Carroll v. State

• Decision Date: 17 April 1992
• Citation: 599 So.2d 1253
• Court: Alabama Court of Criminal Appeals
• Parties: Robert Leo CARROLL v. STATE. CR 90-683.

Page 1253

599 So.2d 1253

Robert Leo CARROLL v. STATE.

CR 90-683.

Court of Criminal Appeals of Alabama.

April 17, 1992.

On Return to Remand June 12, 1992.

Rehearing Denied July 24, 1992.

William S. Poole, Jr., Demopolis, for appellant.

James H. Evans, Atty. Gen., and Melissa G. Math and J. Randall McNeill, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

Robert Leo Carroll, the appellant, was indicted and convicted for the capital offense defined in Ala.Code 1975, § 13A-5-40(a)(13). His crime involved the intentional murder of William Earl Sanders after having been convicted of murder in Ohio in 1972. The trial court accepted the recommendation of the jury and sentenced the appellant to death.

GUILT PHASE

I.

The appellant's challenge to the constitutionality of Ala.Code 1975, § 13A-5-40(a)(13), is without merit. In Hubbard v. State, 500 So.2d 1204, 1216 (Ala.Cr.App.), affirmed, 500 So.2d 1231 (Ala.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987), this Court rejected a similar argument that the statute was arbitrary and capricious and does not properly narrow the class of persons eligible for the death penalty. See also Nelson v. State, 511 So.2d 225, 239 (Ala.Cr.App.1986), affirmed, 511 So.2d 248 (Ala.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988); Arthur v. State, 472 So.2d 650, 657-58 (Ala.Cr.App.1984), reversed on other grounds, 472 So.2d 665 (Ala.1985).

II.

Even where a timely request is made, where an indictment is returned prior to a preliminary hearing, the accused is no longer entitled to the preliminary hearing. Herriman v. State, 504 So.2d 353, 356-57 (Ala.Cr.App.1987), and cases cited therein. See also Rule 5.1(a)(4), A.R.Crim.P.

III.

The trial court properly denied the appellant's motion for a change of venue, which was based on alleged prejudicial pretrial publicity. Twenty-two members of the 54-member venire indicated that they had heard or read something about this case. Of those 22, all indicated that they could base their verdict on the evidence and none was excused for cause based on anything related to pretrial publicity. Only two newspapers articles, dated November 15 and 16, 1989, were introduced into evidence.

For the reasons stated in and applying the principles this Court collected in Kuenzel v. State, 577 So.2d 474, 483 (Ala.Cr.App.1990), affirmed, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991), we find that the motion for change of venue was properly denied.

IV.

The trial court allowed individual voir dire of each member of the venire who indicated that he or she had heard or read something about this case prior to trial. That voir dire was limited to the content of the publicity. However, "individualized voir dire on all questioning" was not allowed. Appellant's brief at 82.

Of the 54 members of the venire, 22 members indicated that they had heard or read something about the case. The trial court permitted each of those 22 members to be individually questioned to determine the extent of the member's knowledge. The trial court permitted the attorneys to conduct voir dire on any other matter in panels of 12 to 15 venire members. The appellant has simply failed to show that the trial court abused its discretion in this regard under the principles announced by this Court in Brown v. State, 571 So.2d 345, 349 (Ala.Cr.App.), cert. quashed, 571 So.2d 353 (Ala.1990), judgment vacated and cause remanded for reconsideration, 501 U.S. 1201, 111 S.Ct. 2791, 115 L.Ed.2d 966, judgment retained, 586 So.2d 991 (Ala.Cr.App.1991). See Parker v. State, 587 So.2d 1072, 1078 (Ala.Cr.App.1991).

V.

The trial court properly denied the appellant's challenge to 21 ¹ venire members who indicated that they had heard or read about the crime, where each member indicated that he or she could lay aside any impressions gained from the media publicity and could render a verdict based solely on the evidence presented at trial. "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961). See also Jackson v. State, 516 So.2d 726, 739 (Ala.Cr.App.1985), remanded on other grounds, 516 So.2d 768 (Ala.1986).

