Bankhead v. State

• Decision Date: 29 September 1989
• Docket Number: 6 Div. 370
• Parties: Grady Archie BANKHEAD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 97

585 So.2d 97

Grady Archie BANKHEAD v. STATE.

6 Div. 370.

Court of Criminal Appeals of Alabama.

Sept. 29, 1989.

As Corrected on Denial of Rehearing Feb. 2, 1990.

William A. Ellis III, Trussville, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Grady Archie Bankhead, was convicted of the robbery-homicide of Jack David McGraw, a capital offense as defined by § 13A-5-40(a)(10), Code of Alabama 1975. Following a sentence hearing, the jury recommended a sentence of death. The trial court, after complying with § 13A-5-47, Code of Alabama 1975, sentenced the appellant to death by electrocution.

The evidence tended to show that on the morning of May 26, 1986, Jimmy Davenport and his brother-in-law, James Bynum, met Gary Leon Brown and the appellant at the appellant's house and set out to go fishing. They fished for most of the day and drank beer and whiskey while they did so. Around the middle of the afternoon the four stopped fishing and went to a bar and drank for about three more hours.

Sometime during the afternoon, Bynum suggested that they go to the trailer of Jack David McGraw. On the way to the trailer, Brown and Bynum talked about killing a "queer," but assured Davenport that all he would have to do was drive. The appellant asked Bynum if he could hit hard and said he wanted Bynum to "take the old guy out with one punch." The appellant also said that if Bynum could not do so, that the appellant could, to which Bynum replied, "I'm sure I can do it. I can hit hard."

When the four men reached the trailer, Davenport stayed in the car. The others got out, walked to the door, and knocked. McGraw answered the door and invited them in; however, they soon came back out. As they were walking out, the appellant grabbed McGraw and threw him to the ground. Bynum and Brown then started punching McGraw, and continued to do so until he was unconscious. The three then pulled him back into the trailer and closed the door.

After about 15 or 20 minutes, the appellant, Bynum, and Brown came out of the trailer carrying various items. They were covered with blood. The appellant told Davenport to "shut up" or he would "get the same as the old man." The four men then left in the car.

They drove to the appellant's house, where they began unloading the items from the car. Among the items stolen were stereo equipment, speakers, a VCR, and a microwave oven. Blanche Bankhead, who was at that time the appellant's wife, overheard the appellant say to Brown, "Are you sure he's dead?" Brown answered, "Yes, I stabbed him and stabbed him and stabbed him. I thought he was dead. He kept trying to get up." The appellant said, "We've got to make sure he's dead."

The appellant's wife also heard the men recreating what had happened. Brown said, "when Archie handed me that knife, he told me to cut--you have to cut his throat." To this, the appellant replied, "You weren't doing it right. I had to take the knife and slice his jugular vein."

While still at the appellant's house, Brown pulled out the victim's wallet; it was decided that the four would divide up the money in it. Then the appellant said that they should burn their clothes, so they made a pile of them, poured gasoline on the pile, and set them afire. Davenport, who looked scared, said "I have got to get out of here." The appellant threatened him, saying that if he told anybody, the appellant would find him.

Later that night, the appellant and Brown went to the apartment of Michael Wayne Lotz and left a television there until the following day, when the appellant removed it. The next day, the appellant left another television at Lotz's apartment. The appellant later told Lotz that Brown had been arrested by the police for a murder in Pinson; that he had gotten the television by robbing a man in Blount County; and that Lotz should take the television to the woods and burn it.

Neighborhood children returning Jack McGraw's dog to his yard discovered his body in his trailer on the afternoon of May 27, 1986. An autopsy revealed numerous stab wounds, including 59 to the back, 16 to the neck area, and three to the face. Both the carotid artery and the jugular vein on the left side of the neck had been cut. All wounds were pre-mortem. The cause of death was loss of blood due to the cut and stab wounds.

