Morton v. State

Citations: 154 So. 3d 1065; 2013 Ala. Crim. App. LEXIS 73; 2013 WL 4710412Docket: CR-10-1579

Court: Court of Criminal Appeals of Alabama; August 30, 2013; Alabama; State Appellate Court

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The opinion dated November 2, 2012, has been withdrawn and replaced with a new opinion regarding Everett Bernard Morton’s convictions. Morton was found guilty of capital murder under Alabama Code 13A-5-40(a)(17) for killing Patrick Dixon during a robbery, and attempted murder under Alabama Code 13A-6-2 and 13A-4-2. The jury recommended a life sentence without parole for the capital murder, which the trial court imposed, along with a 10-year sentence for attempted murder.

The evidence presented at trial revealed that on April 19, 2006, Morton contacted Dixon to buy $10 worth of marijuana. After the transaction, Morton orchestrated a robbery with two armed accomplices, Michael James and Marcus Rivers. They ambushed Dixon and another individual, Tyrance Byrd, demanding money and subsequently opened fire on their vehicle. Although Dixon and Byrd managed to escape, Dixon suffered fatal gunshot wounds.

Testimony indicated that Morton had planned the robbery to settle a debt, having previously communicated his intentions to James and Rivers while smoking marijuana together. Initially reluctant, James later agreed to assist Morton, and both he and Rivers were armed. They concealed themselves before the robbery, with James wearing a blue bandana as an indication of his gang affiliation.

James could not remember the color of Rivers' bandana but observed Dixon's car on Fifth Avenue, with Morton standing by it. He witnessed an overhead light in the car turn on and saw Dixon handling drugs during an exchange. Speculating that he and Rivers were to initiate a robbery, they emerged from the bushes and approached the vehicle—Rivers on the driver's side and James on the passenger side. James ordered the occupants to put their hands on the roof and not move, while Rivers echoed the demand. James threatened, "don't test me, brother, just give it up." Upon their approach, Morton backed away, and James admitted to being the first to shoot, missing the vehicle but hitting passenger Tyrance Byrd. He continued firing at Byrd multiple times, while Rivers shot at Dixon as the vehicle sped away. After the incident, James hid his pistol in his backyard, which was never recovered, and was arrested the next morning. He provided three statements to police: in the first, he claimed to be a witness; in the second, he admitted to participating in the robbery; and in the third, he detailed the events consistent with his trial testimony, stating Morton initiated the robbery but that there was no intent to harm anyone. This third statement differed from his trial testimony regarding the nature of his initial shots. James, charged with capital murder and attempted murder, accepted a plea deal, resulting in concurrent 30-year sentences for intentional murder and attempted murder. While incarcerated, he later recorded a statement for Morton’s defense, claiming Morton was uninvolved, which he later admitted was a lie. After seeking a new attorney, James expressed to the district attorney that he might not testify against Morton, believing he could obtain a better sentence.

James was informed by the district attorney that he had violated his plea agreement, rendering his guilty pleas void, leading to his indictment for capital murder during a robbery. He later chose to testify against Morton, stating that his trial testimony was truthful. Witness Elishous Townsend, who lived nearby, recognized both Morton and James but not Rivers. He testified that he had seen Morton purchase marijuana but not near his aunt's house. On the night of April 19, 2006, Townsend overheard Morton and James discussing a robbery. He later saw a vehicle stop in front of Morton’s aunt's house, where a young girl approached it, and then heard gunshots shortly afterward. Townsend described Morton as appearing "spooked" when he, James, and Rivers ran past his house. He expressed fear for his safety after the incident and moved away. Townsend also revealed that he and his family received compensation from the District Attorney’s Office for travel and lost wages related to his testimony, although he insisted his testimony was not influenced by this payment. Kiki Rich, a 12-year-old at the time of the crime, testified that she saw Morton on the street asking her to tell occupants of a green automobile to move. She approached the vehicle and observed Morton conversing with the driver.

Kiki observed Morton making a hand gesture before two armed men in black approached their vehicle, demanding, "give it up," though she stated Morton did not have a gun nor spoke during this encounter. As the men opened fire on the car, Kiki and her brothers fled to their home. Later that night, Kiki misled a police officer about the race of the shooters due to fear and did not initially mention Morton’s involvement. After discussing the situation with her mother, Kiki provided a truthful statement at the police department the following day. Kiki had previously faced juvenile charges for obstructing governmental operations related to her initial refusal to cooperate with police. She also disclosed a prior incident in March 2006 involving a rape at gunpoint, resulting in her becoming pregnant. Tracy Rich, Kiki's mother, testified about their family's recent move to the area and acknowledged her awareness of local violence and drug activity. On the night of the shooting, she initially told police that Kiki had not witnessed the event, advising her to remain silent for safety. However, upon learning Kiki had actually observed the crime, Rich contacted the police to correct her earlier statement, after which their family began receiving threats.

