Rogers v. State

CourtAlabama Court of Criminal Appeals
Citation630 So.2d 78
Docket Number6 Div. 736
PartiesDavid Walter ROGERS and Donnis George Musgrove v. STATE.
Decision Date31 May 1991

Tommy Nail, Birmingham, for appellant David Walter Rogers.

Dwight Driskill, Birmingham, for appellant Donnis George Musgrove.

Don Siegelman, Atty. Gen., and Melissa G. Math and Sandra Stewart, Asst. Attys. Gen., for the State.

McMILLAN, Judge.

This is a death penalty.

David Rogers was charged in a two-count indictment with capital murder as follows: Count I charged that he intentionally caused the death of Coy Eugene Barron, by shooting him with a pistol during the course of a burglary, in violation of § 13A-5-40(a)(4), Code of Alabama 1975; and Count II charged that he committed the murder while he was under a sentence of life imprisonment, in violation of § 13A-5-40(a)(6), Code of Alabama 1975. Donnis Musgrove was charged with capital murder, for intentionally causing the death of Coy Eugene Barron, by shooting him with a pistol during the course of a burglary, in violation of § 13A-5-40(a)(4), Code of Alabama 1975. The appellants moved that their cases be consolidated for trial, pursuant to Rule 15.4(b), A.R.Crim.P.Temp. Following a hearing, the trial court granted the motion to consolidate.

The jury found the appellants guilty as charged in the indictments. Thereafter, the jury returned an advisory verdict of death as to both appellants, by a vote of 10 to 2. A sentencing hearing was then held in front of the trial court, wherein the trial court found the existence of the following two aggravating circumstances as to David Rogers: that the capital offense was committed by a person under sentence of imprisonment, and that the capital offense was committed while the appellant was engaged in, or was an accomplice in the commission of, or an attempt to commit, burglary. The trial court found that these two aggravating circumstances existed as to both counts of the indictment against David Rogers. The trial court further found the existence of the following three aggravating circumstances as to Donnis Musgrove: that the capital offense was committed by person under sentence of imprisonment, that the capital offense was committed while the appellant was engaged in, or was an accomplice in the commission of, or in attempt to commit, burglary, and that the appellant had been previously convicted of a felony involving the use of threat or violence to the person. The trial court found the existence of no statutory mitigating circumstances; however, he considered certain nonstatutory mitigating circumstances. Thereafter, the trial court sentenced the appellants to death.

The record indicates that at approximately 4:00 a.m. on September 28, 1986, the victim, Coy Eugene Barron, and his wife were asleep in the bedroom of their home; their baby was sleeping with them in their bed. A 17-year old friend, Jamie Crawford, was staying with them and was asleep on a mattress on the floor of the living room. The door was suddenly kicked in by two men who stated, "Freeze. Everybody against the wall. Don't move." They then approached the bedroom door. The victim had gotten out of bed and was attempting to hold the bedroom door closed, while his wife, holding their baby, stood behind him. The two men

pushed into the bedroom, and the victim, who had backed up to a dresser, picked up a bottle as if to throw it at them. Each of the two men fired a gunshot, one of which struck the victim and killed him. The victim's wife testified that one of the men ran out immediately, while the other man pointed a gun at her face, then turned and ran out.

I

The appellants argue that they were denied a fair trial because of the consolidation of their capital cases for trial and sentencing. This is the first case in Alabama in which capital cases of two defendants receiving the death penalty were consolidated; however, we find nothing inherently prejudicial in the consolidation of two capital trials. See Hinton v. State, 548 So.2d 547 (Ala.Cr.App.1988), affirmed, 548 So.2d 562 (Ala.1989), cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). In Hinton, two capital cases against one defendant were consolidated for trial. The consolidation was held not to have been inherently prejudicial, and the Alabama Supreme Court stated that whether a consolidation is improper should be determined on a case-by-case basis, weighing the benefits of judicial economy against any actual and compelling prejudice that the defendant can demonstrate. Ex parte Hinton, 548 So.2d 562, 566 (Ala.1989). See also Gibson v. State, 555 So.2d 784 (Ala.Cr.App.1989).

In Gibson, two defendants, Grady Gibson and Eddie Hart, were jointly indicted for the murder of the same victim in order to recover the proceeds of an insurance policy on her life, a capital offense as defined by § 13A-5-40(a)(7), Code of Alabama 1975. Neither defendant received the death sentence; Gibson was convicted of capital murder and was sentenced to life imprisonment without parole, while Hart was convicted of manslaughter, as a lesser-included offense, and was sentenced to 50 years' imprisonment.

