Brownlee v. State

• Decision Date: 28 June 1988
• Docket Number: 6 Div. 305
• Citation: 545 So.2d 151
• Parties: Virgil Lee BROWNLEE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 151

545 So.2d 151

Virgil Lee BROWNLEE v. STATE.

6 Div. 305.

Court of Criminal Appeals of Alabama.

June 28, 1988.

Rehearing Denied Aug. 23, 1988.

James M. Kendrick, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Virgil Lee Brownlee was convicted of murdering Lathen Aaron Dodd during a robbery and, pursuant to § 13A-5-40(a)(2), Code of Alabama 1975, was sentenced to death by electrocution. Seven issues are raised on appeal.

The evidence presented by the State tended to establish that somewhere between 8:30 and 9:00 p.m. on May 19, 1986, two gun-wielding men, depicted in the evidence as Virgil Lee "Bobby" Brownlee and Robert Harris, charged into Jodie's Lounge on Highway 31 in North Birmingham shouting obscenities, shooting their pistols, and ordering the bar's patrons (14 to 18 in number) to lie on the floor. The evidence is unclear as to how many shots were initially fired. However, taking the patrons' testimony as a whole, as few as two and as many as ten shots were fired.

Self-confessed accomplice Willie Irving Goodgame, also armed with a pistol, was stationed at the entrance to prevent incoming patrons from impeding the robbery of the bar and its patrons.

While lying face down on the floor, the bar's patrons were kicked and pistol whipped. One patron received a grazing bullet wound to the head, and another suffered a broken shoulder. The patrons were robbed of their monies, identification papers, and personal effects, including rings, watches, and other items of jewelry. One patron was also robbed of the pistol she carried in her handbag.

At the same time the patrons were being robbed of their possessions, another of the robbers demanded to know who was the owner. Lathen Aaron Dodd, standing at the telephone talking to his brother, said "I am." Dodd was instructed to come over to the cash register and give this robber its contents. Thereafter, this robber, who seemed to be in charge of the operation, demanded "Where is the rest of the money?" On learning that there was no more money forthcoming, this robber fired two more times, and in the words of one of the patrons: "one of them was body impact." Another of the robbers jumped up on the bar and fired two more shots. The patrons were then made to crawl into the men's room in the back of the bar, and the robbers fled the scene.

The patrons huddled in the rest room until they felt it was safe to come out. When they made their way back into the bar, they discovered that Lathen Aaron Dodd had been shot in the abdomen. Dodd was still alive, but later died on the operating table. The cause of his death was listed as bleeding caused by a gunshot wound to the chest/abdominal area. He had been unarmed at the time of the shooting, and his pistol was still lying on a shelf behind the bar counter when the police arrived.

Although both Goodgame and Harris were positively identified by the patrons, no patron could positively identify Brownlee as one of the robbers or the assailant. Brownlee made no incriminating statement to the police, and there was no scientific evidence tying him to the crime.

The State's case was based on the testimony of Willie Irving Goodgame, a self-confessed accomplice to the robbery component of the capital offense, James "Sonny" Warren, and the defendant's girl friend, Reavor Jones.

Goodgame testified that the defendant formulated the robbery. According to him, Brownlee stated a few hours before the robbery, "I know where there is a lick," meaning where they could get some money. The defendant, Goodgame, and Harris discussed how to pull the robbery, and they armed themselves with a .357 Magnum, a .38 pistol with a sawed-off barrel, and a regular .38 pistol, respectively. Goodgame stated that they drove to Jodie's Lounge in "Sonny" Warren's car and that Warren stayed in the car while the others went in and robbed the bar. The statement that Warren was involved was disputed by Warren.

According to Goodgame, when he, Harris and Brownlee arrived at the bar, Goodgame was posted at the entrance and stayed there throughout the robbery. He maintained that he never fired any shots. Goodgame further testified that he did not see whether it was Harris or Brownlee that shot Dodd, but that subsequent to the robbery, when the spoils were being divided between them, Brownlee stated to Harris: "He had gone for his pistol.... I had to kill the M_____ F_____ because he went for his pistol." Moreover, Goodgame said that the next day defendant stated: "If I wouldn't have shot him, he would have shot me."

