Ex parte Bankhead

• Decision Date: 24 May 1991
• Citation: 585 So.2d 112
• Parties: Ex parte Grady Archie BANKHEAD. (Re Grady Archie Bankhead v. State). 89-1179.
• Court: Alabama Supreme Court

Page 112

585 So.2d 112

Ex parte Grady Archie BANKHEAD (Re Grady Archie Bankhead v. State).

89-1179.

Supreme Court of Alabama.

May 24, 1991.

Bryan A. Stevenson and Kevin M. Doyle, Montgomery, for Grady Archie Bankhead.

Don Siegelman, Atty. Gen., and William D. Little and Sandra J. Stewart, Asst. Attys. Gen., for the State.

ON APPLICATION FOR REHEARING

KENNEDY, Justice.

This Court's original opinion of February 15, 1991, is withdrawn and the following opinion is substituted therefor.

Grady Archie Bankhead was convicted of the capital offense of murder during a robbery in the first degree. § 13A-5-40(a)(2), Code of Alabama 1975. He was given a bifurcated trial in accordance with § 13A-5-43. After the punishment phase of the trial, the jury returned its advisory verdict recommending death, with 11 votes "for death" and 1 vote "for life without the possibility of parole."

At sentencing, the trial court, in compliance with § 13A-5-47, specifically found the existence of two aggravating circumstances and no mitigating circumstances. Bankhead was sentenced to death for the robbery-murder of Jack David McGraw. See the trial court's order attached as an appendix to this opinion. The Court of Criminal Appeals affirmed the conviction and the sentence. Bankhead v. State, 585 So.2d 97 (Ala.Cr.App.1989).

Along with Bankhead, two other defendants were charged with the murder. ¹

FACTS

The Court of Criminal Appeals set out the facts in Bankhead v. State, 585 So.2d at 98-99. However, we feel it necessary to recite the facts as found by that court in order to better present the issues in this case:

"The evidence tended to show that on the morning of May 26, 1986, Jimmy Davenport and his brother-in-law, James Bynum, met Gary Leon Brown and the appellant at the appellant's house and set out to go fishing. They fished for most of the day and drank beer and whiskey while they did so. Around the middle of the afternoon, the four stopped fishing and went to a bar and drank for about three more hours.

"Sometime during the afternoon, Bynum suggested that they go to the trailer of Jack David McGraw. On the way to the trailer, Brown and Bynum talked about killing a 'queer,' but assured Davenport that all he would have to do was drive. The appellant asked Bynum if he could hit hard and said he wanted Bynum to 'take the old guy out with one punch.' The appellant also said that if Bynum could not do so, that the appellant could, to which Bynum replied, 'I'm sure I can do it. I can hit hard.'

"When the four men reached the trailer, Davenport stayed in the car. The others got out, walked to the door, and knocked. McGraw answered the door and invited them in; however, they soon came back out. As they were walking out, the appellant grabbed McGraw and threw him to the ground. Bynum and Brown then started punching McGraw, and continued to do so until he was unconscious. The three men then pulled him back into the trailer and closed the door.

"After about 15 or 20 minutes, the appellant, Bynum, and Brown came out of the trailer carrying various items. They were covered with blood. The appellant told Davenport to 'shut up' or he would 'get the same as the old man.' The four men then left in the car.

"They drove to the appellant's house, where they began unloading the items from the car. Among the items stolen were stereo equipment, speakers, a VCR, and a microwave oven. Blanche Bankhead, who was at that time the appellant's wife, overheard the appellant say to Brown, 'Are you sure he's dead?' Brown answered, 'Yes, I stabbed him and stabbed him and stabbed him. I thought he was dead. He kept trying to get up.' The appellant said, 'We've got to make sure he's dead.'

"The appellant's wife also heard the men re-creating what had happened. Brown said, 'when Archie handed me that knife, he told me to cut--you have to cut his throat.' To this, the appellant replied, 'You weren't doing it right. I had to take the knife and slice his jugular vein.'

"While still at the appellant's house, Brown pulled out the victim's wallet; it was decided that the four would divide up the money in it. Then the appellant said that they should burn their clothes, so they made a pile of them, poured gasoline on the pile, and set them afire. Davenport, who looked scared, said 'I have got to get out of here.' The appellant threatened him, saying that if he told anybody, the appellant would find him.

