Busby v. State

Citation: 412 So. 2d 837

Court: Court of Criminal Appeals of Alabama; January 25, 1982; Alabama; State Appellate Court

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Marie Lancaster Busby was charged with capital murder under Alabama law for allegedly hiring Terry Lewis and Dennis Cross to kill her husband, Houston Busby, for approximately $10,000. The case originated with the discovery of Busby's body in a pickup truck on March 14, 1980, with a gunshot wound to the head. During the investigation, Busby initially claimed her husband was missing, but upon consent to search her residence, detectives found blood stains and tissue fragments in the master bedroom.

After her arrest, a detective discovered $14,000 hidden in her home. Testimony from her son, Kenneth Ladner, revealed prior conversations where Busby discussed paying for Busby's murder, particularly after incidents of domestic violence. Ladner identified a rifle, borrowed by Lewis shortly before the murder, as the weapon used. He also recounted cleaning up blood-stained bedding with Busby and the others, and disposing of evidence in the river. Despite these discussions, Ladner expressed doubt about the seriousness of his mother's intentions regarding the murder. Ultimately, Busby was convicted of murder rather than capital murder and sentenced to life imprisonment.

Ladner testified that his mother frequently carried large amounts of cash, specifically noting $14,000 in a black pouch. Lynn Busby, the appellant's former daughter-in-law, recounted a conversation about six weeks before Houston Busby’s death, where the appellant mentioned discussing having her husband "taken care of." The night before the murder, the appellant warned Ms. Busby that if Houston harmed her, it would be his last chance. Ms. Busby also testified that the appellant expressed willingness to pay a price for her husband's murder. During cross-examination, she acknowledged having seen the appellant with bruises, suggesting a history of abuse in the marriage.

The State introduced Dennis Cross, who invoked his Fifth Amendment rights during questioning. After the State rested, the defense called Donna Busby, the appellant's thirteen-year-old daughter, who revealed that on the day of her father's death, he had a heated argument with her and called her a derogatory name. She learned from Dennis Cross about a plan to kill Houston and expressed relief at her father's death due to his abusive behavior toward her family.

Tonya Busby, the deceased's fourteen-year-old stepdaughter, testified about previous threats made by Terry Lewis against Houston following their altercations. On the night of the murder, Tonya awoke to a disturbance and found her mother and a bloody scene in the master bedroom, after which she was instructed to clean up. 

The defense presented character witnesses who attested to the appellant’s good reputation and noted her history of being abused. Jerry Merit revealed the extent of the deceased's violence toward the appellant and their children. Marie Busby, the appellant, denied having ever directly offered money for her husband's death, admitting that while she might have expressed a desire for his death after being beaten, such statements were not meant to be taken seriously.

The appellant recounted her actions on the night her husband was killed, stating that after cleaning the kitchen, she heard a gunshot while showering. Terry Lewis confronted her with a gun, warning her not to come out, and later informed her that her husband, Busby, was dead. Concerned that her daughter Tonya might have assisted in the murder, the appellant claimed her actions that night were aimed at protecting her daughter. She admitted to cleaning the bedroom but denied any intent to have her husband killed or discussing a murder-for-hire plan with Lynn Busby. The appellant attempted to hide a money pouch before being taken to the police station.

The appellant argued that the State's evidence only supported a capital murder charge, and the jury's failure to convict her on that count should have led to her acquittal. However, the court found that the evidence, while conflicting and circumstantial, sufficiently supported her conviction for the lesser offense of murder under Alabama law, specifically on the theory of aiding or abetting. The jury could infer her involvement in the crime from her admitted hatred for her husband, her presence during the shooting, and her actions to conceal the murder. 

Additionally, the appellant claimed the trial court emphasized complicity liability excessively in its instructions. The court clarified all necessary elements of the capital offense, as well as lesser offenses, including complicity, without undue focus on any particular aspect. The court concluded that the trial judge's explanations were appropriate and that there was no error in the jury instructions.

Appellant contends that the trial court mistakenly denied her motion for a continuance prior to her trial, which was scheduled for January 5, 1981. She filed a motion to produce on October 29, 1980, with a hearing set for December 10, 1980, but this hearing was postponed without clear reason, although it appears there were no objections from the parties involved. The motion to produce was partially granted on the day of trial, January 5, 1981, but the prosecution only complied fully by providing materials at 5:00 PM the day before. Appellant argues that this lack of time to prepare her defense, along with exposure to pre-trial publicity, warranted a continuance. 

The trial court has wide discretion in such matters, and its decision will not be reversed unless there is a clear abuse of that discretion. Evidence indicates that appellant’s counsel had been representing her since September 1980 and that she acquiesced to the postponement of the December hearing without seeking another date before January 5. Furthermore, publicity alone is not sufficient grounds for a continuance, and each juror was questioned about any potential bias from pre-trial publicity, with appellant failing to demonstrate that it had a prejudicial impact.

Additionally, appellant argues that the trial court erred by allowing the State to call Dennis Cross, her alleged accomplice, as a witness despite his intention to invoke his Fifth Amendment privilege. Cross's attorney had informed the district attorney about this, and all parties agreed it should be discussed in chambers. Appellant's request for in-camera questioning was denied, although she received a standing objection regarding Cross being called before the jury. When Cross took the stand, he acknowledged his identity and current indictment for murder but refused to answer any substantive questions posed by the district attorney.

During the early morning of May 14, 1980, a witness, Mr. Cross, refused to answer questions regarding his presence in a pickup truck near Mobile Airport, invoking his Fifth Amendment right against self-incrimination. Mr. Hughes, representing the appellant, objected and moved for a mistrial, claiming that the prosecution was improperly attempting to bolster its case through prejudicial inference from Cross's refusal to testify. The court denied the motion for mistrial, indicating that calling a witness who will invoke the Fifth Amendment is not inherently reversible error, as established in Namet v. United States. The assessment of potential reversible error involves examining the circumstances of each case.

The court referenced criteria from prior cases, noting that prosecutorial misconduct could arise if the government consciously attempts to build its case on inferences from a witness's refusal to testify. In United States v. Maloney, the prosecution knowingly called witnesses who would invoke the privilege, and the court found reversible error due to the prosecution's closing arguments relying on the adverse inferences. Conversely, courts have not found reversible error in cases deemed minor lapses or where jury instructions to disregard prejudicial inferences were sufficient to cure any error.

In the current matter, the court determined that the prosecution did not make a deliberate attempt to rely on Cross's refusal to answer. Any negative inferences had already been established through previous witness testimonies indicating the appellant's involvement in a plot to murder her husband, undermining claims of unfair prejudice from Cross’s silence.

Cross' failure to respond to the State's questioning was deemed to have minimal impact on the prosecution's case, as it merely added cumulative implications without providing critical corroborative weight. The district attorney did not leverage these implications in closing arguments, and the court found them to be minor lapses during the trial. Unlike the case of Douglas v. Alabama, which involved a co-defendant's confession used against the defendant, this case raised no constitutional issues, focusing instead on evidentiary matters. The appellant's claims of prejudice due to Cross' silence were considered cumulative given existing evidence.

The court also addressed the appellant's request for a jury instruction stating that counsel's assertions were not evidence. The refusal of this request was not deemed erroneous, as the trial court had adequately instructed the jury on this point prior to closing arguments. Similarly, the appellant's request for a charge on reasonable doubt was rejected, with the court's oral instructions sufficiently covering this aspect of the law. After reviewing the proceedings for prejudicial errors, the court affirmed the judgment and conviction by the Mobile Circuit Court, with all judges concurring.