Ex parte Jackson

• Decision Date: 19 December 1986
• Parties: Ex parte Carnel JACKSON (Re: Carnel Jackson v. State of Alabama). 84-1112.
• Court: Alabama Supreme Court

Page 768

516 So.2d 768

Ex parte Carnel JACKSON (Re: Carnel Jackson v. State of Alabama).

84-1112.

Supreme Court of Alabama.

Dec. 19, 1986.

Specially Concurring Opinion on Denial

of Rehearing Feb. 20, 1987.

L. Dan Turberville, Birmingham, for petitioner.

Charles A. Graddick, Atty. Gen., and Rivard Melson and William D. Little, Asst. Attys. Gen., for respondent.

TORBERT, Chief Justice.

This is a death penalty case arising from defendant Carnel Jackson's convictions under Code 1975, § 13A-5-31(a)(10) (repealed) (murder in the first degree wherein two or more human beings are intentionally killed by the defendant) and § 13A-5-31(a)(3) (repealed) (rape when the victim is intentionally killed by the defendant).

Following the jury verdicts of guilty on the charged offenses, a sentencing hearing was held in which the jury determined that the punishment should be death. The trial court then held its own sentencing hearing and sentenced defendant to death. The Court of Criminal Appeals, following the procedures outlined in Beck v. State, 396 So.2d 645 (Ala.1980), affirmed defendant's convictions and death sentence. Jackson v. State, 516 So.2d 726 (Ala.Crim.App.1985).

On January 17, 1981, the bodies of the victims, Myra Faye Tucker and Terry Wayne Tucker, were discovered on an old mining road in Jefferson County. Both victims had been shot one time with a 12-gauge shotgun. Mr. Tucker had been shot in the back. The autopsy on Mrs. Tucker's body indicated that she had been shot in the chest area and that she had been repeatedly raped. The blood type of the seminal fluid found in Mrs. Tucker's body did not match the blood type of her husband, but it did match the blood type of defendant and one codefendant.

Within one week of the discovery of the murders, the police arrested defendant and two codefendants--Jerry Steven Godbolt and Wayne Anthony Agee. At the time of the murders, defendant was 17 years of age, Agee was 19, and Godbolt was 21. During this same time, the police also recovered a 12-gauge shotgun from the front yard of Godbolt's mother. Wadding and spent shells found at the scene of the murders were later identified at trial as being from the type of shotgun found by the police.

At the time of his arrest, defendant refused to give a statement to the police concerning the incident. In September of 1981, however, defendant called the detective in charge of the Tucker murder case and requested that he come to the county jail. When the detective got to the jail, defendant informed him that he would be willing to testify against both Agee and Godbolt. The detective then read defendant the Miranda warnings and asked him if he wanted his attorney present for the statement. After acknowledging that he understood his rights and stating that he did not wish to speak with or see his attorney, defendant made a statement that was later used at trial. In the statement, defendant stated that he and his codefendants were on drugs at the time of the crime and that they intended to "rob some place." Defendant also stated that he had taken the shotgun from Godbolt and had killed Mrs. Tucker first and then Mr. Tucker.

The Court of Criminal Appeals gave a thorough examination of the issues Jackson has raised on appeal. We will discuss three of these issues in detail.

I

The Court of Criminal Appeals held that the Birmingham Division of the Circuit Court of Jefferson County had proper venue in this case. Jackson contends that the Birmingham Division lacked jurisdiction and that this action should have been brought in the Bessemer Division. In its opinion the Court of Criminal Appeals cited Agee v. State, 465 So.2d 1196 (Ala.Crim.App.1984), cert. denied, 465 So.2d 1196 (Ala.1985), for the propositions that the Bessemer Court Act of 1919, 1919 Ala. Local Acts 62, No. 213 (August 18, 1919) (Local Laws of Jefferson County, §§ 950-957, page 320), should be read as venue legislation rather than jurisdiction legislation and that the two divisions should be treated as if they were two separate counties. We agree.

