804 So.2d 247 (Ala.Crim.App. 1999), CR-95-0589, Hardy v. State

Docket Nº:CR-95-0589.
Citation:804 So.2d 247
Opinion Judge:PATTERSON, Retired Appellate Judge.
Party Name:John Milton HARDY v. STATE.
Attorney:Donald Alan Chapman, Decatur; James Ralph Mason, Jr., Decatur; and John Edmond Mays, Decatur, for appellant. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.
Case Date:March 26, 1999
Court:Alabama Court of Criminal Appeals

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804 So.2d 247 (Ala.Crim.App. 1999)

John Milton HARDY




Alabama Court of Criminal Appeals

March 26, 1999

Rehearing Denied June 18, 1999.

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Donald Alan Chapman, Decatur; James Ralph Mason, Jr., Decatur; and John Edmond Mays, Decatur, for appellant.

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

PATTERSON, Retired Appellate Judge.

The appellant, John Milton Hardy, 1 was jointly indicted with Ulysses Charles Sneed on October 22, 1993, in Morgan County, for the capital offense of murder committed during a robbery in the first degree. See Ala.Code 1975, § 13A-5-40(a)(2).

At arraignment, Hardy pleaded not guilty and not guilty by reason of mental disease or defect. Before trial, he withdrew his plea of not guilty by reason of mental disease or defect. On October 27, 1995, after Hardy was jointly tried with Sneed, a jury found Hardy (as well as Sneed) guilty of the capital offense charged in the indictment. On October 30, 1995, after a joint sentencing hearing before the jury, § 13A-5-46, the jury recommended, by a vote of 10-2, that Hardy (and Sneed) be sentenced to death. On December 21, 1995, the trial court held another joint sentencing hearing, § 13A-5-47, and heard arguments concerning information in the presentence investigation report and concerning the existence of aggravating circumstances and mitigating circumstances. Thereafter the trial court determined that two aggravating circumstances

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existed in regard to Hardy: (1) that the murder was committed during the course of a robbery, § 13A-5-49(4); and (2) that the murder was especially heinous, atrocious, or cruel when compared to other capital offenses, § 13A-5-49(8). The court determined that two statutory mitigating circumstances existed: (1) that Hardy had no significant history of prior criminal activity, § 13A-5-51(1); and (2) that Hardy's age (22 years old) at the time of the crime, § 13A-5-51(7). 2 The court further determined that one nonstatutory mitigating circumstance existed: that Hardy had a family, i.e, his mother, father, and four siblings; it rejected the proposed nonstatutory mitigating circumstance regarding Hardy's character. Based upon the evidence presented at trial, the evidence presented during the sentencing hearings, the presentence investigation report, the recommendation of the jury, and its finding that the aggravating circumstances outweighed the mitigating circumstances, the trial court sentenced Hardy to death. See § 13A-5-47. (Sneed was also sentenced to death.)

The state's evidence showed the following. In the early morning hours of September 7, 1993, Clarence Nugene Terry, the clerk at a Bud's Convenience Store located in Decatur, was murdered and robbed. A surveillance camera captured the entire robbery-murder on videotape, and the videotape was recovered at the scene. The videotape showed that Hardy and Sneed entered the store and that Hardy was armed with a gun. Immediately upon entering the store, Hardy began shooting at Terry. As Hardy fired the initial shot, Sneed walked past Hardy toward the cash registers. The first shot missed Terry, and he ran behind the counter, trying to hide. Sneed, by this time also behind the counter, tried to open the cash registers as Terry lay on the floor near Sneed's feet. As Sneed attempted to open the cash registers, Hardy, who was still in front of the counter, leaned over the counter and shot Terry in the chest. Terry tried to protect and hide himself after this shot. Hardy walked around the counter, and while standing over Terry, fired five shots into Terry's face and head. Forensic evidence showed that Terry was still conscious when Hardy began shooting him in the head. Terry suffered gunshot wounds to the left cheek, left upper cheek, center of his forehead, left ear, left eye socket, right side of his chest, and the palm of his right hand. Any of the wounds to the head or the one to the chest would have proved fatal. As Terry lay dying on the floor, Sneed and Hardy continued their attempts to open the cash registers. Sneed, at one point, kicked Terry's foot to move it out of his way. The attempts to open the cash registers were unsuccessful, so Hardy and Sneed unplugged one of the cash registers and took it with them when they ran out of the store.

