Herriman v. State

• Decision Date: 13 January 1987
• Docket Number: 1 Div. 773
• Citation: 504 So.2d 353
• Parties: Jack Jay HERRIMAN II v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 353

504 So.2d 353

Jack Jay HERRIMAN II v. STATE.

1 Div. 773.

Court of Criminal Appeals of Alabama.

Jan. 13, 1987.

Rehearing Denied March 10, 1987.

Al Pennington and Arthur J. Madden, III, Mobile, for appellant.

Charles A. Graddick, Atty. Gen. and Rivard Melson, Asst. Atty. Gen., for the State.

McMILLAN, Judge.

The appellant, Jack Jay Herriman II, was charged with the capital offense of intentional murder committed during the course of a robbery. He requested youthful offender treatment, which was denied. The appellant was found guilty and sentenced to life imprisonment without parole pursuant to the recommendation made by the jury and subsequently agreed to by the trial court.

The appellant made a statement concerning his involvement in the offense at hand to Chief Deputy Nicholson, which was reduced to writing, read by the appellant, and signed on each page by the appellant. Although the appellant challenged the admissibility of this statement, we will now quote from it in order to relate the facts of this case and the issue of the statement's admissibility will be subsequently addressed:

"After having the above rights fully explained to me and having understood these rights, I do hereby before and during the making of this statement knowingly, intelligently, and voluntarily waive and give up said rights and I did hereby make the following voluntary statement without any compulsion or persuasion of any kind being used on me, and for the sole and only reason that the facts stated are true, vis: My name is Jack J. Herriman, II. I am nineteen years of age. I was born in Flint, Michigan....

"On March 16, 1983, Rodney Connolly and I left Michigan....

"... Rod got into my car. We drove and talked. He told me that he would give me fifty dollars and pay for me to take him to the Ohio State Line. And I agreed.

"... He offered for me to come down with him to Alabama and he said we could get a job because Kevin Charaneice [phonetic] was working for his uncle at Pizza Inn.

"We got to Alabama and stayed at Kevin's apartment, which was about March 17, 1983. We stayed there until April 4 or 5. That was when we got evicted. Rod's girlfriend, Kathy Sands, needed some help to move as she was moving from a location with some friends to a place by herself. Rod and I helped her move. For helping her move, she let us stay there for about April 6th or 7th. She did not say how long we could stay there.

"While we were staying there, she got Rod a job, Buccaneer Yacht Club, bartending on weekends, which he made about $70 a week. Everything was all right for the first couple of weeks.

"She started pushing me to get a job. I put in one application at Pizza Inn. I was going through the paper and saw ads for Crewship and I called....

"A few days later, about Sunday or Monday, me and Kathy really started to fight. That went on until about Tuesday when me and Rod left for a couple of days. While we at [sic] Kathy's, Rod had another girlfriend that he was seeing. Her name is Stacy Marie Bruner. While we were staying with Kathy, Rod had led Kathy to believe that Stacy was my girlfriend and had led Stacy to believe that Kathy was my girlfriend.

"The first night we were gone, me and Rod and Stacy went to the Buccaneer Yacht Club where Rod had all the keys to it. We stayed there and drank. Rod was drinking Cognac and I was drinking Wild Turkey and Coke. Stacy drank Long Island Tea. We stayed the night there.

"When we woke up, we changed--cleaned everything up and left. As we were leaving, Rod was locking the door and the alarm went off. From there we took a bottle of Cognac, Barcelona Rum, Seagram's V/O, a plastic license plate with Buccaneer Yacht Club on it. We took four or five styrofoam bottle coolers and a Michelob tapper.

"...

"... Rod told me to wait at Kathy's apartment and he would be at Stacy's house.

"I was in the apartment when Kathy came home for lunch. She asked me where Rod was. I told her I did not know. She took a shower. She came out of the shower and started fighting with me. She slapped me and I really got mad. I grabbed her nightgown, put it around her neck and strangled her.

