Carnel JACKSON
v.
STATE.
Court of Criminal Appeals of Alabama.
*734 Orson L. Johnson, George W. Andrews III and L. Dan Turberville, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and William D. Little, Rivard Melson and Ed Carnes, Asst. Attys. Gen., for appellee.
PATTERSON, Judge.
Carnel Jackson, the appellant, was indicted in a three-count indictment for the capital murder of Myra Faye Tucker and Terry Wayne Tucker, under งง 13A-5-31(a)(10), (2), and (3), Code of Alabama (Supp.1978) (repealed 1981), respectively.[1]
Upon conclusion of the State's evidence, the trial court, on motion of appellant, excluded Count 2, charging intentional murder during a robbery, for insufficient evidence. The case went to the jury on Counts 1 and 3, which are as follows:
"CARNEL JACKSON ... did, by one act or a series of acts, unlawfully, and with malice aforethought, intentionally cause the death of Myra Faye Tucker, a human being, by shooting her with a shotgun, and unlawfully and with malice aforethought did intentionally cause the death of Terry Wayne Tucker, a human being, by shooting him with a shotgun, in violation of ง 13A-5-31(a)(10) of the Alabama Criminal Code.
"...
"3rd: CARNEL JACKSON, a male, did engage in sexual intercourse with Myra Faye Tucker, a female, by forcible compulsion, and did forcibly ravish said Myra Faye Tucker, and in the course of said rape, the said CARNEL JACKSON did intentionally cause the death of another person, the said Myra Faye Tucker, by shooting her with a shotgun, in violation of ง 13A-5-31(a)(3) of the Alabama Criminal Code."
Jackson pleaded not guilty. Prior to trial he had filed a written plea of not guilty by reason of mental disease which caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, but just prior to commencement of trial, his attorney stated to the court that Jackson would only enter a plea of not guilty. In his opening statement to the jury, Jackson's counsel stated, "To this indictment Carnel Jackson pleads not guilty." On November 19, 1981, the jury returned verdicts *735 of guilty of the capital offenses charged in Counts 1 and 3.
At the sentence-determining phase conducted in accordance with Beck v. State,
The bodies of Myra Faye Tucker and her husband, Terry Wayne Tucker, were discovered on an old mining road in Jefferson County, Alabama, on January 17, 1981. They were lying 15 to 20 feet apart. Found inside the blouse of Mrs. Tucker was a crumpled partial South Central Bell telephone bill bearing the number "925-9087" and the name "Godbolt." Three recently fired Remington Peters .12-gauge shotgun shells were found near the bodies. Two were marked "Express Power Piston 6" and one "Express Power Piston 5." There was a "depression" in the ground with the plastic wadding from a shotgun shell lying 12 inches from it. Mrs. Tucker had been shot once in the chest from a distance of 5 to 7 feet, and Mr. Tucker had been shot once in the back from a distance of 2 to 4 feet. They had been shot and killed where their bodies were found, and they had been dead for a period of a few hours to not more than twenty-four hours.
The autopsy of Mrs. Tucker's body disclosed that the massive injuries from the single shotgun blast were the cause of death. Microscopic examination of swab smears taken from her oral cavity, rectum, and vagina disclosed the presence of seminal fluid and sperm cells in all three body cavities. The seminal fluid and sperm cells from the vaginal cavity were from a male with a blood "ABO type O, secretor." The presence of sperm in the vagina was consistent with sexual intercourse. No determination as to the blood type was possible from the seminal fluid and sperm cells found in the oral and anal cavities. Both Mr. and Mrs. Tucker had type A blood. Seminal fluid and sperm cells from an ABO type O, secretor were also found on Mrs. Tucker's panties.
The autopsy of Mr. Tucker's body disclosed that he died from massive injuries caused by a single shotgun blast in the back. He had also suffered recent blunt force injuries to his head which caused a subdural hematoma and, also, abrasions to the front and back of his head and neck.
Shortly after the discovery of the bodies, the victims' automobile, stripped of its tires and partially burned, was discovered some distance away.
On January 21, 1981, appellant and Jerry Steven Godbolt[2] were arrested. On January 26, 1981, Wayne Anthony Agee[3] was arrested. All three were charged with the murder of the Tuckers. At the time this incident occurred, appellant was 17 years old, Godbolt was 21 years old, and Agee was 19 years old.
Specimens of blood and saliva were taken from Jackson, Godbolt, and Agee and analyzed. Appellant's blood type was ABO type O, secretor. Godbolt's was also ABO type O, secretor. Agee's was type A.
On January 23, 1981, a .12-gauge Remington Sportsman shotgun was found in the yard of Godbolt's mother. There were blood stains on the gun, but an insufficient amount to determine whether it was human blood. A firearms expert testified that in his opinion all three shotgun shells found at the scene of the crime were fired from this shotgun. The shotgun was semi-automatic, the type that ejected empty shells automatically when fired. The shotgun belonged to Godbolt.
The firearms expert opined that the shell wadding retrieved near the bodies was from a Remington Peters .12-gauge shotgun shell. He was also of the opinion that the shot taken from Mrs. Tucker's chest were number 6 shot, and that the wadding taken from her chest was from a Remington Peters .12-gauge shotgun shell. He *736 was further of the opinion that the shot taken from Mr. Tucker's back were number 5 shot, and that the wadding taken from the wound was from a Remington Peters.12-gauge shotgun shell.
A witness for the State, William Cole, testified that he had known appellant, Godbolt, and Agee for about four years. He testified that he had seen them together a few times and that he specifically saw them together at a party in Bessemer the night of the murder of the Tuckers. He stated that they arrived together in Agee's automobile, and that they later told him they were going to leave. He did not see them at the party after that, but later, about midnight, he saw Agee's automobile coming through the "project" about 300 feet from where Godbolt lived. The next morning (Saturday) around 9 or 10 o'clock, he went to appellant's house in the project, but appellant was not at home. Cole then went to Godbolt's apartment in the project and Godbolt and Agee were there. While there, he observed a shotgun standing in the corner of the room. He testified that it belonged to Godbolt, and he identified the shotgun in evidence as the same one he had previously seen in Godbolt's apartment. He further stated that appellant was coming toward Godbolt's apartment when he was leaving.
On September 8, 1981, Sgt. Ballard of the Birmingham Police Department received a telephone call from a person who identified himself as appellant and who asked to speak to Sgt. Gay, the detective in charge of the Tucker investigation. Sgt. Ballard advised the caller that Sgt. Gay was not in, and the caller left for Sgt. Gay the message that "he wanted Sgt. Gay to come to the County Jail and talk to him, that it was very important." Upon receiving the message, Sgt. Gay, accompanied by a Sgt. Miller, went to the Jefferson County Jail and called upon appellant. Sgt. Gay informed appellant of his Miranda rights, whereupon appellant made an oral statement implicating himself in the crime. We quote verbatim from the record Sgt. Gay's testimony concerning the oral statement of appellant:
"Q. And what did youโwhat was the conversation between you and Carnel Jackson on this occasion?
"A. Well, I went to the D cell, where he was and I asked Carnel did he want his attorney, and he said, `No,' then I read him these rights. He said he didn't want to talk in front of Sergeant Miller, who was with me, and Sergeant Miller walked out. He said, `I know it's your job to put people in jail, and I know when people violate the law you work hard to put people in jail.' He said, `I don't hold that against you.' He said, `I'm going to be tried first and no matter how my case turns out I will testify against Godbolt and Agee, because we all three were together.' I asked him if he had talked to his attorney about this and he said, `No, I don't need to talk to him, because I have made up my mind to tell about it from the beginning.' He said, `You know there are more people out there that know about it than you have as witnesses,' and I said `Yes, I know,' and he said, `After my trial I'll tell you.' I said, `You don't want them to testify against you?' and he said, `That's right.' He said it was Godbolt's idea. They were supposed to rob some place. He said he was under drugs `when I killed the two people, all three of us was on drugs.' He said Godbolt shot into the ground, dirt flew up in his face and that pissed him off. He grabbed the shotgun, he shot her first and then him."
Appellant called several witnesses to testify concerning his various motions. He called one witness to testify before the jury during the trial in chief, Dr. John J. Callahan, a psychiatrist, who testified that he had examined appellant and that it was his opinion that appellant was functioning in either the dull normal or the borderline range of intelligence. He stated that his I.Q. range was between 70 and 85. On cross-examination, Dr. Callahan testified that in his opinion appellant was not suffering from any psychoses, neuroses, or organic brain problem, and was fully aware of what was going on. Twenty issues are raised by appellant on appeal. We address *737 them in the order presented in appellant's brief.