"Later that night, the appellant and Brown went to the apartment of Michael Wayne Lotz and left a television there until the following day, when the appellant removed it. The next day, the appellant left another television at Lotz's apartment. The appellant later told Lotz that Brown had been arrested by the police for a murder in Pinson; that he had gotten the television by robbing a man in Blount County; and that Lotz should take the television to the woods and burn it.

"Neighborhood children returning Jack McGraw's dog to his yard discovered his body in the trailer on the afternoon of May 27, 1986. An autopsy revealed numerous stab wounds, including 59 to the back, 16 to the neck area, and 3 to the face. Both the carotid artery and the jugular vein on the left side of the neck had been cut. All wounds were pre-mortem. The cause of death was loss of blood due to the cut and stab wounds.

"On May 29, 1986, the appellant left his house and did not return. He was arrested in Mobile on July 13, 1986, at which time he made a tape-recorded statement to law enforcement officers. He admitted that he had gone to McGraw's trailer with Davenport, Bynum, and Brown for the purpose of robbing McGraw. While they were in the trailer, McGraw emerged from his bedroom and tried to stop them. According to the appellant, Brown then attacked McGraw with a knife, stabbing him to death."

In reviewing a death penalty case, this Court may notice any plain error or defect in the proceeding under review, regardless of whether it was brought to the attention of the trial court. Ex parte Waldrop, 459 So.2d 959 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1984). See also Rule 45A, A.R.App.P. This Court may take appropriate appellate action whenever the error "has or probably has adversely affected the substantial right of the appellant." Rule 45A, A.R.App.P. "Plain error" arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceeding. United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). See also Ex parte Womack, 435 So.2d 766 (Ala.1983), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983).

I.

On application for rehearing, Bankhead argues that he had standing to challenge the prosecutor's allegedly discriminatory use of peremptory challenges. At Bankhead's trial, the prosecutor peremptorily challenged 8 of the 10 blacks on the jury panel. We note that 2 black jurors remained on Bankhead's jury.

No objection was made at trial. However, under the "plain error" doctrine of Rule 45A, A.R.App.P., we addressed the issue ion Part I of our opinion of February 15, 1991. We held that Bankhead did not have standing under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to challenge the prosecutor's use of peremptory challenges as a violation of the Fourteenth Amendment. We noted that the Supreme Court had granted certiorari review in Powers v. Ohio, 493 U.S. 1068, 110 S.Ct. 1109, 107 L.Ed.2d 1017 (1990), in which a white defendant challenged the striking of black veniremen from his jury as a violation of the Equal Protection Clause. Justice Maddox dissented, expressing the view that Bankhead did have standing to make his Batson challenge.

The Supreme Court has recently decided Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), holding that a defendant in a criminal case can raise a third-party equal protection claim on behalf of jurors excluded by the prosecution because of their race.

Based on Powers, we must now hold that Bankhead, a white, has standing under the Equal Protection Clause to challenge the prosecutor's allegedly racially motivated use of peremptory challenges. Bankhead's case will be remanded to the Jefferson County Circuit Court for a hearing on this issue. If the prosecution cannot provide racially neutral reasons for the use of peremptory challenges against black venire members, then Bankhead must receive a new trial. The trial court shall make a due return to this Court indicating its action on remand.

II.

Bankhead argues that a group of photographs introduced at the guilt phase of his trial and a group of photographs introduced during the sentencing phase were inadmissible.

Bankhead argues that certain photographs introduced during the guilt phase of his trial were extraordinarily prejudicial and had minimal or no probative value.

Photographs are admissible into evidence within the discretion of the trial judge and will be reviewed on appeal only to determine if there has been an abuse of that discretion. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973).

Photographs are admissible if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. Baldwin v. State, 282 Ala. 653, 213 So.2d 819 (1968). The fact that a photograph is gruesome is not grounds to exclude it as long as the photograph sheds light on issues being tried. Magwood v. State, 494 So.2d 124 (Ala.Cr.App.1985), aff'd, Ex parte Magwood, 494 So.2d 154 (Ala.1986), cert. denied, Magwood v. Alabama, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).

Some of the photographs in issue here depicted wounds to the back and neck area of the deceased. The State argues that the photographs were credible evidence for the jury to view in order to determine whether a pocket knife or a larger knife that...