Tuscaloosa News

"James Callahan Executed for 1982 Rape, Murder." (01/16/09 9:00 am)

Atmore - James Harvey Callahan was executed Thursday for the 1982 kidnapping, rape and murder of a Jacksonville woman. The 62-year-old Callahan died at 6:24 p.m. by lethal injection at Holman Prison for the murder of Rebecca Suzanne Howell, a 26-year-old Jacksonville State University student. Callahan had been on death row for nearly 26 years.

In his final moments, Callahan waved his left hand toward his son, Kevin Callahan, who was seated in a witness room. James Callahan asked his son to take care of his grandchildren and great-grandchildren. "I love you. That's all I have to say," Callahan said, looking directly at his son, who slumped forward and wiped his eyes with his shirt sleeves. Callahan never looked toward the victim's family members who were seated in a separate viewing room, but told his son, "I have a lot of remorse that I can't be here for you."

Earlier in the afternoon, Callahan's plea to the Supreme Court was rejected, clearing the way for his execution. Almost a year ago, the high court granted a reprieve only an hour before his scheduled execution. This time the justices rejected the motion about two hours before the lethal injection.

Callahan was twice convicted for the Feb. 3, 1982, slaying of Howell, who was abducted from a coin-operated laundry. According to trial records, Callahan locked her in his trailer home and raped her. She died from suffocation. Her body, thrown from a bridge, was found weeks later in a creek, her hands bound together with duct tape.

Callahan claimed Howell ran into the creek. Calhoun County District Attorney Joseph Hubbard, who was an assistant prosecutor when he took that statement, said Thursday that Callahan gave authorities "a number of stories" about his involvement. "I never saw any remorse," Hubbard said. "I don't think he ever said he killed her. He said he taped her up and bound her and she just jumped out (of his truck) and ran."

After the execution, the victim's mother, Beth Coheley, and one of her sisters, Karen Greer, both said they were disappointed that Callahan did not express regret for his crime. Coheley said she felt that Callahan was arrogant and callous toward her family in his final moments, never even looking at them. "All he had to do was turn his head and say 'I'm sorry,' but apparently he didn't think that was necessary," Coheley said. "We had always hoped at some point that he would admit he was guilty."

Donna Wood, another sister of the victim, released a statement before the execution that said the long wait had been "sad and difficult for everyone involved." She said it was unfortunate that her father, who died three years ago, did not live long enough to see the execution, "but we know that he is here with us in spirit." She said her slain sister was "truly a kind and loving person, one that we all still miss each and every day."

Prison officials said Callahan met Thursday with family members, friends and a spiritual advisor and requested a last meal of two corn dogs with ketchup and mustard and a Coke. Besides his son, Callahan's other witness was his attorney, Randall Susskind of Montgomery.

The inmate's attorneys turned to the U.S. Supreme Court on Wednesday, raising a constitutional issue from his Calhoun County trial, claiming the trial judge had refused to recuse himself after participating in Callahan's jail interrogation. By refusing to step down, the attorneys argued, Callahan was unable to call the judge as a witness about that interrogation.

Prosecutors in the state attorney general's office said the judge, who presided over both of Callahan's trials, did not participate in Callahan's interrogation. They said he was present to ensure that the lawyer who expected to represent Callahan was able to talk to the inmate. Prosecutors in the state attorney general's office said the issue of the trial judge's participation in Callahan's jail interrogation has been settled in earlier appeals and the inmate only raised it this week to stall his execution.

Callahan is one of five inmates set for lethal injection in the first five months of this year, an unusual group of executions for Alabama, which had none in 2008 while courts handled challenges to lethal injection and upheld it as a method of execution. Currently, Alabama has 206 death row inmates, including four women.

Birmingham News

"James Harvey Callahan executed after years on Alabama Death Row," by Tom Gordon. (Friday, January 16, 2009)

ATMORE - James Harvey Callahan died by lethal injection Thursday night, more than 26 years after his arrest in the abduction-murder of a Calhoun County woman. Shortly after 6 p.m. Chaplain Chris Summers knelt alongside Callahan, 62, who was strapped to a gurney in the execution chamber at Holman Correctional Facility near Atmore. Summers took Callahan's left hand in his own and said a short prayer. When the injection began, Callahan closed his eyes, pressed against the restraining straps, yawned, coughed and became still. He was pronounced dead at 6:24 p.m.

Before his execution Callahan had waved several times at his son, Kevin James Callahan, who was on hand as a witness. "I love you," he said. "I have a lot of remorse that I can't be here for you." He never acknowledged or looked in the direction of execution witnesses Beth Coheley and Karen Greer - the mother and a sister of Rebecca Suzanne Howell, the woman Callahan was convicted of killing.

"He was arrogant to the end as far as I'm concerned," Greer said. "You just wanted to hear him say, `I am sorry for what I did,' and you never heard that. He was always so smug about getting away with it," Coheley said. "He's not very smug right now, is he Karen?" But Greer said she did not blame Callahan's family for his crimes, and felt compassion for them. "As far as I'm concerned, he's responsible for causing great pain to two families," Greer said.

Callahan's was the first execution in Alabama in about 18 months. Executions by chemical injections were halted nationwide while the U.S. Supreme Court considered a Kentucky case on lethal injection, which lawyers argued was cruel and unusual punishment.

Callahan was sentenced to die for the kidnapping, rape and murder of Howell, 26. On the night of Feb. 3, 1982, he abducted her from a self-service laundry in Jacksonville, then raped and suffocated her. Her body was found a few weeks later in a creek, about seven miles from a trailer where Callahan lived. Callahan was tried twice for the murder and convicted both times. The first was overturned on appeal.

Callahan was scheduled for execution almost a year ago. The U.S. high court granted a reprieve only an hour before he was to die. State prosecutors contended Callahan's appeals had been exhausted after almost 26 years on Death Row His attorneys tried this time for a stay of execution but were unsuccessful.

