Bryant v. State

• Decision Date: 21 March 2003
• Docket Number: CR-98-0023.
• Parties: Jerry Devane BRYANT v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

951 So.2d 732

Jerry Devane BRYANT v. STATE of Alabama.

CR-98-0023.

Court of Criminal Appeals of Alabama.

March 21, 2003.

Opinion on Return to Remand April 29, 2005.

Rehearing Denied July 29, 2005.

Certiorari Denied September 29, 2006 Alabama Supreme Court 1041715.

Michael Crespi, Dothan; Deanna S. Higginbotham, Dothan; and John E. Byrd, Jr., Dothan, for appellant.

William H. Pryor, Jr., atty. gen., and Jeremy W. Armstrong, asst. atty. gen., for appellee.

William H. Pryor, Jr., and Troy King, attys. gen., and Jeremy W. Armstrong and Stephen Shows, asst. attys. gen., for appellee, on return to remand.

On Remand from the Alabama Supreme Court

WISE, Judge.¹

Jerry Devane Bryant was convicted of murder made capital because it occurred during a kidnapping in the first degree. See § 13A-5-40(a)(1), Ala.Code 1975. By a vote of 11-1, the jury recommended that Bryant be sentenced to death. In accordance with the jury's recommendation, the circuit court sentenced Bryant to death.

On November 19, 1999, this Court affirmed Bryant's conviction and sentence. Bryant v. State, 951 So.2d 702- (Ala.Crim.App.1999). Bryant petitioned the Alabama Supreme Court for certiorari review on February 11, 2000. The Supreme Court granted the petition, pursuant to former Rule 39(c), Ala.R.App.P.² On June 21, 2002, the Supreme Court affirmed Bryant's conviction, but reversed the sentence of death and remanded the case to this Court, holding that Bryant was entitled to a new sentencing proceeding because the circuit court's penalty-phase jury instructions implied that the jury could not recommend a penalty of life in prison without the possibility of parole instead of death unless the mitigating circumstances outweighed the aggravating circumstances. Ex parte Bryant, 951 So.2d 724 (Ala.2002). The Supreme Court overruled the State's application for rehearing on January 31, 2003.

In accordance with the Supreme Court's decision in Ex parte Bryant, Bryant's sentence of death is reversed and this cause is remanded for the circuit court to conduct a new sentencing hearing before a jury. The circuit court should take the necessary action to ensure that the circuit clerk makes due return to this Court within 120 days from the date of this opinion, or as soon as practicable.

REVERSED AS TO SENTENCE AND REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

On Return to Remand

WISE, Judge.

The appellant, Jerry Devane Bryant, was convicted of murder made capital because it occurred during a kidnapping in the first degree. See § 13A-5-40(a)(1), Ala.Code 1975. In accordance with the jury's recommendation, the circuit court sentenced Bryant to death.

On November 19, 1999, this Court affirmed Bryant's conviction and sentence. Bryant v. State, 951 So.2d 702 (Ala.Crim.App.1999). On June 21, 2002, the Supreme Court affirmed Bryant's conviction, but reversed the sentence of death and remanded the case to this Court, holding that Bryant was entitled to a new sentencing proceeding because the circuit court's penalty-phase jury instructions implied that the jury could not recommend a penalty of life in prison without the possibility of parole instead of death unless the mitigating circumstances outweighed the aggravating circumstances. Ex parte Bryant, 951 So.2d 724 (Ala.2002).

On March 21, 2003, this Court, in accordance with the Supreme Court's directive, reversed Bryant's death sentence and remanded this case for the Houston Circuit Court to conduct a new sentencing hearing. The circuit court has complied with our directions, and on October 8, 2004, this case was resubmitted for our review.

Because the facts surrounding this case have already been set out in some detail, a brief rendition of the facts will suffice.

The evidence presented at trial established that on the night of January 27, 1997, Bryant kidnapped and murdered 27-year-old Donald Hollis. Bryant kidnapped Hollis in Dothan and later that night shot him in the head three times. Bryant then put Hollis's body in the trunk of Hollis's automobile, drove to Florida, and disposed of the body. Bryant then sold Hollis's cellular telephone for crack cocaine; he also attempted to sell Hollis's car for crack cocaine, but was unsuccessful. The jury found Bryant guilty of murder made capital because it occurred during a kidnapping in the first degree.

Following a second sentencing hearing conducted on remand, the jury recommended by a vote of 11-1 that he be sentenced to death. The circuit court adopted the jury's recommendation and sentenced Bryant to death.

