Carr v. State

• Decision Date: 04 March 1994
• Citation: 640 So.2d 1064
• Parties: Patrick CARR v. STATE. CR 92-362.
• Court: Alabama Court of Criminal Appeals

Page 1064

640 So.2d 1064

Patrick CARR v. STATE.

CR 92-362.

Court of Criminal Appeals of Alabama.

March 4, 1994.

Rehearing Denied May 6, 1994.

Joe W. Morgan, Jr., Birmingham, for appellant.

James H. Evans, Atty. Gen., and Frances Smith, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

The appellant, Patrick Carr, an inmate at West Jefferson Correctional Facility, was indicted for the murder of Correctional Officer William E. Donaldson, a capital offense as defined in Ala.Code 1975, § 13A-5-40(a)(5). A jury found him guilty as charged and unanimously recommended that his punishment be life imprisonment without possibility of parole. The trial judge rejected the jury's recommendation and sentenced the appellant to death. This direct appeal is from that conviction and sentence.

I

The appellant contends that the State's evidence was insufficient for the jury to convict him of the charged offense because "no reasonable trier of the facts could have found that he had the intent to commit a capital murder." Appellant's brief at 69.

The trial court made the following findings of fact regarding the crime and the appellant's participation:

"On January 12, 1990, the defendant, Patrick Carr, was an inmate at West Jefferson Correctional Facility serving concurrent 10 year sentences for Escape and Theft of Property First Degree. Because of a dispute with another inmate in an adjacent cell, the defendant was ordered to pack his belongings and move from Cell No. 42 to another cell. He was verbally abusive to the guards, refused to obey their commands and was passively resistant to the move. Officers then carried Inmate Carr and his belongings to Cell No. 61. Cell No. 61 was empty when the defendant arrived. A search of defendant's belongings during the move failed to discover a weapon that the inmate had concealed in his belongings.

"Less than one hour later Officer Donaldson and Officer Robert Coleman were escorting nurse Jackie King from cell to cell as she dispensed medication to certain inmates. Carr was scheduled to receive medication and when his cell door was opened he threw coffee on the guards. The door was opened wider and Officer Donaldson started into Carr's cell. As he entered the cell, Officer Donaldson was stabbed three times by Patrick Carr with a handmade pick-like weapon. This weapon was approximately 10 inches long and 1/4 inch in diameter. It was sharpened on one end and the handle was made by wrapping cloth around the other end of the pick. Officer William E. Donaldson died as a result of these wounds." C.R. 62.

In two statements given the evening of Donaldson's death, the appellant admitted that he was "real mad" about being moved from his original cell, that he had a "feeling" the officers would come back to his cell, and that he took his handmade "pick" from its hiding place in his mattress and put it in his boot next to the door of his new cell. He admitted swinging his "pick" at Donaldson three times but claimed he was defending himself.

After the incident, the appellant told another inmate, "I had all the time in the world to do what [I] wanted to do, but I missed him.... [I] tried to stab him in the heart, but got him in the neck." R. 884-85. The appellant was seen laughing in the prison infirmary as Officer Donaldson was being evacuated in a medical helicopter. R. 834. " ' "The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury's verdict only where it reaches "a clear conclusion that the finding and judgment are wrong." Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962). "The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust." Bridges v. State, 284 Ala. 412, 420, 225 So.2d 821 (1969). Even though an appellate court should "marvel that a jury would convict upon such flimsy proof," it is "not permitted to pass upon the weight or sufficiency of the evidence, where it may yield any rational inference of guilt." Toles v. State, 170 Ala. 99, 100, 54 So. 511 (1911). A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). "[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense." Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).' Granger [v. State], 473 So.2d [1137] at 1139 [ (Ala.Cr.App.1985) ]." ' "

White v. State, 546 So.2d 1014, 1017 (Ala.Cr.App.1989).