Callahan's attorneys had argued that his execution should not take place because the presiding judge in his trial had improperly involved himself in the inmate's interrogation, and statements Callahan made during that interrogation were the prosecution's "most critical evidence." The Alabama Supreme Court and the U.S. Supreme Court rejected those arguments.

Callahan spent Thursday visiting with family and spiritual supporters. Department of Corrections spokesman Brian Corbett said Callahan prayed with adviser Donald Barker, as well as with family members, and received communion at 4:30 p.m.

Callahan prepared a will bequeathing to his son $36.42 from his prison account, a black and white Radio Shack TV, two watches, a Walkman, some headphones, a leather belt, two pairs of boots, one pair of Nike tennis shoes, food items and legal papers. He also requested a last meal of two corn dogs, french fries and a Coke.

Alabama's next execution is scheduled Feb. 12. The inmate to be executed is Danny Joe Bradley, also of Calhoun County, who is on Death Row for the 1983 murder of Rhonda Hardin.

ProDeathPenalty.Com

On February 3, 1982, around 11:00 p.m., Becky Howell met her fiancé, Murray Knight, at the club where he was performing with his band in Jacksonville, Alabama. Becky, 26, was a student at Jacksonville State University. After visiting Knight for 10 to 15 minutes, Becky went across the street to the Norge Washerteria to do laundry. She was supposed to return to the club, but when Knight’s band finished playing at 1:30 a.m., she had still not returned. Knight became worried and went to the laundry to look for Howell. He found her car, her school books, her laundry, and her jacket, but he did not find her.

Knight called the police, and Officer Joe Carter and Sergeant Kathy Thienes responded. The officers searched the area and discovered a roll of gray duct tape and a pair of men’s blue jeans in the vicinity of Becky’s car but found no other evidence of her whereabouts.

On February 17, 1982, two weeks after her disappearance, Becky Howell was found dead of asphyxiation in the Tallasseehatchee Creek in Calhoun County, Alabama—her hands were taped together; her belt was on upside down; and she was not wearing pantyhose, socks, or shoes. A vaginal swab revealed the presence of seminal fluid.

On the night of Becky’s disappearance, Jimmy Dunagan was in his car outside of a washerteria six or seven blocks from the Norge Washerteria. Around 11:00 p.m., Dunagan observed a late model green Ford pickup truck being driven by a man, pull into a parking lot across the street from a young woman in a phone booth. After watching the woman for about ten minutes, the man in the truck pulled out of the parking lot and parked within ten feet of the woman in the phone booth. A few minutes later, the woman left the phone booth, and as she passed by the green truck, she began running to her car. When the woman drove away, the green truck followed her for several blocks, stopping when she turned onto Jacksonville State University campus. Dunagan followed the truck and wrote down its tag number.

On February 20, Dunagan told Detective Max Kirby what he saw on February 3 and that the tag number of the truck was either “NRF467” or “RNF467.” Kirby searched the database for tag number “NRF467” and nothing came up, but the tag number “RNF467” belonged to an orange Ford truck registered to James Callahan. Further investigation revealed the “RNF467” tag was now on a green 1982 Ford pickup truck. On February 21, police located the green Ford outside of the residence of Harvey Callahan, the defendant’s father. Dunagan identified the truck at Harvey Callahan’s as the same one he saw on February 3 at the laundry. Starting at 9:30 p.m. on February 21, police staked out the green Ford. Around 5:00 a.m. the next morning, Deputy Johnny Alexander and Sergeant Thienes observed James Callahan get into the truck and drive away. The officers pulled Callahan over for driving with a switched tag. Callahan opened the driver’s side door, placed something behind the seat of his truck, and exited, leaving the driver’s side door open. The officers explained to Callahan that he was going to be ticketed for having the wrong tag on his vehicle. At this point Callahan became very nervous and attempted to get back to his truck. Callahan walked around Alexander and, without getting back into the truck, shut the previously open driver’s side door and locked it. The officers then transported Callahan to the jail so they could write him a ticket for driving with a switched tag, which was standard procedure for this county. After receiving his ticket, Callahan was told investigators would like to talk to him and he could wait for them in the lobby. He agreed.

At approximately 9:00 a.m., Callahan was placed under arrest for violating his probation by driving a vehicle with an incorrect tag. Callahan was convicted twice in 1979 for assault with intent to murder and was still on probation for those crimes on February 21, 1982. A subsequent search of Callahan’s truck revealed a pistol, a pillow, and two pairs of men’s blue jeans.

Over the course of February 22 and 23, Callahan gave four statements to the police concerning his whereabouts and actions on the night of February 3. Before each statement Callahan was read his Miranda rights and signed a waiver of counsel. Statement #1 was given orally to Kirby who transcribed it. Statements #2, #3, and #4 were given during questioning by Assistant District Attorney Joseph Hubbard; the latter three statements were audio-taped and transcribed by a court reporter.

In Statement #1, given on February 22, at 9:30 a.m. Callahan stated he went to a laundry between 7:30 p.m. and 7:45 p.m. and was driving a green 1982 Ford pickup truck. After going to get something to eat, he returned to the laundry and left again at approximately 10:00 pm. He then went to the Jacksonville Hospital where he met his father who was visiting his mother. At 11:00 p.m., Callahan left the hospital and followed his father to his father’s house, where Callahan remained for the rest of the night. In