I
Appellant contends that the Alabama Supreme Court's severance of the preclusion clause from ง 13A-5-31(a) in Beck v. State,
II
Appellant contends that Alabama's method of carrying out a death sentence by electrocution constitutes cruel and unusual punishment and should be declared unconstitutional. The United States Supreme Court addressed the death by electrocution issue in In re Kemmler,
Appellant further argues that Alabama's method of electrocution is particularly inhumanely cruel as demonstrated by the repeated application of electricity needed to cause the death of John Lewis Evans. In Francis v. Resweber,
"The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution.... We cannot agree that the hardship imposed upon the petitioner rises to that level of hardship denounced as denial of due process because of cruelty."
Id. at 464,
The very issues raised by appellant here were addressed in Ritter v. Smith,
*738 After an evidentiary hearing, Judge Pointer held that the claims were due to be dismissed. Id. at 1527. In reaching this decision, Judge Pointer noted that the testimony established that over the past 50 years the chair in question had been used approximately 154 times without any failure; that Evans suffered no pain after the initial shock; and that the possibility that the chair may malfunction at some time in the future does not render its use unconstitutional. Id. at 1526. Judge Pointer relied upon Francis v. Resweber and In re Kemmler in holding that the Alabama method of electrocution is constitutional. Id. at 1526-27. We agree.
There is no evidence before this court that contradicts the findings made by Judge Pointer. There has been absolutely no showing that the State's method of enforcing a death sentence inflicts any more pain than is absolutely necessary. It has not been established that the equipment used in the electrocution of John Lewis Evans malfunctioned or that Evans felt anything after the first split-second of the first jolt of electricity administered.
III
Appellant's third contention is that the Circuit Court of Jefferson County, Birmingham Division, lacked jurisdiction to try this case. Appellant argues that the action should have been brought in the Bessemer Division of the Circuit Court of Jefferson County, pursuant to the Bessemer Court Act of 1919, 1919 Ala. Local Acts 62, No. 213 (August 18, 1919), (Local Laws of Jefferson County, Sections 950-957, page 320). This issue was thoroughly addressed in the companion case of Agee v. State,
Viewing appellant's contention as relating to venue, rather than jurisdiction, we are convinced that the Birmingham Division had proper venue in this case. At the trial, Jefferson County Deputy Coroner Canoy testified that the bodies of Mr. and Mrs. Tucker were located in the Birmingham city limits in the Powderly area. A portion of Mr. Canoy's testimony in reference to the location of the bodies of the victims and the apparent place of the commission of the crimes is as follows:
"Q. Do you recall where you went?
"A. It was located in the Birmingham city limits in the Powderly area, that's the only thing I can tell you is it was in the Powderly area.
"....
"Q. You have come to know since then that the place where the bodies of the Tuckers were found was actually in the Bessemer Cut-Off, haven't you?
"A. No, sir, it's in the Birmingham City limits in the Powderly area.
"...
"Q. Deputy Canoy, the bodies were found in Birmingham, Jefferson County, Alabama?
"A. Yes, sir, to my knowledge, yes, sir."
Venue may be established by the testimony of one witness. McCrary v. State,
It should be noted that, at the hearing on appellant's motion to dismiss, both parties agreed that the evidence before the trial judge at that time showed that the bodies of Mr. and Mrs. Tucker were located within a quarter-mile of the *739 line that divides the Birmingham Division from the Bessemer Division. The evidence is clear that the Tuckers were killed where their bodies were found. In Agee,
Accordingly, appellant's contention is without merit; the venue properly lay in the Birmingham Division.
IV
Appellant contends that the court improperly refused his motion for a change of venue, which alleged widespread pre-trial publicity.
An accused is entitled to a change of venue if he can affirmatively demonstrate to the trial court that the pre-trial publicity has so saturated the community as to have a probable impact on the prospective jurors or that there is a connection between the publicity generated and the existence of actual jury prejudice. Fike v. State,
"To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." (Citations omitted.)
However, the juror's assurances that he can lay aside his impression or opinion and render a verdict based on the evidence presented in court cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality. Murphy v. Florida; Irvin v. Dowd; Anderson v. State.
Here, appellant makes no argument that the media coverage of the case was other than objective. An editorial was introduced, but there was no evidence that any juror read it. Moreover, 10 months had elapsed from the time of the commission of the crime until appellant's trial. The passage of time cannot be ignored as a factor in bringing objectivity to the trial. Robinson v. State,
Furthermore, our thorough review of the voir dire proceedings demonstrates no actual *740 existence of any opinion that would raise the presumption of partiality. Of the fifty prospective jurors on the venire, thirty-two stated that they had seen newspaper articles and/or news reports on television about the murder of Mr. and Mrs. Tucker. An individual, extensive voir dire examination in chambers was conducted of each of the prospective jurors who had indicated exposure to publicity. Only six expressed any doubt that they would be able to return a fair and impartial verdict. All six were dismissed for cause. The remainder of the thirty-two prospective jurors testified that they could disregard anything they had read or heard and could render an impartial verdict based solely on the evidence presented in court. All thirty-two were asked individually what they remembered of the pre-trial publicity they had heard or seen. None of them had strong, specific recollection of details, and all but four or five had only vague recollections about what they had read or heard. The four or five jurors who remembered some details gave sketchy accounts of what they remembered. The voir dire of the jurors remaining on the venire revealed no indication of hostility, prejudice, or partiality against appellant that could not be laid aside.
We do not believe that the pre-trial publicity in the case at bar even remotely approaches the magnitude of prejudicial publicity condemned by the Supreme Court in Estes, Sheppard, and Irvin. Outside influences had not so infiltrated the community at large as to render the existence of community prejudice against the appellant probable. Here, there was no trial atmosphere "utterly corrupted by press coverage." Dobbert v. Florida,
Furthermore, appellant has failed to show a connection between the publicity generated by the news articles and television broadcasts, and the existence of actual jury prejudice. McWilliams v. United States,
V
During the hearing on the motion for change of venue, defense counsel asked the trial judge to call twelve jurors from the veniremen serving in the courthouse at that time to testify about any exposure to publicity about the death of the Tuckers and appellant's case, and the publicity's effect on them. Appellant claims that the court's refusal to summon the jurors for his examination, coupled with his inability to pay for his own poll sample, deprived him of the means to provide sufficient evidence in support of his motion and, therefore, denied him a fair trial and due process. We do not agree. The questioning of the jurors could have conceivably created problems in the trial of other cases and could have been disruptive to the orderly administration of the court. Defense counsel concedes this. At the time of the request, the instant case had not been set for trial and, in fact, was not tried until four months later. If the jurors had been called, the information obtained from them, if any, would, in all likelihood, have been of limited value. "The proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination." Grayson v. State,
The decision of whether to grant appellant's request was a matter for the sound discretion of the trial court and we so hold. The trial judge is in the best position, due to his knowledge of the local situation, to determine whether the calling of the jurors would interfere with other cases and disrupt the orderly administration of the court. In making this determination, the trial judge is in the best position to consider the relevancy of the expected testimony of the jurors, the probative value of the testimony at the particular time it is sought, and the testimony's remoteness in relation to the time of trial. In the absence of an abuse of discretion, the trial court's ruling should not be disturbed, and we do not find such an abuse of discretion here. This contention is without merit.
