Grayson v. State

• Decision Date: 31 January 1984
• Docket Number: 7 Div. 3
• Citation: Grayson v. State, 479 So.2d 69 (Ala. Crim. App. 1984)
• Parties: Darrell GRAYSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 69

479 So.2d 69

Darrell GRAYSON v.STATE.

7 Div. 3.

Court of Criminal Appeals of Alabama.

Jan. 31, 1984.

Rehearing Denied March 20, 1984.

Richard W. Bell of Bell, Allen & Johnson, Pelham, for appellant.

Charles A. Graddick, Atty. Gen., and James E. Hasser and Joseph G.L. Marston, III, Asst. Attys.Gen., for appellee.

BOWEN, Presiding Judge.

Darrell Grayson, the appellant, was indicted for the capital offense involving the nighttime burglary and intentional killing of Annie Laura Orr.Alabama Code Section 13A-5-31(a)(4)(1975).Both counts of the indictment charged Grayson with breaking and entering with the intent to commit robbery and intentional killing.A jury found Grayson "guilty of the capital offense as charged in Count One and Two of the indictment."After a punishment hearing, the jury "fix(ed)the defendant's punishment at death."After a sentencing hearing, the trial judge followed the jury's recommendation and sentenced Grayson to death by electrocution.

Victor Kennedy was Grayson's accomplice and co-defendant.We affirmed his conviction and death sentence in Kennedy v. State, 472 So.2d 1092(Ala.Cr.App.1984).

I

Initially, Grayson argues that his fundamental Sixth Amendment right to the effective assistance of counsel was denied because, as an indigent, he was not provided funds with which to hire experts.

"The question whether an indigent defendant is entitled to state-furnished funds for investigative purposes, tests, expert testimony, and other assistance in his defense in criminal cases has been recognized as an ever-growing problem."Annot.34 A.L.R.3d 1256, Section 2(b)(1970).In Thigpen v. State, 372 So.2d 385, 386(Ala.Cr.App.), cert. denied, Ex parte Thigpen, 372 So.2d 387(Ala.1979), this Court held that the denial of funds to pay experts does not amount to a deprivation of constitutional rights, despite the contention that the right to the effective assistance of counsel is meaningless without such assistance.Despite that holding, it seems clear, under the developing case law, that both federal and state constitutional guarantees may require a state to provide an indigent criminal defendant with expert assistance.34 A.L.R.3d at Section 3(a).However, even those cases which recognize the existence of such a constitutional right do not establish it as an absolute right in every case.The threshold question requires the showing of a need for the requested services.Ex parte Argo, 42 Ala.App. 546, 547, 171 So.2d 259(1965).We recognized in Gwin v. State, 425 So.2d 500, 508(Ala.Cr.App.1982), cert. quashed, 425 So.2d 510(Ala.1983), that before determining whether fundamental fairness requires that an accused be afforded the opportunity to have an expert of his choosing examine a piece of "critical evidence whose nature is subject to varying expert opinion", it should first be determined that the evidence is "critical".Evidence is "critical" for purposes of the due process clause if it could induce a reasonable doubt in the minds of enough jurors to avoid a conviction when that evidence was developed by skilled counsel and experts.White v. Maggio, 556 F.2d 1352, 1357-58(5th Cir.1977);Gwin, supra.

We recognize that due process and fair play may demand that the accused be furnished with assistance of experts in preparing his defense.Nevertheless, under the facts of this case, the State was not constitutionally required to provide this indigent with the services of expert witnesses.Hoback v. Alabama, 607 F.2d 680, 682(5th Cir.1979).

In making his finding of facts, the trial judge found that none of the latent fingerprints found at the scene matched either Grayson or his accomplice, that semen found at the scene could be typed as consistent with that of Grayson, that the blood found on Grayson's shirt was consistent with Mrs. Orr's blood type, and that a hair taken from Grayson's sock at the time of his arrest was consistent with the head hair of Mrs. Orr.At best, the expert testimony could only negate the possibility that Grayson could not have committed the crime.Each expert testified, in effect, that there was no way that the various bodily substances could be positively identified as having come from one particular individual.The record contains no suggestion that the test results were subject to "varying expert opinion" or that there was any question about the validity or accuracy of the tests performed.

