Maxwell v. State

828 So.2d 347

Michael Craig MAXWELL v. STATE of Alabama.

CR-97-2150.

Court of Criminal Appeals of Alabama.

May 26, 2000.

Rehearing Denied August 18, 2000.

Certiorari Denied March 8, 2002.

B.T. Gardner, Jr., Tuscumbia; and Robert C. Graham, Tuscumbia, for appellant.

Bill Pryor, atty. gen., and Rosa H. Davis, asst. atty. gen., for appellee.

Alabama Supreme Court 1992222.

LONG, Presiding Judge.

The appellant, Michael Craig Maxwell, was indicted for four counts of capital murder in connection with the shooting deaths of Harold Pugh and his 11-year-old son Joey Pugh. The jury found Maxwell guilty of all counts charged in the indictment: two counts of murder made capital because the killings were committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; one count of murder made capital because it involved the murder of two or more persons by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10); and one count of murder made capital because the victim was less than 14 years old, see § 13A-5-40(a)(15). The jury recommended, by a vote of 10-2, that Maxwell be sentenced to death. The trial court accepted the jury's recommendation and sentenced Maxwell to death by electrocution.

On appeal, Maxwell raises numerous issues, most of which he did not raise by objection in the trial court. Because Maxwell was sentenced to death, his failure to object at trial does not bar appellate review of these issues; however, it does weigh against Maxwell as to any claim of prejudice he now makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Cr.App. 1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

Rule 45A, Ala.R.App.P., provides:

"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."

This court has recognized that "`the plain error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Burton v. State, 651 So.2d 641, 645 (Ala.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)). Accordingly, we will address the issues raised by Maxwell on appeal.

The State's evidence tended to show the following. On July 21, 1997, Harold Pugh and his 11-year old son Joey Pugh were reported missing to the Colbert County Sheriff's Department. Mike Sennett, a friend of the Pughs, testified that in the early evening hours of July 21, after hearing that the Pughs were missing, he and several friends went looking for the Pughs at Cane Creek, in Colbert County. Sennett testified that Harold and his son were avid fishermen and that they fished frequently on Cane Creek and its surrounding areas. The local authorities and a rescue squad were also searching for the Pughs in this same area. Making one more pass up Cane Creek in his boat before going home, Sennett found the bodies of Harold and Joey Pugh floating in the creek. Autopsies revealed that each victim had been shot twice in the head.

Several days later, on July 26, 1997, a boat was found in a clearing in a remote wooded area in neighboring Franklin County. In the boat were rods and reels, a tacklebox, life jackets, a baseball-style cap with a wristwatch inside it (on the boat's front seat), and another cap on the backseat. At Maxwell's trial, the individual who found the boat testified that before finding the green and white boat, he had heard "reports" that a green and white boat was being sought in the investigation of the Pughs' murder. Other testimony at trial showed that a pedestal-type seat had been removed from the boat and that two spent 9mm shell casings were also found inside the boat.

Further testimony revealed that on the day the victims' bodies were found, two armed men, wearing dark-colored army fatigues, hooded shirts, sunglasses, and gloves, robbed the Deposit Guaranty National Bank in Belmont, Mississippi. An employee at the bank testified that she could not identify the men, but that she was able to identify the truck the men fled in after the robbery. She described the truck as a black Z-71 four-wheel drive pickup truck with a chrome toolbox in the rear bed. Shortly after the robbery, a truck matching that description was found by an officer of the Belmont Police Department five miles from the bank, in a heavily wooded area. The truck, which had been set on fire, was discovered after the police saw the smoke from the fire. On the front passenger-side floorboard of the truck, the police found a pedestal-type seat, which, according to testimony, was typical of the seats found in the front of bass-fishing boats.

