The appellant, Victor R. Stephens, was convicted of both counts of an indictment charging him with a capital offense involving the robbery and murder of James R. Bailey, in violation of §
The bodies of James R. Bailey and Adam "Pop" Pickens were discovered at Bailey's Grocery Store on Alabama Highway 14 in the Wedgeworth community near Sawyerville, in Hale County, Alabama, on January 20, 1986. Mr. Bailey, age 72, the owner of the store, was found dead inside the store — apparently of multiple gunshot wounds. Adam Pickens, age 83, was still alive, but also suffering from multiple gunshot wounds. Mr. Pickens was taken to Druid City Hospital in Tuscaloosa, Alabama, where doctors attempted to save his life. However, Mr. Pickens died while in surgery.
The evidence as presented by the State tended to establish that Mr. Bailey and Mr. Pickens were last seen alive by Mr. Bailey's daughter-in-law Sandra Bailey. Ms. Bailey "ran down" to her father-in-law's store between 4:25 and 4:30 p.m. on January 20 to purchase a gallon of milk before the store closed for the day. Sylvester Jackson came to the store between 4:30 and 5:00 p.m. to buy some gasoline for his car. After pumping the gas, Mr. Jackson entered the store to pay for the gas. He observed both victims lying on the floor. Mr. Jackson ran out of the store and rushed home to tell his mother what he had seen. His mother called the sheriff's department and told them what her son had seen.
Shortly thereafter, Hale County Sheriff H.C. Colvin, Alabama Bureau of Investigation investigator C.W. Gibson, and Alabama Department of Forensic Sciences crime scene examiner John McDuffie arrived at the store to begin their investigation and to collect any evidence which might assist them in discovering the identity of the person or persons who shot the two men. The examination of the store revealed that Mr. Bailey was robbed of money and food stamps and that Mr. Bailey had fired his .20 gauge shotgun at the robbers. Adam Pickens was unarmed. Mr. Bailey was found in the middle of the store still clutching his shotgun. Mr. Bailey had apparently been shot in a different location inside the store as there was a trail of blood leading to Bailey's body. Further examination of the scene revealed that one individual — later determined to be the appellant — had been hit by the shotgun blast as blood was found near the front door together with a .25 caliber automatic pistol. A number 8 shotgun pellet was removed from the barrel of the weapon.
Further investigation revealed that Carrie Ingram and Sheila Kennedy were walking along Alabama Highway 60 in Akron late on the afternoon of January 20, 1986. The two women were walking in the oncoming traffic lane — approximately 6 miles from Bailey's store — when they were met by a small black pickup truck traveling at a high rate of speed. The truck was proceeding in a direction away from Bailey's store. The women noticed that the passenger in the truck was black and that he appeared to be slumped over in the seat. Linda Johnson and her son Kevin also saw the black pickup on Highway 60 that afternoon. According to Ms. Johnson, she was preparing to turn left from Highway 60 onto County Road 45 when she looked into her rear-view mirror and noticed a black pickup truck coming up behind her at a high rate of speed. Despite the fact that Ms. Johnson had turned on the vehicle's left-turn signal, the truck showed no sign of reducing its rate of speed. Fearing a collision, Ms. Johnson stopped her vehicle and allowed the truck to overtake her before she completed her left turn. Although *14 she could not identify the make of the truck or who was driving it, her son Kevin readily identified it as a black Nissan pickup truck and told authorities that he had observed two black males inside the truck.
Pursuant to the information received from various witnesses and the evidence collected at the scene, the Hale County Sheriff's Department issued a regional teletype advising law enforcement agencies to "be on the lookout" for two males, armed, one possibly injured. The teletype also requested that these agencies check area clinics and hospitals for persons with possible gunshot wounds. On Tuesday, January 21, 1986, Georgia Bureau of Investigation agent Charles Stone and ABI agent Ed Traylor advised the Hale County Sheriff's Department that both subjects were in custody in Carroll County, Georgia. Further information from Georgia officials revealed that Christopher L. Starks was apprehended in possession of a .32 caliber pistol and that the appellant, Victor R. Stephens, was treated for a shotgun wound to his left hand at the Bowdon Area Hospital in Carroll County, Georgia, on Monday evening January 20, 1986.