Here, the facts show that Grayson requested funds to employ experts.The trial judge granted Grayson's motion "up to the statutory financial limits of Alabama law."SeeBailey v. State, 421 So.2d 1364(Ala.Cr.App.1982).The judge also granted Grayson's motion for discovery and ordered the State to produce, among other items, "any and all scientific reports, (and) a presentation of all the physical evidence to be presented at trial."In addition, Grayson was given a complete physical and mental examination at state expense.

Even those cases which recognize that the effective assistance of counsel embraces the allowance of funds for an indigent defendant to obtain investigative services to assist in the preparation of his defense hold that such an allowance is far from automatic and depends on the circumstances of the particular case.

"Our reflections on this point are congruent with the standard applicable when counsel for an indigent defendant seeks funds to obtain investigative services to assist in the preparation of the defense.While in general effective assistance of counsel embraces such an allowance it is far from automatic and 'depends on the facts and circumstances of a particular case', with funds provided when counsel makes a showing of necessity of the specific subjects to be explored and of their likely materiality."United States v. DeCoster, 624 F.2d 196, 210(D.C.Cir.1976).

The circumstances of this case do not support Grayson's contention that his constitutional right to the effective assistance of counsel was violated because he was not afforded funds for the hiring of experts.

II

Grayson further argues that the State of Alabama deprives indigent capital defendants of equal protection of the law because lawyers in both capital and noncapital cases are paid at the same rate.Grayson argues, much as he did in Issue I, that when the state's appointed counsel compensation statute(Alabama Code Section 15-12-21(1975)) is "applied to an indigent defendant charged with a capital offense it falls miserably short of providing defense counsel with adequate funds with which to provide an effective defense."This issue was partially answered in Issue I.The remainder of the answer is found in Sparks v. Parker, 368 So.2d 528, 530(Ala.1979), where our Supreme Court stated:

"In presenting this claim, appellants assert that if attorneys are underpaid, they cannot satisfactorily perform the constitutional guarantee of right to counsel.However, no facts or data are shown in the record in support of this contention.Moreover, Judge Parker indicated in his June 28, 1978, order that the trial court'has not observed any great disparity between appointed and retained counsel' and notes that '(t)he same attorneys that are appointed are also the ones that are retained.'Addressing a similar contention, the New Jersey court made the following observations in State v. Rush, 46 N.J. 399, 405-407, 217 A.2d 441, 444-445(1966):

" 'As to the right of an accused, appellant contends that counsel, if unpaid, cannot by his performance satisfy the constitutional guarantee of the right to the aid of counsel.We know of no data to support a claim that an assigned attorney fails or shirks in the least the full measure of an attorney's obligation to a client.Our own experience, both at the bar and on the bench, runs the other way.A lawyer needs no motivation beyond his sense of duty and his pride.' "

III

Grayson contends that his motion for change of venue was due to be granted because the "pretrial publicity coupled with the nature of the crime and the fact that the deceased was well-known in the (small) community created such an air of prejudice in the county" as to deny him a fair trial.We disagree.In Kennedy v. State, supra, we treated this issue with regard to Grayson's co-defendant.Much of what we said there applies here.

The crime was committed on December 24, 1981.Trial was held May 31, 1982.Between those two dates 13 articles concerning the crime were printed in The Shelby County Reporter.Kennedy was tried in February of 1982.A telephone survey of Shelby County residents was conducted.The pollster admitted that a portion of the residents of the county may not have been included in the survey.

A survey was also conducted before Kennedy's trial.Although the surveys were conducted by different individuals, their findings were similar.Here, the pollster's findings were that 125 people responded and of that number 48.8% had heard, read, or seen reports of Mrs. Orr's death; 30.4% had heard, read, or seen information concerning the arrest of two individuals; 17.6% had heard, read, or seen reports of Kennedy's conviction; 12.8% had heard, read, or seen reports concerning Grayson; and 24% admitted a knowledge of Mrs. Orr or members of her family.This survey does not show either an actual prejudice against Grayson or a community saturated with inherently prejudicial information or feeling.

Further, in qualifying the jury venire, the trial judge asked, "Do any of you have a fixed opinion as to the guilt or as to the innocence of the defendant which will bias your verdict?" and "Do you know anything about the facts of this case?"There was no response to either question.

The constitutional requirement of juror impartiality does not limit jury membership to persons ignorant of the facts and issues involved in the case.Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751(1961);Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589(1975)....