Ex parte Myers

• Decision Date: 09 May 1997
• Citation: 699 So.2d 1285
• Parties: Ex parte Robin MYERS. (In re Robin D. Myers v. State of Alabama). 1951981.
• Court: Alabama Supreme Court

Page 1285

699 So.2d 1285

Ex parte Robin MYERS (In re Robin D. Myers v. State of Alabama).

1951981.

Supreme Court of Alabama.

May 9, 1997.

Rehearing Denied July 18, 1997.

Brent A. King, Decatur; and Bernard E. Harcourt, Cambridge, MA, for petitioner.

Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent.

HOUSTON, Justice.

Robin Myers was convicted of the capital offense of murder committed during the course of a burglary, Ala.Code 1975, § 13A-5-40(a)(4), and the capital offense of murder during the course of a robbery, § 13A-5-40(a)(2). These convictions were based on one killing. The jury recommended a sentence of life imprisonment without the possibility of parole; the trial court rejected this recommendation and sentenced Myers to death by electrocution. In a unanimous decision, the Court of Criminal Appeals on May 24, 1996, affirmed Myers's conviction and death sentence. Myers v. State, 699 So.2d 1281 (Ala.Crim.App.1996), and it later overruled his application for rehearing. We granted certiorari review pursuant to Rule 39(c), Ala.R.App.P. We affirm.

Although Myers presented 31 issues for us to review, we find it necessary to address only five of those issues--whether the trial court erred in denying Myers's challenges for cause regarding jurors who were biased in favor of police officers; whether the trial court erred in failing to instruct the jury on the lesser included offense of felony murder; whether the trial court erred in failing to adequately instruct the jury on the legal principles of intoxication; whether the trial court erred in allowing a state's witness to wrongly comment on Myers's post-Miranda silence; and whether, in light of the Court of Criminal Appeals' holding in Pace v. State, [CR-93-0740, Sept. 27, 1996] --- So.2d ---- (Ala.Crim.App.1996), the indictment against Myers should be dismissed and the case remanded to the trial court.

According to the pertinent facts as set forth in the Court of Criminal Appeals' opinion, the following occurred:

"The evidence in this case showed that [Myers] unlawfully entered the home of Ludie Mae Tucker in the middle of the night. He stabbed Mrs. Tucker, and then ran into a bedroom, where he stabbed her houseguest and cousin, Marie Dutton. Mrs. Dutton survived the attack, but Mrs. Tucker died as a result of her injuries. As [Myers] was leaving the house, he took a videocassette recorder. He later traded this videocassette recorder for crack cocaine. [Myers] testified that he did not kill Mrs. Tucker or stab Mrs. Dutton. He stated that he found the videocassette recorder in some bushes behind his house and that he took it and traded it for cocaine."

699 So.2d at 1282.

Myers alleges that during voir dire examination Juror C. Smith admitted that he would give more weight to the testimony of a police officer than to the testimony of other witnesses. Myers challenged Juror C. Smith, based on what Myers contends were his views regarding the testimony of police officers. The trial court denied the challenge for cause.

Myers contends that the trial court erred in denying his challenge of C. Smith for cause. According to Myers, when the trial court failed to strike C. Smith for cause, it violated the principles of Uptain v. State, 534 So.2d 686 (Ala.Crim.App.1988) (wherein the Court of Criminal Appeals held that jurors who indicate that they would believe a police officer's testimony over that of another witness lack impartiality and should be struck for cause and, quoting State v. Davenport, 445 So.2d 1190, 1193-94 (La.1984), stated: " '[a] juror ... who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve' "); Mason v. State, 536 So.2d 127 (Ala.Crim.App.1988) (which reinforces Uptain ); and McCray v. State, 629 So.2d 729 (Ala.Crim.App.1993) (quoting Uptain with approval). Therefore, he argues, he is entitled to a new trial.

The State argues that Myers's challenge for cause was directed at the wrong veniremember--that the veniremember Smith who responded to the questions regarding the testimony of the police officer was R. Smith (juror number 36), not C. Smith (juror number 33). ¹

In response to the State's argument about which veniremember Smith expressed views about believing the testimony of a police officer over that of one who is not a non-police officer, Myers argues that both defense counsel and the district attorney, who were present at trial and conducted the voir dire, agreed that it was C. Smith (juror number 33), not R. Smith (juror number 36), who commented about a police officer's testimony.

