Godbolt v. State, 6 Div. 461

• Decision Date: 10 June 1986
• Docket Number: 6 Div. 461
• Citation: 546 So.2d 982
• Parties: Jerry Steven GODBOLT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 982

546 So.2d 982

Jerry Steven GODBOLT v. STATE.

6 Div. 461.

Court of Criminal Appeals of Alabama.

June 10, 1986.

Rehearing Denied July 15, 1986.

Charles M. Purvis of Wilkinson, Purvis & Vinson and Ronda H. Lacey of Lacey & Simonetti, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Jerry Steven Godbolt was indicted by a Jefferson County Grand Jury on two counts of first degree murder during a robbery, both capital offenses, the victims being Myra Faye Tucker and Wayne Tucker. The trial jury found him guilty as charged of the capital murder of Myra Faye Tucker, and recommended the death sentence. The court sentenced him to life imprisonment without parole. His conviction was affirmed on appeal. Godbolt v. State, 429 So.2d 1131 (Ala.Cr.App.1982).

In a separate trial the jury found Godbolt guilty as charged of the capital murder of Wayne Tucker and recommended a sentence of death. Pursuant to such recommendation, the trial judge sentenced the appellant to death. From this conviction and sentence, Godbolt now appeals.

Our recitation of the facts will be brief, because the acts of the appellant and his accomplices have been fully presented in our other opinions. See Godbolt v. State, 429 So.2d 1131 (Ala.Cr.App.1982); Agee v. State, 465 So.2d 1196 (Ala.Cr.App.1984); Jackson v. State, 516 So.2d 726 (Ala.Cr.App.1985). The appellant and his two friends, Carnell Jackson and Wayne Agee, abducted Mr. and Mrs. Tucker, using as a weapon a shotgun, locked Mr. Tucker in the trunk of the Tuckers' car, stole the car and later "stripped" it, raped and sodomized Mrs. Tucker, and then fatally shot both Mr. and Mrs. Tucker. Mrs. Tucker knew the appellant's name and had managed to stuff inside her blouse a telephone bill on which was written "Godbolt." The appellant's fingerprints were found on the Tuckers' automobile. For additional facts, see, as an attached appendix, the trial court's finding of facts.

I

Applying the principles of double jeopardy and collateral estoppel, appellant Godbolt initially argues that because his trial for the capital murder of Mrs. Tucker resulted in a sentence of life imprisonment without parole, the State should be precluded from seeking and obtaining the death penalty for the capital murder of Mr. Tucker. He relies on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). Although this issue has not been addressed in this State, the Mississippi Supreme Court has ruled on this exact issue. In Wheat v. State, 420 So.2d 229 (Miss.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1507, 75 L.Ed.2d 936 (1983), the appellant abducted a married couple, stole their car, and then fatally shot the couple. At his trial for the capital murder of the wife, the jury could not agree on a sentencing recommendation, so he was sentenced by the court to life without parole. Thereafter, he was convicted for the capital murder of the husband and sentenced to death. On his appeal, he also relied on Ashe and Bullington. The Mississippi Supreme Court dismissed his argument:

"These cases easily are distinguishable from the case sub judice. In Ashe, we have masked men breaking up a poker game by robbing each individual player. Ashe was indicted for robbery of each person. On his first trial the jury found him not guilty. The issue in the case was a question of 'identity,' as to whether Ashe was one of the robbers. The first jury found he was not. The Supreme Court held that the rule of collateral estoppel applied and the prosecution should not be allowed to have another jury pass on this question. In the case at bar, we have an entirely different situation--there were two murders. Appellant was tried and convicted of capital murder. The only difference between the two trials was that the jury in the first failed to agree on punishment. The case sub judice was a trial for a separate and distinct murder, for which he had not received a prior acquittal. In the penalty phase of the trials there was no question of identity as the Supreme Court had in Ashe, supra.

"In Bullington, supra, there had been a prior trial and an acquittal of the accused, which as shown above was entirely different from the facts presented in the present case. We find no merit in this assignment."

Wheat v. State, 420 So.2d at 240. We agree and hold that the State was not precluded from seeking the death penalty for the murder of Mr. Tucker simply because the appellant had been previously sentenced to life without parole for the murder of Mrs. Tucker.