The state's evidence further showed that on August 29, 1993, a few days before the robbery-murder, Sneed and Christopher Hines drove in Hines's blue 1978 Ford automobile from Louisville, Kentucky, to Tanner, Alabama, to visit Hines's relatives. Sometime after arriving in Tanner, Hines introduced Sneed to Hardy. On the evening of September 6, 1993 (the evening before the early-morning crime), Hardy, Sneed, and Hines rode in someone else's automobile to Tennessee to purchase fireworks

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and beer. They returned to Alabama, where they spent the remainder of the evening drinking. Around 10:30 p.m., Hines let Hardy borrow his automobile; Sneed left with Hardy. Hines did not see either Hardy or Sneed until around 3:00 or 4:00 a.m. the next morning, when he accompanied them to a location near Hardy's father's house, where, using a sledgehammer, the three men attempted to get money out of a cash register. Subsequently, the cash register was identified as the one taken during the robbery-murder, and Hines's fingerprint was later found on a piece of the cash register that was recovered. Sometime later that day Hardy, Sneed, and Hines returned to Hardy's father's house, where Hardy and his father had an argument about a gun; Hardy's father accused him of stealing the gun.

The state's evidence also showed that police officers showed the surveillance videotape of the robbery-murder to several persons, including Hines, in an effort to identify the gunman and his accomplice. Hines and three others positively identified Hardy as the shooter. Sneed was identified as the accomplice appearing on the videotape.

On Wednesday, September 8, 1993, Hardy, Sneed, and Hines traveled to Louisville, Kentucky. Hardy was arrested in Kentucky the same day. At the time of his arrest, he was carrying a 9mm semiautomatic handgun. While in custody in Kentucky, Hardy gave an oral statement to the Decatur, Alabama, officers, denying his involvement in the crime; however, he admitted borrowing Hines's automobile on September 6. Also, when asked how much money he "got," he replied that he did not get any because he could not get the cash register open. He further stated the he had hidden the gun, wrapped in plastic, in the attic at his father's house in Alabama; that the clothes, presumably those worn during the crime, had been burned; and that the cash register had been thrown away. He stated that when he was returned to Alabama, he would consent to a search and would show the officers where the gun was located.

Hardy appeared before a judge, waived extradition, and was returned to Alabama. Upon arrival at his father's house, Hardy signed a consent-to-search form. The officers did not find the gun. When asked about it, Hardy stated that he did not know what the officers were talking about and that he had told the officers about a gun just so he could return to Alabama. He further stated that he knew nothing about any burned clothes. There was a smoldering fire in the backyard, but the officers could not determine what had been burned.

Hardy relied on an alibi defense, arguing that the identification witnesses were mistaken and that he knew nothing about the crime. He presented two alibi witnesses: his brother, who testified that Hardy was home on the night of the crime and that it was not Hardy on the videotape; and his sister, who also testified that it was not Hardy on the videotape. He presented several character witnesses at the sentencing phase before the jury. He did not testify at either the guilt or sentencing phases of the trial.

Hardy does not question on appeal the sufficiency of the evidence to support his conviction for the capital offense charged, and, from our review of the record, the evidence of guilt is overwhelming. We conclude that the evidence presented by the state was sufficient for the jury to find Hardy guilty, beyond a reasonable doubt, of the capital offense charged--murder committed during a robbery in the first degree.

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Hardy contends that the "joinder of [his] trial with his codefendant's violated [his] rights, and the trial court's refusal to grant a severance was reversible error." The joint indictment of Hardy and Sneed was proper because two or more defendants may be charged in the same indictment if they are alleged to have participated in the same act or transaction. Ala.R.Crim.P. 13.3(b)(1). Here, Hardy and Sneed were charged with participation in the same act or transaction. Defendants joined in the same indictment shall be jointly tried unless severed as provided in Rule 13.4. If it appears that a defendant is prejudiced by such a joinder, the trial court may grant a severance or provide whatever other relief justice requires. Rule 13.4(a). The rule makes no distinction between capital and noncapital offenses. See Rogers v. State, 630 So.2d 78 (Ala.Crim.App.1991), rev'd, 630 So.2d 88 (Ala.1992), aff'd on remand sub nom. Musgrove v. State, 638 So.2d 1347 (Ala.Crim.App.1992), aff'd, 638 So.2d 1360 (Ala.1993), cert. denied, 513 U.S. 845, 115 S.Ct. 136, 130 L.Ed.2d 78 (1994); Hinton v. State, 548 So.2d 547 (Ala.Crim.App.1988), aff'd, 548 So.2d 562 (Ala.), cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). The Alabama rule pertaining to joinder and severance is taken from the federal rule. Fed.R.Crim.P. 14. See also Hinton v. State, 548 So.2d at 555.

Hardy, by a timely filed pretrial motion, moved for a severance, claiming that he was not involved in the crime; that Sneed had confessed and had implicated Hardy in the crime; that his and Sneed's defenses were...

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