Bryars v. State

• Decision Date: 30 August 1983
• Docket Number: 3 Div. 304
• Citation: 456 So.2d 1122
• Parties: Earl A. BRYARS, Jr., alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1122

456 So.2d 1122

Earl A. BRYARS, Jr., alias v. STATE.

3 Div. 304.

Court of Criminal Appeals of Alabama.

Aug. 30, 1983.

Rehearing Denied Oct. 4, 1983.

Barry Hess and Virginia A. Johnston, Mobile, for appellant.

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

TYSON, Judge.

Earl A. Bryars, Jr., was indicted and tried for the shotgun slayings of Lemmie Maynard Coleman and Dave Hudson, two murders which constituted a capital felony in violation of § 13A-5-31(a)(10), Code of Alabama 1975, because they occurred during a single event. The jury found the appellant guilty as charged and, pursuant to § 13A-5-31(a), Code of Alabama 1975, fixed his punishment at death. The trial court conducted a separate sentencing hearing, in which it determined that the aggravating circumstances outweighed the mitigating circumstances. As a result, the trial court sentenced the appellant to death by electrocution. See Appendix A, hereto attached and made a part hereof.

Appellant's subsequent motion for a new trial was duly denied.

On appeal, Ala., 407 So.2d 566, we originally reversed and remanded this cause for a new trial on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 On November 21, 1979, between 5:30 and 7:00 p.m. Maynard Coleman and Dave Hudson were killed at Coleman's farm in Escambia County, Alabama. Their bodies were discovered shortly after 7:00 p.m. by Mrs. Coleman and Maynard's sister and her husband, Dr. and Mrs. Charles Nolan. The Nolans had arrived that afternoon for a visit with the Colemans. When Maynard did not return from the farm as expected, they drove to the farm to look for him. With the aid of a flashlight they found his body where he had fallen after being shot in the back with a slug from a 12-gauge shotgun. Maynard had fallen flat on his stomach and his cigar was still in place between his fingers. Upon further investigation after the authorities arrived, the body of Dave Hudson was found where he had been shotgunned to death approximately 28 feet from Maynard. Unlike Maynard, Hudson had been shot with "buckshot." Part of one round of buckshot had hit Hudson in the arm and another round had practically blown his face away. Both men were dead at the scene.

                L.Ed.2d 392 (1980). 1  On certiorari the United States Supreme Court vacated our decision and remanded this cause to us for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).  Alabama v. Bryars, 457 U.S. 1114, 102 S.Ct. 2921, 73 L.Ed.2d 1326 (1982).  For the reasons set forth below we now affirm appellant's conviction for the capital felony charged in the indictment, and his death sentence
                

The physical evidence indicated that Maynard and Hudson had been killed by a single gunman. The killer fired one 12-gauge slug which struck Maynard in the back, apparently killing him instantly, ejected a second slug which misfired, and then fired three rounds of "buckshot" at Hudson, one of which left a full pattern on the wall of the nearby barn. The four empty 12-gauge shells and the misfired 12-gauge slug were recovered at the scene. Subsequent evaluations of these shells by firearms experts revealed that they were fired from a 12-gauge shotgun that appellant's wife had purchased for him just four days before the murders.

Ronnie Coleman, Maynard Coleman's 14-year-old cousin, was the key witness for the prosecution. He testified that while hunting in the woods near Maynard's barn between 5:15 and 5:30 p.m. on the day of the murders, he saw the appellant's truck parked in the edge of the woods where it had been "backed in." Later, while he was talking to Erskin Packard outside his trailer, he heard four shotgun blasts from the vicinity of Maynard's barn. Two or three minutes later the appellant, heading in a direction away from Maynard's barn, drove by in his truck. The appellant did not stop to talk, as he usually did, and did not even wave as he drove past Ronnie and Erskin Packard.

Erskin Packard confirmed the fact that there were four shotgun blasts and that several minutes later he saw the appellant's truck go by. However, he did not see who was driving.

Sheriff G.S. Byrne testified that he went to interview the appellant, as a possible suspect, the morning after the murders. The appellant was very cooperative, and in fact, at the sheriff's request, gave him his 12-gauge shotgun for comparison with the 12-gauge shells found at the scene of the crime. The appellant retrieved the shotgun from his truck, unloaded it, and handed it to Sheriff Byrne. This shotgun was later conclusively proven to be the murder weapon.