Following his arrest, Maxwell gave police a detailed statement admitting his involvement in the robbery and the murders of Harold and Joey Pugh and in the bank robbery in Mississippi. Maxwell told police that he and his four codefendants— Mark Moore, Dale Ferguson, Donald Risley, and Kino Graham—had conspired to rob banks to get money. According to Maxwell, they bought clothing, matching that described by the employee of the bank robbed in Belmont, Mississippi, to wear during the robberies, and Moore sold stock and took out a loan to buy guns, handheld radios, and other items to use in the robberies. Maxwell told police that Moore was the "leader" of the group, but that he was "second in command."

In addition, Maxwell told police that he and the others were to find two cars to use in the Belmont bank robbery by July 20, 1997. According to Maxwell, while he, Ferguson, Graham, and Risley were looking for a car to steal on July 20, they saw the Pughs' truck parked near the boat landing at Cane Creek. Maxwell stated that they waited for approximately 30 minutes for the Pughs to return to their truck. When the Pughs arrived at the landing in their boat, Maxwell said, Harold Pugh got out of the boat and into his truck. Maxwell stated that as Harold was backing the truck down the landing to load the boat onto the trailer, he approached Harold and ordered him and his son back into the boat at gunpoint. Maxwell stated that he and Ferguson got into the boat with the Pughs, and that Risley and Graham waited onshore with the truck. Maxwell stated that he and Ferguson then left in the boat with the victims, heading down creek. According to Maxwell, Ferguson shot Harold Pugh and Maxwell shot Joey Pugh as the boy was crouched over in the boat trying to hide. Maxwell stated that because he thought Harold Pugh was still alive after Ferguson shot him, he shot Harold again. Maxwell stated that Ferguson then shot Joey again. Maxwell stated that he used a 9mm pistol to shoot the victims and that Ferguson used a .357 pistol. Maxwell stated that he threw the victims' bodies from the boat into the water and that he and Ferguson then returned in the boat to the landing, where Graham and Risley were waiting. He stated that he and the others then loaded the boat onto the trailer and drove the Pughs' truck and the boat to a clearing in the woods in Franklin County. Maxwell stated that they found Harold Pugh's wallet in the boat and divided the money inside the wallet among themselves. According to Maxwell, they also took a .22 caliber pistol that was in the boat, as well as a .38 caliber pistol that they found inside the victims' truck. Maxwell stated that Ferguson was afraid that he had left his fingerprints on the boat seat so he took the seat out of the boat and put it into the victims' truck. After leaving the boat and the truck in the clearing, Maxwell said, he and the men went to Maxwell's apartment, telephoned Mark Moore, and told him to come to the apartment.

In his statement, Maxwell said that everyone agreed to meet back at his apartment at 6:00 a.m. the following morning. At that time, Maxwell said, everyone except Graham (who did not come to the apartment) discussed plans for the robbery of the bank in Belmont, Mississippi. Maxwell stated that he and Risley, who, according to Maxwell, were going to be the ones to go inside the bank, left Maxwell's apartment in Maxwell's car, followed by Moore and Ferguson who were in Moore's truck, and drove to where they had left the victims' truck and boat. From that location, Maxwell said, Risley drove the victims' truck to Belmont, and Maxwell drove his own car, while Moore and Ferguson followed in Moore's truck. Maxwell stated that he and the other men then drove to their "rendezvous point" in Belmont, where they left Maxwell's car. From there, Maxwell said, he and Risley drove the victims' truck to the bank, while Moore and Ferguson, who were to act as "snipers" while the bank was being robbed, followed in Moore's truck. Maxwell stated that after he and Risley committed the robbery, they drove the victims' truck back to the "rendezvous point," where they met Moore and Ferguson, put their guns in Moore's truck, and put the clothes they had worn in the robbery in the victims' truck. According to Maxwell, Risley then poured gasoline on the victims' truck and set it on fire. Maxwell stated that he and the others then returned to his apartment, where they divided the proceeds of the bank robbery—approximately $40,000— among themselves. Sometime after the robbery and the murders, Moore told Maxwell that...