Berard v. State, 3 Div. 585

• Court: Alabama Court of Criminal Appeals
• Citation: 486 So.2d 458
• Docket Number: 3 Div. 585
• Parties: Jerome Vincent BERARD v. STATE.
• Decision Date: 31 July 1984

Page 458

486 So.2d 458

Jerome Vincent BERARD v. STATE.

3 Div. 585.

Court of Criminal Appeals of Alabama.

July 31, 1984.

Rehearing Denied Dec. 11, 1984.

Ira DeMent and Ronald Wise, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg and Edward Carnes, Asst. Attys. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty of capital murder by intentionally killing two or more human beings by one act or a series of acts. He had pleaded not guilty and not guilty by reason of insanity. Soon after the verdict was returned and received, a hearing was conducted as to the weighing of the aggravating circumstances as opposed to the mitigating circumstances, and the same jury returned a verdict recommending that the death sentence be imposed. The trial court ordered a pre-sentence report, and in due course a sentence hearing was conducted that resulted in the trial court's acceptance of the jury's recommendation and the judgment sentencing defendant to death.

The victims of the alleged crime were Jeffery D. Smith, fourteen years of age, and John D. Thompson, sixteen years of age. The defendant was eighteen years old at the time of the crime, which occurred on April 15, 1978.

The trial of the instant case was from April 26, 1982, to May 2, 1982. The long interval between the date of the crime and the time of the trial that resulted in the judgment upon which this appeal is based is chiefly by reason of consequences of a previous trial of the same case, in which the jury had returned a verdict finding defendant guilty of the capital felony charged and had returned a verdict recommending the death penalty. In accordance with the verdict on the previous trial, the trial court rendered a judgment adjudging defendant guilty of the capital crime charged and sentenced defendant to death. On appeal to this Court, said judgment was affirmed on February 26, 1980, as to the judgment of conviction, but the case was remanded to the trial court as to the sentence, with directions that a new sentencing hearing be held. Berard v. State, 402 So.2d 1044 (Ala.Crim.App.). Meanwhile, before any further action was taken by this Court in the instant case, Beck v. Alabama, Ala., 396 So.2d 645 (1981), was decided, which necessitated a reversal of the judgment of conviction, as well as the sentence in the Berard case, for the reason that the jury was not permitted to return a verdict of guilt of a lesser included offense supported by the evidence, in contravention of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). On the return to the order of remandment on the former appeal of the former judgment of conviction and sentence to death of this appellant, the judgment of conviction and sentence were reversed and the cause remanded for a new trial, (Berard v. State, supra, at 402 So.2d 1051, June 23, 1981, rehearing denied, Aug. 4, 1981).

The opinion of this Court on the appeal of the previous judgment of conviction and sentence in the instant case, in Berard v. State, supra, sets forth a recital of the evidence, which needs not be repeated on this appeal, for the reason that there is little, if any, material difference between the evidence on the first trial and the evidence on the trial upon which the instant appeal is based. We will refer at times to evidence particularly pertinent to any and all issues presented on this appeal whenever the same seems appropriate to our discussion and determination of such issues, respectively.

Ten separate issues are presented in appellant's brief. Three of them pertain primarily to the issue as to the validity vel non of the judgment of conviction; most of the issues pertain primarily to the validity vel non of the judgment sentencing defendant to death; some tend to combine the issue as to the judgment of conviction with

the issue as to the judgment of sentence. We proceed to consider and discuss all ten issues separately, but we think it appropriate for us to defer discussion of the issues pertaining primarily or exclusively to the sentence of defendant to death until after we have discussed the issues presented by appellant that pertain in whole or in part to the judgment of conviction; however, we cannot do so without some tendency toward confusion of the reader if we observe the same sequence of their presentation in appellant's brief. Therefore, in our attempt to discuss each and every issue presented by appellant, we will do so in the following ten separately numbered divisions of this opinion in numerical sequence, but not in the same sequence, numerical or otherwise, of the issues presented in appellant's brief

I.

Appellant makes a contention that is substantially the same, if not the identical, contention he made in this court on his appeal from the previous judgment of conviction and sentence, which contention was carefully considered and determined adversely to appellant in Berard v. State, supra, at 402 So.2d 1046, 1048. We adhere to what was there said and held, by concluding that the trial court was not in error in any of its rulings pertaining to the question of the admissibility in evidence of "color photographs depicting the deceased boys, allowing the jury to view color slides, color photographs of the deceased boys, shirts of the two deceased boys filled with bullet holes and covered with blood," as contended by appellant.

