Berard v. State

• Decision Date: 26 February 1980
• Docket Number: 3 Div. 25
• Citation: 402 So.2d 1044
• Parties: Jerome Vincent BERARD, v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1044

402 So.2d 1044

Jerome Vincent BERARD, v. STATE.

3 Div. 25.

Court of Criminal Appeals of Alabama.

Feb. 26, 1980.

On Return to Remand June 23, 1981.

Rehearing Denied Aug. 4, 1981.

John L. Capell, III, of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Murder in the first degree wherein two or more human beings are intentionally killed; sentence: death by electrocution. Section 13-11-2(10), Code of Ala.1975.

The State's evidence proved beyond any reasonable doubt that in the early morning hours of April 15, 1978, eighteen-year-old Jerome Vincent Berard unlawfully, intentionally, and with malice aforethought killed Jeffery D. Smith and John D. Thompson, ages fourteen and sixteen respectively, by shooting them with a .45 caliber pistol at the Skatehaven roller skating rink in Montgomery. Both victims were employed by Skatehaven on the night in question, and Jeffery Smith was the appellant's best friend.

The appellant had been employed at Skatehaven, but had quit two months prior to this incident. According to Mr. Nick Stratas, the owner of Skatehaven, "his words were that he was not going to work any longer. That we had worked him too hard and he desired to quit." On the afternoon of April 14, the appellant told a friend, Tonya Bird, that he planned to rob Nick Stratas and "kill him if possible." He told another friend, Kelly Turner, that "he was going to flatten Nick Stratas' car tire, wait till he was changing it and knock him out from behind and take his money."

By the appellant's own confession, he loaded a .45 pistol at his house, placed it down in his belt, and walked to the Pizza Hut to have a coke. Later, as the appellant was walking up the highway, a female friend drove by and saw him. From the confession:

"(S)he picked me up, you know, rode up the Atlanta Highway and we were talking and she let me out back of the rink. I went down around back and waited until everybody was gone and I went and knocked on the glass doors and Jeff and them came from there, came over and opened the door and he let me into the After the appellant emptied the gun into both victims, he placed two more live rounds in the pistol and fired two more shots, one into each victim. He stated that they were moaning and groaning, and he wanted to put them out of their misery. Smith and Thompson suffered five gunshot wounds each.

place and they were in there cleaning up. I went over to play a few games of pinball and was fixing to close up. I started to walk out the door and I pulled up the slide on the .45 and just started shooting them."

The appellant offered no explanation for his murderous actions. "I shot my best friend for no reason at all .... I never killed no one in my life, I don't know why I did it .... Jeff never did nothing to nobody, I just shot him dead .... I just kept shooting, shooting and shooting." He stated that he next grabbed the keys to Thompson's car, jumped in the car, and was about to leave when he realized things did not "seem right." He went back inside, "popped open the cash drawer and kicked in some doors, to make it look like it was a robbery or something." He then drove the car away, "ditched it," and walked home.

I

The appellant maintains that the trial court erred in excusing four jurors for cause contrary to the guidelines set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We disagree.

In the case sub judice only those prospective jurors were excluded who indicated they would not return the death penalty under any circumstances regardless of the evidence. On no less than four occasions during the qualification of the venire did the trial court instruct the prospective jurors concerning their views on capital punishment:

(1) "The question that is being presented to you now is this: If you have a moral belief which says that you do not believe in capital punishment, if you believe that capital punishment should not be inflicted under any circumstances, if you simply do not believe in capital punishment, you should stand at this time."

(2) "If the fact that you do not believe in the death penalty would keep you from finding the Defendant guilty regardless of the evidence, please stand ...."

(3) "If the fact that you do not believe in the death penalty would keep you from finding the Defendant guilty regardless of the evidence, please remain standing."

(4) "Now, do you feel like that since you do not believe in capital punishment, regardless of what the evidence would be, do you feel like you could render a verdict of guilty? ....

"If you feel that you could not, just raise your right hand ...."

In addition, it was carefully explained that under Alabama's capital felony statute the only punishment which the jury could impose would be death if the appellant was found guilty.