VI.

The appellant argues, for the first time on appeal, that six members of the venire were improperly excused based on their opposition to the death penalty. The standard for determining whether a prospective juror is disqualified from serving in a death penalty case is whether the prospective juror's views would " 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.' " Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). Here, the responses of the six venire members clearly indicated that their performance would be impaired. Ex parte Williams, 571 So.2d 338, 340 (Ala.1990), cert. denied, 500 U.S. 938, 111 S.Ct. 2067, 114 L.Ed.2d 471 (1991).

VII.

The trial court properly overruled the appellant's motion to strike venire member Doris Lyon on the ground of her "emphatic support" for the death penalty. Appellant's brief at 85. Although Ms. Lyon initially indicated that she believed that the death penalty should automatically be imposed if a convicted murderer was convicted of a second murder, her subsequent responses indicate that she would not automatically impose the death penalty and that her decision would be based on the law and the evidence. The standard in Witt, "does not require that a juror's bias be proved with 'unmistakable clarity.' " Witt, 469 U.S. at 424, 105 S.Ct. at 852. See Pierce v. State, 576 So.2d 236, 245-46 (Ala.Cr.App.1990), cert. denied, 576 So.2d 258 (Ala.1991).

VIII.

Under Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), and Ex parte Bird and Warner, 594 So.2d 676 (Ala.1991), this white appellant had standing to challenge the prosecution's removal of black members of the jury venire. However, application of the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987), reveal no racial discrimination by the prosecution in the use of its peremptory strikes. See also Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

Of the 54 persons on the venire, 36 were black. The State used seven of its 17 strikes against blacks. The appellant used 12 of his 16 strikes against blacks. The jury that tried the appellant was composed only of blacks. The prosecution's reasons for striking those seven blacks were race neutral: opposition to the death penalty; expressed reservations about judging another; belief that law enforcement did not treat all people fairly; "potential involvement in some criminal activities"; familiarity with a potential witness; sister of a convicted felon, which also indicated untruthfulness in the juror questionnaire responses; and sister of a venire member already challenged. The record shows that the prosecutor struck blacks and whites for the same reasons.

This case is governed by the principles stated in Harrell v. State, 571 So.2d 1270, 1271 (Ala.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991):

"[A] defendant cannot prove a prima facie case of purposeful discrimination solely from the fact that the prosecutor struck one or more blacks from his jury.

A defendant must offer some evidence in addition to the striking of blacks that would raise an inference of discrimination. When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created. Logically, if statistical evidence may be used to establish a prima facie case of discrimination, by showing a discriminatory impact, Harrell [v. State], 555 So.2d [263, 267 (Ala.1989) ], citing United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986), then it should also be available to show the absence of a discriminatory purpose."

IX.

The appellant contends that the trial court committed error in not suppressing the testimony of Robert Cook, William Whitehead, Daryl Johnson, Melvin Stephens, and Edd Billingsley. ² The appellant contends that this testimony should have been suppressed because it was the "fruit" of an illegal confession.

The evidence shows that on November 9, 1989, the appellant was an inmate in the Sumter County jail. In his findings in sentencing the appellant to death, the trial court found:

"While the Defendant was an inmate in the county jail in Sumter County, Alabama and awaiting transportation to the state penitentiary, he became involved in an altercation with William Earl Sanders [another inmate]. The altercation began when the deceased and another individual while playing kickball in the exercise yard allowed a ball to strike a cup of ice that the Defendant had placed on a concrete support. An argument ensued between the Defendant and the deceased. The Defendant exited the exercise yard and went upstairs to his cell and obtained a sharp instrument that was concealed near his jail cell. This instrument was a sharpened wire from a piece of broom that had been rubbed on the floor or some other place to make it extremely sharp. The Defendant returned to the exercise yard and stabbed the deceased in the heart with the sharpened instrument. The evidence was that the deceased had no weapon, and he attempted to evade the Defendant who stabbed him in the heart. The deceased died immediately in the exercise yard." R. C-131-132.

Shortly after the...