On Wednesday, January 22, 1986, a black Nissan pickup truck owned by Christopher L. Starks, a co-defendant, was searched by law enforcement agencies. Found in the vehicle were blood stains on the passenger's seat and three (3) one-dollar denomination "food stamps" which had been issued from food stamp offices in Hale County and Tuscaloosa County, Alabama. Also taken from the glove compartment of the truck were identification papers belonging to the appellant, Victor R. Stephens.
A series of statements were taken by law enforcement officials from the appellant while he was in the custody of Georgia officials. These statements were taken orally on January 23, 25, and 28, 1986. The gist of the three statements revealed that appellant and Christopher "Peabody" Starks, left Georgia on Saturday, January 18, 1986, and traveled to New Orleans, Louisiana, where they remained until Monday, January 20, 1986. On Monday, while Stark was driving through Alabama on the way back to Georgia, the two men decided they needed some money. According to the appellant, Starks suggested that they find someplace to rob. They went into a store in Alabama occupied by an elderly white man — subsequently identified as James R. Bailey — and an elderly black man — subsequently identified as Adam Pickens. "Peabody" entered the store and displayed his weapon, while the appellant guarded the entrance. After the appellant and Starks obtained the contents of the store's cash register, they started to leave. At this time, Mr. Bailey pulled out a shotgun and fired it. Pellets from the shotgun shell struck the appellant in the left hand. It was then that the appellant "emptied" his .25 caliber pistol. According to the appellant, Starks was armed with either a .22 or .32 caliber pistol. Appellant admitted leaving his .25 caliber automatic pistol at the store. The two men then got back into their truck and drove back to Georgia.
Autopsies were performed on both victims. The results revealed that James R. Bailey died as a result of multiple gunshot wounds to the face, chest, abdomen, and hand. Two expended .32 caliber bullets and one .25 caliber bullet were removed from Mr. Bailey's body. Adam's Pickens's autopsy revealed that he died from four separate gunshot wounds to the back. All four expended bullets recovered from Pickens's body were .25 caliber bullets. The seven expended bullets removed from the victims (three from Bailey, four from Pickens) were sent to the Alabama Department of Forensic Sciences for examination. Forensic firearm examiner Lawden Yates examined each of the seven bullets. His examination revealed that the two .32 caliber bullets removed from Mr. Bailey's body were fired from the same .32 caliber pistol found on the person of Christopher Starks at the time of his arrest. The five .25 caliber bullets removed from the victims (one from Mr. Bailey, four from Mr. Pickens) were fired by the .25 caliber automatic pistol that was left at the store by the appellant. Shotgun pellets removed from Stephens's hand at the Bowdon Area Hospital in Carroll County, Georgia, were compared with shotgun pellets removed from *15 the store and the barrel of the .25 caliber gun. The analysis revealed all to be number 8 shotgun pellets, consistent with the type shell recovered from Bailey's weapon. This concluded the State's evidence.
The only evidence presented by the defense was in the form of testimony from Jessie Portis. Mr. Portis testified that he arrived at Bailey's store after Mr. Bailey and Mr. Pickens were shot. He leaned down and asked Mr. Pickens if he could say what color vehicle the robbers were in. According to Mr. Portis, Mr. Pickens responded that the robbers were in a red vehicle. When asked if the robbers were white or black, Mr. Pickens stated, "white."
1. Mr. Mickens — expressed serious reservations about imposing the death penalty.
2. Ms. Ball — expressed serious reservations about imposing the death penalty.
3. Mr. Ball — answered prosecutor's question concerning previous knowledge or association with illegal drugs, indicating that he, some member of his family, or a close friend had been involved with illegal drugs; his son had been in "some serious trouble" dealing with drugs and/or other criminal activity; also indicated he did not wish to serve on a jury.
4. Mr. Patton — affirmatively answered prosecutor's question concerning previous knowledge or association of any type of criminal offense; further investigation revealed that he had been convicted of night hunting and DUI.
