Cochran v. State
Decision Date | 24 April 1984 |
Docket Number | 6 Div. 886 |
Citation | 500 So.2d 1161 |
Parties | James Willie COCHRAN v. STATE. |
Court | Alabama 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.
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.
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).
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:
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.
"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.
During the qualification of the jury venire, Juror Cochran stated, 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:
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.
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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