In response to the court's instructions, thirteen prospective jurors stood. Each juror was questioned individually to make sure he understood the instructions and to ascertain his individual convictions regarding the death penalty. Of the thirteen who had originally stood, only four stated unequivocally that they "could not pronounce guilt under those circumstances." Those four were challenged for cause. The remaining nine were not. We hold as a matter of law that the challenges were proper. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Witherspoon, supra. See also: Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971).

II

The appellant contends that the trial court erred to reversal in allowing color photographs and photographic slides of the victims to be shown to the jury and in admitting into evidence the shirts of the two victims showing blood stains and bullet holes. Appellant argues that such evidence Through the testimony of five police officers and a state toxicologist, thirty-nine photographs were admitted into evidence. Approximately thirty of those photographs were of the two victims. A slide presentation of approximately ten slides by the state toxicologist and approximately thirty slides by one of the police officers was also made before the jury. The presentation utilized by the toxicologist was to facilitate his testimony explaining the victims' cause of death. The presentation made by the police officer was to expedite his testimony explaining the appellant's movements at the time he committed the offense. At least nine of those slides were of the scene and the two bodies. The slides were not admitted as exhibits, but were marked for the record. ¹ The two shirts, one belonging to each victim, were introduced to prove the number of wounds and to establish the approximate distance of the pistol at the time of discharge.

was repetitious and that its cumulative effect was to inflame the jury. A brief discussion of that evidence is appropriate.

Beginning with the shirts, the supreme court in Flannagin v. State, 289 Ala. 177, 266 So.2d 643 (1972), stated:

"It is a long established rule of this State that demonstrative evidence, such as clothing worn by deceased at the time of the killing, is admissible if it tends to shed light on any material inquiry, even though such evidence is only cumulative of other evidence and tends to inflame the jury. Barbour v. State, 262 Ala. 297, 78 So.2d 328; Ray v. State, 253 Ala. 329, 45 So.2d 4. The rule regarding admissibility was set forth with clarity in Rollings v. State, 160 Ala. 82, 86-88, 49 So. 329, 331 as follows:

" 'The clothing of deceased, as well as that of the accaused, ... (sic) are usually held admissible on trials of homicide. There are only a very few cases in which they have been excluded, when offered as evidence for the inspection of the jury, if tending to elucidate the transactions, to identify any of the parties, to connect the accused with the crime, or to show the character of the wound, motive or intent of the killing, or degree of the crime whether the killing was in self-defense or not. If such objects tend to corroborate or disprove, illustrate or elucidate, any other evidence, they are admissible * * *.

" 'The wearing apparel of deceased, showing the location of the bullets, the character and nature of the wound, the blood stains, etc., were properly admissible under the rules stated above, and it is no reason to exclude them that these matters might be shown by other evidence, or that these objects might prejudice the jurors. * * *' (Emphasis supplied.)"

In the instant case the victim's clothing clearly tended to show the character, location, and nature of the fatal wounds. Thus, the shirts were properly admitted into evidence. Jones v. State, Ala.Cr.App., 362 So.2d 1303 (1978); Gould v. State, Ala.Cr.App., 332 So.2d 402 (1976).

With respect to the photographs and slide presentations of the victims, we find no merit in appellant's argument. As is stated in Gamble, McElroy's Alabama Evidence, § 207.01(2), (3d ed. 1977):

"The basic question to be asked in deciding the admissibility of a photograph of a victim, just as with any other demonstrative evidence, is whether it has a reasonable tendency to prove or disprove some material fact in issue. This decision is left largely to the sound discretion of the trial judge ...."

The trial judge's discretion is not reviewable except for gross abuse. McKee v. State, 253 Ala. 235, 44 So.2d 781 (1949); Cook v. State, 52 Ala.App. 159, 290 So.2d 228 (1974). We have carefully examined the photographs which were admitted and have considered the impact of the slide presentation. We find no abuse of discretion in this case.

Lewis v. State, Ala.Cr.App., 339 So.2d 1035 (1976), cert. denied, Ala., 339 So.2d 1038.

III

The appellant contends that the trial court admitted his taped and signed confession, taken on April 16 at 1:31 p. m., in violation of his Fifth and Fourteenth Amendment rights against self-incrimination. We have...