Statement #2 which was given on February 22, from 1:45 p.m. to 3:25 p.m. Callahan stated he arrived at a laundry around 10:00 p.m. Becky Howell was not there. Callahan placed his clothes in a washing machine and left to get something to eat. When he returned to the laundry approximately 30 minutes later, Becky was there by herself. Callahan knew Becky Howell because Billy Griffith’s wife introduced them to each other at the Jacksonville Nursing Home a few years ago. Since they were introduced, Callahan and Becky spoke in passing several times. That night, Callahan told her he was thinking of renting out his mobile home and asked if she was interested. He offered to take her there and told her to think about it while he went and visited his mother in the hospital. He left to go to the hospital around 11:00 p.m. and returned around 12:00 a.m. When he returned, Becky told him she would like to see the mobile home that night. It was at this time that Gladys Callahan, his estranged wife, pulled up outside of the laundry, but did not enter and soon drove off. Callahan and Becky left the laundry at approximately 12:10 a.m. Becky entered Callahan’s truck on the driver’s side because you could not get in on the passenger side. Five minutes after they arrived at his mobile home, Gladys also arrived and accused Callahan of “running around” on her. After arguing with Gladys for roughly 20 minutes, Callahan told her he and Becky were leaving. That was when Gladys removed a pistol from her pocketbook and pointed it at Callahan. She then directed Callahan and Becky Howell into the kitchen where she forced Callahan to tape Becky’s hands together. A few minutes later Callahan escaped out the back door of the mobile home and drove away, leaving Becky alone with Gladys. He did not have sexual relations with Becky Howell. In an addendum Callahan requested to Statement #2, made on February 22, at 3:48 p.m. Callahan stated that about a year and a half prior to February 3, he had dated Becky Howell, and they had sexual relations on one occasion. When Callahan saw Becky at the laundry, after returning from the restaurant, Becky intimated that she wanted to have sex with Callahan again. In particular, she said, “I remember several of the good times we had at one time. Are the good times still out there?” Callahan replied, “I don’t know. Why don’t you try it and we’ll find out.” After Callahan returned from the hospital, Becky said she wanted to look at Callahan’s mobile home and commented, “We’ll have a good time once we get there.” Callahan and Becky arrived at the mobile home, had sex, and were still in bed when Gladys entered the bedroom. Gladys pointed a pistol at them and ordered them to move to the kitchen. Callahan taped Becky Howell’s hands together then escaped through the back door.

Statement #3 was given on February 23, at 10:20 a.m, after officers retrieved a photograph from Callahan’s father’s house at Callahan’s request. He stated his wife may have thought Becky was the woman in the photograph, whose name was Malera. Callahan’s wife was very jealous of Malera. Callahan further detailed his relationship with Becky Howell. He and Howell first met in 1977 at Federal Mogul where they were introduced by Billy Griffith. Callahan asked her out and gave her his phone number. The following weekend they went out on a date. Callahan told Becky he was currently seeing someone, but he was not sure he wanted to stay with that person. Two weeks later Callahan took her water skiing on his boat. While on the boat, they had sex and Becky told Callahan he needed to make up his mind who he wanted to be with or she would not see him anymore. They next spoke three months later, when Becky told him she had started seeing someone else, but could call it off very easily if Callahan would leave his girlfriend. After that, Callahan only spoke briefly with her on two occasions before they met in the Norge Washerteria on February 3.

In Statement #4 given on February 23, at 2:50 p.m. Callahan stated that on February 4, he went to the Norge Washerteria, for the first time that night, a little after 12:00 a.m. There were several people in the laundry, including Becky Howell, whom he had met before. He placed his clothes in a washing machine and then went to eat at a restaurant. Callahan returned to the laundry at approximately 12:30 a.m. He said he got Becky to leave with him under false pretenses, saying she was "needed over yonder." Once inside his truck, Callahan made advances towards Becky and she told him she was not interested. Callahan said he took her to his trailer and locked her in the bedroom, keeping her there for the entire day of February 4. That night, he asked her to have sex with him, and she said she would if he would let her go. Later that night, after they had sex, Callahan taped Becky's hands together and drove her to the Tallasseehatchee Creek bridge. He bound her hands to make it look like she had escaped. When they neared the bridge, Howell jumped out of the passenger side door and ran toward the creek, which was about 30 yards away. Callahan drove off and did not pursue her.

Callahan would give no other formal statements after his fourth one, but on February 24, 1982, between 11:00 and 11:30 a.m., Callahan sent word to Kirby that he wanted to see him. What transpired next has been repeatedly referred to as the “fifth statement.” Although the evidence Callahan produced is more important than what he said, for simplicity, we will refer to the events on the 24th as Callahan’s fifth statement. Kirby had Callahan brought to see him roughly 30 minutes after Callahan made his request. When Callahan said he wanted to talk about the case, Kirby advised Callahan of his Miranda rights, and Callahan signed a waiver of counsel. Callahan told Kirby he could show him where he threw Howell’s boots out of his truck. Kirby and Sheriff Snead, accompanied by Callahan, went, among other places, to Callahan’s father-in-law’s house. Callahan directed the officers to a woodpile, and the officers found a purse behind it. Callahan then directed the officers to his father’s house. At his father’s house, he removed a knife from a camper and told the officers it was the knife he had in his truck on February 3. The police did not recover a pair of boots at this time. On April 5, 1982, James Callahan was indicted for the intentional murder of Rebecca Suzanne Howell.

UPDATE: Becky's sister Donna Wood released a statement that said, "This ordeal has never been anything but sad and difficult for everyone involved." She said it was unfortunate that her father, who died three years ago, did not live long enough to see the execution, "but we know that he is here with us in spirit." She said her slain sister was "truly a kind and loving person, one that we all still miss each and every day."

Wikipedia

The following individuals have been executed by the State of Alabama at the Holman Correctional Facility near Atmore since 1943:

