Dobard v. State
| Decision Date | 29 June 1982 |
| Docket Number | 2 Div. 305 |
| Citation | 435 So.2d 1338 |
| Parties | Percy Leo DOBARD v. STATE. |
| Court | Alabama Court of Criminal Appeals |
David A. Reid, Livingston, for appellant.
Charles A. Graddick, Atty. Gen., and Edward E. Carnes, Asst. Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
Appellant was convicted under § 13A-5-31(a)(5), Code 1975, for the murder of a police officer while on duty. After a separate hearing on aggravating and mitigating circumstances, the jury fixed his punishment at death. Subsequently, the trial court weighed the aggravating and mitigating circumstances pursuant to § 13A-5-33, Code 1975, and sentenced appellant to death. The court issued both oral and written findings of fact from the trial and the sentence hearing which enumerated the aggravating circumstances the court found sufficient to support the sentence of death. This appeal followed.
Some time between 5:00 a.m. and 6:00 a.m. on Saturday, June 21, 1980, O'Jim's Restaurant in Eutaw, Alabama was robbed by appellant and a female companion, Jeanette Kennedy. After Kennedy left the restaurant, appellant pulled a pistol on waitress Corethea Hitton and demanded "give me all your money." Ms. Hitton complied with the demand. Appellant and Kennedy speedily fled, and Ms. Hitton called the Eutaw Police.
About 35 miles from the scene of the robbery, appellant, who was driving the getaway vehicle, was spotted by Livingston University Police Officer Wayne Sudduth, who was assisting in the search for the suspects. Officer Sudduth was aware that the robbery had occurred and apparently had knowledge of the description of the getaway vehicle from a police radio broadcast.
Officer Sudduth informed Livingston Police Officer Raymond Burne that he was stopping the vehicle. Officer Sudduth, who was dressed in a blue uniform, was driving a marked police car.
With his flashing lights on, Officer Sudduth stopped the vehicle which contained After the shooting of Officer Sudduth, appellant and Kennedy sped away, only to wreck their vehicle on the western edge of Livingston. Both exited the car and walked up the road where they hid in some bushes until a truck driven by Mr. Johnny Mathews approached. Mathews saw appellant come from under a bridge and act as if he were injured. Mathews stated that appellant was yelling for help and he stopped his truck on the side of the road. When appellant came within close proximity of the truck, he pulled the revolver, pointed it at Mathew's face and demanded the keys to the truck. After a brief period of time, during which Sumter County Deputy Sheriff Ralph Rainey drove past appellant, Kennedy, and Mathews, appellant secured the keys and fled with Kennedy.
appellant and Kennedy. He approached the driver's side of the car and asked for appellant's driver's license. Appellant opened the car door and reached around as if to get his billfold. However, according to the testimony of witness Kennedy, rather than removing his billfold he grabbed a .38 caliber revolver and shot Officer Sudduth, killing him. The evidence indicated that Officer Sudduth did not have his service revolver drawn, as it was found in his holster with the safety strap in place.
Deputy Rainey reported what he had seen to the Livingston Police Department and was informed that he had observed the restaurant robbery suspects. Deputy Rainey set a roadblock and while moving his patrol car to allow a vehicle to pass, appellant drove Mathew's truck past him. A high speed chase ensued involving several vehicles.
Another roadblock had been set by York city police officers about halfway between Livingston and York. As the truck approached, the officers at the roadblock began to fire at it. Immediately thereafter, the truck wrecked and overturned. Subsequently, Deputy Rainey saw appellant throw a gun out of the truck cab. Deputy Rainey immediately retrieved it. Appellant and Kennedy were taken into custody, transported to a local hospital for examination, and afterwards taken to Sumter County Jail.
Several issues are presented for review.
Appellant contends that the jury's exposure to the media coverage of the assassination attempt on the life of the President of the United States, which attempt occurred during the trial of the case, was prejudicial to appellant's due process and equal protection guarantees and his right to a fair trial. Appellant urges that the trial court erred to a reversal in denying the motion for a new trial on this ground.
The issue, of course, is not whether the exposure to the media coverage improperly influenced any member of the jury, but whether it might have unduly affected any juror to act outside the evidence in arriving at a verdict. Seekers v. State, 35 Ala.App. 40, 44 So.2d 628 (1949).
The guilt phase of the trial was begun on March 30, 1981, and was concluded March 31, 1981. The sentencing phase was held on the succeeding day, April 1, 1981. The presidential assassination attempt occurred on March 30, 1981, the first day of the trial.
At the conclusion of the sentencing phase and after the jury had returned its verdict, appellant requested a polling of the jury to determine whether the jurors had been permitted to watch television coverage of the assassination attempt or to read newspaper articles about it. The trial court denied the jury polling request but stated for the record that the jurors had seen the television reports.
Appellant relies heavily on Seekers, supra, in furtherance of his position. Seekers is readily distinguished from this case. In Seekers, the jury, during an overnight recess, attended a rather gory movie; there were a number of coincidental similarities between the plot of that movie and the evidence presented in the case the jury was then hearing. One of the affidavits in the motion for a new trial in Seekers alluded to the similarities as follows:
"...
In the case at bar, there are no indications of any similarities between matters in the news reports and any of the evidence being considered by the jury.
The news reports obviously contained no communication, information, opinion, or other discussion of any facet of appellant's trial which would tend to affect the ultimate decision in the instant case.
We cannot say that the jury's viewing television news reports of the attempted assassination of the President might have unduly influenced any member of the jury to act outside the scope of the evidence presented in this trial. Consequently, we find no error in the trial court's ruling in that regard.
Appellant argued in his motion for a new trial that the State impermissibly used its peremptory strikes in an unconstitutional, racially biased manner to remove blacks from the venire.
Appellant is black and the victim was white. Appellant's jury consisted of seven blacks and five whites.
At the hearing on the motion for a new trial, appellant offered proof that the State used its peremptory strikes to remove twenty blacks, ranging in age from 21 to 64 years, from the venire. Appellant also identified the struck jury by name, race, and age. No evidence on this issue was offered by the State.
Appellant relies heavily on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, reh. den. 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965). The thrust of appellant's objection appears to focus on the exclusion of "young blacks" from petit juries.
The record is void of any evidence of systematic striking of blacks or "young blacks" from petit juries or of a history of purposeful discrimination against a particular race. Swain, at 380 U.S. 221, at 85 S.Ct. 836, provided, "[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws." Therefore, we do not think appellant has carried the burden of proof which Swain requires.
Additionally, this court recently decided the peremptory challenge issue, contrary to appellant's argument, in Allen v. State, 414 So.2d 163 (Ala.Cr.App.1982).
The trial court's ruling on this issue was correct.
Appellant contends that he was unconstitutionally deprived of an impartial jury in that (a) two members of the venire were improperly excused for cause due to their opposition to capital punishment, and (b) two of the State's jury voir dire questions were improper. We do not agree.
Appellant urges that two of the prospective jurors, Daisy Belle Cannon and Sim McCasson, were improperly excused for cause by the trial court in violation of the standard set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, reh. den. 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 185 (1968).
As to prospective juror Cannon, the record reveals the following (R. 256-257):
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