Rich kept her daughter Kiki out of school for two weeks due to threats and moved twice for safety. Tyrance Byrd, who returned to Dothan from Texas shortly before a shooting in 2006, testified he did not know Morton or his associates personally, though they attended the same alternative school. On April 19, 2006, Byrd met his friend Dixon, who was unarmed, to sell marijuana. After receiving a phone call, Dixon planned to sell a 'dime sack' of marijuana. They parked in a residential area where a girl asked them to leave. After complying, they encountered Morton, who purchased marijuana from Dixon. Byrd noted Morton appeared to be stalling but did not see him act suspiciously.

Two armed men in dark clothing approached and demanded money. Dixon attempted to drive away but was shot at as they fled. Byrd reported that Dixon was shot and began to choke, eventually losing consciousness. Byrd drove to a nearby cemetery and called 911. He later informed the police about the shooting but omitted details about their marijuana transaction. Byrd had previously transported drugs but claimed he had none during this trip. He received a bus ticket from Dixon after a breakup. Dr. Charles Jackie Carpenter, who operated on Byrd, testified that bullet fragments severely injured Byrd's leg, necessitating immediate surgery to avoid amputation. The fragments were later handed over to the police.

Alfredo Paredes, the state medical examiner, conducted an autopsy on Dixon, revealing he sustained four gunshot wounds. Two entrance wounds were located on the back of Dixon's left shoulder from a single bullet that fragmented upon impact, causing significant injury to his ribs, lung, and pulmonary artery, ultimately leading to extensive internal bleeding and death. Additional wounds included fractures to Dixon's right hand, lower leg, and upper left arm, with both entrance and exit wounds present, indicating he was alive when shot. Frank Meredith, a Dothan police investigator, reported finding 14 spent nine-millimeter bullet casings and shattered glass at the shooting scene on April 19, 2006. He examined Dixon's Ford Thunderbird, which had multiple bullet holes and shattered windows. Captain David Jay of the Dothan Police detailed three crime scenes related to the shooting, noting significant blood evidence in Dixon's vehicle. He indicated that sufficient evidence for arrests was gathered by early morning on April 20, leading to the apprehension of suspects James and Rivers. Jay recovered a nine-millimeter pistol and a .380 caliber pistol from a storage shed, with permission from Rivers's mother. Katherine Reichert from the Alabama DFS analyzed bullet fragments and casings, identifying the recovered firearms, but could not test the .380 caliber pistol due to a missing firing pin.

Reichert was unable to confirm whether bullet fragments from Dixon or Byrd were fired from the Hi-Point pistol. However, she identified a lead bullet core from Dixon's body as consistent with a nominal .38 caliber bullet, which could be fired from multiple types of pistols, including .380 and 9mm. Of the 14 shell casings found at the shooting scene, 8 were determined to be fired from the Hi-Point pistol. After examining the pistol, which contained five live rounds and could hold a maximum of nine, Reichert concluded that it had been reloaded during the incident. The remaining six shell casings were linked to a different weapon but not to the .380 caliber.

Investigator John Crawford testified about taking a statement from Morton on April 20, 2006, after advising him of his Miranda rights. Morton voluntarily came to the police station, and Crawford confirmed that Morton was not under the influence and was capable of communicating. Morton stated he called Dixon to buy marijuana, encouraged by James, Rogers, and Rivers, who mentioned intentions to rob Dixon. Initially believing it was a joke, Morton later described how, after purchasing marijuana, James and Rivers threatened Dixon with guns, leading to the shooting. Following the incident, Morton saw James and Rivers run to a house, exclaiming about the shooting, and afterward he got a ride from his cousin Bobby, who took Rivers home before driving Morton to his mother’s house. Morton acknowledged his prior dealings with Dixon regarding marijuana and recounted the events leading up to the shooting.

James instructed Morton to call Dixon under the pretense of purchasing marijuana, with the intent to rob him. Morton, motivated by a desire to smoke marijuana, complied and contacted Dixon. He was aware that James and Rivers regularly carried guns. After Dixon arrived, Morton facilitated the robbery by directing him to a location, whereupon James and Rivers emerged with guns. Morton expressed shock at their sudden appearance, despite knowing they were hiding. James ordered Morton to lie on the ground to distance him from the robbery, asserting they did not intend to kill anyone. 

During the incident, Morton heard gunshots as James fired at Dixon's car, narrowly avoiding being struck by bullets. Following the chaos, Morton fled to a friend’s house, later informing his mother about the shooting while expressing fear for their safety. He indicated a belief that silence was necessary to avoid reprisals. The next day, Morton voluntarily went to the police to provide a statement, clarifying that he had not conspired with James and Rivers to shoot anyone. 