5. Ms. Hood — asked to be excused from jury duty and "had quite a bit to say about lack of transportation and inability to get here and she was concerned and wouldn't be able to pay attention, etc."; husband was prosecuted and served time in jail for failure to pay court-ordered child support.
6. Ms. Holifield — prior arrests for writing "worthless checks and similar type offenses on several different occasions."
7. Ms. C. Harris — young, single, and unemployed; brother a defendant in a criminal prosecution.
8. Ms. Spence — sons had been involved in "some very serious criminal offenses."
9. Ms. Johnson — had been a defendant in small claims court and been served with numerous civil suits; appeared to be extremely responsive to the defendant's questions; also, the fact that she was chewing gum was felt to indicate her lack of respect for the seriousness of the proceedings.
10. Ms. Cottrell — asked to be excused from jury duty; also indicated in response to prosecutor's question that she, or someone very close to her, had been charged with some criminal offense.
11. Mr. Pratcher — although his permanent legal residence was in Hale County, he was currently living and working in Atlanta, Georgia; seemed to be interested in not serving on a jury; also was wearing sunglasses in the courtroom; also, at some time during voir dire proceedings, sat next to or appeared to have some sort of relationship with a juror excused for cause because of his views against capital punishment.
12. Ms. Lewis — single and unemployed; her son had been involved in some sort of "death or killing."
13. Ms. Shelton — prosecution found it "extremely strange" that every juror from her small community except her had heard something about the crime since it occurred in that community; also *16 very insistent about giving her marital status as separated.
14. Ms. E. Williams — seemed to be very familiar with the facts of the case; indicated during voir dire that she was well aware that one of the victims had lived long enough to make a dying declaration.
15. Ms. B. Wilson — county sheriff was acquainted with juror and recommended that she be struck because she was "extremely anti-establishment" and because of belief that her husband had been involved in some type of criminal activity.
16. Ms. A. Harris — young, single, and unemployed; knew nothing of the facts surrounding the case.
17. Mr. K. Williams — general appearance was very rough and unkempt; also, like Juror Pratcher, appeared to be involved with a juror struck for cause because of his views against capital punishment.
18. Ms. Brown — husband a homicide victim; however, sheriff's department was concerned about her as a juror because of her belief that her husband's case had been mishandled.
19. Ms. Hayes — seemed totally removed from the situation; felt that this might indicate animosity on her part, since she worked at the nursing home where the wife of one of the victims now lived.
20. Ms. Hobson — asked to be excused from jury duty; felt that this, along with fact that she had an invalid husband and a house damaged in the previous night's storm, might affect her concentration on the case.
21. Ms. S. Harris — relatives had been in trouble with the law.
The prosecutor's remaining two peremptory challenges were used to remove two white male jurors from the jury venire. The reasons given for these two jurors was that one "had been in criminal trouble and had been prosecuted at some point in time" and the other had a cousin that had been involved in some type of criminal activity. Defense counsel challenged the prosecutor's reasons for several of his strikes, alleging:
"MR. MORRIS [defense counsel]: Judge, I'm not sure that I have any cross. I would make it known for the record on I think there were three people that they mentioned and that was Mr. Williams, Mr. Pratcher, and a Mr. Pratcher. Mr. Kenneth Williams and Mr. Willie Pratcher and one other individual that I believe the District Attorney alluded to as sitting near or being around Mr. Gray. I would make it known to the Court, I believe the Court would recall that during yesterday's continuous voir dire that lasted into the night, Mr. Gray was an occupant on the front row with a Mr. Corley sitting on one side and a Mr. Collins sitting on the other. Both of whom were white. To my knowledge, there was not another black individual on the front row yesterday. So I would differ with the information of the State in that regard. Now the information that the District Attorney has concerning things like they had some relatives involved in some crimes, being in small claims court where they've been sued, matters like this, in light of the — the fact that the State said they didn't respond to any questions or didn't seem to know anything about it, we contend that the jurors by comparison that were left on this case knew nothing about it. Starting with Mr. Grinstead, Mrs. Fondren, Mr. Corley, also responded that they knew nothing about it. A Mrs. Lyles responded that she knew something about it. She was left. A black female. Now Mrs. Marks responded that she knew something about it, a black female. A Mr. Ryans responded that he knew something about it, a black male. A Mrs. Travis responded that she knew something about it, a black female. Mrs. Williams responded that she knew something about it, a black female, and our contention is that it's clear that the fact that someone knows nothing about it played no part and we contend that it was strictly on the basis of race in this matter.