VI
Appellant argues that the admission of his confession constitutes reversible error. He contends that (1) the State failed to prove that he voluntarily, knowingly, and intelligently waived his Fifth Amendment rights enumerated in Miranda v. Arizona,
A
Pursuant to Alabama law, a statement made subsequent to an arrest is prima facie involuntary and inadmissible at trial; thus, the State must prove the statement was voluntarily made and must lay a Miranda predicate before the statement is admissible. Thomas v. State,
The evidence presented at the suppression hearing disclosed that appellant was 18 years old when he made the incriminatory statement; that he had an I.Q. of from *742 70 to 85, which was in the "dull normal, dull average" range of intelligence; that he did not suffer from any psychoses, neuroses, or organic brain problems; that he knew what was going on; that he was of average physical condition; that he had completed the eighth grade in school; that he had been in custody over seven months; that he had been indicted, was awaiting trial, and had been appointed counsel; that he initiated and requested a visit from Sgt. Gay on September 9, 1981; that no police officer had had any contact with him between the time of his arrest on January 21, 1981, and the time of Sgt. Gay's visit with him; that at the time of his arrest he had made a statement to Sgt. Gay denying any involvement in the crime; that Sgt. Gay visited appellant in the Jefferson County Jail on the afternoon of September 9, 1981, at 2:31 p.m., and before any statement was made by appellant, Sgt. Gay asked him if he wanted his attorney and he said that he did not; that Sgt. Gay, prior to taking any statement from appellant, read him his Miranda rights, and he acknowledged that he understood them; that Sgt. Gay told appellant that he was the detective investigating the Tucker killings, for which appellant was charged, and appellant stated that he knew that, and that he did not blame Sgt. Gay, as that was his job; that appellant stated that he was going to be tried first and no matter how his case turned out, he would testify against Godbolt and Agee because they were all three together; and that Sgt. Gay again asked appellant if he had talked with his lawyer about that, and appellant responded, "No, I don't need to talk to him, because I've made up my mind to tell about it from the beginning"; that appellant then made the statement to Sgt. Gay that he grabbed the shotgun from Godbolt and shot the Tuckers; that Sgt. Gay's visit with appellant lasted only about 5 or 6 minutes; and that appellant was not threatened or abused or made any offers or promises or given any hope of reward of any kind in order to induce him to give a statement. Appellant did not testify during the supression hearing, and the testimony of Sgt. Gay stands uncontradicted. Sgt. Gay's testimony is supported by the testimony of Officer Ballard, who received the telephone call from appellant and passed his message to Sgt. Gay that appellant wanted to see him. Sgt. Gay's testimony is further bolstered by the testimony of Sgt. Miller, who accompanied Sgt. Gay when he visited appellant. Sgt. Miller testified that he heard appellant state that he had called Sgt. Gay and wanted to see him. Sgt. Miller further testified that he heard Sgt. Gay ask appellant if he wanted his attorney, and that he heard appellant say that he did not.
Upon a review of the above stated facts and taking into consideration the totality of the circumstances surrounding the giving of the confession, we are of the opinion that these facts and circumstances as a whole affirmatively disclose the voluntariness and volunteeredness of the confession. The record is clear that a full Miranda warning was given appellant and that there was no improper influence, threat, intimidation, coercive factors, or other inducement made to obtain the confession. Appellant was informed of his right to counsel and he clearly waived that right and chose to talk with Sgt. Gay.
It is asserted in brief that, on the day in question, appellant had discovered that one of his co-defendants had made bond and for some reason "this total experience traumatized the defendant and rendered him incapable of making a knowing and intelligent waiver". We have reviewed the record and do not reach this conclusion. As suggested by appellant, we have reviewed the testimony of Sgt. Gay and find that appellant's actions on the day in question support a conclusion that appellant was motivated to speak with Sgt. Gay out of revenge rather than trauma. The record tends to further indicate that appellant had read in the newspaper that a hearing had been held in the Agee case, and that some newspaper articles suggested that appellant's co-defendants might be witnesses against appellant. These events appear to have motivated appellant to contact Sgt. Gay. It appears obvious to us that appellant's actions and conversations with Sgt. Gay were directed toward insuring *743 that he, appellant, was not going to be the only one convicted in the Tucker murder case, i.e., that appellant was motivated by revenge. In Dunkins v. State,
B
Appellant next contends that the confession should have been excluded because Sgt. Gay knew that he was represented by counsel, and yet proceeded to take a statement from him without contacting his counsel, and that this action was in violation of his Sixth Amendment right to counsel. He asserts that, once the State had knowledge that appellant had counsel, it was required to notify his counsel before it could conduct any further interviews with him. He further contends that, even if such notice is not required, the State's burden of proving a knowing waiver of the right to the presence of counsel is heavy and that the proof surrounding the taking of his statement fails to meet that burden. Appellant cites United States v. Wade,
Once adversary proceedings have commenced against an individual, he has the right to legal representation when the government interrogates him. Brewer v. Williams,
In addition to arguing that the statement taken from the appellant without the presence of his counsel was a per se violation of his constitutional rights, appellant also argues that the State's failure to notify his counsel prior to taking his statement, while knowing that he had counsel and having been previously in contact with his counsel, constituted "indirect and surreptitious interrogation," bringing the case within the holdings of Massiah v. United States,
Even if there is no per se rule and even if the instant case does not involve indirect and surreptitious interrogation, appellant further argues that an even higher Miranda burden is put on the State to show an effective, valid, and knowing waiver of counsel. He contends that here "a simple Miranda type warning is not enough", but "there must be a clear and simple explanation to the accused of his rights and the consequences of his actions".
Clearly, the burden is on the State to establish that appellant knowingly, intelligently, and voluntarily waived his right to counsel. Fike v. State; Thompson v. State. A defendant may waive his Sixth Amendment right to legal representation when the government interrogates him after the commencement of adversarial proceedings, but it is incumbent upon the prosecution to prove an intentional relinquishment of a known right or privilege. Jordan v. Watkins; Fike v. State.
"It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case `upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' Johnson v. Zerbst,304 U.S. 458 , 464 [58 S.Ct. 1019 , 1023,82 L.Ed. 1461 ] (1938)." (Citations omitted.)
Edwards v. Arizona,
This court indulges every reasonable presumption against waiver of the right of counsel, and such a waiver must be affirmatively demonstrated to have been knowingly and intelligently made. Thomas v. State,
There being no per se violation by not having the appointed counsel of appellant present during the taking of the statement, we turn to the factual situation as previously set forth in part A of this discussion, upon which we must rest our determination of whether Jackson did effectively waive his Sixth, as well as his Fifth, Amendment rights. Based on the facts and circumstances previously discussed, we hold that appellant made an intentional relinquishment of his known right to have counsel present before talking to Sgt. Gay. The prosecution has met the strict standard.pa required to show a waiver of his Fifth and Sixth Amendment rights.
*745 C
Appellant stresses the fact that he was 18 years of age at the time the confession was made and had an I.Q. of from 70 to 85. While an accused's intelligence and literacy are important factors to consider, weak intellect or illiteracy alone will not render a confession inadmissible. Womack v. State,
In the case of People v. Lara,
"This, then, is the general rule: a minor has the capacity to make a voluntary confession, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissibility of such a confession depends not on his age alone but on a combination of that factor with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statement.
"....
"[T]he mental subnormality of an accused does not ipso facto render his confession inadmissible, but is simply one factor, albeit of significant weight, to be considered with all others bearing on the question of voluntariness."
Whether a juvenile has knowingly and voluntarily waived his Miranda rights is determined by a "totality-of-the-circumstances" approach. Fare v. Michael C.,
"This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permitsโindeed, it mandatesโinquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights."
Id.
Many jurisdictions, including Alabama, have held admissible confessions made by young persons of subnormal mentality. See, e.g., United States v. Smith,
Appellant asserts that reversal is required, under the authority of Garrett v. *746 State and Hines v. State. Appellant, in the case sub judice, clearly does not fall within the holdings of Garrett and Hines. At trial, Dr. Callahan testified on behalf of appellant that appellant's I.Q. was between 70 and 85, which Dr. Callahan stated to be in the range of "dull average to borderline" intelligence. On cross-examination, Dr. Callahan stated he thought that appellant was "fully aware of what is going on." There was also testimony that appellant had finished the eighth grade. There is absolutely no showing that appellant was functioning in the range of mental retardation which would, standing alone, invalidate his confession. Appellant's being in the "dull average to borderline" intelligence is a far cry from being in the trainable but not educable category of Garrett and Hines.
To sum up, we have seen that a minor, even of subnormal mentality, does not lack the capacity as a matter of law to make a voluntary confession without the presence or consent of counsel, or to make a knowing and intelligent waiver of his right to counsel during a critical stage of the proceedings.
We have thoroughly reviewed the totality of the circumstances surrounding the confession, including the fact that appellant was 18 years old and had an I.Q. of between 70 and 85. Our assessment of these facts and circumstances convinces us that the confession was completely voluntarily given after a knowing and intelligent waiver of appellant's Fifth Amendment rights. Such a review also convinces us that appellant voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel. Therefore, we find that appellant's confession was properly admitted into evidence.
VII
Appellant next contends that Act No. 81-178, Acts of Alabama 1981, approved March 31, 1981, repealed the capital felony statute under which appellant was indicted and thus the State's prosecution pursuant to this indictment was void. This argument has been found nonmeritorious by this court in Watkins v. State,
"[T]he new death penalty statute (Act. No. 81-178, supra) did not repeal the old statute (Code ง 13A-5-30 through ง 13A-5-38) as to offenses occurring prior to the effective date of Act No. 81-178.... Section 20 repeals the old death penalty statute, but specifically provides: `This repealer shall not affect the application of pre-existing law to conduct occurring before the effective date of this act.'"
Appellant has failed to cite Watkins in brief and has extended no arguments as to why Watkins should not be considered valid at this time. Appellant's argument is without merit.