Inmate Date Method Victim

1 John Louis Evans 22 April 1983 electrocution Edward Nassar.
2 Arthur Lee Jones 21 March 1986 electrocution William Hosea Waymon.
3 Wayne Ritter 28 August 1987 electrocution Edward Nassar.
4 Michael Lindsey 26 May 1989 electrocution Rosemary Zimlich Rutland.
5 Horace Dunkins 14 July 1989 electrocution Lynn McCurry.
6 Herbert Richardson 18 August 1989 electrocution Rena Mae Callins.
7 Arthur Julius 17 November 1989 electrocution Susie Bell Sanders.
8 Wallace Thomas 13 July 1990 electrocution Quenette Shehane.
9 Larry Heath 30 March 1992 electrocution Rebecca Heam.
10 Cornelius Singleton 20 November 1992 electrocution Ann Hogan.
11 Willie Clisby 28 April 1995 electrocution Fletcher Handley.
12 Varnell Weeks 12 May 1995 electrocution Mark Batts.
13 Edward Horsley, Jr. 16 February 1996 electrocution Naomi Rolon.
14 Billy Wayne Waldrop 10 January 1997 electrocution Thurman Donahoo.
15 Walter Hill 2 May 1997 electrocution Willie Mae Hammock, John Tatum, and Lois Tatum.
16 Henry Hays 6 June 1997 electrocution Michael Donald.
17 Stephen Allen Thompson 8 May 1998 electrocution Robin Balarzs.
18 Brian K. Baldwin 18 June 1999 electrocution Naomi Rolon.
19 Victor Kennedy 6 August 1999 electrocution Annie Laura Orr.
20 David Ray Duren 7 January 2000 electrocution Kathleen Bedsole.
21 Freddie Lee Wright 3 March 2000 electrocution Warren Green and Lois Green.
22 Robert Lee Tarver, Jr. 14 April 2000 electrocution Hugh Sims Kite.
23 Pernell Ford 2 June 2002 electrocution Willie C. Griffith and Linda Gail Griffith.
24 Lynda Lyon Block 10 May 2002 electrocution Opelika Officer Roger Lamar Motley.
25 Anthony Keith Johnson 12 December 2002 lethal injection Kenneth Cantrell.
26 Michael Eugene Thompson 13 March 2003 lethal injection Maisie Carlene Gray.
27 Gary Leon Brown 24 April 2003 lethal injection Jack David McGraw.
28 Tommy Jerry Fortenberry 7 August 2003 lethal injection Ronald Michael Guest, Wilbut T. Nelson, Robert William Payne, and Nancy Payne.
29 James Barney Hubbard August 5, 2004 lethal injection Lillian Montgomery.
30 David Kevin Hocker 30 September 2004 lethal injection Jerry Wayne Robinson.
31 Mario Giovanni Centobie 28 April 2005 lethal injection Moody police officer Keith Turner.
32 Jerry Paul Henderson 2 June 2005 lethal injection Jerry Haney in Talladega and for accepting $3,000 from Haney's wife for the killing.
33 George Everett Sibley, Jr. (common-law husband of Lynda Lyon Block) 4 August 2005 lethal injection Opelika Officer Roger Lamar Motley.
34 John W. Peoples, Jr. September 22, 2005 lethal injection Paul Franklin, Judy Franklin, and Paul Franklin, Jr.
35 Larry Eugene Hutcherson October 26, 2006 lethal injection Irma Thelma Gray
36 Aaron Lee Jones May 3, 2007 lethal injection Carl Nelson and Willene Nelson
37 Darrell Grayson July 26, 2007 lethal injection Annie Laura Orr
38 Luther Jerome Williams August 23, 2007 lethal injection John Kirk
39 James Harvey Callahan January 15, 2009 lethal injection Rebecca Suzanne Howell

Callahan v. State471 So.2d 447 (Ala.Cr.App. 1983) (Direct Appeal).

Defendant was convicted in the Circuit Court, Calhoun County, Samuel Monk, J., of kidnapping and of murder, and he appealed. The Court of Criminal Appeals, Sam Taylor, J., held that: (1) a change of venue was not warranted on ground that a majority of the prospective jurors had been exposed to extensive pretrial publicity; (2) veniremen with fixed opinions against the death penalty were properly dismissed for cause; (3) trial judge did not err in refusing to recuse himself; (4) affidavit for search warrant was sufficient to establish probable cause; (5) pistol found in defendant's truck and hair and fiber evidence found in his mobile home were not illegally seized and were not otherwise inadmissible; (6) biological fluid comparisons between defendant and victim's boyfriend were admissible; (7) photographs showing victim's hands bound by white duct tape was admissible; (8) incriminating statements made by defendant to sheriff were voluntary; and (9) imposition of death penalty, considering aggravating circumstances, was not improper absent any mitigating factors. Affirmed.

SAM TAYLOR, Judge.

James Harvey Callahan was tried and convicted, pursuant to § 13A-5-40(a)(1), Code of Alabama 1975, for the capital felony of kidnapping and, subsequently, murdering Rebecca Howell in Calhoun County, Alabama. After proper sentencing phase hearings before the jury and the trial court, the trial court noted the jury's majority verdict, by a vote of 10 to 2, in favor of the death penalty, and sentenced the appellant to death by electrocution.

Rebecca Howell was abducted from the Norge Village Washeteria in Calhoun County, Alabama, some time between, 12:30 a.m. and 1:30 a.m. on the morning of February 4, 1982. Her body was found about two weeks later floating in Tallasseehatchee Creek near Broughton Bridge, where it had become entangled in some brush. An autopsy revealed that Ms. Howell had been killed by asphyxiation due to an obstruction of her airway, consistent with smothering. Her hands had been bound with four strips of white duct tape. She had apparently been raped. Her body was found in blue jeans but without underpants, shoes, or socks.

Murray Knight, the victim's boyfriend, saw her around 11:15 p.m. on the night she was abducted. Ms. Howell had just gotten off work and was on her way to wash some clothes. She had planned to meet Knight afterwards.

Four blocks from Norge Village Washeteria, Jimmy Dunagan saw a woman with “long, brown or reddish hair” make a telephone call across the street from another washeteria at 11:40 p.m. He also saw a man in a truck, which he later identified as appellant's truck, watching the young woman in the telephone booth. When the woman left, the man followed her in his truck. Dunagan copied down the tag number of the truck, a number later found to be registered to the appellant.

A police officer on routine patrol saw Ms. Howell in the Norge Village Washeteria between 12:30 and 12:45 a.m. A passerby saw a man fitting appellant's description inside the washeteria at 1:00 a.m. apparently trying to “pick-up” a young woman. Susan Bragg, a fellow employee of Ms. Howell, passed by Norge Village Washeteria on her way home from work. She saw a green pick-up truck, which she later identified as appellant's truck, outside the washeteria and she thought someone inside the truck waved at her.