"As to Mrs. Ruby Lee Brown, she stated in voir dire that her husband was a victim of a homicide and that the victim was prosecuted and there would be no other — I *17 believe she also responded — I believe she had a bumper sticker — I take that back, Your Honor. That's not true. I'm saying that there would be no reason in the world that I can think of why she would not be an excellent juror other than race. She was struck.
"Further, we contend that the last four strikes that they enumerated, starting with Mrs. Brown, are vague and very indecisive answers. For instance, Mrs. Hayes, number 19 strike, number 40 on the venire list, stated that she knew Mrs. Bailey and that she knew her and knew her daughter and had an association with Mrs. Bailey who's in the nursing home where she's employed as well as knew her daughter well. No conceivable reason that the defense can find, no conceivable reason that she would not make an excellent juror for the State, other than the fact that she's black.
"Now there's vague allegations on number 43, they say that her husband had been in some sort of problem. Mrs. Hobson, we contend that's just a smoke screen there. And then one of the persons up here, he had some sunglasses on. The defense contends certainly that is no justifiable reason. Now that's all I have."
The prosecutor responded as follows:
"MR. GREENE: Our only response is that one of the first things as to Mr. Gray, it was reported to us and made quite some concern as to Mr. Gray this morning concerning who he might talk to. Now this is the information we got from the people we asked to try to pay attention. Now Mr. Williams, Gray, Patton and Pratcher, were sitting together this morning in the back of the courtroom. We felt that that might be a matter of concern. We point out for the record that the last, I think, five strikes for the State involved two white males we thought we had some problems with and three black females that we were concerned about. We also thought these three black females might make us good jurors, but we had reason, we felt, overrode our desires to retain them.
"I think that's all.
"THE COURT: Is it your testimony as an officer of this Court that the reasons for striking were non-racial and not based upon the race of any particular juror?
"MR. GREENE: It is, Your Honor. I think the jurors we have before us bears that out. There's black males serving, some five blacks in total. We have an abundance of females on this jury in a capital murder case. I think we've got a jury that well reflects, based upon peoples backgrounds, Your Honor, and on that basis, a fair racial mixture of males and females, black and white, in this community. We arrived at this through exhaustive and argumentative process."
Thereafter, the trial court found that appellant'sBatson motion was not well-taken, and overruled the motion.
In reviewing this issue, we find particularly helpful this Court's recent decision in Warner v. State, [Ms.
"A prosecutor may not use peremptory jury strikes in a racially discriminatory manner. Batson, supra. The principles of Batson, as interpreted by the Alabama Supreme Court, are set out in Ex parte Branch,
(Ala. 1987), and Harrell v. State, 526 So.2d 609 , 555 So.2d 263 265 (Ala. 1989) ('We take this opportunity to clarify the Batson analysis.'). Applying those principles to the facts of this case, we find that the tenets of Batson and Branch have been minimally satisfied."In Harrell v. State,
555 So.2d at 268, n. 1 , the Alabama Supreme Court noted:" 'There are many possible reasonable explanations for such strikes [of blacks by the prosecution]. Batson demands that such strikes be related to the case to be tried and not be related to the defendant's and the jurors' shared race. Batson,
, 476 U.S. 79 97-98 ,, 106 S.Ct. 1712 1723-24 ,(1986). In a given case, the following factors may be relevant and *18 may suffice to defeat the defendant's prima facie case: 90 L.Ed.2d 69 " '1. Age, fringe religious beliefs, body english, handwriting, and name association in certain instances. Tolbert v. State,
, 315 Md. 13 (1989); Chambers v. State, 553 A.2d 228 (Tex.Ct.App. 1987). 724 S.W.2d 440 " '2. Demeanor of the juror. United States v. Forbes,
, 816 F.2d 1006 1010 (5th Cir. 1987)." '3. Fact that prospective juror, like defendant, may be young, single, and unemployed; fact that prospective juror was struck because divorced and of low income occupation, in favor of a professional, married person; avoidance of eye contact with prosecutor. United States v. Cartlidge,
, 808 F.2d 1064 1070-71 (5th Cir. 1987)." 'From a consideration of these factors it is clear that the explanation need not rise to the level of a challenge for cause. Batson,
, 476 U.S. at 97. However, a clear, reasonable explanation for the strike must be given. Ex parte Branch, 106 S.Ct. at 1723, 526 So.2d 609 623-24 (Ala. 1987).' "
". . . .
