Ex parte Cochran

• Decision Date: 08 November 1985
• Citation: 500 So.2d 1179
• Parties: Ex parte James Willie COCHRAN. (Re: James Willie Cochran v. State of Alabama) 83-1044.
• Court: Alabama Supreme Court

Page 1179

500 So.2d 1179

Ex parte James Willie COCHRAN (Re: James Willie Cochran v. State of Alabama)

83-1044.

Supreme Court of Alabama.

Nov. 8, 1985.

Rehearing Denied Jan. 10, 1986.

Richard S. Jaffe for Jaffe, Burton & DiGiorgio, Birmingham, for petitioner.

Charles A. Graddick, Atty. Gen., and William D. Little and David Bjurberg, Asst. Attys. Gen., for respondent.

TORBERT, Chief Justice.

James Willie Cochran was convicted in the Jefferson County Circuit Court of the capital offense of robbery when the victim is intentionally killed. Code 1975, § 13A-5-31(a)(2) (Repealed). ¹ This appeal is based upon defendant's third trial. His first trial ended in a mistrial, and the conviction in the second trial was reversed on authority of Beck v. State, 396 So.2d 645 (Ala.1980). At the end of the third trial, defendant was sentenced to death under the procedures outlined in Beck, and both his conviction and sentence were affirmed by the Court of Criminal Appeals. Cochran v. State, 500 So.2d 1161 (Ala.Crim.App.1984).

Only a brief summary of the facts is presented here, so that the facts most pertinent to each issue may be discussed separately. For a more detailed statement of the facts, see the opinion of the Court of Criminal Appeals. A little before 10:00 p.m. on November 4, 1976, a lone black male entered the A & P Grocery Store in Homewood, Alabama, and demanded that all the money from the store safe and cash registers be placed in a grocery sack. At the time, an assistant manager and a store clerk, along with several customers, were inside the store. After receiving the money, the robber left the store and was followed by the assistant manager. The men were observed going through a "stop and go" motion, in that the robber would go a short distance, and then stop and point his gun at the assistant manager and then turn and continue on, repeating this every few steps. Following the report of the robbery, the police surrounded the immediate vicinity to search for the robber. At least one gunshot was heard by the officers during their search. Soon thereafter, the police apprehended defendant and, during a full search of him at the police station, they seized a large amount of money wrapped in an A & P band. Later that night, the police found the assistant manager dead.

Defendant presents ten issues on appeal.

I

The first issue is whether this Court's actions in Beck v. State, 396 So.2d 645 (Ala.1980), violated the Alabama Constitution of 1901 and the United States Constitution. We have previously dealt with this question and have decided that the actions taken in Beck are constitutional. Ex parte Potts, 426 So.2d 896, 900 (Ala.1983).

II

The second issue is whether defendant's Fifth Amendment right not to be placed in jeopardy twice for the same offense was violated when he was retried following a mistrial in his first trial.

During defendant's first trial, the judge brought to defense counsel's attention the fact that one of the state's witnesses had been undergoing psychological treatment. This witness, and a second witness, had already testified in the trial and had identified defendant as the person who had robbed the store, although neither of them had been able to identify him prior to trial. Defense counsel moved for a mistrial based on the state's failure to notify defendant of the psychological treatment of the witness. The trial judge, stating he was doing so for reasons of necessity, granted defendant's motion.

Defendant argues that the failure of the state to provide him the information on the witness is the type of conduct known as "prosecutorial overreaching," which was condemned in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), and he argues that it precludes a retrial. However, the most recent opinion on this subject, Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), expressly rejects this standard in determining whether a second trial is barred following a defendant's motion for mistrial. In Kennedy, the Court stated "[T]he circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial."

456 U.S. at 679, 102 S.Ct. at 2091.

Reviewing the facts in light of this standard, we are unable to characterize the prosecutor's conduct as the kind that would be intended to provoke a defendant into moving for a mistrial. The prosecutor clearly stated his reasons for not informing the defense counsel of the two items complained of, and the trial judge made a detailed explanation for the record as to the reasons why he granted the mistrial. Neither in the in-chambers discussions with counsel nor in his explanation for the record, did the trial court indicate that he found that the prosecutor intended to cause defendant to move for a mistrial, and we find no basis for such a finding either.

