.) Calhoun testified that he intended to write "09/26/15" instead of "08/26/15." (R. 875.) According to Calhoun, Bosner's shotgun was two to three feet long with a wooden stock. Calhoun subsequently identified the shotgun as the same one recovered from Bosner's backpack.

         Captain Mack Kent, jail administrator of the Blount County Correctional Facility, testified that Bosner escaped from the county prison on October 8, 2016. Ronald Chastain, lieutenant over road patrol with the Blount County Sheriff's Department, testified that police secured Bosner on Tawbush Road in Locust Fork and transported him back to the jail. Lieutenant Chastain testified that Bosner was walking down the middle of the roadway when they found him. Upon seeing the police, Bosner "went prone in the highway" and did not attempt to flee. (R. 891.) Captain Kent testified that Bosner did not pose any major problems before his escape.

         Bosner was subsequently convicted of two counts of capital murder. Bosner filed a motion for a new trial on September 21, 2017. A hearing was held on October 17, 2017. The next day, the circuit court denied Bosner's motion. Bosner filed a timely notice of appeal on October 19, 2017.

         I.

         Bosner contends that the circuit court erred in admitting the backpack and its contents into evidence because, he says, they were obtained in violation of the Fourth Amendment. Specifically, Bosner argues that Chapman's consent to search was not voluntary and that, even if it was voluntary, Chapman did not have the authority to authorize a search of Sturgeon's bedroom or Bosner's backpack.

"'"'This court has long held that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. See, e.g., Chevere v. State, 607 So.2d 361, 368 (Ala. Cr. App. 1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So.2d 485, 488 (Ala. 1985); Chevere, supra, 607 So.2d at 368.'"
"'State v. Mitchell, 722 So.2d 814[, 820] (Ala. Cr. App. 1998), quoting Rokitski v. State, 715 So.2d 859[, 861] (Ala. Cr. App. 1997).'"

Baird v. State, 849 So.2d 223, 229-230 (Ala.Crim.App.2002)(quoting State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999)).

         A.

         Bosner argues that Chapman's consent-to-search was not voluntary under the totality of the circumstances. "[T]he question whether a consent to a search is 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the ...


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