Drinkard v. State

• Decision Date: 18 December 1998
• Citation: 777 So.2d 225
• Parties: Gary DRINKARD v. STATE.
• Court: Alabama Court of Criminal Appeals

777 So.2d 225

Gary DRINKARD v. STATE.

CR-95-0055.

Court of Criminal Appeals of Alabama.

December 18, 1998.

Rehearing Denied January 15, 1999.

Britt Cauthen, Decatur; Kimberly J. Dobbs-Ramey, Decatur; and Randall Scott Susskind, Montgomery, for appellant.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.

BROWN, Judge.

The appellant, Gary Drinkard, was convicted of the offense of murder made capital because it was committed during a robbery in the first degree, see § 13A-5-40(a)(2), Code of Alabama 1975. He waived his right to a sentencing hearing before the jury that convicted him. Following a sentencing hearing before the trial court, the appellant was sentenced to death.

In its sentencing order, the trial court set out the following findings of fact:

"Dalton Pace, the 62-year-old victim of this crime, lived on Old Moulton Road in Decatur where he operated a vehicle parts business and junkyard out of his home. Pace had a reputation for carrying large amounts of cash on his person. According to his former wife, who handled Pace's business banking and paperwork, he carried three rolls of cash: one to buy trucks and parts, one to make change for customers and one to be deposited in the bank when it accumulated to $2,000. He also regularly carried ten $100 bills in his wallet.

"About 4:30 p.m. on August 18, 1993, Pace's son stopped by to assist his father in removing an engine from a truck. He observed a large `wad' of cash in his father's shirt pocket. That same day, Perry Davis bought a truck motor from Pace. He paid $550 for the motor and saw Pace put the cash in the front pocket of his pants.

"Between 9:00 and 10:00 on the evening of August 18, Pace's next-door neighbor, Buster Smith, heard a banging sound coming from the vicinity of Pace's home. Smith paid no particular attention because his neighbor was always slamming doors and sometimes shooting his guns. Smith later heard a car make a sound like spinning gravel and saw a 1976 to 1978 model Ford LTD speed by the front of his home. The vehicle's rear taillight on the driver's side did not work.

"At about 4:30 p.m. on August 19, 1993, one of Pace's friends found him lying dead on the floor of his home. Police investigators found 40 cents in one of Pace's pockets and his wallet containing ten $100 bills in another. There was no other cash on Pace's body or at the crime scene. The investigators also recovered a .45 caliber bullet casing near Pace's body and another in the kitchen of his home.

"Dalton Pace suffered three gunshot wounds: one in his chest and two in his back—all three of which were lethal. The medical examiner recovered a bullet fragment from the victim's body. Analysis of this fragment and the shell casings found at Pace's home disclosed that a .45 caliber ACP type revolver fired all three bullets. This type of weapon included a Smith & Wesson .45 caliber ACP revolver.

"In July 1993, Robert James Fayard sold the defendant, Gary Wayne Drinkard, a .45 caliber Smith & Wesson Coltstyle revolver with a circle clip which held three bullets. Between a month to two weeks before Pace's death, Rex Segars saw a .45 caliber Colt-style revolver in the defendant's possession and actually fired it. After his arrest for killing Pace, the defendant told Robert Fayard to say that he had sold him a .45 caliber revolver frame that had a .38 caliber barrel or that shot .38 caliber bullets.

"Six to eight weeks before Pace's death, the defendant told Rex Segars in a conversation overheard by the defendant's half-sister, Beverly Robinson, that he knew where to get some easy money. As Robinson recalled the conversation, the defendant said an old man named Dalton Pace ran a junkyard and kept a wad of money on him. A few weeks later, Robinson and Segars ran into the defendant who again stated they could get the money easy. He asked Segars if he wanted to go in on it.

"Rex Segars testified that in the first conversation on this subject, the defendant said he knew a guy who owned a junkyard in Decatur and kept a large amount of money. The defendant described the man as `a big old S.O.B.' who would have to be killed to get his money. In a later conversation about a month before Pace's death, the defendant told Segars basically the same thing and repeated that he was thinking about robbing Pace but would have to kill him.