On May 29, 1986, the appellant left his house and did not return. He was arrested in Mobile on July 13, 1986, at which time he made a tape-recorded statement to law enforcement officers. He admitted that he had gone to McGraw's trailer with Davenport, Bynum, and Brown for the purpose of robbing McGraw. While they were in the trailer, McGraw emerged from his bedroom and tried to stop them. According to the appellant, Brown then attacked McGraw with a knife, stabbing him to death. ¹

I

Appellant contends that the trial court erred when it failed to strike for cause a juror who could not "exercise the presumption of innocence."

Section 12-16-150, Code of Alabama 1975, provides that a juror may be challenged for cause if he has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict. "A 'fixed opinion' which will bias a verdict is one that is a conviction or prejudgment, a strong or deep impression which closes the mind of a juror and combats the testimony and resists its force." Nobis v. State, 401 So.2d 191, 197 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (Ala.1981). However, "[a] juror, even though having previously expressed an opinion regarding a defendant's guilt, is not disqualified if he states unqualifiedly that as a juror he can find a true verdict on the evidence alone." Kinder v. State, 515 So.2d 55, 60-61 (Ala.Cr.App.1986); Johnston v. State, 497 So.2d 844, 849 (Ala.Cr.App.1986). Moreover, as stated in Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961):

"It is not required, however, that the juror be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. 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 impressions or opinion and render a verdict based on the evidence presented in court. Spies v. Illinois, 123 U.S. 131 [8 S.Ct. 22, 31 L.Ed. 80]; Holt v. United States, 218 U.S. 245 [31 S.Ct. 2, 54 L.Ed. 1021]; Reynolds v. United States, supra [98 U.S. 145, 25 L.Ed. 244]."

During individual voir dire of the prospective jurors, Juror Jeffrey Quinn indicated that he "read the paper pretty regularly and crime reports in the paper." He recalled having read something about this case in particular because it occurred in Pinson, "out towards Center Point," presumably where Juror Quinn lived. When questioned about his opinion as to appellant's guilt and whether he could lay aside any previous impressions concerning appellant's case, Juror Quinn's answers were initially somewhat equivocal; i.e., "you don't get there without doing nothing," and "yes, I believe I can [afford defendant the presumption of innocence]."

Appellant appears to argue that, in light of our Surpeme Court's decisions in Ex parte Beam, 512 So.2d 723 (Ala.1987), and Ex parte Rutledge, 523 So.2d 1118 (Ala.1988), this juror's responses indicated that he held strong and deep impressions which would close his mind against the testimony given at trial. We disagree. It is true that, just as in Beam, Juror Quinn's responses, "when taken out of context and standing alone, ... appear to be expressions of equivocation." Beam, supra, 512 So.2d at 724. As Beam requires, however, a juror's responses must be "viewed in full context and as a whole." Id. When Juror Quinn's responses are viewed in full context, it becomes readily apparent that he was fully able to lay aside any previous impressions and render a verdict based solely on the evidence presented at trial. Indeed, when asked if there was any question in his mind whether he could afford defendant the presumption of innocence, Juror Quinn responded, "No."

A trial court's decision to disqualify or not to disqualify a prospective juror based on a challenge grounded on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion. Thomas v. State, 539 So.2d 375, 388 (Ala.Cr.App.), aff'd, 539 So.2d 399 (Ala.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989). Based on the foregoing, we conclude that no such abuse occurred in the instant case.

Appellant also contends that he received an incomplete trial transcript, thus making it impossible to receive a fair appellate review of the voir dire proceedings. Specifically, appellant alleges that the incomplete nature of the transcript prevents him from determining whether the prosecutor complied with the mandate of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

This contention must fail for two reasons. First, as the supplemental record shows, this transcript is a complete record of the proceedings below. Thus, this assertion is factually incorrect. Second, because appellant is white, he has no standing under Batson, supra, to challenge the removal of blacks from his jury. As this Court has previously held, "the rule of Batson does not apply in cases where black veniremen are removed from the jury of a white defendant." Smith v. State, 515 So.2d 149, 150 (Ala.Cr.App.1987). Therefore, this assertion...