We now address the issues raised as a result of the new sentencing hearing and the other penalty-phase issues. Any additional facts pertinent to the resolution of these issues will be set out as necessary.

I.

Bryant argues that the circuit court erred when it granted the State's challenges for cause regarding prospective jurors E.F. and M.F.¹

When reviewing a challenge for cause, we look to the following general principles of law:

"To justify a challenge for cause, there must be a proper statutory ground or `"some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court."' Clark v. State, 621 So.2d 309, 321 (Ala.Cr.App. 1992) (quoting Nettles v. State, 435 So.2d 146, 149 (Ala.Cr.App.1983)). This Court has held that `once a juror indicates initially that he or she is biased or prejudiced or has deep-seated impressions' about a case, the juror should be removed for cause. Knop v. McCain, 561 So.2d 229, 234 (Ala.1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of his previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, 666 So.2d 73, 82 (Ala.1995). A juror `need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it.' Kinder v. State, 515 So.2d 55, 61 (Ala.Cr.App. 1986). Even in cases where a potential juror has expressed some preconceived opinion as to the guilt of the accused, the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based upon the evidence in the case. Kinder, at 60-61. In order to justify disqualification, a juror `"must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused"'; `"[s]uch opinion must be so fixed ... that it would bias the verdict a juror would be required to render."' Oryang v. State, 642 So.2d 979, 987 (Ala.Cr.App.1993) (quoting Siebert v. State, 562 So.2d 586, 595 (Ala.Cr.App.1989))."

Ex parte Davis, 718 So.2d 1166, 1171-72 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999). See also Whitehead v. State, 777 So.2d 781, 808 (Ala.Crim.App.1999), aff'd, 777 So.2d 854 (Ala.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001).

This issue was also discussed at length in Dallas v. State, 711 So.2d 1101, 1107 (Ala.Crim.App.1997), aff'd, 711 So.2d 1114 (Ala.), cert. denied, 525 U.S. 860, 119 S.Ct. 145, 142 L.Ed.2d 118 (1998) (quoting Taylor v. State, 666 So.2d 36, 47 (Ala.Crim.App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996)). In Dallas, we stated:

"`"The proper standard for determining whether a prospective juror may be excluded for cause because of his or her views on capital punishment is `whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."' Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); Gray v. Mississippi, 481 U.S. 648 [at 657-58], 107 S.Ct. 2045, 2051, 95 L.Ed.2d 622 (1987). `The crucial inquiry is whether the venireman could follow the court's instructions and obey his oath, notwithstanding his views on capital punishment.' Dutton v. Brown, 812 F.2d 593, 595 (10th Cir.), cert. denied, Dutton v. Maynard, 484 U.S. 836, 108 S.Ct. 116, 98 L.Ed.2d 74 (1987). A juror's bias need not be proved with `unmistakable clarity' because `juror bias cannot be reduced to question and answer sessions which obtain results in the manner of a catechism.' Id.

"`"A trial judge's finding on whether or not a particular juror is biased `is based upon determination of demeanor and credibility that are peculiarly within a trial judge's province.' Witt, 469 U.S. at 428, 105 S.Ct. at 854. That finding must be accorded proper deference on appeal. Id. `A trial court's rulings on challenges for cause based on bias [are] entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion.' Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala.1981)."

"`Martin v. State, 548 So.2d 488, 490-91 (Ala.Cr.App.1988), affirmed, 548 So.2d 496 (Ala.1989), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). "[A] blanket declaration of support of or opposition to the death penalty is not necessary for a trial judge[] to disqualify a juror." Ex parte Whisenhant, 555 So.2d 235, 241 (Ala.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990).'"

See also McNabb v. State, 887 So.2d 929, 944-45 (Ala.Crim.App.2001), aff'd, 887 So.2d 998 (Ala.), cert. denied, 543 U.S. 1005, 125 S.Ct. 606, 160 L.Ed.2d 466 (2004).

With these principles in mind, we will address Bryant's claims as to these potential jurors.

Bryant contends that the circuit court should not have granted the State's challenges for cause as to potential jurors E.F. and M.F., who indicated their opposition to the death penalty. Specifically, he argues that they were adequately rehabilitated during additional voir dire that clarified their opinions regarding the death penalty.

In Pressley v. State, 770 So.2d 115, 127 (Ala.Crim.App.1999), aff'd, 770 So.2d 143 (Ala.), ...