At 1:30 a.m., because Ms. Howell had not returned as expected, Murray Knight and some of his friends went to the washeteria to look for her. She was gone, but the clothes she had been washing were still there and one pair of wet blue jeans was on the floor. Ms. Howell's car was still parked outside. Knight called the police.

The appellant was arrested after a “stakeout” of his father's home on February 22, 1982, five days after Ms. Howell's body had been discovered. After the appropriate Miranda warnings were given and the standard “waiver of rights” forms were signed the appellant told Calhoun County Sheriff Roy Snead that he would help the authorities locate the victim's missing boots and purse. He explained to Snead that he had picked up Ms. Howell at the Norge Village Washeteria on the night she was killed and had driven her to his mobile home. He stated that later that night, while they were driving through the woods near the Tallasseehatchee Creek (where the victim's body was later discovered), Ms. Howell, in her bare feet, jumped out of his truck and ran off through the woods. He contended that he threw her boots out at that time.

A subsequent search for the missing boots in the woods near Tallasseehatchee Creek was unsuccessful. However, the appellant did, eventually, lead the authorities to the victim's missing purse. It was found behind a wood pile at the home of appellant's father-in-law. The appellant stated that he knew it was there because he saw someone put it there, but he never stated who that someone was.

The victim's missing boots were later discovered inside appellant's mobile home by appellant's sister and brother-in-law. They were turned over to the police.

In addition to the incriminating circumstances discussed above, appellant's fingerprints were found on a roll of gray duct tape discovered on the night of the abduction in the parking area outside the Norge Village Washeteria. During a search of appellant's home authorities recovered a strip of white duct tape of the same identical type as that used to bind the victim's wrists. They also discovered some strands of hair, consistent with the victim's head hair, on a mop, and some red carpet fibers identical to a red fiber found on one of the victim's socks. Dog hairs found inside appellant's truck were consistent with the hair from the victim's dog.

Because there was evidence that Ms. Howell had been raped before she was killed, a vaginal swab was analyzed. It was found to contain seminal fluid from a “group O” secretor of H antigens. Tests revealed that Murray Knight, Ms. Howell's boyfriend, is a non-secretor but that the appellant is, indeed, a “group O” secretor.

Furthermore, contrary to appellant's pre-trial statement to the authorities that Ms. Howell exited his truck and ran through the woods near Tallasseehatchee Creek, the medical examiner testified that her feet and ankles were not scratched or cut as they would have been had she run through the thick underbrush in that area.

In defense, the appellant challenged the validity of the search warrants for his truck and his mobile home, the voluntariness of his pre-trial statements, and the reliability of the hair, fiber and biological fluid comparisons. However he only took the witness stand, in his own behalf, to give voir dire testimony as to the voluntariness of his statements to the authorities. He did not present an alibi defense.

* * *

Ex Parte Callahan471 So.2d 463 (Ala. 1985) (Direct Appeal - Reversed).

Defendant was convicted in the Circuit Court, Calhoun County, Samuel Monk, J., of kidnapping and of murder, and he appealed. The Court of Criminal Appeals, Sam Taylor, J., 471 So.2d 447, affirmed, and defendant's petition for writ of certiorari was granted. The Supreme Court held that second confession obtained after proper Miranda warning was given was rendered inadmissible on evidence that it was the progeny of a previous illegally elicited confession. Reversed and remanded. Embry, J., dissented and filed opinion in which Faulkner, J., joined. Maddox, dissented and filed opinion on application for rehearing. Faulkner and Embry, JJ., dissented on application for rehearing.

Callahan v. State557 So.2d 1292 (Ala.Cr.App. 1989) (Direct Appeal after Retrial).

Defendant's conviction for murder and sentence to death was affirmed by the Court of Criminal Appeals, 471 So.2d 447, but reversed by the Supreme Court, 471 So.2d 463, and the case was remanded, 471 So.2d 473. On remand, defendant was convicted in the Circuit Court, Calhoun County, Samuel H. Monk, II, J., of murder and again sentenced to death, and he appealed. The Court of Criminal Appeals, Bowen, J., held that: (1) evidence sustained finding that defendant's statements were voluntary; (2) arrest of defendant was based on probable cause; (3) search of defendant's truck was based on probable cause; (4) trial judge was not required to recuse himself; and (5) sentence of death was proper and not disproportionate. Affirmed.

BOWEN, Judge.

In 1982, James Harvey Callahan was convicted and sentenced to death for the capital offense involving the kidnapping and murder of Rebecca Suzanne Howell in violation of Ala.Code 1975, Section 13A-5-40(a)(1). Callahan v. State, 471 So.2d 447 (Ala.Cr.App.1983). That conviction was reversed by the Alabama Supreme Court. Ex parte Callahan, 471 So.2d 463 (Ala.), cert. denied, 474 U.S. 1019, 106 S.Ct. 567, 88 L.Ed.2d 552 (1985). In 1987, Callahan was retried, again convicted, and again sentenced to death. Seven issues are raised on this appeal from that conviction.

Appellant contends that the trial court erred in admitting statements made by him to law enforcement officers. His argument regarding the inadmissibility of these statements appears to be twofold: (1) the statements were involuntary and obtained without a waiver of his Fifth Amendment rights and (2) his attorney was not permitted to speak with him while one statement was being taken, thus depriving him of his Sixth Amendment right to the assistance of counsel.

THE FACTS

Rebecca Howell disappeared on the night of February 3, 1982. Her body was discovered in Tallasseehatchee Creek in Calhoun County on February 17. Callahan was a suspect in her disappearance and murder.

On February 22, 1982, Calhoun County Deputy Sheriff Johnny Alexander had maintained surveillance on Callahan's truck for five hours before Callahan came out of his father's house and drove away at 5:00 that morning. Deputy Alexander knew that the license tag on Callahan's truck was registered to another vehicle. He also knew that Callahan was a suspect in the Howell murder, and Deputy Alexander was familiar with that investigation.

