Dallas v. State

• Decision Date: 21 March 1997
• Docket Number: CR-95-354
• Citation: 711 So.2d 1101
• Parties: Donald DALLAS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1101

711 So.2d 1101

Donald DALLAS, alias v. STATE.

CR-95-354.

Court of Criminal Appeals of Alabama.

March 21, 1997.

Rehearing Denied May 23, 1997.

Jeffery C. Duffey, Montgomery; and Paul Christian Sasser, Jr., Montgomery, for appellant.

Bill Pryor, atty. gen., and Clayton Crenshaw, asst. atty. gen., for appellee.

McMILLAN, Judge.

The appellant, Donald Dallas, was indicted for two counts of capital murder relating to the death of Hazel Liveoak: murder during a robbery in the first degree and murder during a kidnapping in the first degree. The appellant was also indicted for 3 counts of fraudulent use of a credit card, 1 count of theft of property in the second degree, and 10 counts of violations of the Computer Crime Act, § 13A-8-100, et seq. The jury found the appellant guilty on all counts. The jury, by a vote of 11-1 recommended that the appellant be sentenced to death by electrocution. Subsequently, a sentencing hearing was held before the trial court, and the trial court sentenced the appellant to death by electrocution.

The record indicates that on July 12, 1994, Mrs. Hazel Liveoak left her home in Millbrook to go grocery shopping in Prattville. As she was placing her groceries into her car, the appellant and co-defendant, Carolyn Yaw, pushed Mrs. Liveoak into the car and forced her to lie face down on the floorboard. He and Yaw got into the car. The appellant told Mrs. Liveoak that he wanted her money. When she informed him that she only had $10.00 with her, he replied that that was not enough and began to drive toward Greenville. Mrs. Liveoak told the appellant that she had a credit card that could be used at an automatic teller machine. In Greenville, the appellant drove to the end of a dirt road, opened the trunk and forced Mrs. Liveoak into it. With Mrs. Liveoak in the trunk, the appellant and Yaw travelled to Montgomery. The appellant drove the car to the bank and parked in an area of the parking lot far removed from the bank building. Yaw was successful in using Mrs. Liveoak's credit card in 3 of 11 transactions to obtain $300.00. The appellant remained at the car, talking to Mrs. Liveoak while Yaw withdrew the money. Mrs. Liveoak prayed for the appellant and his family while she was in the trunk. The appellant told Mrs. Liveoak that he and Yaw would abandon the car and telephone for help to ensure that she was released from the trunk. Mrs. Liveoak told the appellant that she had a heart condition. Mrs. Liveoak was never released from the trunk and she suffered a heart attack and died.

Evidence was presented tending to prove that Mrs. Liveoak did not die immediately but rather lived for a number of hours. Evidence was also presented that Mrs. Liveoak had a number of bruises and cuts on her hands consistent with trying to free herself or calling for help. The State presented evidence that the appellant and Yaw, after leaving Mrs. Liveoak, went to a "crack house" to purchase cocaine with the stolen money. They then went to a motel and spent the night smoking crack cocaine. The testimony of Dennis Bowen, an acquaintance of the appellant, indicated that the appellant and Yaw were bragging at the crack house that they had placed an elderly lady in the trunk of a car and had left her there. When Bowen questioned the appellant about his statement, he responded that he "hoped the old lady would die." Evidence was also presented showing that, three days before this offense, the appellant had abducted and robbed Wesley Portwood, an 80-year-old man, in the parking lot of a Kmart in Prattville. As with Mrs. Liveoak, the appellant made Portwood lie face down on the floorboard of his car, then drove to a remote area and ordered him out of the car. The appellant told Portwood to lie down in the weeds or he would place him in the trunk of the car. Portwood told the appellant that he did not want to get into the trunk because he would "smother inside." The appellant then robbed Portwood of $160. Portwood survived the abduction.

The appellant testified at trial. On cross-examination, when asked why he left Mrs. Liveoak in the trunk knowing of her condition, he replied that "[h]e didn't want to get caught."

I.

The appellant argues that the prosecution struck black veniremembers in a racially discriminatory manner in violation 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), by using 12 of his 16 strikes to remove 12 of the 15 black veniremembers.