"In [United States v.] Grandison, 885 F.2d [143] at 147 [4th Cir. 1989], it was observed: 'Although the presence of minorities on the jury does not mean that a Batson prima facie case cannot be made, . . . the fact that the jury included two black jurors is significant.' We find other observations of the court in Grandison applicable here.
" 'No per se rule exists to establish a prima facie case of purposeful discrimination. [United States v.] Lane, 866 F.2d [103], 107 [(4th Cir. 1989)]; United States v. Sangineto-Miranda,
, 859 F.2d 1501 1521 (6th Cir. 1988); United States v. Montgomery,, 819 F.2d 847 851 (8th Cir. 1987); [United States v.] Clemons, 843 F.2d [741], 746 [(3d Cir. 1988)]. But see United States v. Chalan,, 812 F.2d 1302 1314 (10th Cir. 1987). Nor does a prosecutorial checklist exist to avoid the inference of discriminatory practices. "The Supreme Court's mandate in Batson to consider all the facts and circumstances means that we cannot lay down clear rules as to [what] . . . will constitute or refute a prima facie case." Sangineto-Miranda,859 F.2d at 1521 .
" '. . . .
Id. at 147, 149."" 'A prima facie case of discrimination does not arise "every time a prosecutor strikes a black prospective juror." Lane,
866 F.2d at 105 . Numerous valid factors may influence a prosecutor to strike a particular potential juror, including "current and past employment, general appearance and demeanor, previous jury service, and the absence or presence of apparent prejudice." Id. at 106 While prosecutors may not challenge prospective jurors because of their race, they may exercise their peremptory challenges " 'for any reason at all, as long as that reason is related to [their] view concerning the outcome' of the case to be tried." Batson,, 476 U.S. at 89, quoting United States v. Robinson, 106 S.Ct. at 1719, 421 F. Supp. 467 473 (D.Conn. 1976), mandamus granted sub. nom. United States v. Newman,(2d Cir. 1977). Peremptory challenges have long been exercised to ensure both parties the existence of a fair and impartial jury; the usefulness of this device could be undermined by restrictive appellate rulemaking.' 549 F.2d 240
Slip op. at 17.
Just as in Warner, we find that the tenets of Batson andBranch have been minimally satisfied.
The fact that a prospective juror has reservations about imposition of the death penalty may constitute a race-neutral reason for the exercise of a peremptory strike. Warner, supra;Smith v. State,
Connection with or founded suspicion of criminal activity can also constitute a sufficiently race-neutral reason for the exercise of a peremptory challenge. Warner, supra; Powell v.State,
Likewise, the fact that child support proceedings have been brought against a juror or someone closely connected with that juror has been held to be a race-neutral reason for the exercise of a peremptory challenge. Warner v. State, supra, slip op. at 8; Lynn v. State, supra,
A hostile attitude toward law enforcement or dissatisfaction with the police has also been upheld as a sufficiently race-neutral explanation for the use of a peremptory challenge.Warner v. State, supra, slip op. at 8; Powell v. State, supra,
The fact that a prospective juror, like the defendant, is young, single, and unemployed is also a sufficiently race-neutral reason for the exercise of peremptory challenges, since such jurors may identify with the defendant. Young, single, and unemployed jurors may also be struck in favor of professional, married persons. Harrell v. State,
Likewise, the demeanor of a juror can also provide a sufficiently race-neutral explanation for a prosecutor's use of a peremptory challenge. Harrell v. State, supra,
The fact that a juror is overly familiar with the facts of a case has been held sufficiently race-neutral to satisfy a reviewing court. See Harris v. State, supra,
Finally, the fact that a prosecutor distrusts a juror or finds his responses not to be credible has also been held to be a sufficiently race-neutral reason for using a peremptory challenge. Rodgers v. State,
