Cochran v. State

Decision Date24 April 1984
Docket Number6 Div. 886
Citation500 So.2d 1161
PartiesJames Willie COCHRAN v. STATE.
CourtAlabama Court of Criminal Appeals

Richard S. Jaffe, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and P. David Bjurberg, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

James Willie Cochran, the appellant, was indicted for the offense of robbery when the victim is intentionally killed. Alabama Code § 13A-5-31(a)(2) (1975). A jury found him "guilty of the capital offense as charged in the indictment", and, after a hearing, recommended that his punishment be fixed at death. The trial judge accepted this recommendation and sentenced Cochran to death by electrocution. Eight issues are raised on appeal.

I

The procedural restructuring of the 1975 Death Penalty Law by the Alabama Supreme Court in Beck v. State, 396 So.2d 645 (Ala.1980), was a constitutionally permissible exercise of judicial power. Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982), affirmed, Ex parte Potts, 426 So.2d 896 (Ala.1983).

II

Cochran argues that the principles of former jeopardy barred his trial after a mistrial had been declared in a former trial due to alleged "prosecutorial overreaching".

In August of 1977, Cochran was originally tried for a capital offense involving the murder of Stephen Jerome Ganey. The trial ended in a mistrial granted pursuant to Cochran's motion. The mistrial was granted for two reasons: (1) because the District Attorney failed to reveal that material eyewitness, Mary Allison Jones, had been under psychiatric care and (2) because eyewitness, Horace C. Sutterer, identified Cochran in court although he had previously failed to make positive extrajudicial identifications. The trial judge's order granting the mistrial is as follows:

"Defendant, by his attorneys, makes oral motion for a mistrial by reason of information known to the office of the District Attorney that witness Mary Allison Jones, age 18, has been under the care of a psychologist, Dr. Lyons, since she testified in the Habeas Corpus and suppression hearings held in this case in March 1977, which information was not known to the defendant's attorneys until after witness Jones had testified at the trial on the merits on August 16, 1977. Said witness made a positive identification of defendant while testifying on August 16, 1977, which identification she did not make in the hearing before this Court in March 1977; it further appearing to this Court that the said Dr. Lyons invokes her psychologist privilege against testifying as to the facts and said witness Jones refuses to, if recalled by defendant to testify, answer questions relating to the basis of her psychological problems and defendant's attorneys contend they need opportunity to inquire into this development and information to prepare adequate cross-examination of said witness. In addition witness Sutterer on the stand on August 16, 1977, made a positive identification, not being able to identify defendant in March 1977 and the Court order following said hearing did not rule on suppression motions for Jones and Sutterer inasmuch as they did not make identification. Defendant moves to suppress testimony of said two witnesses.

"It appears to the Court that manifest necessity and the ends of public justice require a mistrial. Defendant and all attorneys being present, it is Ordered and Adjudged that a mistrial shall be and is hereby declared and ordered and a new trial is not precluded."

In January of 1978, Cochran was tried a second time for a capital offense. His conviction was reversed on appeal on authority of Beck, supra.

In March of 1982, Cochran was tried a third time and convicted. The record contains no plea of former jeopardy filed at any time. The record also does not show any reason for the prosecutor's failure to disclose the information which was one of the reasons for granting the mistrial.

In Oregon v. Kennedy, 456 U.S. 667, 675, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982), the United States Supreme Court held that retrial of a defendant following a mistrial is permitted unless the prosecution has engaged in misconduct intended to provoke the defendant to request a mistrial.

"Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.... Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of Double Jeopardy to a second trial after having succeeded in aborting the first on his own motion."

"But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." 456 U.S. at 675-76, 679, 102 S.Ct. at 2089-90, 2091.

Reprosecution is not barred by merely "grossly negligent" conduct. United States v. Singleterry, 683 F.2d 122, 123 n. 1 (5th Cir.), cert. denied, 459 U.S. 1021, 103 S.Ct. 387, 74 L.Ed.2d 518 (1982). See Annot., 98 A.L.R.3d 997 (1980). From a silent record this Court cannot infer that the prosecutor intentionally withheld the information in order to provoke a mistrial. Accordingly, we find that the declaration of the mistrial in Cochran's first trial did not bar his second and third trials.

III

During the qualification of the jury venire, Juror Cochran stated, "I don't know whether or not I know him (the defendant) or not. He could be in that family and not know him. That's my husband's name." She also stated that she was "familiar" with the incident.

Mrs. Cochran stated that she did not actually know whether or not she was related to the defendant. Under questioning by the assistant district attorney she indicated that the possibility that there might be a relation would affect her ability to sit as a juror and that she "hoped" but was not sure she could base her verdict solely on the testimony from the witness stand. In response to a question by the trial judge, she stated that she believed that she would not be able to base her verdict solely on law and evidence "because of the name or the possibility that you are related."

A juror should be impartial between the parties. Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942). Probable prejudice for any reason disqualifies a prospective juror. Alabama Power Co. v. Henderson, 342 So.2d 323 (Ala.1976). What this Court said in Carter v. State, 420 So.2d 292, 295-96 (Ala.Crim.App.1982), is applicable here:

"Although the prospective juror's answers indicated reluctance and hesitation rather than definite inability to decide the case on the evidence alone, the trial judge was in a position to observe the demeanor and determine the prejudice of the venireman. The decision of a trial court to disqualify a juror on a challenge for cause is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion."

Here, we are really dealing with two different grounds of challenge for cause. As appellant Cochran correctly observes, it does not appear that Juror Cochran was actually related to him or that if there were any relation it was within the statutory degree of disqualification. Alabama Code § 12-16-150(4) (1975). However, Juror Cochran clearly indicated that even the probable existence of a relationship would affect her verdict. "A juror is incompetent whose answers show that he [or she] would follow his own views regardless of the instructions of the court." Barbee v. State, 395 So.2d 1128, 1131 (Ala.Cr.App.1981). For this reason, the trial judge acted within his discretion in excusing Juror Cochran for cause. "The fact that another judge or court would not have reached the same legal conclusion as the trial judge in this particular case does not necessarily mean or establish an abuse of discretion." Barbee, 395 So.2d at 1131.

IV

Cochran contends that much of the evidence against him was obtained as a result of an illegal search and seizure. We disagree.

The facts on this issue are not disputed. On the night of the robbery, after Cochran had been arrested and the victim had been found, Homewood Police Officer Johnny Thacker was sent to the parking lot of the A & P Grocery Store, which had been robbed. He was looking for "an out of place vehicle, one that did not appear to belong." He checked the registration of the license tags on some of the automobiles he observed. He found all the vehicles locked except a 1965 Chevrolet. That car was unlocked and the keys were in the ignition. It was registered to Ned L. George. While waiting on the registration report, Officer Thacker "observed a wallet partially protruding from between the front seat and the back of the front seat." He opened the car door, removed the wallet, examined its contents, and discovered a social security card belonging to James Cochran. At that time he had no information about the person or automobile involved in the robbery. He returned the wallet to its original position because he had "no reason to believe it was involved in this thing at all."

On returning to City Hall, he learned that Cochran had been arrested and connected him with the name in the wallet. He reported this information to his superior and the Chevrolet was impounded that night. The wallet, a social security card and a checkbook were removed from the automobile and introduced in evidence at trial against Cochran. This evidence tended to connect Cochran with the robbery by placing him in the vicinity of the crime.

Although the Chevrolet was registered in the name of Ned L. George, Bobbie Burpo testified that she owned the car which she "bough...

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