Ex parte Bankhead
Citation | 585 So.2d 112 |
Parties | Ex parte Grady Archie BANKHEAD. (Re Grady Archie Bankhead v. State). 89-1179. |
Decision Date | 24 May 1991 |
Court | Supreme Court of Alabama |
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
This Court's original opinion of February 15, 1991, is withdrawn and the following opinion is substituted therefor.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 Along with Bankhead, two other defendants were charged with the murder. 1
and the sentence. Bankhead v. State, 585 So.2d 97 (Ala.Cr.App.1989).
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:
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.
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).
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.
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...
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