Henderson v. State

CourtAlabama Court of Criminal Appeals
Citation583 So.2d 276
Docket Number7 Div. 68
PartiesJerry Paul HENDERSON v. STATE.
Decision Date03 August 1990

Jonathan Adams and R.D. Pitts, Talladega, for appellant.

Don Siegelman, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Jerry Paul Henderson, was convicted of the murder of Jerry Wayne Haney, a capital offense as defined by §§ 13A-5-40(a)(2) and 13A-5-40(a)(7), Code of Alabama 1975. Following a sentencing hearing, the jury recommended that appellant be sentenced to death. The trial court, after complying with § 13A-5-47, Code of Alabama 1975, sentenced the appellant to death by electrocution.

The evidence tended to show that late in December 1983, Judy Haney and her children fled their home in Talladega County, Alabama (allegedly to escape the abusive environment that her husband, Jerry Haney, had created). Mrs. Haney and her children went to stay at the home of Jerry and Martha Henderson in Calhoun, Georgia. Martha Henderson and Judy Haney are sisters.

Shortly after Mrs. Haney's arrival in Georgia, she and the appellant began discussing a plan pursuant to which Mrs. Haney would pay the appellant $3,000 in exchange for the murder of her husband. The appellant agreed to the proposed scheme. It was decided that Mr. Haney would be murdered on January 1, 1984.

On New Year's Day, the appellant went to the home of Michael Wayne Wright, an old friend and hunting partner. The appellant asked Mr. Wright if he had any shotgun shells he could give the appellant. Mr. Wright replied that he did not, but that his friend Robert Lewis probably did. They went to the home of Mr. Lewis, and his wife Wanda gave them the requested shotgun shells.

Later that night, the appellant and his wife were entertaining friends. The appellant complained of having the flu and retired to his bedroom. Once there, he turned out the light and let himself out of the window. He then got into his pickup truck and drove to Alabama.

Following Mrs. Haney's directions, the appellant parked his truck in a wooded area adjacent to the Haney home. The appellant then walked through the woods and up to the front door of the house. He put his loaded shotgun down on the porch and knocked on the door. Mr. Haney, who was in bed, heard the knocking and went to the door. The appellant told Mr. Haney that he had brought Mrs. Haney and the children back to Alabama, but that the truck had run out of gas and they were sitting on the side of the road. Mr. Haney agreed to help the appellant get some gas.

Mr. Haney changed his clothes and came outside, locking the front door behind him. At this time, the appellant fired the first shot at his victim, hitting him in the chest. The blast knocked Mr. Haney to the ground and while he was on the ground The appellant then rolled the victim onto his stomach and took his wallet out of his back pocket. On the way back to his pickup truck, he broke the light on the front porch. At approximately 11:00 p.m., the appellant stopped in Oxford, Alabama and called his wife and Mrs. Haney from a Waffle House restaurant to tell them that Mr. Haney was dead.

the appellant shot him again, this time grazing his ear. After this shot, the victim got to his feet and ran around to the back of his house, collapsing on the back porch steps and begging for his life. The appellant placed the shotgun on Mr. Haney's bottom lip and fired the last shot.

When the appellant arrived back home, he took the money, approximately $100, out of the wallet and Mrs. Haney took the victim's Social Security card. Mrs. Haney paid the appellant about $30 for his expenses on the trip and kept the remainder of the cash. The wallet was later destroyed. The shotgun was thrown into the river and was never recovered.

On January 2, 1984, Mrs. Haney contacted Lieutenant Billy Haney of the Talladega Police Department, the brother of Jerry Haney, the victim. Mrs. Haney requested that Lieutenant Haney go check on her husband because she had been trying to call him, but had been unable to get an answer. Lieutenant Haney went to the residence, where he discovered the body of his brother.

Jerry Wayne Haney's corpse was taken to the Department of Forensic Sciences for an autopsy. He had one shotgun wound to his left lower arm which penetrated the arm and entered his left chest. There was also a wound which grazed the victim's left ear. Finally, there was one shotgun wound to Haney's mouth which caused the mouth to be torn at the corners. This wound fractured almost every bone in the victim's skull, fractured the first two cervical vertebrae, and drove a tooth into Haney's spinal cord. It was this gunshot wound to the mouth that killed Jerry Haney.

When the investigation of the murder of Jerry Haney officially commenced, Jerry Henderson was the key suspect. On January 30, 1984, he reported to the police that his pickup truck had been broken into and his shotgun had been stolen. However, the circumstances surrounding the alleged theft were very suspicious.

For the next three years, the authorities searched for clues in the murder case of Jerry Wayne Haney. Finally, in the fall of 1987, Martha Henderson agreed to turn State's evidence. On September 9, 1987, law enforcement officials placed a "nagra unit" in the back seat of Mrs. Henderson's car to tape record conversations between her and her husband, the appellant. That night, Mr. and Mrs. Henderson got together and talked about the murder while sitting in Mrs. Henderson's car. The police got every word on tape.

On September 12, 1987, the appellant was arrested in Rome, Georgia, for the capital murder of Jerry Wayne Haney. Very early the next morning, the appellant confessed to the murder at the Floyd County jail in Georgia, and his confession was tape recorded.

I

The appellant first contends that his motion for change of venue should have been granted because, he argues, he could not receive a fair and impartial trial in Talladega County, Alabama, due to extensive pretrial publicity.

The principles controlling this issue were set out by our Supreme Court in Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985).

"Absent a showing of abuse of discretion, a trial court's ruling on a motion for change of venue will not be overturned. Ex parte Magwood, 426 So.2d 929, 931 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983). In order to grant a motion for change of venue, the defendant must prove that there existed actual prejudice against the defendant or that the community was saturated with prejudicial publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); " 'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court....'

Franklin v. State, 424 So.2d 1353 (Ala.Crim.App.1982). Newspaper articles or widespread publicity, without more, are insufficient to grant a motion for change of venue. Anderson v. State, 362 So.2d 1296, 1298 (Ala.Crim.App.1978). As the Supreme Court explained in Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961):

"The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975). Thus, '[t]he proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.' Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim.App.1978)."

See also Donahoo v. State, 552 So.2d 887, 890 (Ala.Cr.App.1989); Moye v. State, 527 So.2d 158, 159-60 (Ala.Cr.App.1987).

The appellant, in support of his motion for change of venue, submitted copies of numerous articles which had appeared in the Talladega Daily Home, the local newspaper. The articles had appeared in the newspaper at various times during the four years between the date of the offense and the date appellant's trial began. The early articles made no mention of the appellant, since law enforcement officials were unable to make any arrests until over 3 1/2 years after the murder. However, in all of the articles dating from September 1987 until the date of appellant's trial, the appellant's name was mentioned. In many of the articles, the appellant's name was mentioned merely as one of numerous individuals due to appear in court on a given date. Several of the articles, however, concerned the appellant's case exclusively.

This alone, however, does not necessarily mean that the appellant could not receive the fair and impartial trial guaranteed him by our constitution. Fike v. State, 447 So.2d 850, 857 (Ala.Cr.App.1983). Indeed, as this Court stated in Anderson v. State, 362 So.2d 1296, 1298-1300 (Ala.Cr.App.1978):

"Newspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).

"....

"... Generally newspaper articles which objectively report the commission of a crime, do not carry inflammatory headlines, and do not editorialize on the facts in a manner to inflame the community or create an atmosphere of prejudice are an insufficient basis on which to grant a motion for a change of venue. Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975)."

Our examination of the articles submitted by the appellant reveals that all of the articles were objective and factual, detailing the crime and...

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