VIII
Appellant next contends that the indictment is overbroad in charging three separate and distinct capital offenses, and that the indictment is vague in not advising him of what he must defend against. Appellant also argues that, due to the enactment of the new criminal code, there was "no crime of first degree murder after January 1, 1980, in this state," and that the crime of rape was repealed by the same act. No authority has been cited by appellant to support his contentions.
The indictment in this case avers that appellant had committed capital offenses under three different sections of the capital murder statute. Only Counts 1 and 3 were submitted to the jury, and the jury found appellant guilty on both counts. The dismissal of Count 2 eliminated it from any further consideration. Sanders v. State,
In answer to appellant's argument that the indictment is overbroad, we direct appellant to Smelcher v. State,
*747 "It is well settled by the decisions of this state that where offenses are of the same general nature and belong to the same family of crimes, and where the mode of trial and nature of punishment are the same, they may be joined in the same indictment in different counts."
See also Frye v. State,
Appellant argues that the indictment is also vague. Count 3 obviously charges appellant with rape-intentional killing pursuant to ง 13A-5-13(a)(3) rather than ง 13A-5-13(a)(3) as cited in the indictment. Appellant has not asserted, or made a showing of, actual prejudice due to this miscitation. A review of the code sections in effect on the date of this indictment indicates there was no ง 13A-5-13(a)(3) in the code.
"Miscitation of a code section does not void an indictment which otherwise states an offense; and, in the absence of a showing of actual prejudice to the defendant, reference to the erroneous code section will be treated as mere surplusage."
Bush v. State,
In further regard to appellant's vagueness argument, this court has previously stated:
"If there is no indictment form for an offense set out in Code ง 15-8-150, then an indictment which closely parallels the language of the statute creating the offense is generally valid. Harrison v. State, Ala.Crim.App.,384 So.2d 641 (1980).
"Pursuant to ง 15-8-25 Code of Alabama 1975, an indictment must state the facts constituting the offense, in ordinary and concise language, in such a manner as to enable a person of common understanding to know what is intended. It must likewise inform the accused not only of the nature of the offense, but also of the particular act or means by which it was committed. Harrison, supra, at 643."
Matthews v. State,
Our examination reveals that the indictment follows the statutory form of the crimes charged. It is a plain, concise, and definite written statement of the essential facts constituting the crimes charged. Furthermore, appellant was sufficiently apprised of the particulars of the offenses, to enable him to prepare a defense. Accordingly, appellant's vagueness claim is without merit.
Appellant's third objection to the indictment, that no crime of first degree murder or of rape existed at the time of the instant offense, is also without merit. While it is true that the indictment avers these component crimes in terms of the 1975 Code even though the crime arose after January 1, 1980, the effective date of the new criminal Code, the court's opinion in Potts v. State,
IX
Appellant next contends that he was denied due process of law by the trial court's denial of funds to employ a surveyor to determine the exact location of the boundary line separating the Birmingham and Bessemer Divisions. A denial of funds *748 for the purpose of obtaining expert witnesses does not constitute a denial of constitutional rights. Wiggins v. State,
Although no reason was stated as to why the trial court denied funds for the surveyor, it is well established in this jurisdiction that it is not necessary to prove the location of a county boundary line by expert testimony, for such may be proven by general reputation. Coleman v. State,
X
The trial court granted the State's challenge for cause as to four jurors who expressed their opposition to the death penalty. Appellant contends that this action violated his right to an impartial jury drawn from a cross-section of the community. We have carefully reviewed the contested proceedings wherein these prospective jurors were questioned by the court. These four individuals expressed adamant opposition to the death penalty under any circumstances.
The typical question presented to each of the four prospective jurors was in substance as follows:
"[Y]ou might remember and I'm just asking you to think of any circumstances you can think of, some particularly terrible crime like the Charles Manson case out in California, or James Earl Ray when he shot Martin Luther King, or when they shot President Kennedy or somebody would murder a little child. Can you think of any set of circumstances like that if you were sitting on a jury and you were convinced beyond a reasonable doubt that that person was guilty of the crime, can you see any circumstances where you would vote for the death penalty?"
The first prospective juror testified that he would not vote for the death penalty even if instructed by the trial judge that death was a possible punishment. The second prospective juror initially stated that he could impose the death penalty if he had to, but subsequently recanted, stating, "I don't believe in it, I just don't believe in it. I'm not going to concede." He was then re-asked the "under any circumstances" type question, to which he responded in the negative. The third prospective juror stated that he opposed the death penalty although he would find an accused guilty of a capital crime if sufficient evidence was presented. He further declared that he approved of life without parole, but there were no circumstances under which he could fix punishment at death. The final prospective juror testified in response to the "under any circumstances" question, "No, sir, absolutely. I don't believe in the death penalty." He also stated he could fix punishment "outside the death penalty," but could not impose the death penalty even if instructed by the court that it was a possible alternative.
Obviously these individuals would automatically vote against the imposition of capital punishment without regard to the evidence adduced at trial. As recently stated by the United States Supreme Court in Wainwright v. Witt,
"This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court." (Emphasis added in Adams.)
In holding that the standards announced in Adams rather than the standards of Witherspoon v. Illinois,
In the case sub judice, the veniremen challenged for cause were clearly not prepared to "consider and decide the facts impartially and conscientiously apply the law as charged by the court." Id.,
Appellant's contention that excluding these jurors violates his right to an impartial jury drawn from a cross-section of the community, recognized in Taylor v. Louisiana,
We therefore find no error committed by the trial court in excluding the four individuals challenged for cause.
XI
While appellant was in custody, at the Jefferson County Jail, blood samples were taken from him by Neil Whitehead, a physician's assistant employed by the County. The purpose of taking appellant's blood sample was to determine his blood type. Appellant argues that Whitehead was "unqualified" as an expert to testify as to the taking of the samples because he was not a registered nurse and, consequently, subsequent evidence concerning his blood type should not have been admitted. No authority has been cited for these propositions. The issue is whether Whitehead's qualifications were such as to insure the reliability of the blood withdrawal aspect of the testing procedure. The well established rules regarding the qualifications of expert witnesses to testify before the jury have been clearly stated in this court's recent decision of Pinkerton v. State,
"Whether a witness is shown to possess the requisite qualifications to be called an expert is a preliminary question largely within the discretion of the trial court. The criterion for admission of expert testimony is that the witness, by study, practice, experience or observation as to a particular subject, has acquired a knowledge beyond that of an ordinary witness.
"Whether a particular witness is an expert is a matter largely within the discretion of the trial court, and this court will not disturb that judgment unless there has been an abuse of that discretion." (Citation omitted.)
See also Charles v. State,
Whitehead testified that he had been employed by the County as a physician's *750 assistant in the County jail for four years and his duties entailed basic medical care for the inmates; that he performs between fifteen and twenty physicals per day, which include taking blood samples; that he has drawn more than two thousand blood samples; that he is a certified Emergency Medical Technician; that he has been formally trained in the techniques of drawing blood; that he was trained as an emergency medical technician at the Cooper Green Emergency Room, where he was employed for four years; and that he worked in a diabetes lab for one year, in where his job was to collect blood samples. After hearing this testimony, the trial judge overruled appellant's objection to the witness's qualifications. We likewise think the witness was qualified to take the blood samples and to testify on the subject of drawing blood samples under the circumstances of this case.
XII
Appellant made two demands for a preliminary hearing which were denied. Appellant was arrested on January 21, 1981. On February 12, 1981, appellant was present, with counsel, at a transfer hearing held in the Jefferson County Family Court. These proceedings were tape recorded; however, the tapes were subsequently destroyed before appellant's trial counsel could obtain copies. The first demand for a preliminary hearing was made on February 25, 1981, after the transfer hearing. An indictment was returned against appellant on April 17, 1981. The second demand for a preliminary hearing was made on May 22, 1981.
The purpose of a preliminary hearing is to determine whether probable cause exists, Elmore v. State,
"The purpose of a transfer hearing has been stated by this court as being to establish whether there is probable cause for a child to be transferred from juvenile court for criminal prosecution as an adult.... The parties must be advised of their rights, informed of the specific allegations in the petition, and given an opportunity to admit or deny such allegations. Following a presentation of competent, material, and relevant evidence the court must find that this evidence proved beyond a reasonable doubt that the child committed the acts alleged in the petition. It is only then that the court can proceed to make proper disposition of the case." (Emphasis added.)