The State's evidence was clearly sufficient to require the submission to the jury of the issue of intent. The jury was presented with testimony from which it could rationally conclude that the appellant was lying in wait for the officer and intentionally caused his death.

II

The appellant, who was 19 1/2 years old at the time of the offense, alleges that he was never informed of his right to be treated as a youthful offender. That allegation is not supported by the record. The following occurred at arraignment:

"[DEFENSE COUNSEL]: And also like to make known we do not wish to waive application for Youthful Offender. We will make that application at a later date. I believe he was under the age of twenty-one at the time of this incident.

"THE COURT: All right.

"[DEFENSE COUNSEL]: He was under the age of twenty and we will be making application for Youthful Offender. But we felt the motion for [mental] examination should proceed first before any other motions were made.

"THE COURT: [Defense Counsel], I will show a plea of not guilty and not guilty by reason of mental disease or defect received. I will grant your motion for mental examination of the defendant and I will give you leave to file any other motions that you feel appropriate in this case and set a cut-off date of June 1." Supp.R. 4-5.

On September 24, 1993, the trial judge entered an order to correct or modify the record, reflecting that "[t]he provisions of the Youthful Offender Act were made known to the defendant and no application for Youthful Offender treatment was made." Supp.C.R. 9.

III

The appellant argues that the trial court erred in denying his motion for change of venue.

Officer Donaldson was killed on January 12, 1990. Five years earlier, the appellant had been adjudicated a juvenile delinquent based on conduct that had caused the death of Officer Myron Massey, who had been named the "Fairfield Police Officer of the Year." The appellant claims that community-wide familiarity with the details surrounding Officer Massey's death, coupled with defense counsel's alleged inability to question the prospective jurors about whether they knew of the appellant's involvement in Massey's death, prevented him from receiving a fair trial in Bessemer for Donaldson's murder.

On the first day of voir dire examination of the prospective jurors, one veniremember stated, out of the hearing of the other jurors, that because of her husband's acquaintance with the appellant's stepfather, she knew of the appellant's involvement in the death of Officer Massey. That juror was excused for cause. Defense counsel argued that there might be other jurors who knew of the appellant's involvement with Massey's death who had not come forward with that information. He maintained that there was no way for him to question the jurors regarding their knowledge of the Massey case without prejudicing the jurors against the appellant. He insisted that the only remedy was moving the location of the trial.

We do not agree. Although it is true that "[t]he smaller the community, the more likely a major crime will be imbedded in the public consciousness," People v. Ainsworth, 45 Cal.3d 984, 248 Cal.Rptr. 568, 755 P.2d 1017, 1027 (1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1006 (1989), the trial court was not required, in the absence of any showing, to assume either that the prospective jurors knew of the appellant's involvement in the prior murder or that, if they did know, they were prejudiced against him.

The appellant was not convicted of murdering Officer Massey; he was adjudicated a juvenile delinquent based on his involvement in Massey's death. Therefore, his connection with Massey's death could not legitimately be made public. See Ala.Code 1975, § 12-15-101(c) ("Whoever ... directly or indirectly discloses or makes use of or knowingly permits the use of information concerning a [delinquent] child ... shall be guilty of a misdemeanor"). The appellant introduced no evidence to indicate that his prior juvenile adjudication relating to Massey's death was ever the subject of media publicity or the object of community attention. Compare People v. Bailey, 169 Mich.App. 492, 426 N.W.2d 755, 756 (1988) (distribution of leaflets in small community stating that accused, who was facing trial for kidnapping/murder of 13-year-old boy, "ha[d] twice been convicted of crimes involving young boys and twice given probation--and now--[the victim] is dead. It could be your child!").

The Massey homicide occurred five years before the Donaldson homicide and seven years before the appellant's trial. In the absence of any showing to the contrary, it can be assumed that the passage of time between the Massey homicide and the appellant's trial served to dim the communal memory of the earlier offense. See Thomas v. State, 539 So.2d 375, 392 (A...