Mrs. Coleman, Maynard's wife, testified that her husband began carrying a shotgun and a pistol in his truck after an October 12, 1979, incident with the appellant. The appellant and Maynard had had an argument at Thadius Johnson's home concerning Appellant's defense was alibi. He and his wife both testified that he was elsewhere when the murders were committed. According to them, the appellant and Jasper Brown, appellant's hired hand, spent the majority of the day burning brush on appellant's property. They finished working at 4:30 p.m., returned to appellant's home and ate supper. The appellant took Brown home at 4:45 p.m. and returned by 5:15 p.m. Appellant's wife then drove the appellant and their children, in her car, to Atmore, where she did some shopping. The appellant remained in the automobile while his wife did the shopping. They returned home at 6:30 p.m. and the appellant did not leave the house again that night.

some land in which they shared undivided interests. Thadius Johnson testified that his wife asked the appellant to leave so that there would not be a fight. Junior Coleman, Maynard's "double" first cousin testified that, because of this incident, Maynard had given him some sort of an agreement concerning the land and had asked Junior to deliver it to the appellant because Maynard did not want to confront the appellant. Aubrey Weaver, Jr., stated that Maynard told him the appellant had told others he (the appellant) was going to "take care of" Maynard. Finally, William V. Williams testified that on the day he was killed, Maynard Coleman told him that he was meeting the appellant later that day to resolve their differences concerning their joint property.

Jasper Brown, testifying for the appellant, stated on cross-examination that they left appellant's house at about 5:15 p.m., and that the appellant drove and bought a newspaper at a nearby store before he dropped off Brown, near Brown's home, at 5:30 p.m. The appellant left Brown and headed in the direction of Maynard's barn, where the murders were committed.

The appellant confirmed the detour for the paper, but stated that Brown was incorrect about the time. He admitted driving toward Maynard's barn but stated that he was going to visit Junior Coleman to borrow a "bush-hog." After finding no one at home at Junior's trailer, he returned home and accompanied his wife to Atmore.

Neither the appellant nor his wife could recall anyone they saw on the shopping expedition that might have seen them. They presented no other evidence to corroborate their trip.

The appellant denied that he had had any arguments with Maynard Coleman over their joint property and denied that he had had a meeting scheduled with Maynard for that afternoon. He surmised that Ronnie Coleman had lied about seeing his truck parked in the woods near Maynard's barn at about 5:30 p.m. When confronted with his testimony at a bond hearing to the effect that he had taken Brown home at 5:30 p.m., he stated that he was confused at the bond hearing, and that the truth was that he took Brown home between 4:30 and 4:45 p.m.

The appellant, specifically, denied shooting Maynard Coleman and Dave Hudson.

The conflicting evidence was put to the jury which resolved the issues against the appellant and returned a verdict of "guilty as charged," fixing punishment, as required by statute, at death by electrocution.

At the separate sentencing hearing evidence of aggravating and mitigating circumstances was reviewed by the trial court. Several of appellant's employers and friends testified as to his good work habits and good character. A presentence report revealed that the appellant had two misdemeanor convictions for disorderly conduct. As a result of evidence presented at the sentencing hearing the trial court found as the only mitigating circumstance that the 52-year-old appellant did not have a "significant history of prior criminal activity." The only aggravating circumstance he considered was that the crime was especially heinous, atrocious, and cruel. In the trial court's opinion the mitigating circumstance was insufficient to outweigh the aggravating circumstance. The trial court, therefore, sentenced the appellant to death by electrocution.

I

The appellant was indicted, tried and convicted in accordance with the provisions of §§ 13A-5-30 through 38, Code of Alabama 1975, the Alabama Death Penalty Act then in effect. A clause in § 13A-5-31(a), Code of Alabama 1975, which precluded trial courts from instructing capital offense juries on possible lesser included offenses, was, subsequently, ruled unconstitutional by the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). ² This clause was, eventually, severed from § 13A-5-31(a) and the remainder of Alabama's Death Penalty Act left intact. Beck v. State, 396 So.2d 645 (Ala.1980). A later United States Supreme Court decision explained that a case tried when the preclusion clause was in effect did not, necessarily, have to be re-tried. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). "The jury must be permitted to consider a verdict of guilt of a non-capital offense" only when "the evidence would have supported such a verdict." (Additional emphasis supplied...