Although the trial court acknowledged that the appellant had failed to prove a prima facie case of racial discrimination based solely on these numbers, it nevertheless required the prosecutor to explain his reasons for his strikes. Therefore, we must examine the stated reasons. "[O]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez v. New York, 500 U.S. 352, 358-60, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). Where the challenged party's explanations for its strikes are a part of the record, the appellate court will review those explanations regardless of the manner in which they came into the record. See, e.g., Huntley v. State, 627 So.2d 1013, 1016 (Ala.1992); Jackson v. State, 594 So.2d 1289, 1293 (Ala.Cr.App.1991); Williams v. State, 548 So.2d 501, 504 (Ala.Cr.App.1988), cert. denied, 489 U.S. 1028, 109 S.Ct. 1159, 103 L.Ed.2d 218 (1989). Additionally, "[a] circuit court's ruling in a Batson objection is entitled to great deference and we will reverse a circuit court's Batson findings only if they are 'clearly erroneous.' " Branch, 526 So.2d at 625-26.

The prosecutor stated that 5 of the 12 veniremembers were struck because they indicated that they were opposed to the death penalty. "Although a juror's reservations about the death penalty may not be sufficient for a challenge for cause, his view may constitute a reasonable explanation for the exercise of a peremptory strike." Johnson v. State, 620 So.2d 679, 696 (Ala.Cr.App.1992), reversed on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993). Two of the 12 veniremembers were struck because the prosecutor thought they were inattentive during voir dire. The fact that a veniremember "appear[ed] to be asleep or inattentive" during voir dire has been held to be an acceptable reason for a strike. Kelley v. State, 602 So.2d 473, 476 (Ala.Cr.App.1992). Four of the 12 veniremembers were struck because they had family members who had been convicted of a crime, which has also been held to constitute a race-neutral reason for striking a potential juror. See Gorum v State, 671 So.2d 764 (Ala.Cr.App.1995); Fort v. State, 668 So.2d 888 (Ala.Cr.App.1995).

The last veniremember to be struck by the prosecutor was struck because he could not complete his jury questionnaire. He did, in fact, serve as an alternate juror. The prosecutor stated that "although [he] liked him in all other respects, with the bank record and the Computer Crime Act allegations, [he] felt it would not be the best for him to sit as a juror in this case." Cf. Vanderslice v. State, 671 So.2d 769, 770 (Ala.Cr.App.1995) (a veniremember's apparent inability to understand what was being said to him was a sufficient race-neutral reason to justify a peremptory strike). "As long as there is a legitimate nonracial reason for the challenged strike, the Batson principles are not violated. Zanders v. Alfa Mutual Insurance Co., 628 So.2d 360, 361 (Ala.1993).

In the present case, the trial court's denial of the appellant's Batson motion was not "clearly erroneous." Ex parte Branch, 526 So.2d at 625-26.

II.

The appellant argues that the trial court erred in not granting his challenge for cause as to a veniremember. Additionally, he asserts that the trial court erred in not granting his challenge for cause as to another veniremember based on that veniremember's alleged predisposition to impose the death penalty.

During the voir dire examination of a potential juror, the following occurred:

"THE COURT: This is a capital murder case, meaning you may or may not be called upon to make a decision about capital punishment. Do you understand that?

"JUROR # 129: Yes, sir.

"THE COURT: You may not be called upon because there are other lesser included offenses for you to consider. However, if you are called upon to make that decision, I need to ask you these questions, because it would be too late at the end of the case to ask you these questions. Capital punishment means life without parole or the death penalty. Do you have an opinion one way or the other about capital punishment?

"JUROR # 129: Yes, sir.

"THE COURT: What is that, please, ma'am?

"JUROR # 129: I don't believe in capital punishment.

"THE COURT: When you say you don't believe in capital punishment, I am assuming you are talking about the death penalty; is that right?

JUROR # 129: Yes, sir.

"THE COURT: You don't believe it serves an appropriate function in our society?

"JUROR # 129: No, sir.

"THE COURT: Let me ask you this. Let me tell you this first. In Alabama, here, the State of Alabama recognizes certain criminal offenses whereby the punishment may be the death penalty. Now, I recognize that you may personally disagree with that. But let me ask you this. If you are selected as a juror in this case, and you are called upon to make that decision, do you think you could entertain the possibility of the death penalty as a sentence in this case?

"JUROR # 129: No, sir.

"THE COURT: You don't think if I give you instructions that would tell you you need to consider and weigh these factors, that you could do that in deciding whether or not the death penalty could be imposed?

"JUROR # 129: No, sir.

"THE COURT: What you...