II.

By this issue, appellant expressly recognizes that in accordance with previous opinions of this Court, this Court would not if it could, and should not if it would, hold otherwise than what was held by the Alabama Supreme Court in Beck v. State, Ala., 396 So.2d 645 (1980), in holding that the Alabama Death Penalty and Life Imprisonment Without Parole Act in effect at the time of the alleged crime in the instant case, which contained a provision that precluded a verdict thereunder finding an accused guilty of a lesser included offense, could be saved from unconstitutionality by a severance of such preclusion clause by judicial action in prescribing that juries in such cases "will be instructed on each lesser included offense which has any basis in the evidence." Beck v. State, 396 So.2d p. 658. We need only add the following candid comment in appellant's brief:

"Defendant is aware that this Court is bound by the holding of the Alabama Supreme Court in Beck v. State, supra. Thus, he realizes that his conviction will not be reversed by this Court or the Alabama Supreme Court on this issue. However, the issue is presented here to preserve it for perspective [sic] federal habeas corpus review."

III.

By another issue presented by appellant, he challenges the action of the trial court "in not granting the appellant's challenge for cause as to juror No. 134 (Ms. Jenkins)." We quote verbatim appellant's recital of what occurred in the process of qualifying prospective jurors for service in the instant case:

"THE COURT: Can you tell us what you believe you know about this case from what you have read or heard, please, ma'am?

"PROSPECTIVE JUROR: Well, from what I have heard and read, saying that the person is guilty.

"THE COURT: Do you believe that the defendant in this case is guilty?

"PROSPECTIVE JUROR: Yes, I do.

"THE COURT: You don't believe that you could listen to the facts of the case and the law of the case and render your verdict on that?

"PROSPECTIVE JUROR: I believe I already have an opinion of him because he says he is guilty by reason of insanity.

"THE COURT: Do you mean not guilty by reason of insanity?

"PROSPECTIVE JUROR: No, I believe he is guilty.

"THE COURT: Well, based on what you have heard and read?

"PROSPECTIVE JUROR: From what I have read and what I have heard.

"THE COURT: Do you not believe that you could put aside that opinion and render a verdict on the evidence of this case and the law of the case?

"PROSPECTIVE JUROR: Yes, possibly I could do that.

"THE COURT: Thank you, ma'am.

"(Prospective juror leaves the room).

"MR. WISE [Defendant's attorney]: Your Honor, we challenge her.

"THE COURT: What does the State say?

"MR. EVANS [District Attorney]: We'll defer, Judge, until you get through with all of them, and we would like to review them with you, if you would.

"THE COURT: Well, I'll put her on hold, but I think I will probably strike her. (R. 387-389).

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* * *

"THE COURT: Ms. Jenkins, let me ask you a question. When we talked to you earlier, you indicated you had some thoughts about the guilt or innocence of the defendant in this case, I believe.

"PROSPECTIVE JUROR: Yes.

"THE COURT: You understand that he is presumed to be innocent in this case as he comes into this Court?

"PROSPECTIVE JUROR: Yes.

"THE COURT: And do you understand that the verdict can only be based on the evidence and the facts to be produced before the jury?

"PROSPECTIVE JUROR: Yes.

"THE COURT: Do you believe that you could listen to the evidence and determine it and apply the law in this case and put aside any notion that you might have about his guilty [sic] or innocence, or do you believe it is going to stay with you?

"PROSPECTIVE JUROR: I believe I could put it aside.

"THE COURT: All right. Thank you, ma'am.

"(Prospective juror leaves the room.)

"MR. WISE: Judge, on the lady who just left, number one thirty four, we challenge for cause on the grounds that even though she stated what she did, she still has a fixed opinion when that jury is put in the box.

"THE COURT: Is that number one thirty-four?

"MR. WISE: One thirty-four. She still has a fixed opinion.

"THE COURT: I deny you. (R. 430-432)."

Attorneys for appellant and appellee state their views pro and con respectively as to whether the denial of defendant's challenge of the prospective juror was error prejudicial to defendant. Beyond the writer's ability to explain is an entry in the record containing what purports to be a list of all the...