Deputy Alexander and Jacksonville Police Sergeant Kathy Thienes stopped Callahan for having a switched tag. Deputy Alexander testified that he “explained to [Callahan] that ... the tag he had on his vehicle didn't belong to that vehicle, and that we were going to write him a ticket for a switched tag.” Alexander told him that “we would have to take him to jail to write him a ticket.”

At that time, the administrative policy of the sheriff's office did not permit deputies to carry “ticket books” in their vehicles. The sheriff's office was located in the county jail and the ticket book was kept there. Anyone stopped for a traffic violation was taken “to jail” where the citation was issued. This was standard procedure.

When Callahan was stopped, his conduct was suspicious and he appeared to place something behind the seat of his truck. His truck was impounded and later searched pursuant to a search warrant. See Issue II.

Deputy Alexander and Sergeant Thienes transported Callahan to the sheriff's office at the county jail. After Callahan had been issued a ticket for having a switched tag, Deputy Alexander told him that some investigators wished to talk with him. Callahan replied “okay” and Alexander told him “he could have a seat back by the television in the back of the lobby area of the county jail.” Although Deputy Alexander testified that Callahan was not free to leave at that time, he also testified that he never told or placed Callahan under arrest, never placed him in custody or in jail, and never told him that he could not leave.

Deputy Alexander candidly admitted that the primary reason Callahan was stopped was because he was a suspect. At trial, Alexander testified, and the State argued, that the purpose of taking Callahan to the sheriff's office was twofold: First, to issue him a ticket for having an improper tag; and second, to turn him over to the investigators of the disappearance and murder of Rebecca Howell. Deputy Alexander remained at the sheriff's office until 7:30 or 8:00 A.M. He testified that during that time “nothing appeared to be wrong with [Callahan] physically,” but that he “appeared to be a little nervous.”

Deputy Max Kirby arrived at the sheriff's office around 5:45 A.M. and observed that Callahan was watching television. He testified that, approximately thirty minutes after he arrived, he and Deputy Larry Amerson walked over to Callahan and told him they would like to talk with him. Callahan said “Okay” and continued to watch television. Kirby said that it would be a while and Callahan again replied “Okay.” As best this Court can determine, Callahan was fingerprinted at 7:15 A.M. At approximately 7:45 A.M., Kirby went to the District Attorney's Office, returning over an hour later. When Kirby returned, Callahan was still watching television. At approximately 9:00 A.M., Deputies Kirby and Amerson served Callahan with a “probation tolling order/arrest warrant” issued by Circuit Judge Malcolm E. Street and placed him under arrest pursuant to that order.FN1 Deputy Kirby then advised Callahan that he wished to talk with Callahan regarding the Howell case. Thereafter, Callahan gave four statements, two on February 22 and two on February 23. The substance of, and the circumstances surrounding, those statements are as follows:

FN1. In February of 1979, Callahan was convicted of assault with intent to murder and sentenced to 10 years' imprisonment. In May of 1979, he pleaded guilty and was convicted of assault with intent to murder. He was sentenced to two years' imprisonment to run concurrent with his prior sentence. In October of 1979, Callahan was granted probation.

(1) Beginning around 9:30 A.M. on the morning of February 22, Callahan gave his first statement in the presence of Deputy Kirby and Sergeant Thienes. This statement was transcribed by Kirby and bears Callahan's signature at the bottom of each page. Deputy Kirby testified that, prior to taking his statement, he advised Callahan of his Miranda rights. Callahan stated that he understood these rights and informed Kirby that he had an attorney, but that “he didn't need him right then” and “would let [Kirby] know when he needed him.” Kirby wrote down the name, address, and telephone number of his attorney. Callahan then executed a waiver of rights, which was witnessed by both Kirby and Thienes. Deputy Kirby testified that, while he was present, Callahan was neither threatened nor offered any reward or hope of reward in order to induce him to make a statement.

In this statement, Callahan maintained that, on the night Ms. Howell disappeared, he washed clothes at a Jacksonville washateria and then went to the Jacksonville Hospital where his father was visiting his mother. Around 11:00 P.M., he left the hospital with his father and they traveled in separate vehicles to his father's house in Anniston. He remained there for the rest of the night.

(2) Callahan gave a second statement on the afternoon of February 22, beginning around 1:45 P.M. and ending at 3:25 P.M. In his statement, Callahan claimed that he was washing clothes in a Jacksonville washateria on the night of February 3 when he saw Ms. Howell, whom he had met before. They entered into a conversation, during which she stated that she was engaged to be married, and Callahan offered to rent his mobile home to her and her future husband. According to Callahan, Ms. Howell wished to view the mobile home that night. Around midnight, they left the washateria in his truck and drove to the mobile home, which was located just outside Jacksonville in rural Calhoun County. While they were at the mobile home, Callahan's estranged wife (whom he had earlier observed in an automobile outside the laundromat) came in, pointed a gun at Callahan, accused him of cheating on her, and forced him to tape Ms. Howell's hands together with tape from the kitchen cabinet. Callahan then managed to escape out the back door and leave in his truck. Shortly after completing this statement, Callahan changed portions of it to add that he had dated Ms. Howell prior to February 3 and that he and Ms. Howell were having sexual intercourse when his wife arrived at the mobile home.

This statement was given in the presence of Assistant District Attorney Joseph D. Hubbard, Deputy Kirby, Deputy Larry Amerson, and Ms. Diana Hinds, a court reporter, who subsequently transcribed the statement. Hubbard testified that, prior to any questioning, Callahan was advised of his Miranda rights by Deputy Amerson and executed a written waiver of counsel. Hubbard also stated that no one offered Callahan any reward or hope of reward in return for making a statement, nor did any one threaten Callahan in any manner to induce him to make a statement. Prior to actually giving this statement, Callahan said, “I know of my rights. I wish to give a statement at this particular time in order to help clear my own personal self.”