II

The appellant contends that the trial court erred in allowing into evidence much testimony about the inhuman treatment meted out to Mrs. Tucker. Since the appellant was being tried for the capital murder of Mr. Tucker, he argues, testimony regarding Mrs. Tucker was irrelevant. The appellant raised the converse of this issue on his appeal of the conviction for the murder of Mrs. Tucker. What we said then aptly applies now:

"Myra Faye and Terry Tucker's deaths were the result of one continuous transaction, consisting of several inextricably intertwined acts. Evidence of Mr. Tucker's death was properly admissible as part of the res gestae and as shedding light on the acts, motive, and intent of appellant. Suggs v. State, 403 So.2d 303 (Ala.Cr.App.), cert. denied, 455 U.S. 938, 102 S.Ct. 1428, 71 L.Ed.2d 648 (1982)."

Godbolt v. State, 429 So.2d at 1134. The testimony regarding Mrs. Tucker was properly admitted into evidence.

III

Appellant next claims that reversible error occurred when the trial court allowed the State to read to the jury, during its case in chief, his testimony from the earlier trial, the trial for the capital murder of Mrs. Tucker. The trial judge based his ruling on Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973).

The testimony was essentially a recapitulation of his confessions, which the jury had already heard. The only differences were that in his oral testimony, he claimed that the Tuckers were not forced to do anything; that they voluntarily accompanied the appellant and his two associates, and, furthermore, that Mrs. Tucker had seduced them. The oral testimony related the same facts as did his confessions, namely that "Boo" Jackson had the shotgun when they approached the Tuckers; that Mrs. Tucker was forced to give them money; that Mr. Tucker was placed into the trunk of his car and his wallet and rings were taken; that Mrs. Tucker had sexual intercourse and deviate sexual intercourse with them; and that the Tuckers were intentionally killed. We do not believe that the admission of what is essentially cumulative evidence can form a basis for reversible error, if it is error at all. The evidence is overwhelming, and it places appellant's guilt beyond a reasonable doubt. The above related testimony did not affect the outcome of the case. The harmless error doctrine also applies. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Harryman v. Estelle, 616 F.2d 870 (5th Cir.) (en banc), cert. denied, 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980); Neelley v. State, 494 So.2d 669 (Ala.Cr.App.1985) (pending on certiorari).

IV

Appellant next argues that the court reporter failed to include in the official transcript the closing arguments of the attorneys, and that this failure requires a reversal. "The official court reporter ... shall take full stenographic notes of the oral testimony and proceedings, except argument of counsel...." § 12-17-276, Code of Alabama 1975. The court reporter is under no duty to record closing arguments. Langford v. State, 354 So.2d 297 (Ala.Cr.App.1977), rev'd on other grounds, 354 So.2d 313 (Ala.1978); McFerrin v. State, 339 So.2d 127 (Ala.Cr.App.1976); Zuck v. State, 57 Ala.App. 15, 325 So.2d 531 (1975), cert. denied, 295 Ala. 430, 325 So.2d 539 (1976); except when there is an objection. Ervin v. State, 399 So.2d 894 (Ala.Cr.App.), cert. denied, 399 So.2d 899 (Ala.1981); McFerrin v. State, supra. No error occurred in this respect.

V

Last, the appellant claims the trial judge erred by applying the Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), standard during jury selection instead of the standard as pronounced in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The Witt decision was issued on January 21, 1985, and the trial of this case occurred on October 24, 1983. The Witt decision reaffirmed the Court's updated standard first announced in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

We recognized this standard in our opinion concerning the appeal of the appellant's accomplice, Carnell Jackson:

"As recently stated by the United States Supreme Court in Wainwright v. Witt, [469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) ] 53 U.S.L.W. 4108, 4110 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 [100 S.Ct. 2521, 2526, 65 L.Ed.2d 581] (1980):

" 'This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would present or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.' (Emphasis added in Adams.)

"In holding that the standards announced in Adams rather than the standards of Witherspoon v. Illinois, 391 U.S. 510 [89 S.Ct. 1770, 20 L.Ed.2d 776] (1968), should be applied to scrutinize the dismissal for cause of jurors who express opposition to the death penalty, the Court stated that 'this standard likewise does not...