Clark v. State, 1 Div. 619

• Decision Date: 10 January 1984
• Docket Number: 1 Div. 619
• Citation: 451 So.2d 368
• Parties: Allen Dale CLARK v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 368

451 So.2d 368

Allen Dale CLARK v. STATE of Alabama.

1 Div. 619.

Court of Criminal Appeals of Alabama.

Jan. 10, 1984.

Rehearing Denied March 20, 1984.

Certiorari Denied June 1, 1984

Alabama Supreme Court 83-650.

Arthur P. Clarke, Mobile, for appellant.

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

TYSON, Judge.

Allen Dale Clark was indicted for the intentional killing of one William Crawford during the course of a robbery in the first degree, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. The jury found the appellant "guilty of the capital offense as charged in the indictment" and recommended the appellant be sentenced to "life imprisonment without parole." After independently weighing the aggravating and mitigating circumstances, the trial judge accepted the jury's advisory verdict and sentenced the appellant accordingly.

On the night of December 21, 1981, the victim and the appellant were at the Bar C Lounge, along with Mary Wilson and Mary Pfitzner, who were the barmaids. The victim bought the appellant several drinks and at some point the appellant told Wilson he was "going to roll the old dude before the night was over." (R. 161).

While at the bar, the appellant used a large buck knife to open a can of oil for Ms. Wilson. He put the oil in her car and placed the knife back in his pocket. The knife was found in the appellant's possession when he was arrested and a small amount of blood was on the knife.

At approximately midnight, the appellant and the victim left the bar together in the victim's Oldsmobile Cutlass automobile. Before the appellant left he asked Ms. Pfitzner to keep an eye on his car for him. When she left the bar around 1:00 a.m., the appellant's car was still parked outside.

According to the appellant, when he and the victim left the bar, they went to the victim's room at Palmer's Hillcrest Motel. At the motel, the victim, who allegedly was a homosexual, made sexual advances toward the appellant. The appellant objected and asked the victim to take him to his car. When he refused, the appellant shoved him, ran out the door and left in the victim's automobile.

The appellant then drove to Mississippi where he traded the victim's Oldsmobile Cutlass for a Volkswagon.

On the afternoon of December 22, 1981, the body of William Crawford was found in a room at Palmer's Hillcrest Motel in Irvington, Alabama. The cause of the victim's death was determined to be a stab wound to the heart.

I

The appellant claims he was denied a fair trial and due process of law because the jury in his case was death qualified under the requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). He contends this practice produced a jury which was conviction-prone and which did not represent a cross-section of the community, and thus, violates the principles set out in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The appellant relies on a recent case, Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), as authority. In Grigsby, supra, a federal district judge ruled that death qualified juries are "conviction-prone" and that a jury that has been death qualified cannot be considered fair and impartial with respect to the issue of the guilt or innocence of an accused.

First of all, as the State correctly points out in its brief, we are not bound by the decisions of any federal district court. See Ballew v. State, 292 Ala. 460, 296 So.2d 206 (1974).

Secondly, the very issue which the appellant now raises has been considered and decided adversely to the decision rendered in Grigsby, supra, by numerous state courts, the United States Eleventh Circuit, and most importantly, the United States Supreme Court.

In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the United States Supreme Court held that death qualified juries do not violate the principles of Taylor v. Louisiana, supra. Recently, this court in an opinion authored by Judge H. Bowen, Taylor v. State, 442 So.2d 128 (1983), stated that an accused is not necessarily prejudiced by the practice of qualifying the jurors pursuant to Witherspoon v. Illinois, supra, requirements. This court has also rejected the contention that death qualified juries are conviction-prone. McGinnis v. State, 382 So.2d 605 (Ala.Cr.App.1979), cert. denied, 382 So.2d 609 (Ala.1980).

Therefore, in the light of decisions directly on point, we hold that the appellant was not denied a fair and impartial trial according to the standards set out in Taylor v. Louisiana, supra, simply because the jury was death qualified. There is no error on this issue.

II

The appellant's contention that one of the prospective jurors was improperly excluded under the requirements of Witherspoon v. Illinois, supra, is without merit. Since the appellant was not sentenced to death, Witherspoon is not applicable. See Davis v. State, 440 So.2d 1191 (1983); Eady v. State, 284 Ala. 327, 224 So.2d 876 (1969); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

III

The appellant claims his Fourth Amendment rights were violated because the police officers arrested him in his home without an arrest warrant. Therefore, he contends the admission of this statement, which was obtained as a result of this alleged illegal arrest and detention, was reversible error. We disagree.

The appellant relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) for this proposition. The United States Supreme Court in Payton, supra, states that "... the Fourth Amendment to the United States Constitution ... prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." (Emphasis added). The Court states clearly that "... in both cases we are dealing with entries into homes made without the consent of any occupant."

In this case, as the State points out in its brief, there is little evidence in the record concerning the facts and circumstances surrounding the appellant's arrest. The only testimony concerning the arrest came from Officer Estes. As the arresting officer, he stated that when he and Officer Tillman arrived at the appellant's home to make the arrest, the appellant did not offer any resistance and went with them voluntarily to the police station. The appellant offers no evidence that he did not consent to the officers' entry or the arrest.

Therefore, the appellant incorrectly relies on Payton, supra, as authority. We find from the evidence contained in this record, that the officers made a warrantless but consensual entry into the appellant's home to make this arrest.

Since the appellant does not argue the officers lacked probable cause to effectuate his arrest, we will not delve into that issue. From the little evidence contained in the record, we are of the opinion that the officers did have probable cause to make this arrest.

We find the appellant's arrest was proper and, therefore, his statement was correctly admitted into evidence.

IV

The appellant objected to the admission into evidence of certain photographs on the ground that the prejudicial impact of those photographs far outweighed any probative value they might have.

This court has stated on numerous occasions that:

"Photographs are admissible in evidence if they have 'some tendency to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some evidence offered or to be offered.' Baldwin v. State, 282 Ala. 653, 655, 213 So.2d 819, 820 (1968). In addition, photographic exhibits are admissible even though they may be cumulative, demonstrative of undisputed facts, Craft v. State, 402 So.2d 1135 (Ala.Cr.App.1981), or gruesome, McKee v. State, 33 Ala.App. 171, 31 So.2d 656 (1947). So long as the exhibits tend to shed light on the issues being tried, their admission is within the sound discretion of the trial judge. Thornton v. State, 369 So.2d 63 (Ala.Cr.App.1979)."

Hopkins v. State, 429 So.2d 1146 (Ala.Crim.App.), cert. denied, 429 So.2d 1146 (Ala.1983).

The trial judge did not allow into evidence every photograph the State sought to introduce. At the motion to suppress hearing, he excluded some photographs because they were irrelevant. We do not find an abuse of his discretion on this issue. Therefore, the photographs at issue were properly admitted.

V

The appellant asserts the alleged murder weapon was improperly admitted into evidence because the State failed to show a proper chain of custody.

"To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain. Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552 (1953); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109 (1975); Jemison v. State, 40 Ala.App. 581, 120 So.2d 748 (1960)." Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. den., 346 So.2d 1180 (Ala.1977).

We find it unnecessary to detail the chain of custody of the knife because after a review of the record, we believe the State sufficiently established a proper chain of custody of State's Exhibit 27. Therefore, it was properly admitted into evidence.

VI

The appellant contends the State failed to prove a prima facie case because the State did not properly prove the time of the victim's death and the State did not prove the robbery occurred before, or at the same time as this homicide.

The appellant failed to cite any authority (and we did not find such) for the proposition that the time of death must be established before a conviction of capital murder may be obtained. The only time element which...