(3) The third statement was given by Callahan around 10:15 on the morning of February 23. Earlier that morning, at Callahan's request, law enforcement officers had obtained a photograph from Callahan's father's house. In his statement, Callahan identified the girl in the photograph as one Malera Fox and asserted that she resembled Ms. Howell. According to Callahan, Mrs. Fox had once expressed interest in him, causing his wife to become jealous. He suggested that his wife mistook Ms. Howell for Mrs. Fox at his mobile home on the night of February 3.

This statement was made in the presence of Assistant District Attorney Hubbard, Deputy Kirby, and Sergeant Thienes. Hubbard taped this statement and it was later transcribed by Ms. Parian Tidwell, a court reporter. Hubbard testified that, prior to any questioning, Deputy Kirby advised Callahan of his Miranda rights and Callahan executed a written waiver of rights. At that point, Hubbard stated that he“asked Mr. Callahan or stated to him, ‘All right. Jimmy, with these rights in mind, do you wish to talk to us about what we were talking about yesterday?’ And the Defendant stated, ‘Yes, I'll continue talking because I'm trying to clear myself.’ And I stated to the Defendant, ‘All right, sir. But you voluntarily are talking to us?’ The Defendant stated, quote, ‘Right,’ unquote. Then I asked, ‘Is that correct? Okay. And you understand all of those rights?’ And Mr. Callahan stated, ‘Yes, I really do.’ ”

Hubbard also stated that no reward or hope of reward was offered to Callahan nor was Callahan threatened in any manner to obtain this statement.

(4) The most damaging statement was given by Callahan on the afternoon of February 23, beginning around 2:45 P.M. Present during this statement were Mr. Hubbard, Deputy Kirby, Sergeant Thienes, Sergeant Lawton Hall, and Ms. Hinds, the court reporter who later transcribed the statement. The circumstances surrounding the taking of this statement were described by Hubbard. Prior to giving this statement, Callahan was again advised of his constitutional rights by Deputy Kirby and executed a written waiver of counsel. Hubbard testified that the statement that followed was given voluntarily by Callahan and that no one threatened Callahan nor did anyone offer him a reward or hope of reward in return for the statement.

In this statement, Callahan admitted that he forced Ms. Howell to leave the laundromat with him. He took her to his mobile home where he held her prisoner for two days. On the night of February 4, she agreed to have sexual intercourse with him in return for his releasing her and they, in fact, had sexual intercourse. On the night of February 5, he taped her hands together and began to drive her to an area near some houses where he planned to release her. However, near the creek in which her body was later found, she jumped out of the truck and ran toward the creek. Callahan stated that Ms. Howell's boots, pantyhose, and socks were in the back of his truck and that he threw the boots out on his drive back.

Just as Callahan finished giving this statement, Circuit Judge Sam Monk knocked on the door and entered the interrogation room. After advising Callahan of his Miranda rights, Judge Monk informed Callahan that his father had retained an attorney, Fred Lybrand, to talk with him concerning possible representation, that Lybrand was outside, and that it was up to Callahan whether he would consult with Lybrand. Callahan responded, “If my father sent him down here, I might ought to talk with him briefly. But that would be about all.” At that time, everyone except Callahan left the room and attorney Lybrand went into the room to consult with Callahan.

Callahan did not give any other formal statements. However, on February 24, he offered to show law enforcement officers where he had discarded Ms. Howell's boots. He drove around with the officers directing them to certain locations. Although he was unable to locate Ms. Howell's boots on this expedition, Callahan did lead officers to Ms. Howell's purse, which was found behind a woodpile at the home of Callahan's father-in-law, located in Collinsville, Alabama. Callahan also directed the officers to his father's house in Anniston where he retrieved from his camper a knife which he said was lying on the dashboard of his truck the night he forced Ms. Howell to leave the laundromat with him. Ms. Howell's boots were subsequently turned over to law enforcement personnel by Callahan's brother-in-law, Paul Henninger, who had found them around February 21 in Callahan's mobile home.

Deputy Kirby testified that the officers had no intention of talking with Callahan after attorney Lybrand's arrival on February 23. However, between 11:00 and 11:30 A.M. on February 24, Callahan sent word to Deputy Kirby through a trusty that he wished to talk to Kirby. Some twenty minutes after receiving this message, Kirby had Callahan brought to him and he orally informed Callahan of his Miranda rights. Callahan stated that he understood these rights and then told Kirby that he could show Kirby where he threw Ms. Howell's boots out of his truck.

Deputy Kirby read and explained to Callahan a waiver of counsel form and a consent form for Callahan to accompany law enforcement officers on a search for Ms. Howell's “boots, socks, and other items of clothing.” Callahan stated that he understood these documents and then signed both forms. Sheriff Snead testified that no reward or hope of reward was offered to Callahan nor was Callahan threatened in order to induce him to accompany the officers on this trip.

Callahan took the stand only at the hearing on his motion to suppress. In contradiction of the State's evidence set forth above, Callahan denied that he was served with the probation tolling order, denied that he was ever informed of his constitutional rights at any time, and denied signing any of the waiver of counsel forms. He stated that he asked to call an attorney some twenty to twenty-five times, but that these requests were refused; that Deputy Kirby threatened and physically mistreated him, with some of this taking place in the presence of Joe Hubbard; that “Kirby mentioned a couple of times things go easier on you if you give statements or whatever”; that he was not given food or drink; that he was in poor condition physically due to lack of sleep and the consumption of alcohol and drugs; that he did not voluntarily go on the trip with the officers on February 24. Callahan maintained that he “wasn't voluntarily doing anything.” He also asserted that the statements transcribed by Ms. Hinds were incorrect and did not reflect what he actually said. In response to the trial judge's question as to why, when he (the judge) and attorney Lybrand came into the interrogation room, Callahan did not appeal to them for assistance, Callahan replied that he “did make efforts to Mr. Lybrand for help” and “advised him what was going on at that time.”

