Ex parte Bryars
| Decision Date | 24 August 1984 |
| Citation | 456 So.2d 1136 |
| Parties | Ex parte Earl BRYARS, Jr. (Re Earl A. Bryars, Jr., alias v. State of Alabama). 83-378. |
| Court | Alabama Supreme Court |
Robert C. Wilson and James H. Lackey, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little and P. David Bjurberg, Asst. Attys. Gen., for respondent.
This is a "pre-Beck " death penalty case. Beck v. State, 396 So.2d 645 (Ala.1981). Bryars was convicted and sentenced to death for first degree murder of two persons intentionally killed in one or a series of acts. Section 13A-5-31(a)(10), Code of Alabama 1975.
The victims, Maynard Coleman and Dave Hudson, were killed by shells fired from a 12 gauge shotgun on November 21, 1979, between 5:30 P.M. and 7:00 P.M. Investigators at the scene found four spent shells and one full slug which had apparently misfired.
There were no eye-witnesses to the shooting. Maynard's fourteen-year-old nephew, Ronnie, was in front of the trailer where he lived, talking to his mother's brother, Erskin Packard, when he heard four shots from the direction of Maynard's farm. Ronnie testified that he saw Bryars pass by in his truck two or three minutes after he heard the shots. Packard testified that he saw a blue automobile pass immediately after hearing the shots but did not see Bryars's truck pass by until about twenty minutes later.
Maynard's wife, sister, and brother-in-law found the bodies at about 7:00 P.M. that evening. They notified authorities, who secured the scene and gathered the shell casings.
The following morning the sheriff and an investigator went to Bryars's home to discuss the shootings with him. While the sheriff was talking to Bryars, other police cars arrived carrying sheriff's deputies and Atmore police officers. The sheriff asked Bryars if he owned a shotgun. Bryars replied that he did. The sheriff then stated: Bryars replied, "Sure," and retrieved the gun and handed it to the sheriff.
After giving the shotgun to the sheriff, Bryars invited him into his house, where they discussed some land dealings Bryars had had with Coleman. Later, Bryars and the sheriff rode over to the home of an acquaintance of Bryars's and Coleman's, Thadius Johnson, to discuss an incident involving the suspect and the deceased at Johnson's home.
At the trial, an employee of the Department of Forensic Sciences testified that he fired several rounds through the shotgun in question and that, after comparing the test rounds to the shells found at the scene, he was of the opinion that the shells found at the scene had been fired through Bryars's gun. On cross-examination the expert testified that the breech faces, firing pin extractor, and ejector marks were all present and comparable. He admitted, however, that at the preliminary hearing he had testified that the weapon did not leave a usable breech mark. He admitted that he did not measure the depth of the firing pin mark or fire any other shotguns of the same make and model to compare with the shells.
Bryars's defense was alibi. His wife testified that he and Jasper Brown worked at the Bryars home until about 4:30 P.M. She testified that Bryars left to take Brown home about 4:45 P.M. and returned home around 5:15 P.M. She claims to have been with her husband the rest of the evening.
Jasper Brown testified that they worked until 4:30 P.M. to 5:00 P.M. and that he arrived home between 5:00 P.M. and 5:20 P.M. Brown testified that after letting him out, Bryars proceeded in the direction of Maynard's farm.
Bryars testified that he took Brown home about 5:00 P.M. He claimed that he went in the direction of the deceased's farm after letting Brown out in order to go to Junior Coleman's house to ask Junior if he could borrow a mowing machine. He testified that when he pulled up into Junior's driveway he saw that Junior's truck was gone, so he turned around and went home.
Bryars raised numerous issues in his petition. We will discuss only one of the issues raised, because the resolution of that issue is dispositive of the appeal.
The theory of the state's case was that Bryars and Maynard were embroiled in an ongoing dispute over some land and that as a result of their disagreement Bryars shot Maynard and an unfortunate bystander, Hudson. Testimony about the dispute centered around an incident at Thadius Johnson's home. Maynard had taken a truck to Johnson's for him to repair it. While Johnson was working on the truck Bryars arrived and engaged Maynard in a conversation. Johnson testified that he did not pay much attention to what was being said because he was concentrating on repairing the truck. He testified that he heard a sound like someone "stomping the ground" and the next thing he heard was his wife come out and tell Bryars to "go home" because she wasn't going to have any squabbling around there. Bryars replied, He turned to Maynard and stated, "I'll see you later." Johnson testified that he was not alarmed by the incident and that he never observed any overt hostility between the two.
Bryars testified that his exchange with Maynard at Johnson's was not acrimonious. He denied ever having had any arguments or disagreements with Maynard.
In addition to allowing Johnson to give his account of what happened during the incident, the trial court, over the defendant's objections, allowed other witnesses to testify to statements they had heard the deceased make about the alleged dispute with Bryars. The victim's widow testified that as a result of the incident at Johnson's, her husband began carrying a shotgun. Aubry Weaver testified that Maynard had told him about the incident and that Bryars had "put the word out" that he was "going to take care of him." Junior Coleman testified that shortly after the incident the victim gave him a message to give to Bryars. The victim told Junior that he wanted him to deliver the message because every time he saw Bryars himself, Bryars tried to "get rowdy" with him. William V. Williams was allowed to testify that on the day of the shooting Maynard had told him that later in the day he planned to meet with Bryars to discuss the problem with the land.
The state argues that there is an exception to the hearsay rule with regard to statements made by the deceased which show the accused's motive. C. Gamble, McElroy's Alabama Evidence, §§ 45.01(1) and 273.02 (3d ed. 1977).
Statements made by a homicide victim introduced for the purpose of showing the intent of the accused do not fall within an exception to the hearsay rule as such. Hearsay...
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