Bryant v. State, No. CR-98-0023 (AL 4/29/2005)

• Decision Date: 29 April 2005
• Docket Number: No. CR-98-0023.,CR-98-0023.
• Parties: Jerry Devane Bryant v. State of Alabama
• Court: Alabama Supreme Court

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Jerry Devane Bryant v. State of Alabama

No. CR-98-0023.

Court of Criminal Appeals of Alabama.

Decided April 29, 2005.

Appeal from Houston Circuit Court (CC-97-403).

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, [Ms. CR-98-0023, November 19, 1999] ___ So. 2d ___ (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, [Ms. 1990901, June 21, 2002] ___ So. 2d ___ (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 (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 (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 (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 (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, ___ U.S. ___, 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.), cert. denied, 531 U.S. 931 (2000), this Court noted the following:

"In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), the United States Supreme Court held that the proper standard for determining whether a veniremember should be excluded for cause because of opposition to the death penalty is whether the veniremember's views would `"prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."' The Supreme Court has expressly stated that juror bias does not have to be proven with `unmistakable clarity.' Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986)."

See also Watkins v. State, 509 So. 2d 1071, 1073 (Ala.Crim.App. 1986), aff'd, 509 So. 2d 1074 (Ala.), cert. denied, 484 U.S. 918 (1987).

We have reviewed the voir dire conducted by the circuit court, paying particular attention to those jurors against whom challenges for cause were lodged, including E.F. and M.F. After reviewing the voir dire examination, we conclude that the circuit court did not err in granting the challenges for cause as to E.F. and M.F. Both individuals indicated their opposition to the death penalty. Both expressed reservations about their ability to recommend the death penalty, even if the aggravating circumstances outweighed the mitigating circumstances. Upon further voir dire, both indicated that the aggravating circumstances would have to greatly outweigh the mitigating circumstances before they would be able even to consider recommending that Bryant be sentenced to death. In responding to the court's inquiry, M.F. noted that there would have to be "a great amount of aggravating circumstances for me to recommend the death penalty ... [and] if there was just even a small bit of mitigating circumstances, that would make me go towards life [imprisonment] without parole." (R. 154.) M.F. went on to note that if there was any mitigating evidence at all, it would be enough for him to recommend life imprisonment without parole (R. 155-56), before telling the court that "I could not do it" (R. 157), meaning that he could not recommend the death penalty.

E.F. was equally reluctant to even consider...