" '[T]he vagarious process of choosing jurors need not be controlled by a simple equation; it may be influenced by intuitive assumptions that are not fatally suspect merely because they are not quantifiable, see [United States v.]Forbes, 816 F.2d [1006] at 1010-11 [(5th Cir. 1987)], and by the interplay of various factors, see United States v. Lewis,
Warner v. State, supra, slip op. at 17, 18. Just as in Warner, we find the trial court's *21 ruling was not clearly erroneous. Accordingly, no reversal is warranted." 'In reviewing the trial court's finding that the strikes were nondiscriminatory, we can only reverse if we find that that determination was clearly erroneous.' Williams [v. State] 548 So.2d [501] at 504 [Ala.Cr.App. (1988)]. Accord, Ex parte Branch,
526 So.2d at 624 . ' "In a Batson context, the Supreme Court observed that because the trial judge's findings 'largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.' Batson,, n. 21 [ 476 U.S. at 98, n. 21]." ' Owens v. State, 106 S.Ct. at 1724, 531 So.2d 22 23 (Ala.Cr.App. 1987), quoting State v. Antwine,, 743 S.W.2d 51 66 (Mo. 1987), cert. denied, [486] U.S. [1017],, 108 S.Ct. 1755 (1988). 'In reviewing the lower court's ruling, we have been mindful that it is not our function to decide this issue de novo, to "duplicate the role of the lower court." ' Owens, 108 L.Ed.2d 217 531 So.2d at 24 . The finding of the trial judge 'is entitled to considerable deference on appeal.' Harrell,555 So.2d at 268 . See also Scales v. State,, 539 So.2d 1074 1075 (Ala. 1988). ('[W]e are convinced that the trial judges in our system are in a much better position than appellate judges to decide whether the truth has been stated')."
At the close of the evidence, the prosecutor made his first closing argument, to which defense counsel made no objections. Defense counsel then made his closing argument, during which he attempted to poke holes in the State's case by raising questions concerning the credibility of the State's evidence and the failure of the State to present certain evidence. After defense counsel made his closing argument, the prosecutor made his final closing argument to the jury. He argued, in pertinent part, as follows:
"The Defense attorney says, Oh, well, you know, all these policemen got there and they forced him to confess. Now wait a minute, folks, you read what the man said. He said over and over if they're going to force him to confess, if they're going to make it up, how about let's add a few more good facts that would make it nicer to read. He doesn't have him saying that it was somebody else's idea and somebody shot at me and I just shot back. Let's not say that. Let's don't say that I went in there and shot the man because I'm a cold-blooded killer, well, obviously, he didn't put that in there because they took down what the man told him. You can't add and you can't take away. It's their job and they're trained that way. We come up here and every one of these cases over and over and over again, and what we get tried is that they tried to try the policemen. They said he did everything wrong. They also try to throw smoke at you and cover up all the evidence and point you off in some direction out yonder. They don't think you've got sense enough to hear what is going on up here.
"MR. MORRIS: I object. The jury has got fine sense. I resent that the District Attorney is making any reference to the fact that I don't think the jury has got good sense.
"MR. GREENE: I've got every right to comment on the evidence.
"THE COURT: This is argument of counsel. Continue.
"MR. GREENE: Mr. Morris stood up here in the course of this trial and threw smoke at you every way he could. Now why is he doing that? Well, obviously any report about anybody with a shot hand anywhere around here was going to be looked into. That's clear as a bell. But you're supposed to think that it's somebody else. Now what does the evidence connect to? It connects to Stephens."