In the case sub judice, the transfer hearing served the purpose of a preliminary hearing in determining the existence of probable cause. A repetitious inquiry to determine probable cause is not necessary. Potts v. State,
We also note that appellant's first demand for a preliminary hearing came after the 30-day period following appellant's arrest. "[F]ailure to demand a preliminary hearing within the 30-day statutory period waived his absolute right to a preliminary hearing". Id. at 893. Appellant's second demand came after the indictment had been returned against appellant. After an indictment has been returned, appellant has no right to a preliminary hearing, for the indictment is a determination of probable cause. Duncan v. State,
XIII
During the trial of this cause, appellant's attorney stated to the trial judge:
"Judge, it has come to my attention that some of the television cameras were shooting into the courtroom yesterday, and I have just seen them out in the hall. We would request they be instructed not to shoot through that window. I feel that would be prejudicial to Carnel Jackson if the jury saw someone looking in here. It would focus more on this case and the fact they may be involved in a news event and get away from the issue of whether or not he was guilty or innocent."
The trial judge denied the request, stating, "I'm not satisfied as to any prejudice that has inured toward the defendant in any manner." In his brief appellant asserts that the jury "was filmed by television cameras," thus placing undue pressure on the jury's decision and denying him due process as guaranteed by the Sixth and Fourteenth Amendments. Appellant cites no authority for this proposition. It does not appear that any evidence of "actual" filming was presented to the trial court, nor was there any showing of prejudice apparent from the record.
We view appellant's request to be wholly within the discretion of the trial court. In this regard, we have stated:
"The trial judge is vested with great discretion in the conduct of a trial, and, unless clear abuse of this discretion is apparent, the appellate courts will not interfere to set aside the lower court's action. Dolvin v. State,51 Ala.App. 540 ,287 So.2d 250 (1973). The trial court exercises this discretion in light of the circumstances of the particular case, and, in the absence of gross abuse, its actions are not reviewable by this court. McKee v. State,253 Ala. 235 ,44 So.2d 781 (1950)."
Snipes v. State,
XIV
Appellant raises a general chain-of-custody argument for all physical evidence introduced at trial. We have reviewed the record and find it unnecessary to address the chain of custody for each individual piece of evidence. Appellant's primary objection appears to be directed to the testimony of Kevin Nappinger, forensic serologist, who testified as to the test results of various swabs and blood samples taken from the bodies of the victims.
Appellant contests the introduction of Nappinger's testimony, alleging that the chain of custody of the swabs and blood samples was not shown because Dr. Buttram, who delivered the items to Nappinger for testing, did not testify. The chain is complete up to this point, for each witness in the chain testified and accounted for the items. Furthermore, the various samples, when taken from the bodies, were labeled and sealed in containers and Nappinger received the evidence in the containers as sealed.
*752 In Sexton v. State,
"To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain." (Citations omitted.)
The purpose of establishing a chain of custody is to show a reasonable probability that there has been no tampering with the item of evidence. Bell v. State,
In Oury v. State,
In the case sub judice, "an accounting was made of each successive step in the handling of the evidence." Lowery v. State,
XV
Appellant questions the sufficiency of the State's evidence as it relates to both Counts 1 and 3 of the indictment. He raised the question of sufficiency of evidence by motions to exclude upon the close of the State's case, and by motion for a new trial. These motions were denied.
As to Count 1, he argues that the only evidence linking him with the crime is his inculpatory statement and he questions its credibility by referring to it as the "11th hour" statement. His attorney implies in his summation to the jury, among other things, that it was a fabrication. However, appellant did not take the stand in his own behalf either at the suppression hearing or during trial to explain his incriminating statement. Instead, his defense consisted of cross-examination of the State's witnesses and arguments to the jury.
As to Count 3, he argues that there was no testimony that Mrs. Tucker was raped, nor that his statement alluded to a rape.
In deciding whether or not there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State,
In the case at bar, the trial judge correctly instructed the jury that Count 1 charged appellant with murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts. To prove the corpus delicti as to Count 1, the State was required to prove the deaths of Mr. and Mrs. Tucker, and that their deaths were caused by the criminal agency of another. Johnson v. State; McDonald v. State,
Once there is independent evidence of the corpus delicti, it is not necessary that a confession be corroborated. Johnson v. State; King v. State,
In the instant case, the State proved the corpus delicti by independent evidence; thus, the oral confession of appellant, which we have held to have been properly admitted into evidence, served to prove his participation in, and his guilt of, the crime for which he was charged and convicted.
Moreover, there was further evidence to support and corroborate appellant's confession. Appellant, Agee, and Godbolt were seen together on the night of the murder of the Tuckers. The shotgun which fired the three shells found at the scene of the crime, and which was unquestionably the *754 murder weapon, was traced to Godbolt, and was found in Mrs. Godbolt's yard. A hole in the ground at the scene with shot and wadding supports appellant's statement that Godbolt fired the gun into the ground. The wadded piece of paper found in Mrs. Tucker's blouse, which was determined to be Godbolt's telephone bill, pointed to Godbolt and his associates as the perpetrators of the crimes. A logical inference is that Mrs. Tucker somehow obtained the bill and intended that it serve to identify her attackers. Based upon the evidence presented, it is a fair inference from the evidence that appellant intentionally killed the Tuckers to prevent them from subsequently identifying him and his co-defendants for what they had done.
We find that there was sufficient evidence presented by the State to allow the jury to conclude beyond a reasonable doubt that appellant was guilty of the crime charged in Count 1, "[m]urder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts." ง 13A-5-31(a)(10).
The trial court correctly charged the jury that Count 3 charged appellant with rape when the victim is intentionally killed by the defendant. The trial court correctly charged the jury as to the definition of rape as well as to the requirement that, to constitute the capital offense, there must be the intentional killing of the person named in the indictment.
We disagree with appellant's contention that there was insufficient evidence of rape to support a conviction. The evidence showed that both Mr. and Mrs. Tucker had blood type A. Present in Mrs. Tucker's vaginal cavity were seminal fluid and sperm cells from a type O, secretor. Both appellant and Godbolt are type O, secretor. Agee is type A. The presence of sperm cells and seminal fluid from a male of blood type O clearly rules out marital intercourse as the source of the sperm in Mrs. Tucker's vagina. Based on the evidence that the Tuckers were last seen alive on Friday night and were found murdered the next morning, and that Mrs. Tucker had sperm and semen in her vagina from a male other than her husband, the jury could reasonably and logically infer that Mrs. Tucker was forced to have intercourse with one or more of her attackers. The fact that appellant and a co-defendant both have the same blood characteristics as the sperm found in Mrs. Tucker's vagina makes no difference. Even if the co-defendant was the one who actually raped Mrs. Tucker and appellant did not, appellant was properly indicted and tried as a principal though he may have only been an accomplice or aider and abettor in the act of rape. Sanders v. State,
"It is well established that a person present, aiding and abetting another in the commission of rape, is guilty as a principal and punishable equally with the perpetrator of the crime."
Biggs v. State,
A person may be properly convicted of a capital offense if it is proven that he was an accomplice in the commission of the offense. Lindsey v. State,
After examining the evidence and applying the proper standards of review, we find that there was sufficient evidence presented by the State to allow the jury to conclude beyond a reasonable doubt that appellant was guilty of the crime charged in Count 3, "[r]ape when the victim is intentionally killed by the defendant." ง 13A-5-31(a)(3).
Accordingly, appellant's motions to exclude and for a new trial based on the *755 assertion of insufficient evidence were properly denied.
XVI
During closing arguments, the prosecutor made certain statements concerning the testimony of William Cole. Appellant contends that these statements were highly prejudicial and that the trial court erroneously denied his motion for a mistrial based on these comments, which are as follows:
"William Cole, you saw his demeanor on that witness stand, nervous, whatever. You got to view him. He testified he had known these people before, Jackson, Agee and Godbolt. He saw them on prior occasions, lived out in area; you can consider him, his appearance, how he acted on there. I tried to ask questionsโ
"MR. JOHNSON: I'm going to object to this.
"THE COURT: Sustain. Mr. Gomany don't go too far with this, approach the bench, gentlemen.
"(Thereupon, there was an off the record discussion between the Court and all attorneys.)
"MR. GOMANY: William Cole testified that he saw three parties that Friday night, Agee, Godbolt and Jackson. He was with them at a party that night, late that night, and that Agee, Godbolt and Jackson all left together, and he didn't see them again until the next day.
"MR. JOHNSON: Judge, I'm going to object to that.
"THE COURT: Overrule.
"MR. GOMANY: And he said he saw Godbolt and he saw Agee and he saw Jackson the next day over in the area and he saw a shotgun.
"MR. JOHNSON: Judge, I'm going to object to that, and ask for a mistrial.