To justify a challenge of a juror for cause, there must be a statutory ground as set forth in Ala.Code 1975, § 12-16-150, or some other matter that discloses absolute bias or favor and leaves nothing to the trial court's discretion. See, Nettles v. State, 435 So.2d 146, 149 (Ala.Crim.App.), aff'd, 435 So.2d 151 (Ala.1983). See also, Clark v. State, 621 So.2d 309, 321 (Ala.Crim.App.1992). The trial court's ruling on a challenge for cause is accorded great weight and will not be disturbed on appeal unless it is clearly shown to be an abuse of discretion. Nobis v. State, 401 So.2d 191 (Ala.Crim.App.), cert. denied, 401 So.2d 204 (Ala.1981).

During the trial court's qualifications of the jury venire, the trial court asked if there was anyone who knew why, if selected as a juror in this case, he could not give both the State and the defendant a fair and impartial trial. The following colloquy occurred:

"Juror: ... I am an ex-police officer from the State of Michigan.

"....

"Juror: As I say, I have been on the state's side.

"The court: Well, do you think you can try this case, if you are selected to serve on the jury, on the law and the evidence as it comes to you throughout the course of the trial?

"Juror: I would certainly try to stay open-minded, although I have been on the other dwelling on those types of issues. I would try to do that, yes.

"The court: What is your name, please?

"Juror: [R.] Smith."

The veniremembers were questioned in panels consisting of 12 persons. R. Smith and C. Smith were both on the second panel, and neither defense counsel nor the district attorney noted on the record that there were two Smiths on the same panel. When panel two was called, in response to the question whether anyone had ever worked in law enforcement, the following occurred:

"[District attorney]: Have any of you at any time in your life worked in law enforcement, either as a police officer, deputy sheriff--Mr. Smith, I believe you mentioned that earlier today?

"Juror Smith: Yes.

"[District attorney]: Where was that and when?

"Juror Smith: Jackson, Michigan.

"[District attorney]: Jackson?

"Juror Smith: Yes. I served in different departments.

"[District attorney]: That's R. Smith. Mr. Smith, how long did you work as a police officer?

"Juror Smith: I worked one year for a township. I had the reserve officer and I believe it was three and a half to four years on the City of Jackson Police Department.

"[District attorney]: How big of a city is that?

"Juror Smith: It's comparable to Decatur."

(Clearly, R. Smith was the Juror Smith in this instance.) Later during questioning, the following occurred:

"[District attorney]: Do any of you have any close friends that work in law enforcement either here or somewhere else?

"(Juror R. Smith held hand up.)

"[District attorney]: Mr. Smith, were these people that you knew when you were working up in Michigan?

"Juror Smith: Yes.

"[District attorney]: Nobody here?

"Juror Smith: No, not here."

Subsequently, a Juror Smith stated that he had had two chain saws stolen from his garage in Michigan. (Presumably, because R. Smith had previously stated that he had lived in Michigan, the Juror Smith whose chain saws were stolen was R. Smith.)

During later questioning, a Juror Smith stated that although he had never testified for the State, he had, "as a reserve officer," served as a "back-up witness." (Presumably, because R. Smith had been a reserve officer, the Juror Smith who had served as a back-up witness was R. Smith.)

Later, a Juror Smith responded again, as follows:

"[District attorney]: Do any of you feel like what you saw or read or heard would bias or prejudice you in this case at this point? Do any of you feel like that?

"(Juror Smith raised hand.)

"[District attorney]: Yes, sir, Mr. Smith?

"Juror Smith: In 1991 I was traveling quite a bit but I always read the paper when I am home. I don [sic] recollect ever seeing this. I don't know.

"[District attorney]: So since you can't remember reading anything about it, you don't feel like you would be prejudice [sic] in any way about it?

"Juror Smith: No."

(It is unclear whether R. Smith or C. Smith is the Juror Smith who answered these questions.)

In response to questioning about elderly victims, the following occurred:

"[Defense counsel]: I want to find out now in what instance you might be more inclined to recommend a death penalty. For example, if it was shown to you--the fact that the victim is elderly, do you think that might make you more inclined to impose a death penalty? If so, let me know. Yes, sir?

"Juror Smith: I want to say I have a lot of compassion for old people. I have a great-grandmother that I cared for.

"[Defense counsel]: You are R. Smith?

"Juror Smith. Yes.

"[Defense counsel]: You think that might be a factor that you might consider?

"Juror Smith: I would very much try to keep an open mind.

"[Defense counsel]: All these things are things you would be allowed to consider. That's why I'm asking you questions this way. You would keep an open mind but that is a factor you might weigh a little more than some others?

"Juror Smith: I have a lot of compassion for elderly people."

After further questioning, defense counsel specifically stated "[Defense counsel]: I will change the subject a little bit here. Mr. Smith, we haven't heard much from you so...