"According to Michael Riggs, who worked for the defendant in the summer of 1993, his boss told him in about early July that he knew where `somebody could make a good lick.' The defendant stated that an old man who was a junk dealer on Highway 24 kept a good bit of money on him. But, according to the defendant, a person would have to kill `the S.O.B.' because he would not give up his money. Riggs described the defendant as appearing serious and coldhearted when this conversation took place.

"The night after Pace was robbed and murdered, the defendant told Rex Segars that he shot the victim three or four times—once in the front and three more times in the back—but he was still alive. The defendant worried that Pace had survived and asked Segars if he knew where he could get a `hot' pistol so he could go to the hospital and finish him off. According to the defendant, he got only $2,200 from robbing Pace. He also stated that the victim had grabbed his arm and tore his sleeve. Segars saw what appeared to be claw marks on the defendant's side.

"Between his arrest on August 28, 1993, on a marijuana possession charge and his arrest on September 1, 1993, for the capital murder of Dalton Pace, the defendant told Beverly Robinson and Rex Segars that he was not worried about the police catching him because they had no money, fingerprints, eyewitnesses or gun. At the time of his arrest, the police found in the trunk of the defendant's 1978 Ford LTD a broken left rear taillight assembly which was on the vehicle at one time."

(C.R.62-65.)

At the outset, we note that the appellant raises some 29 issues on appeal, several of which include numerous subparts, and, in a practice disfavored by this Court, he also raises several substantive issues in footnotes. Many of the appellant's assertions have not been preserved for appellate review; nevertheless, because this case involves the death penalty, this Court must review the appellant's assertions for plain error.

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

Rule 45A, Ala.R.App.P.

"In considering what constitutes plain error in a capital case, we have adhered to the interpretation of the term `plain error' adopted by the Alabama Supreme Court, which follows the interpretation given that term by the federal courts. See Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985); Ex parte Womack, 435 So.2d 766 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983). See also Hooks v. State, 534 So.2d 329 (Ala.Cr.App. 1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989). Plain error is error that has or probably has adversely affected a substantial right of the appellant, Ala.R.App.P. 45A, or is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Womack. The failure to object at trial weighs against any claim of prejudice an appellant may make. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.1991)."

Bush v. State, 695 So.2d 70, 87 (Ala.Cr. App.1995), aff'd, 695 So.2d 138 (Ala.1997), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320 (1997). See also, Davis v. State, 718 So.2d 1148, 1154 n. 3 (Ala.Cr. App.1995), aff'd, 718 So.2d 1166 (Ala.1998).

I.

The appellant contends that the trial court erred in refusing to sequester the jury during his trial. Specifically, he argues that Rule 19.3(a)(1), Ala.R.Crim.P., takes precedence over § 12-16-9, Code of Alabama 1975, and therefore, the trial court erred in allowing the jury to separate over the objection of the parties.¹ This Court recently addressed this issue and decided it adversely to the appellant in Stewart v. State, 730 So.2d 1203, 1212 (Ala. Cr.App.1997). See also, Hyde v. State, 778 So.2d 199 (Ala.Cr.App.1998); Smith v. State, on return to remand, 756 So.2d 892 (Ala.Cr.App.1997). Accordingly, this argument is without merit.

II.

The appellant claims that the trial court erred in denying his motion to dismiss the indictment based on his allegation that the manner of selecting grand jury forepersons in Morgan County was racially discriminatory. We disagree.

The appellant filed a motion to dismiss the indictment in which he argued, in part, that African-Americans had been "systematically and discriminatorily excluded from serving as grand jury foreperson in Morgan County."² The trial court subsequently conducted a hearing on the appellant's motion.

Testimony elicited at the hearing established that before October 1993 grand jury forepersons were appointed by the trial court based upon a recommendation from the district attorney. The evidence tended to indicate that at the time of the hearing, no African-American had served as a foreperson of a grand jury in Morgan County. Bob Burrell, the district attorney for Morgan County since 1987, testified that since October 1993 the grand jury members have been allowed to select a foreperson from among themselves. The grand jury that indicted the appellant selected its own foreperson. (R. 629-30.) According to Burrell, the new method has not yet resulted in the selection of an African-American as a grand-jury foreperson; however, h...