"THE COURT: Overruled. Disregard it, ladies and gentlemen, and Mr. Gomany don't go into Cole's statement anymore."
In Benford v. State,
"Whether a motion for a mistrial should be granted is often dependent upon what is heard and seen by the presiding judge. He is in a better position than an appellate court to make a correct determination of the motion, and the determination thereof is wisely vested in his sound discretion. An appellate court should not rule otherwise unless there has been a clear abuse of discretion." (Citations omitted.)
See also Wadsworth v. State,
We find no abuse of discretion in the trial court's ruling, based largely on our view that the statements were not ineradicably prejudicial. The prosecutor's statement concerning Cole's seeing Agee, Godbolt, and Jackson "that night" was fairly supported by Cole's testimony. The final statement, in which appellant contends that the State deliberately misled the jury as to appellant's whereabouts, implying that Jackson was with Godbolt and Agee on the day following the murders, is subject to interpretation. The jury heard Cole, in fact, testify that he saw Agee and Godbolt Saturday at Godbolt's residence; that he saw Godbolt's shotgun standing in the corner; and that as he was leaving around 11:00 a.m., he met appellant coming up the street, but appellant did not enter Godbolt's apartment. Thus, the statements made by the prosecutor that "he said he saw Godbolt and he saw Agee and he saw Jackson the next day over in the area and he saw a shotgun" were reasonable interpretations of Cole's testimony.
"Counsel for both the defendant and the State are allowed wide latitude on drawing reasonable inferences from the evidence in their closing arguments. Both have the right to present their impressions from the evidence, if reasonable, and argue every legitimate inference.... Statements of counsel in argument to the jury must be viewed as in the heat of debate, and such statements are usually valued by the jury at their true worth and are not expected to become *756 factors in the formation of the verdict."
Sanders v. State,
Even if, as argued by appellant, the State was attempting to argue points not in evidence, the trial judge's actions cured any prejudice that may have resulted. In Hammins v. State,
"When improper arguments are made to the jury, they will be considered eradicated by the trial judge if he sustains objections thereto and gives appropriate instructions to the jury. When prejudicial remarks have been made, the action of the trial court in regard to the arguments is reviewed with all presumptions in favor of such actions. There is a prima facie presumption against error where the trial court immediately charges the jury to disregard the prosecutor's improper remarks." (Citations omitted.)
The trial court, being in a better position to make a correct determination of effects of the prosecutor's actions, was properly within his discretion is overruling the motion for mistrial. The trial court sustained appellant's objection and the jury was properly and timely instructed to disregard the prosecutor's remarks; thus any prejudice that may have resulted from any remarks by the prosecutor was sufficiently eradicated.
XVII
Appellant argues that infliction of the death penalty would constitute cruel and unusual punishment because he was 17 years old at time of the offense. Appellant asserts that he was not subject to the death penalty for any acts allegedly committed in January 1981. Appellant has failed to cite any authority for these propositions. On February 12, 1981, appellant was transferred from the Jefferson County Family Court to the Circuit Court pursuant to ง 12-15-34, Code of Alabama 1975, and certified to be tried as an adult on the offenses charged in the indictment. Appellant does not contest the transfer proceedings, nor does he contest denial of youthful offender status. We find no error in those proceedings.
We agree with appellant that the age of the offender is an important consideration for the courts, especially in the juvenile transfer hearings, ง 12-15-34, and in the sentencing phase, where age is considered to be a mitigating circumstance, ง 13A-5-51(7). There is, however, no constitutional or statutory provision in Alabama which prohibits the sentencing of a minor to death when he or she is tried as an adult. The United States Supreme Court has not decided that juvenile status puts the death penalty in conflict with the Eighth Amendment. Ice v. Commonwealth,
This is not the first case in which a person of youthful age has committed a heinous crime and been sentenced to death. See, e.g., Davis v. State,
*757 An exception are those states, such as Texas and California, which by statute prohibit the imposition of a death sentence on a minor. See, e.g., People v. Superior Court of Alameda County,
It has long been the rule in Alabama that persons over the age of 14 are prima facie capable of committing a crime. LaBryer v. State,
XVIII
Appellant contends that he has been denied due process because he was the only one, of the three individuals involved in these crimes, that received the death penalty.[4] Whether the death sentence is appropriate for a particular defendant in light of the penalties imposed on his accomplices was thoroughly examined in Williams v. State,
"While Beck,396 So.2d at 664 , obligates this Court to consider the punishment received by alleged accomplices, it does not require or direct that every defendant implicated in the crime receive the same punishment. `There is not a simplistic rule that a co-defendant may not be sentenced to death when another co-defendant receives a lesser sentence.... Each case is evaluated on its unique factual circumstances.'" (Citations omitted.)
In the case sub judice, appellant was the "triggerman," and, although the apparent events leading up to the deaths of the Tuckers were appalling and atrocious, appellant alone inflicted the ultimate cruelty upon these victims in taking their lives. In Williams,
XIX
Appellant contends that the trial court erred in allowing the State to exclude all *758 blacks from the petit jury through the State's use of its peremptory strikes. Appellant further asserts that the State should have been required to prove that its strikes were not made solely on the basis of race as part of a pattern of systematic exclusion. In the jury selection of the instant case, the prosecutor used his first strike to exclude a white and his remaining nine strikes to exclude nine blacks from the jury, thereby securing the all-white jury which tried this case.
In Swain v. Alabama,
"The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it."
Id. at 222,
In the instant case, however, appellant contends that, not only were all black persons improperly excluded in his case, but the prosecutor's exclusion in his case is an example of the State's systematic exclusion of black persons from serving on petit juries in Jefferson County. As recognized by the Swain Court, "this claim raises a different issue and it may well require a different answer." Id. at 223,
"[W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. ... In these circumstances, giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify."
Id. at 223-24,
In his attempt to meet the burden enunciated by the Swain Court, appellant's counsel presented testimony of four local defense attorneys and one deputy district attorney of Jefferson County. This testimony clearly establishes that appellant has *759 not met his burden of proof. In fact, the testimony elicited from the attorneys clearly establishes under the test enunciated in Swain that blacks are not being systematically excluded from petit juries.
For example, appellant's first witness, Mr. Richard Jaffe, testified that "more often than not blacks would be struck off ... but that does not mean every case." Mr. Jaffe's testimony indicates that blacks were not excluded from every jury, such as where the victim was black. When asked if he could state that the district attorney's office struck blacks simply because they were black, the witness responded, "Absolutely not."
It is not necessary to extensively review the testimony of the remaining witnesses; suffice it to say that no witness could affirm that the State historically and consistently used its peremptory strikes to exclude all blacks from all juries. It is interesting to note that the testimony adduced at appellant's trial was quite similar to that described in Allen v. State,
As in Swain, the record before us does not provide clear and convincing proof that "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim may be,"
"[I]t appears that a defendant attempting to establish the systematic exclusion of blacks by the use of the peremptory challenge has the burden of proving the following facts: (1) that the prosecution, rather than the defense, was responsible for the removal of blacks by use of the peremptory challenge; (2) that this use of the peremptory challenge occurred in `case after case'; (3) that blacks were peremptorily challenged regardless of the circumstances of the case; and (4) that `no' blacks ever served on petit juries in the county involved." (Footnote omitted.)
Annot.,
Foremost, the evidence failed to show a sufficient quantity of cases in which blacks had been peremptorily struck by the prosecution. "The prosecutor's use of peremptory challenges in only a few trials is clearly insufficient to state a prima facie case, as would be a pattern of exclusion which occurred for only a few weeks." Willis v. Zant,
In addition to failing to show that the prosecution intentionally and historically struck black persons in "case after case," appellant failed to establish that black persons were excluded regardless of the circumstances of the case. Appellant primarily focused on the single circumstance where the defendant is black and the victim is white. The record does not disclose the prosecution's practices in trials involving non-black defendants; the review did not include every kind of case, "whatever the circumstances, whatever the crime and whoever the defendant or the victim may be." Swain,
Finally, from appellant's own evidence, we cannot conclude that any exclusion of blacks was the sole responsibility of the prosecution, because a defense attorney admitted in response to Judge Jasper's questioning, that he has used his peremptory strikes to exclude blacks; therefore, again, appellant's allegation lacks merit. A prima facie showing under Swain requires that the prosecutor alone is responsible for striking blacks. Swain,
Appellant's contention that the State should be required to prove that its use of the peremptory strike was not made solely on the basis of race, is also without merit. In Swain,
"The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control. ... It is often exercised upon the `sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,'... upon a juror's `habits and associations,' ... or upon the feeling that `the bare questioning [a juror's] indifference may sometimes provoke a resentment'.... It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty." (Citations omitted.)