Even under the more stringent Alabama law on this subject, defendant's argument is without merit. In Woods v. State, 367 So.2d 982, 984 (Ala.1978), this Court held that if a high degree of necessity for the mistrial could be demonstrated, then a second trial would not be prohibited. In the present case, the trial judge found the requisite "high degree" of necessity for the mistrial in defendant's argument in support of his request for the mistrial. In his explanation for the record, the trial judge indicated that he was granting the mistrial because defendant's counsel wanted additional time to determine how to cross-examine the witness who had undergone the psychological treatment and because two witnesses for the state, who had been unable to identify defendant prior to trial, had done so at trial. Since it is within the trial judge's broad discretion to decide whether the high degree of necessity has been met, we will not interfere with that discretion unless there is a clear abuse. Woods, 367 So.2d at 984. There is no such abuse present in this case, and defendant's subsequent trials were not barred.

III

The third issue is whether the trial court committed error when it failed to grant defendant's motion to suppress as to the items found in an automobile located near the crime scene.

On the same night that the robbery took place, a Homewood police officer was sent to the parking lot of the A & P and other nearby stores to look for cars that were "out of place." At the time of this search of the parking lot, the officer was unaware of the name of the suspect who had been arrested. Although the parking lot covers a relatively large area, there were not many cars there at that time of night. After looking at the cars and running a license plate check on a couple of them, the police officer noticed that one of the cars was unlocked, had the keys in the ignition, and had a billfold lying in the front seat. He opened the car door and looked in the billfold, where he found a Social Security card in defendant's name. He then replaced the card and the billfold and left them as he had found them.

Upon discovering nothing of a suspicious nature, the officer returned to city hall and asked the name of the suspect arrested in the A & P robbery. When he learned that the suspect's name matched the name on the card he had found, he informed his superior, who then ordered him to return to the car and have it impounded. The next morning the contents of the car were inventoried at the police impoundment lot, and the items in the car were later produced at trial as evidence against defendant.

Defendant argues that the items found in the car should have been suppressed because the police officer did not have probable cause for the initial entry into the car and because no search warrant was issued for the later inventory. A threshold question is whether defendant has standing to assert a violation of the Fourth Amendment for an allegedly illegal search and seizure. ²

In the decision of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court stated that only those individuals whose own Fourth Amendment rights may have been violated have standing to challenge the legality of a search and seizure. The burden of showing that his individual Fourth Amendment rights were violated rests on the person who is seeking to suppress the evidence obtained in the search. Rakas, 439 U.S. at 131 n. 1, 99 S.Ct. at 424 n. 1. Absent this showing, the trial court is not in error when it does not suppress the evidence.

The facts produced at the hearing on the motion to suppress and at defendant's trial indicate that defendant did not meet his burden of establishing that his individual rights were violated. At the hearing on the motion to suppress, defendant did not offer any proof that he had a legitimate expectation of privacy in the car; specifically, no attempt was made to show who owned the car, or that defendant had permission to use the car. At defendant's trial, the testimony showed that Ms. Bobbie Burpo owned the car at the time of the robbery, although title to the car remained in the name of another person from whom she had just bought the car. Ms. Burpo was the niece of defendant's wife, and had loaned the car to her aunt while Ms. Burpo was in the hospital. On cross-examination by the defense, Ms. Burpo testified that she did not know who had driven the car while she was in the hospital or how the car had got to the A & P parking lot. No other testimony was produced to show that defendant had a legitimate expectation of privacy in the car at the time of the search.

Based on these facts, we find that defendant failed to establish that his own individual rights were violated. Therefore, we need not address whether the search and seizure were valid.

IV

The fourth issue is whether the trial court erred when it excused juror Elvira Cochran for...