When determining whether a prosecutor's statement requires reversal
". . . 'it must be examined in its context and in light of what had transpired, that is, in light of preceding argument of defense counsel, to which the prosecutor's argument was an answer.' Washington v. State,Henderson v. State,, 259 Ala. 104 (1953); Gibson v. State, 65 So.2d 704 (Ala.Crim.App. 1977); Rutledge v. State, [Ms. 347 So.2d 576 5 Div. 610 , August 16, 1983] [] (Ala.Crim.App. 1983). The rule in Alabama is that 'remarks or comments of the prosecuting attorney, including those which might otherwise be improper, are not grounds for reversal when they are invited, provoked, or occasioned by accused's counsel and are in reply to or retaliation for his acts and statements.' Shewbart v. State, 482 So.2d 1250 , 33 Ala. App. 195 , cert. denied, *22 32 So.2d 241 , 249 Ala. 572 (1947); Camper v. State, 32 So.2d 244 (Ala.Cr.App. 1980); Wilder v. State, 384 So.2d 637 (Ala. 1981), cert. denied, 401 So.2d 167 , 454 U.S. 1057 , 102 S.Ct. 606 (1981); Miller v. State, 70 L.Ed.2d 595 (Ala.Crim.App. 1983); Rutledge, supra." 431 So.2d 586
In Dossey v. State,
"The prosecutor has a right to comment on and answer statements made by defense counsel in argument to the jury. Dollar v. State,, 26 Ala. App. 361 (1935); Moragne v. State, 159 So. 704 , 16 Ala. App. 26 28 ,, 74 So. 862 864 , reversed on other grounds,, 200 Ala. 689 (1917). Counsel should be afforded wide latitude in responding to assertions made by opposing counsel in previous argument. York v. State, 77 So. 322 , 34 Ala. App. 188 190 ,, 39 So.2d 694 696 (1948), cert. denied,, 252 Ala. 158 (1949). 'Wide latitude is given the solicitor in making reply to argument previously made by appellant's counsel.' Moody v. State, 39 So.2d 697 , 40 Ala. App. 373 374 ,, 113 So.2d 787 788 (1959). '[W]ide latitude is given a district attorney in making reply in kind, . . . and the propriety of argument of counsel is largely within the trial court's discretion.' Jetton v. State,, 435 So.2d 167 171 (Ala.Cr.App. 1983)."
Our examination of the record convinces this Court that the prosecutor was merely replying in kind to arguments made by defense counsel. During his argument to the jury, defense counsel made many disparaging references to the strength of the State's case. He attacked the State's evidence, particularly the failure by State experts to be able to positively identify whether the type B bloodstains found at the scene of the crime could have come from only the appellant and no other person. Defense counsel also questioned the State's failure to introduce certain evidence, namely a hat and gloves recovered during the course of the investigation. He pointed out to the jury the inability of ballistics experts to positively identify the shotgun pellets removed from appellant's hand as having come from the victim's shotgun. Defense counsel further pointed out that appellant's fingerprints were never found at the scene of the crime, not even on the .25 caliber automatic pistol that he admitted owning. Following these statements, defense counsel then told the jury that "I want the man [referring to the prosecutor] who's got the last shot to tell you about this too." Defense counsel's statement was a clear invitation to the prosecutor to reply to his statements, which he did. As seen above, the essence of the State's final closing argument was that defense counsel was trying to throw the jury off by pointing them in other directions than at his client. The prosecutor merely responded to defense counsel's previous argument. Accordingly, his comments do not warrant reversal.
"Moreover, statements of counsel in argument to the jury must be viewed as having been made in the heat of the debate, and such statements are usually valued by the jury at their true worth." Harris v. State,
"Control of closing argument rests in the broad discretion of the trial judge and, where no abuse of discretion is found, there is no error. Thomas v. State,Sasser v. State,(Ala.Crim.App. 1983); Robinson v. State, 440 So.2d 1216 (Ala.Crim.App. 1983); Elston v. State, 439 So.2d 1328 , 56 Ala. App. 299 (1975). The trial judge can best determine when discussion *23 by counsel is legitimate and when it degenerates into abuse. Hurst v. State, 321 So.2d 264 (Ala.Crim.App.), cert. denied, 397 So.2d 203 (Ala. 1981); Garrett v. State, 397 So.2d 208 , 268 Ala. 299 (1958)." 105 So.2d 541
"Q I see; You know a Mr. Saxon?
"A Yes.
"Q Do you have anything to do with a robbery of his place of business there in Carrollton, Georgia?