See also Allen v. State,
Thus, we conclude that appellant has not established that the Jefferson County prosecutor impermissibly exercised his peremptory strikes to exclude black prospective jurors solely in furtherance of racial discrimination. We cannot hold otherwise upon the record before us. To do so would undermine our peremptory strike system, which we have recognized as essential to the fairness of trial by an impartial jury. See Allen v. State,
XX
In order to support the allegations asserted in the previous issue, appellant *761 sought to subpoena the records and notes of the district attorney and the members of his staff, in regard to their exercise of peremptory strikes. The trial court quashed the requested subpoena duces tecum, which appellant claims constituted reversible error.
In Dowdy v. Gilbert Engineering Co.,
"Whether a subpoena duces tecum should be enforced is, in the first instance, a question for the trial court. An order to quash should be reversed only for abuse of discretion. ... A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision." (Citations omitted.)
We find no abuse of discretion present in this case. The testimony of the witnesses called by appellant affirmatively shows that there is no systematic exclusion of blacks by the district attorney's office. The documents requested by appellant would have been merely cumulative of his witnesses' testimony. There was ample testimony from the witness stand to support the judge's ruling quashing the subpoena duces tecum. We, therefore, find no abuse of discretion present in his ruling on this matter.
XXI
As required by A.R.A.P. 45A, we have reviewed the entire proceedings of appellant's trial and deem it necessary to consider the holding of Duncan v. State,
In Duncan, the defendant was charged in a two-count indictment with two separate capital felonies. The first count charged the nighttime burglary of an occupied dwelling when one of the occupants is intentionally killed, in violation of ง 13A-5-31(a)(4), and the second count charged murder in the first degree wherein two persons are intentionally killed by one or a series of acts, in violation of ง 13A-5-31(a)(10). Id. at 886. The jury returned two separate verdicts, finding the defendant guilty under each count. Id. The trial court then sentenced the defendant to two terms of life imprisonment without parole, to run consecutively. Id.
On appeal, this court first determined that "every element necessary to sustain a conviction under count one in the indictment was clearly proven." Id. at 905. The court then stated:
"Having determined that the evidence was sufficient to support appellant's conviction for the offense charged in count one of the indictment, we hold that his separate conviction and sentence under count two cannot be allowed to stand. To hold otherwise would allow appellant to be punished twice for killing the same person, Eva Sims."
Id. The court relied on ง 15-3-8, and the case of Wildman v. State,
If we were to follow the dictates of Duncan, we would be required to reverse and render judgment in favor of this defendant as to one of the verdicts returned by the jury. However, we hold that Duncan is incorrect in this regard, and that appellant was properly convicted of both rape-intentional killing and double-murder in the case sub judice.
*762 In expressly overruling the specific holding in Duncan, we start with a review of ง 15-3-8, which reads as follows:
"Any act or omission declared criminal and punishable in different ways by different provisions of law shall be punished only under one of such provisions and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision. (Code 1923, ง 5204; Code 1940, T. 15, ง 287.)"
In Sporl v. City of Hoover,
"The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not."
The court in Duncan overlooked the Blockburger rule and instead relied on Wildman v. State to support its incorrect reading of ง 15-3-8. In Duncan,
"`It is also not open to dispute that if there were merely a single inseparable act violative of more than one statute, or if there were an act which itself violated one statute and was a material element of the violation of another, there would have to be single punishment.' Emphasis added [in Duncan.]"
The court considered the murder of Eva Sims a single inseparable act supporting the burglary-intentional killing charge as well as the double-murder charge, thus requiring the State to elect "as to which of the charges of homicide of Eva Sims it will prosecute."
In Colston v. State,
"The proof in the trial of Colston for robbery and the instant proof shows that the robbery and homicide were blended in the act and each offense was an incident of the other. The homicide was an act of violence as charged in the indictment for robbery, an incident to the robbery, and part thereof."
The Alabama Supreme Court, in reversing this court on the above quoted point, stated that this court had misinterpreted Title 15, ง 287, and held that Colston had committed two "separate and distinct crimes" which "clearly constituted two criminal offenses."
"`A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and on fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law.'"
*763 In the instant case, appellant was charged with rape-intentional killing and double-murder. The murder of Mrs. Tucker was an element of both offenses, but each offense also required proof of an element that the other did not. Proof of the rape-intentional killing count did not require proof of the killing of Mr. Tucker. Proof of the double-murder count did not require proof of the rape of Mrs. Tucker. We therefore conclude that under the test established in Blockburger, appellant was properly indicted and convicted for two separate and distinct capital offenses "notwithstanding a substantial overlap in the proof offered to establish the crimes," Iannelli v. United States,
Duncan also appears to prohibit double punishment under the facts existing in Duncan and in the case sub judice. We do not find it necessary to address this portion of Duncan's interpretation of ง 15-3-8 prohibiting double punishment under facts similar to those of Duncan and the instant case because we do not have a double punishment situation in this case. In the case at bar, appellant was sentenced to only one punishment and not two, as was Duncan.
XXII
The scope of our review in death cases is clearly set out in A.R.A.P. 45A. We have followed this standard in the case at bar and have found no "plain error or defect in the proceedings."
In reviewing appellant's death sentence by the three-tiered analysis of Beck v. State,
In reviewing this sentence, we are also bound by the provisions of ง 13A-5-53, Code of Alabama 1975. Our findings above comply with ง 13A-5-53(a). In compliance with ง 13A-5-53(b) we find that: (1) There is no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) our independent weighing of the aggravating and mitigating circumstances convinces us that the sentence of death is appropriate in this case; and (3) considering the crimes committed and the defendant, the death sentence is neither excessive nor disproportionate to the penalty imposed in similar cases.
We have carefully searched the record in both the guilt and sentence phases of Jackson's trial, and we have found no error. It is our opinion that appellant received a fair trial and was ably represented by experienced counsel throughout the proceedings. Accordingly, appellant's convictions and sentence of death are due to be, and they are hereby, affirmed.
AFFIRMED.
All Judges concur.
*765 APPENDIX A
IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT OF ALABAMA
STATE OF ALABAMA
VS
CARNEL JACKSON
CASE NO. CC 81-00887
ORDER OF THE COURT ON IMPOSITION OF THE DEATH PENALTY
The defendant in this case, Carnel Jackson, was charged by indictment of the grand jury of the Circuit Court of the Tenth Judicial Circuit of Alabama, in and for Jefferson County, Alabama, with the capital offenses of Section 13A-5-31(A)(10) Murder in the First Degree, wherein two or more human beings are intentionally killed by the defendant by one or a series of acts, wherein Myra Faye Tucker, a human being and Terry Wayne Tucker, a human being, were allegedly shot by the defendant with a shotgun. The defendant also was charged in the same indictment under Section 13A-5-31(A)(3) Rape when the victim is intentionally killed by the defendant. Said indictment charged Carnel Jackson, a male, with the rape of Myra Faye Tucker, a female, by forcible compulsion and that the said Carnel Jackson did intentionally kill the said Myra Faye Tucker. These charges are brought under provisions of the Alabama Death Penalty Statute, Code of Alabama, 1975, Section 13A-5-30 et seq.
This case came on to be heard before the Court and a jury of twelve men and women duly impaneled and sworn as required by law; whereupon the jury after hearing the evidence, the Court's charge as to the applicable law, including the lesser included of Murder as to the alleged victim, Myra Faye Tucker, under Count One in the indictment and Murder as to the alleged victim, Terry Wayne Tucker, under Count One in the indictment, and Rape in the First Degree as to the alleged victim, Myra Faye Tucker, as charged in Count Three in the indictment, and Murder as to the alleged victim under Count Three, as alleged in the indictment, found the defendant guilty of the Capital Offenses as charged in Count One in the indictment and found the defendant guilty of the Capital Offense as charged in Count Three in the indictment. The jury was polled as to each of the two verdicts and the verdicts were unanimous in finding the defendant guilty of the Capital Offenses and not of the lesser included offenses mentioned above. The Court announced the jury verdicts on November 19, 1981, and on said date commenced a punishment phase hearing before the same jury as required by the Supreme Court of Alabama in Beck v. State, 396 So.2nd, 645 (Supreme Court of Alabama, 1980 as modified on Denial of Rehearing March 6, 1981). After hearing evidence during the punishment phase hearing, the jury again was charged as to the applicable law, advising said Jury that if the mitigating circumstances outweigh the aggravating circumstances, then the punishment would be life imprisonment without eligibility for parole, but if the aggravating circumstances outweigh the mitigating circumstances as shown by the Court's Charge, then the verdict would be at death. After due deliberation, the jury returned a verdict fixing the defendant's punishment at death. The jury was individually polled and the verdict was unanimous.