Moreover, the consolidation of capital cases against two defendants has been allowed in other jurisdictions. See Clines v. State, 282 Ark. 541, 669 S.W.2d 883, 884-85 (1984) (on collateral attack, petitioners alleged that Rule 22 of the Arkansas Rules of Criminal Procedure, which gives discretion to the trial court to try defendants jointly in a capital case, unconstitutionally repealed Initiated Act I of 1937, which entitled codefendants in capital cases to separate trials as a matter of right). 1 See also People v. Young, 128 Ill.2d 1, 131 Ill.Dec. 86, 88, 538 N.E.2d 461, 463 (1989) (two of five codefendants were joined in a capital trial; however the State moved for separate sentencing of the defendants and the motion was granted). In Banks v. State, 701 P.2d 418, 425 (Okl.Cr.App.1985), the court held that the trial court properly refused to grant a defendant's motion for severance due to the admission at trial of extrajudicial statements of his codefendant. The court stated:

"When a co-defendant's extrajudicial statements do not implicate the defendant, the trial court does not abuse its discretion by denying a severance. See Riggle v. State, 585 P.2d 1382 (Okl.Cr.1978). In addition, where, as here, confessions are not involved, the mere fact that a co-defendant attempts to escape punishment by inculpating the defendant is not sufficient ground for requiring a severance. Hinds v. State, 514 P.2d 947 (Okl.Cr.1973). We leave the decision to grant or deny severance to the discretion of the trial court, and absence an abuse thereof resulting in prejudice to the defendant, we will not disturb that decision on appeal. Menefee v. State, 640 P.2d 1381 (Okl.Cr.1982)."

In State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023, 1036 (1980), the Arizona Supreme Court held that the trial court properly ordered two codefendants in a capital trial to be tried separately. The Court indicated that the consolidation would have been prejudicial to the defendants under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because one of the codefendants had given "voluminous statements to the police."

In the present case, both of the appellants moved the court to have their cases consolidated "THE COURT: This is a joint motion to consolidate filed by both defendants, Rogers and Musgrove, by the attorneys for the defendants, Rogers and Musgrove, setting out the grounds which are sufficient for consolidation. I have checked the statute under the consolidation statute and it does not differentiate between capital and non-capital cases so apparently consolidation is a matter that can be considered for a capital case as well as a non-capital case because there was no prohibition from it in the rule.

for trial. The following transpired prior to trial:

"Is that the wish of the two attorneys, that this--these two cases be consolidated for trial?

"[MUSGROVE'S ATTORNEY]: Yes, sir.

"[ROGERS'S ATTORNEY]: Yes, sir; it is.

"[MUSGROVE'S ATTORNEY]: On behalf of Mr. Musgrove it is.

"THE COURT: All right now, Mr. Musgrove, I'll ask you, you have seen or you have discussed with your attorney ... concerning this consolidation motion. Is that what you wish to do in this matter, [to] consolidate these two cases for trial?

"DEFENDANT MUSGROVE: Yes, sir.

"THE COURT: Now, you understand that--and I don't know all the evidence, I understand that there are statements--statements could be admitted if another statement was made by someone which might be hearsay if you were tried separately, it might be admissible, but, of course, I will give instructions to the jury as to how it should be considered if that does occur. Do you understand that?

"DEFENDANT MUSGROVE: Yes, sir.

"THE COURT: All right, do you still wish to go forward with your motion to consolidate?

"DEFENDANT MUSGROVE: Yes, sir.

"THE COURT: All right, Mr. Rogers, I'll ask you the same question. Do you wish to consolidate your case with the case of Mr. Musgrove for trial?

"DEFENDANT ROGERS: Yes, sir.

"THE COURT: All right. The same question I asked Mr. Musgrove, if any statement has been made that would be inadmissible because of hearsay otherwise might be admissible if these cases are consolidated with instructions to the jury as to how they will be considered. Do you understand that?

"DEFENDANT ROGERS: Yes, sir.

"THE COURT: All right, does the State wish to be heard on the consolidation motion?

"[PROSECUTOR]: Yes, sir. The State does wish to be heard.

"THE COURT: All right, go ahead.

"[PROSECUTOR]: First of all, and I want to state for the record, the substance of what the statements would be and I'll have to look at something before I proceed.

"THE COURT: I think when you figure it out, just the essence of what the statements were but not as to any person that they were allegedly...

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