"A No, sir.
"Q You deny that?
"A Yes, sir. Because Mr. Saxon knows me personally.
"MR. MORRIS: Judge, could we speak to you?
(Whereupon the following proceedings were held in the presence of, but out of the hearing of the jury:)
"MR. MORRIS: The Defendant moves for a mistrial in this proceeding. He asked him about a specific offense that he has not been convicted of. He's not been arrested in that and he denies it. The Defendant moves for a mistrial.
"MR. GREENE: Your Honor, the Defendant has entered a defense trying to show repentance of a life of crime and he's committed all these offenses. He's been asked about all these offenses. Now he brought it up, we didn't. That's why I did it. I think I'm justified in asking this question.
"MR. MORRIS: Judge, he made the statement — well, I renew my motion and insist on my motion. The law is specific about that, Judge.
"THE COURT: He asked him if he denied it.
"MR. MORRIS: He can't ask that. Now I didn't bring up anything about Mr. Saxon and he knows that.
"THE COURT: I know that. I'll deny the motion at this time.
"MR. MORRIS: I do object.
"THE COURT: I understand."
Generally, the fact that the accused, or any witness, has been investigated, arrested, charged, or indicted is inadmissible to impeach such witness, unless he was subsequently convicted of that offense. Smitherman v. State,
"(c) At the sentence hearing evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to the aggravating and mitigating circumstances referred to in sections13A-5-49 ,13A-5-51 , and13A-5-52 . . . .
"(d) Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. . . ."
Thus, it is clear that the usual strict rules of evidence are not applicable to sentencing hearings.
Here, appellant testified in great detail at his sentencing hearing in an attempt to establish a mitigating circumstance — specifically, *24 remorse and repentance for his previous life of crime. In order to counter appellant's testimony and to establish the aggravating factor of an extensive criminal history, it was incumbent upon the prosecutor to cross-examine appellant about his prior criminal activities. Thus, it was both relevant and probative for the prosecutor to question appellant about the specifics of his extensive criminal history. Appellant was given ample and fair opportunity to rebut the prosecution's evidence concerning his prior criminal history, and, in fact, admitted to having been convicted of all but the above complained-of incident. By denying this incident, appellant, in effect, did rebut it.
Moreover, since the harmless error rule applies to capital sentencing hearings, Ex parte Whisenhant,
We first note that the mere fact that evidence is of a circumstantial nature does not make it deficient; circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused. Linzy v. State,
The appellant, Victor R. Stephens, was indicted and convicted for violating §
There is no suggestion in the record that the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and there is no evidence to support any such contention.
Our review of the sentence proceedings reveals that the trial court's findings concerning the aggravating and mitigating circumstances are supported by the evidence. The trial court found the existence of two aggravating circumstances: first, that the capital offense was committed while the defendant was engaged in the commission of a robbery, §
Our independent weighing of the aggravating and mitigating circumstances convinces this court of the propriety of the death sentence in this case.
Moreover, we are convinced that the death sentence is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Indeed, fully two-thirds of Alabama death sentences have been imposed on defendants convicted of capital murder arising out of robbery-homicides. Beck v. State, supra,
"The United States Supreme Court addressed the death by electrocution issue in In re Kemmler,See also Wright v. State,, 136 U.S. 436 , 10 S.Ct. 930 (1890). In determining what constitutes cruel and unusual punishments, the Court stated: 'Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there is something inhuman and barbarious, — something more than the mere extinguishment of life.' Id. at 447, 34 L.Ed. 519 . In holding that such a punishment is not cruel or unusual, the Court reasoned 'that this act was passed in the effort to devise a more humane method of reaching the result'. Id. Accord Spinkellink v. Wainwright, 10 S.Ct. at 933, 578 F.2d 582 616 (5th Cir. 1978). Appellant's contention is therefore without merit; death by electrocution does not amount to cruel and unusual punishment per se, but is a constitutional means of imposing a sentence of death."
The appellant received a fair and impartial trial. Therefore, his convictions for these capital offenses and his sentence of death are due to be, and they are hereby, affirmed.
AFFIRMED.
All the Judges concur.