This Court would commend the attorneys for both the state and the defense for putting aside any attempt to emotionally influence the jury with passion, prejudice or other arbitrary factors in arriving at the punishment as shown by the jury verdict. The makeup of this jury composed of eight white women and four white men impressed the Court with the interest and dedication of our citizens and peers. This Court in its qualifications to the jury requested as whether or not the jurors has any bias or prejudice that would influence their verdict. By their silence, they answered in the negative. Therefore, this Court is satisfied and does find that the elements of passion, prejudice or other arbitrary factors were not present in the jury's deliberations and findings fixing *766 punishment at death. The Court then announced the jury's verdicts and set November 20, 1981 at 10 A.M. for a further hearing as mandated by Sections 13A-5-32 and 13A-5-33. At said hearing, the defendant, his trial counsels, the Honorable Orson Pete Johnson and the Honorable George Andrews, and the Deputy District Attorneys, the Honorable Ken Gomany, and the Honorable Scott Boudreaux, were present and ready to proceed.
FINDING OF FACT FROM THE TRIAL
The Court makes the following finding of fact from the guilt phase portion of the trial before the jury: That Myra Faye Tucker, a female, age thirty-one years, was a resident of Sylacauga, Alabama; that she was married to Terry Wayne Tucker, a male, age thirty-one years, of Sylacauga, Alabama. That on January 17, 1981, that the bodies of the said Myra Faye Tucker and Terry Wayne Tucker were found in Jefferson County, Alabama, the Birmingham Division, both having been shot with a shotgun.
The Court further finds as a finding of fact from the guilt phase portion of the trial that according to Doctor Charles Bruce Alexander and Deputy Coroner Joe Canoy the cause of death to the said Myra Faye Tucker was a shotgun wound to the chest and breast area of her body and that the cause of death to the said Terry Wayne Tucker was a shotgun wound to the lower back portion of his body. At the time of the examination and autopsy of both the said Myra Faye Tucker and Terry Wayne Tucker, Doctor Alexander found that the wounds to each of them were reasonably calculated to cause death. Said wounds were described by Doctor Charles Bruce Alexander, a pathologist, and were shown by pictures introduced at the trial. From the autopsy also, Doctor Charles Bruce Alexander further testified that as a finding he determined semenal fluid containing the male spermatozoa in the oral cavity, the anal cavity and the vaginal cavity of the said Myra Faye Tucker. Subsequent to January 17, 1981, and on January 21, 1981, the defendant, Carnel Jackson, was taken into custody by Sergeant James E. Gay of the Birmingham Police Department. That at the time of the arrest, the defendant made no inculpatory statement implicating him in the death of Myra Faye Tucker or the said Terry Wayne Tucker. That blood samples were taken from the bodies of the said Myra Faye Tucker and the said Terry Wayne Tucker and the Court further finds as a finding of fact the proper chain of evidence was preserved in that the samples of blood and body fluids and swabs were taken by Deputy Coroner Joe Canoy to the Alabama Department of Forensic Sciences and turned over to Kevin Noppinger, a Criminal Serologist with said Department of Forensic Sciences. Kevin Noppinger subsequently testified and the Court makes the following finding of fact that the blood type of the said Myra Faye Tucker was Type A; that the blood type of the said Terry Wayne Tucker, her husband was Type A. That the blood type as shown by the swabs from the vaginal cavity were blood type ABO-O. Mr. Noppinger further testified that the said Terry Wayne Tucker could not have emitted the semenal fluids into the vaginal cavity of Myra Faye Tucker. Blood samples and secretion gauze were obtained from the defendant, Carnel Jackson, and these were properly transmitted to the said Kevin Noppinger. Mr. Noppinger further testified and the Court makes the following finding of facts, that the defendant's blood type was Type ABO-O. On approximately September 9, 1981, from the Jefferson County Jail in Birmingham, Jefferson County, Alabama, the defendant, Carnel Jackson, called the Birmingham Police Department, speaking to one Sergeant Ann Ballard, and the Court makes the following finding of fact, that the said defendant requested to speak to Sergeant James E. Gay. That the said Sergeant James E. Gay went to the Jefferson County Jail and after duly advising the defendant as to his Miranda Rights and Warnings, and after the proper predicate having been laid, the state introduced a confession-statement of the defendant, Carnel Jackson. The Court makes the following finding of fact, that the said Carnel Jackson waived his right to have his attorney *767 present and further did voluntarily and intelligently make a confession-statement to Sergeant James E. Gay. According to the said confession-statement and the Court makes the following finding of fact, that the defendant, Carnel Jackson, admitted that one Jerry Steven Godbolt fired the shotgun into the ground at the site where the bodies were found and the said Carnel Jackson took the shotgun away from the said Jerry Steven Godbolt and first fired, shooting Myra Faye Tucker, and then firing and shooting Terry Wayne Tucker. These gunshot wounds caused the death of said Myra Faye Tucker and the said Terry Wayne Tucker.
FINDING OF FACT FROM THE PUNISHMENT PHASE HEARING
At the punishment phase of this trial before the same jury, the state was allowed to show aggravating circumstances and the defendant was allowed to show mitigating circumstances. The mitigating circumstances as shown by the evidence and the Court makes the following finding that the defendant has no significant history of prior criminal activity and the age of the defendant at the time of the crime wherein it was shown that the defendant was seventeen years of age. The Court finds the following mitigating circumstances to exist, namely, the defendant has no significant history of prior criminal activity and secondly, the defendant was seventeen years of age at the time of the commission of the offense. The Court makes the further findings of fact that the aggravating circumstances were encompassed within the Capital Offenses as shown by Section 13A-5-31(A)(10) and by Section 13A-5-31(A)(3) and the Court makes further findings of fact that the components of the offense, namely, Murder in the First Degree, where two or more human beings were intentionally killed by the defendant, and the Court makes the following finding of fact, that the defendant, Carnel Jackson, did intentionally kill Myra Faye Tucker, after having engaged in sexual intercourse with the said Myra Faye Tucker, a female, by forcible compulsion and that in the course of said Rape, the said Carnel Jackson did intentionally cause the death of said Myra Faye Tucker by shooting her with a shotgun. The Court makes the further finding of fact from this hearing, that the aggravating circumstances as required by law outweigh any mitigating circumstances as shown during the punishment phase hearing and this hearing before the Court.
After due consideration of all the matters that were presented to the Court during this hearing both in mitigation and by aggravation and taking into consideration all other matters that were properly before the Court as hereinabove stated in this order, this Court does now find and is convinced beyond a reasonable doubt and to a moral certainty that the aggravating circumstances as shown above and brought before this Court are sufficient to uphold the jury's verdict affixing punishment at death.
It is, therefore, the judgment of this Court that this defendant, Carnel Jackson, should be sentenced to death.
DONE and ORDERED this 20th day of November 1981.
/s/ Joseph J. Jasper Circuit Judge.ON APPLICATION FOR REHEARING
PATTERSON, Judge.
OPINION MODIFIED; APPLICATIONS OVERRULED; RULE 39(k) MOTION DENIED.
All the Judges concur.
NOTES
Notes
[1] These sections as they appeared in Blue Supplement are a recodification of งง 13-11-2(a)(10), (2), and (3), Code of Alabama (1975).
[2] Godbolt v. State,
[3] Agee v. State,
[4] Godbolt's sentence was fixed at death by the jury who convicted him of the robbery-intentional killing of Mrs. Tucker; however, the trial court sentenced Godbolt to life without parole. Agee was convicted under a two-count indictment for the robbery-intentional killing and the rape-intentional killing of Mrs. Tucker. He was also convicted under a separate indictment for the robbery-intentional killing of Mr. Tucker. The jury fixed punishment under each conviction to life imprisonment without parole; the trial court set the sentence likewise.
[5] Extensive criticism has been directed toward this burden. See, e.g., Willis v. Zant, supra; United States v. Childress,
[6] We believe that the "material element" language of Wildman is properly referring to cases such as those discussed in Illinois v. Vitale,
"When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one."
Id. In Vitale,
"[A] person who has been convicted of a crime having several elements included in it may not subsequently be tried for a lesser-included offenseโan offense consisting solely of one or more of the elements of the crime for which he has already been convicted. Under Brown [v. Ohio,
Our Supreme Court has acknowledged this line of reasoning in Clift v. State,
[7] A listing of convictions for which a sentence of death was imposed under Alabama's Death Penalty Statute.