A copy of attorney Lybrand's testimony from the prior trial was introduced by Callahan at the suppression hearing. This testimony merely recounts that Lybrand went to the Calhoun County Jail on the afternoon of February 23 at the request of Callahan's father. He spoke with Sheriff Snead and requested to talk with Callahan, but was not permitted to do so. Lybrand then went to Judge Monk's office and “explained to him that [he] had been contacted by the family and that [he] had told them that [he] would go down to the jail and see if [he] could talk to Mr. Callahan.” Lybrand returned to the jail with Judge Monk, who entered the interrogation room, and, shortly thereafter, Lybrand was allowed to talk with Callahan. Around 5:00 that afternoon, Lybrand called the Callahan family to explain that, due to his personal relationship with the family of the victim, he was unable to represent Callahan in this matter. Lybrand conveyed this same information to the District Attorney the next morning. There is nothing in Lybrand's testimony to indicate that Callahan informed him of the alleged mistreatment, abuse, and deprivation that Callahan asserts he received at the hands of law enforcement officers. Lybrand did testify that, when he entered the interrogation room, Callahan “appeared to be tired and somewhat emotional.”

In rebuttal, Deputy Kirby stated unequivocally that he did not threaten or physically abuse Callahan in any way; that Callahan “was very eager to cooperate”; and that this cooperation was not the result of any threats or promises. Assistant District Attorney Hubbard also testified in rebuttal. He stated that Callahan never requested to use the telephone; that he observed Callahan drinking several soft drinks and asked Callahan several times if he wanted anything to eat or drink; that Callahan did not at any time appear to be sedated or suffering from any emotional or mental distress; that he had read the statements transcribed by Ms. Hinds and they were “exactly what Mr. Callahan said on those occasions”; that Deputy Kirby never threatened or intimidated Callahan in his presence; and that he saw Callahan sign three of the waivers introduced. Hubbard had previously testified that, during the three statements made in his presence, Callahan never requested to see an attorney; did not appear to be under any stress whatsoever, except that he did become “emotional” and “whimper[ed]” at times during the last statement, which was the only statement in which he admitted abducting Ms. Howell; was allowed to drink and eat; and, overall, was eager to cooperate.

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Based upon our review of the entire record in this proceeding, the defendant's conviction and sentence of death are due to be, and they are hereby, affirmed.

Callahan v. State, 767 So.2d 380 (Ala.Cr.App. 1999) (PCR).

COBB, Judge. On June 26, 1982, James Harvey Callahan was convicted for intentionally murdering Rebecca Suzanne Howell during the course of a first-degree kidnapping, a capital offense under § 13A-5-40(a)(1), Ala.Code 1975. On July 8, 1982, after the jury recommended that Callahan be sentenced to death by a 10-2 vote, the trial court sentenced Callahan to death. This court affirmed Callahan's conviction and sentence. Callahan v. State, 471 So.2d 447 (Ala.Cr.App.1983). The Alabama Supreme Court reversed the conviction and remanded the cause for a new trial. Ex parte Callahan, 471 So.2d 463 (Ala.1985), cert. denied, 474 U.S. 1019, 106 S.Ct. 567, 88 L.Ed.2d 552 (1985). On November 7, 1987, Callahan was again convicted of capital murder, and the jury returned an unanimous recommendation for the death penalty. On November 25, 1987, the trial court sentenced Callahan to death. This court affirmed Callahan's second conviction and sentence. Callahan v. State, 557 So.2d 1292 (Ala.Cr.App.1989). The Alabama Supreme Court affirmed the conviction and death sentence on November 17, 1989. Ex parte Callahan, 557 So.2d 1311 (Ala.1989). The United States Supreme Court denied Callahan's petition for certiorari review on October 1, 1990. Callahan v. Alabama, 498 U.S. 881, 111 S.Ct. 216, 112 L.Ed.2d 176 (1990).

On September 30, 1992, Callahan, through counsel, filed a Rule 32, Ala.R.Crim.P., petition for post-conviction relief, which he amended on March 14, 1996, and again amended on July 2, 1996. On July 1-2, 1996, the trial court conducted an evidentiary hearing on the claims of relief sought by Callahan. Judge Samuel H. Monk, the circuit judge who presided over Callahan's first and second trials, also presided over the evidentiary hearing on the Rule 32 petition. On February 17, 1998, the trial court entered an order denying Callahan's Rule 32 petition. Callahan now appeals the trial court's decision. We affirm.

The State's evidence at the 1987 trial tended to prove that Rebecca Suzanne Howell, a 26-year-old college student at Jacksonville State University, was abducted from the Norge Village Washeteria in Calhoun County, some time between 12:30 a.m. and 1:30 a.m. on the morning of February 4, 1982. Her body was found about two weeks later floating in Tallasseehatchee Creek near Broughton Bridge, where it had become entangled in some brush. An autopsy revealed that Ms. Howell had been killed by asphyxiation, consistent with smothering. Her hands had been bound with strips of white plastic duct tape, and she had apparently been raped. She was wearing blue jeans but no underpants, shoes, or socks. Callahan's truck was seen at another nearby washeteria shortly before Ms. Howell was abducted; the individual driving the truck was seen watching, approaching, and then following another lone female. A truck generally matching the description of Callahan's truck was also seen at the Norge Village Washeteria at or near the time of Ms. Howell's abduction.FN1. A complete recitation of the facts can be found in Callahan v. State, 557 So.2d 1292, 1295 (Ala.Cr.App.1989).

Initially, we note that on direct appeal all issues were scrutinized, including those issues reviewable only under the “plain error” doctrine. Rule 45A, Ala.R.App.P. There is no plain error review in an appeal from the denial of a Rule 32 petition. Thompson v. State, 615 So.2d 129, 130-31 (Ala.Cr.App.), cert. denied, 615 So.2d 129 , cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 418 (1993).

Callahan presents numerous claims regarding the performance of his trial counsel and appellate counsel. He contends that, as a result of the errors committed by both his trial counsel and appellate counsel, he was denied the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution.

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After evaluating the evidence presented at the evidentiary hearing on Callahan's petition for post-conviction relief and studying the trial court's well-reasoned and carefully drafted order, we conclude that the trial court correctly denied the petition. AFFIRMED.