"The Bessemer Cutoff legislation does not diminish the general jurisdiction of other circuit courts, either in Jefferson or other counties." Glenn v. Wilson, 455 So.2d 2, 4 (Ala.1984). Although there was much testimony at trial that the murders in this case occurred in the Bessemer Division, there was some testimony that the murder scene was in the Birmingham Division. Venue may be established by the testimony of one witness. McCrary v. State, 398 So.2d 752 (Ala.Crim.App.), cert. denied, 398 So.2d 757 (Ala.1981).

Furthermore, at the hearing on defendant's motion to dismiss, Jackson and the State agreed that the evidence before the trial judge at that time showed that the bodies of the Tuckers were located within a quarter-mile of the line that divides the two divisions. The evidence showed that the Tuckers were killed where their bodies were found. Again relying on Agee, supra, the Court of Criminal Appeals held that since the two divisions are to be treated as if they were separate counties, then Code 1975, § 15-2-7, would come into effect. Section 15-2-7 authorizes a finding of proper venue in either county when an offense is committed within a quarter-mile of the boundary between the two counties. This Court has not previously addressed the question of whether § 15-2-7 should apply to the two judicial divisions within Jefferson County. Since the legislation that created the two divisions in Jefferson County is venue legislation, Glenn, supra, we hold that the Court of Criminal Appeals correctly applied § 15-2-7.

While it was not error on the part of the trial court to deny Jackson's motion for change of venue to the Bessemer Division, we note that, based on the evidence before the trial court at the hearing on the motion, it would have been the better practice to transfer the case to the Bessemer Division.

II

Jackson also contends that Act No. 81-178, Alabama Acts 1981, the 1981 capital offense statute, repealed the statute under which the indictments against him were returned and that any prosecution pursuant to those indictments is now void. This argument is without merit. As this Court noted in Ex parte Julius, 455 So.2d 984, 985 n. 1 (Ala.1984), "the repeal of §§ 13A-5-30 through -38 did not affect the applicability of those sections to conduct that occurred before July 1, 1981."

III

We have searched the record for any plain error or defect in the proceeding below, Rule 39(k), A.R.A.P., and have found none except that now to be discussed.

The most compelling of the issues raised by Jackson is whether his equal protection rights were violated when the prosecution used its peremptory challenges to strike all ten of the prospective black jurors from the venire. The United States Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), changed a defendant's burden of proof on the issue of the prosecution's using peremptory challenges to systematically exclude blacks from serving on the jury. The much more stringent burden of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), was in effect at the time of defendant's trial, and the issue before us is whether a rule similar to the rule announced in Batson should be applied to this defendant's trial. We hold that a rule like the rule which the United States Supreme Court announced in Batson v. Kentucky, supra (that "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial," 476 U.S. at 96-97, 106 S.Ct. at 1722-23), is to be applied to Jackson's trial.

The United States Supreme Court has stated, "As a rule, judicial decisions apply 'retroactively.' Robinson v. Neil, 409 U.S. 505, 507-08, 93 S.Ct. 876, 877-78, 35 L.Ed.2d 29 (1973). Indeed, a legal system based on precedent has a built-in presumption of retroactivity." Solem v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984).

That Court, in several decisions, established the following three-pronged test for determining whether a newly announced standard of law should be given retroactive application: (1) the purpose to be served by the new standard, (2) the extent of reliance by law enforcement authorities on the old standard, and (3) the effect on the administration of justice of a retroactive application of the new standard. See e.g., Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In Adams, supra, the three-Justice plurality noted:

"We have given complete retroactive effect to the new rule, regardless of good-faith reliance by law enforcement authorities or the degree of impact on the administration of justice, where the 'major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth- finding function and so raises serious questions about the accuracy of guilty verdicts in past trials....' Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971)."

405 U.S. at 280, 92 S.Ct. at 918.

The Batson Court recognized that more than a century ago Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880), held that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of this race have been purposefully excluded. The Court noted that the Strauder decision laid the foundation for the Supreme Court's "unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn." 476 U.S. at 85, 106 S.Ct. at 1716...