Under cross-examination, he conceded ignorance about whether the weapons were loaded and admitted to writing an apology letter to Dixon's family for his role in the events. Debra Morton, his mother, corroborated his emotional state after the incident and their conversation about it. She described Morton as being distraught and fearful, and they ultimately went to the police station together to report the shooting.

Carla Woodall, the circuit clerk for Houston County, testified to challenge Tracy Rich's claim that she relocated due to fear for her safety after a shooting. Woodall revealed that Dothan Construction, Inc. had initiated an eviction against Rich in 2006, to which Rich had responded. Additionally, Sgt. Mike Etress from the Dothan Police Department testified about a statement from Elishous Townsend, who initially claimed not to have seen a young girl during the incident, contradicting his trial testimony. In rebuttal, Marsha Dixon testified that she never received an apology letter from Morton. Morton argued on appeal that the evidence was insufficient to support his convictions for capital murder and attempted murder, specifically contesting the State's failure to prove his intent to kill. He renewed his motion for acquittal at both the close of the State's and defense's cases. The appellate standard for sufficiency of evidence requires that the evidence be viewed favorably to the prosecution, with the focus on whether a rational jury could find the defendant guilty beyond a reasonable doubt. The appellate court does not reassess the facts but evaluates the legal sufficiency of the evidence presented. In cases reliant on circumstantial evidence, the jury must be able to reasonably conclude that the evidence excludes all reasonable hypotheses except for guilt. The procedures for appellate review of evidence sufficiency were outlined in Odom v. United States.

The obligation of the court is to analyze the evidence to identify any theory that might allow a jury to conclude guilt beyond a reasonable doubt, as established in various cases. The court must not replace the jury’s role but instead assess if reasonable evidence supports a guilty verdict. In Alabama, a person can be legally accountable for another's criminal actions if they intended to assist in the commission of the offense, rendering them equally culpable as the principal offender. "Aid and abet" includes any supportive actions, whether direct or indirect. The jury's determination of an accomplice's participation relies on the overall context and conduct of the individuals involved, without the necessity for direct testimony of involvement. Presence, companionship, and behavior before, during, and after the crime are critical indicators of participation. Accomplice liability requires that the defendant was involved in the intentional killing to be convicted, not merely in the underlying felony, and intent to kill must be proven, as it cannot be established solely through the felony-murder rule. Intent is typically inferred from circumstantial evidence rather than direct proof, drawing on the nature of the act, weapon use, and other relevant factors. Ultimately, the determination of a defendant's intent is a question for the jury.

The determination of whether the accused had the intent to cause death is a jury matter, as established in *Paige v. State*. The court found sufficient evidence to allow the jury to consider Morton's intent, thus upholding the trial court's denial of his acquittal motions. On appeal, Morton challenged the trial court's jury instructions regarding the capital-murder charge, specifically objecting to the refusal to instruct the jury on felony murder, with shooting into an occupied vehicle as the underlying felony. Morton asserted that evidence supported a felony-murder charge despite denying involvement in the offense. The court agreed, noting that felony murder, defined as resulting from the commission of an enumerated felony leading to death, is a lesser-included offense of capital murder. Under Alabama law, felony murder requires intent to commit the underlying felony but not necessarily intent to kill, contrasting with capital murder, which demands intent to kill. The court clarified that while a defendant could possess both intents, felony murder does not require proof of an unintentional killing, thus allowing for the possibility of inconsistent verdicts for capital and felony murder.

Two verdicts can coexist without having mutually exclusive essential elements. An accused person has the right to jury instructions on lesser-included offenses when there is reasonable evidence supporting those offenses. This includes the right to have the jury charged on any material hypothesis that the evidence favors. Charges must accurately represent the law and be supported by any evidence, even if weak or dubious. However, a jury should not be charged on a lesser offense unless there is a rational basis for such a verdict. The evidence must derive from trial presentations, not speculation. A court may refuse to charge on a lesser offense only if no evidence supports it or if the charge could mislead the jury. Even if a defendant denies committing the offense, they are entitled to an instruction on a lesser-included offense if supported by any evidence. In this case, the trial court erred by denying a jury instruction on felony murder related to shooting into an occupied vehicle, which warranted a new trial for the capital murder charge. The conviction and sentence for attempted murder are affirmed, while the capital murder conviction and sentence are reversed and remanded for a new trial. The case further notes that the specifics of an indictment for capital murder were unclear, and the State failed to provide testimony about certain evidence. There was no argument presented on appeal regarding jury instructions related to the attempted murder charge.