Part of Goodgame's testimony was corroborated by that of "Sonny" Warren and Reavor Jones. Warren and Jones testified that the defendant, Harris, and Goodgame locked themselves up in the bedroom of Reavor Jones's apartment for an unspecified period of time. When they came out they were all armed with guns. Defendant asked Warren if he could borrow his car. Warren was initially unwilling to let Brownlee borrow his car, but eventually agreed. However, Warren stated that he had no knowledge of the planned robbery. Warren and Jones said that Brownlee, Harris, and Goodgame then left Reavor Jones's apartment and were gone for approximately two hours. Warren and Ms. Jones, according to their own testimony, remained at Ms. Jones's apartment. When they returned they again went back to the bedroom and closed the door behind them. Some time later, Warren entered the bedroom and saw a number of wallets and jewelry spread out on the bed. Later, the defendant, Goodgame, and Harris emerged from the bedroom to "shoot" or "snort" some cocaine, smoke some marijuana, and take some "T's" and "Blues." At some point, Harris almost overdosed and the group talked about taking him to a hospital.

The next day Goodgame and the defendant attempted to sell their weapons and the gun stolen from one of the patrons of Jodie's Lounge to Booker T. Harris. However, Harris was willing to buy only two of the weapons, leaving Goodgame and the defendant with the .357 Magnum. The defendant and Goodgame also disposed of the emptied wallets and identification papers taken in the robbery by going behind Ms. Jones' apartment and throwing them into Village Creek. Investigators from the Birmingham Police Department later recovered some of these identification papers from the banks of Village Creek directly behind Ms. Jones' apartment. The investigators also recovered the weapons sold to Booker T. Harris by the robbers. This concluded the State's case. The defendant offered no testimony.

I

The defendant first contends that the trial court violated the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), in excluding for cause Jurors Bellenger and Sartino. Specifically, he argues that these two jurors indicated that they would be reluctant to impose the death sentence, but that under the right circumstances they would be able to do so. We disagree.

We have recently addressed this same issue in the case of Watkins v. State, 509 So.2d 1071, 1073-74 (Ala.Cr.App.1986), aff'd, 509 So.2d 1074 (Ala.1987), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1988), wherein we held as follows:

"There are a number of recent United States Supreme Court cases on this point which are controlling authority. The original constitutional yardstick was described in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). There the Court required that the juror make it unmistakably clear that he would automatically vote against capital punishment and that his feelings would prevent him from making an impartial decision as to guilt. This is no longer the test. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), ruled that only those jurors whose views on capital punishment would prevent or substantially impair the performance of their duties could be challenged for cause. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), held that the test for excluding a venireman is whether the juror's views would prevent or substantially impair the performance of his duties in accordance with his instructions and oath. The Court expressly stated that the juror's bias did not have to be proved with unmistakable clarity. Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), stated in part as follows:

" 'The precise wording of the question asked of [the venireman], and the answer he gave, do not by themselves compel the conclusion that he could not under any circumstances recommend the death penalty. But Witt recognized that "determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism." U.S., at . The trial court, "aided as it undoubtedly was by its assessment of [the venireman]'s demeanor," at was under the obligation to determine whether [the venireman]'s views "would prevent or substantially impair the performance of his duties as a juror," id., at .... No specific objection was made to the excusal of [the venireman] by defense counsel. Nor did the court perceive, as it had previously, any need to question further. Viewing the record of voir dire in its entirety, we agree with the reasoning of the Court of Appeals that the trial court's decision to exclude this juror was proper. [Darden v. Wainwright ] 767 F.2d, at 754.'

"The Eleventh Circuit Court of Appeals held in 1983 in McCorquodale v. Balkcom, 721 F.2d 1493 (11th Cir.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984), that a prospective juror who responded to the death penalty questions, 'I don't think I could do it. I really don't,' has made it sufficiently clear that she could not impose the death penalty regardless of the evidence. The Eleventh Circuit stated:

" 'Her statements, coupled with the trial judge's ability to observe [her] tone of voice and demeanor for...