771 So.2d 1070 (Ala.Crim.App. 1999), CR-95-1545, Loggins v. State

Docket Nº:CR-95-1545.
Citation:771 So.2d 1070
Opinion Judge:LONG, Presiding Judge.
Party Name:Kenneth LOGGINS v. STATE.
Attorney:L. Dan Turberville, Birmingham, for appellant. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.
Case Date:April 30, 1999
Court:Alabama Court of Criminal Appeals
 
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Page 1070

771 So.2d 1070 (Ala.Crim.App. 1999)

Kenneth LOGGINS

v.

STATE.

CR-95-1545.

Alabama Court of Criminal Appeals

April 30, 1999

Rehearing Denied June 18, 1999.

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L. Dan Turberville, Birmingham, for appellant.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.

LONG, Presiding Judge.

On August 5, 1994, a Jefferson County grand jury returned an indictment charging the appellant, Kenneth Loggins, with two counts of capital murder. Count I of the indictment charged Loggins with the capital offense of murder committed during the course of a kidnapping, § 13A-5-40(a)(1), Ala.Code 1975. Count II of the indictment charged Loggins with the capital offense of murder committed during the course of a robbery, § 13A-5-40(a)(2), Ala.Code 1975. Loggins was tried on the charges, and the jury returned verdicts finding him guilty of capital murder, as charged in Count I of the indictment, and guilty of intentional murder, a lesser included offense of the capital murder charge in Count II of the indictment. See § 13A-6-2(a)(1), Ala.Code 1975. The trial court entered judgments of convictions on both verdicts.

With regard to Loggins's conviction for capital murder under Count I of the indictment, the jury, by a vote of 10-2, recommended that Loggins be sentenced to death. The trial court, following the jury's recommendation, sentenced Loggins to death by electrocution. With regard to Loggins's conviction for intentional murder as a lesser included offense under Count II of the indictment, the trial court sentenced Loggins to life in prison.

Most of the facts relevant to the issues raised in this appeal are set out in the trial court's sentencing order. The trial court's order, with our emendations, states, in pertinent part:

"On the night of [February 21, 1994,] Vickie Deblieux, age 37, was dropped off by a friend on I-59 near Chattanooga, Tennessee, to hitchhike to her mother's home in Louisiana.

"Four teenagers--the defendant, Carey Dale Grayson, Trace Duncan and Louis Mangione--all [of whom] had been drinking alcohol and using drugs, saw her hitchhiking on I-59 at the Trussville exit in Jefferson County, Alabama. They offered to take her to Louisiana; instead they took her to a wooded area, on the pretense of picking up another vehicle.

"After arriving in this area, they all got out of the vehicle, and began to drink. [Loggins, along with the others, threw bottles at Ms. Deblieux, who began to run from them.] They tackled her to the ground and began to kick her repeatedly all over her body. When they noticed that she was still alive, the defendant stood on her throat, until she gurgled blood and said 'Okay, I'll party,' then died.

"They then put her body in the back of a pickup truck and took her and her luggage to Bald Rock Mountain, after removing her clothing [and a ring,] and they played with her body and then threw her off a cliff.

"They then went to a car wash in Pell City to wash the blood out of the truck.

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[After rummaging through her luggage, they hid the luggage in the woods.]

"On their return to Birmingham they took Mangione home and then returned to Bald Rock Mountain, where they began to mutilate the body by stabbing and cutting her 180 times, removing part of a lung and removing her fingers and thumbs.

"The next morning, the defendant's girlfriend found the three of them in Birmingham asleep in the truck all covered in mud and blood. The defendant told her they got blood on them from a dog.

"On [February 26, 1994,] three rock climbers found Ms. Deblieux's body and called the police. Her body was taken to the medical examiner's office.

"The medical examiner found the following injuries: almost every bone in her skull was fractured, every bone in her face was fractured at least once, lacerations on the face over these fractures, a missing tooth, left eye was collapsed, right eye was hemorrhaged, tongue discolored, 180 stab wounds (postmortem), two large incisions in her chest, her left lung had been removed and all her fingers and both thumbs were cut off.

"The medical examiner opined that the cause of death was blunt force trauma to the head and possible asphyxiation.

"All defendants were later arrested after Mangione began showing one of Ms. Deblieux's fingers to friends."

(Supp. C. 12-13.)

On appeal from his conviction, Loggins raises 10 issues, at least 1 of which was not raised by objection in the trial court. Because Loggins was sentenced to death, his failure to object at trial does not bar our review of any issue. It does, however, weigh against him as to any claim of prejudice he makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Cr.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993).

Rule 45A, Ala.R.App.P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

This court has recognized that the " 'plain error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." ' " Burton v. State, 651 So.2d 641, 645 (Ala.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985), quoting in turn United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). Accordingly, we will address the issues Loggins raises on appeal.

I.

Loggins contends that the trial court erred by allowing the jury to separate without his consent. Specifically, he argues that the trial court violated Rule 19.3(a), Ala.R.Crim.P., as that rule read at the time of his trial. At the time of Loggins's trial, Rule 19.3(a) provided:

"(a) Separation of Jurors in Capital Trials.

"(1) In any prosecution for a capital felony, upon the consent in open court of the defendant, defendant's counsel, and the district attorney, the trial court, in its discretion, may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not."

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Under Rule 19.3(a), as that rule read at the time of Loggins's trial, the trial court was not authorized to allow the jury to separate without the consent of the prosecution and the defense. The state, however, argues that § 12-16-9, Ala.Code 1975, as amended effective June 15, 1995, placed the determination of whether to sequester the jury within the trial court's sole discretion. Section 12-16-9, as amended, provides:

"In the prosecution of any felony case the trial court in its discretion may permit the jury hearing the case to separate during the pendency of the trial. The court may at any time on its own initiative or on motion of any party, require that the jury be sequestered under the charge of a proper officer whenever they leave the jury box or the court may allow them to separate. A motion to separate or sequester shall not be made within the hearing of the jury, and the jury shall not be informed which party, if any, requested separation or sequestration."

The Alabama Supreme Court recently addressed this issue in Ex parte Stewart, 730 So.2d 1246 (Ala.1999), and concluded that when the Legislature amended § 12-16-9, the statute superseded Rule 19.3(a), eliminated the need for agreement by the parties to separate the jury in capital cases, and vested in the trial court the discretion to make the separation decision in capital cases. 1 See also Ex parte Smith, 727 So.2d 173 (Ala.1999).

Accordingly, the trial court did not err in allowing the jury to separate without Loggins's consent.

Loggins further contends that even if the trial court did have the authority to allow the jury to separate without his consent, the trial court abused its discretion in so doing. Specifically, he argues as follows:

"Evidence which was inadmissible or otherwise outside the province of proper jury consideration at trial was publicized so extensively during the trial, and during the prior trials of [Loggins's] codefendants, and in a manner so prejudicial to the interest of [Loggins], that the trial court's failure to sequester the jury constituted a violation of [his] right to a trial before a fair and impartial jury and to due process of law."

(Loggins's brief at 20.) Loggins, however, offers no evidence that any juror was influenced by the publicity.

After the jury was sworn, the trial court instructed the jurors as follows:

"I just want to caution you about one thing. This is very important. And that is--and I don't know whether there's going to be anything written or on TV or radio about this case. Please do not read or listen [to] or watch anything about this case. Your decision has to be based on the evidence you hear in this trial and that alone, nothing outside this trial. It would be a violation of your oath to do those things. Please do not let anybody discuss this case with you in any way or around you in any way. You're not being sequestered in this case. In other words, you're not being kept together. We're allowing you to separate and go home. But it's very...

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