"After that, I called Rod on the phone and told him to come on over there. After I hung up the phone with Rod, I took a shower. After I got out of the shower, Rod came over and we moved her into the bathtub and put a towel up over her face, shut the door. We went through her purse. She had ten, eleven dollars in her purse. Rod took that, her Advantage card, and the keys to her car.

"We met Stacy at the lake at the end of Old Government Street where we drank the Seagram's. When we were drinking the Seagram's, two guys came walking up to us. One [sic] name was Stacy and the other guy was Paul. We talked for a while. After we left there [sic], to an Advantage [automatic teller] place and Stacy punched the buttons and got $40.

"Immediately after that, she put the card in again, pushed some more buttons and got another hundred dollars....

"...

"... That night Rod said I should go back to Kathy's apartment and grab her TV and adding machine. We had taken her gold watch when we took the things from her purse. I went back alone, went into the apartment, turned on the fan in the bathroom, took the TV and adding machine, went back to Solomon's where Rod was waiting for me.

"...

"... The next morning Rod and I got washed up in the lake. We left there. We tried to use the Advantage Card, but it wouldn't work. So, we went to Abel Pawn Shop where I pawned her TV and got Rod's watch out of pawn. We went to several Advantage places and none worked. Then we went to First Federal Gold and Silver Exchange where Stacy sold the gold watch for a hundred and one dollars. I sold the adding machine there for ten. We went to Stacy's house where she took a shower. We then went to another Advantage place and it didn't work. Stacy dropped Rod and me at Municipal Park. She went home, changed clothes for work. She came back to pick us up. She said they had found Kathy and it was on the TV news.

"We went to the Advantage place at Airport Boulevard and Cottage Hill where we tried Fast Cash and got $25. We then went to Solomon's to take Stacy to work. Rod and I went back to Kathy's car where I got out Rod's black leather jacket and two shirts that were in it.

"We went back to Solomon's where Rod suggested to Stacy that Rod and I take Stacy's car and leave. So then she said okay. And I went to Gaylord's Department Store and had a spare key made. I went back to Solomon's. Rod and I drank a pitcher of beer and left.

"We then got on the freeway and went west. Just outside of Mobile, we saw two hitchhikers and picked them up. They were the same two that were picked up with us by Texas Highway Patrol officers.

"...

"... I am really so sorry that I did it and wish that I could go back and change it. But I can't since I have been apprehended. I have asked the Lord for forgiveness. [sic] and I hope that he will forgive me.

"This statement is being made by me to Charles Nicholson and Bill Madding of the Freestone County Sheriff's Department. This statement is of my own free will and without threats and/or promises. I am not on drugs and have not had any alcoholic beverages in the past four days. I am of sound mind and realize what can happen as a result of this statement."

The appellant, Rod, and the two hitchhikers were arrested by the Texas authorities for speeding, whereupon it was learned that the appellant was being sought by Alabama officials in connection with this case.

At trial, Stacy Bruner testified that on the afternoon following the murder the appellant had described how he had killed Kathy. She testified that he stated that he waited for Kathy to come home from work and that she was not going to go back to work that afternoon. He told Stacy that when Kathy came out of the shower, he was waiting behind the bathroom door and strangled her with her nightgown. She testified that he further stated that it took about twenty minutes to kill Kathy and that, at first, she thought what he was telling her was a joke. She further testified that the appellant "made a comment to the effect that the stupid bitch deserved it."

I.

The appellant argues that the trial court erred in failing to order a preliminary hearing, as provided for under § 15-11-1, Code of Alabama (1975). However, the appellant was indicted prior to the preliminary hearing. The appellant alleges that the timing of the indictment infringed upon his rights by causing his preliminary hearing request to be denied and thereby obstructing his avenues to discovery.

"It so happens that at such a preliminary hearing a defendant obtains some information, and sometimes tremendously valuable information, as to evidence that is likely to be presented against him on the trial of his case. This, however, is merely a legitimate by-product of the process that is not embraced within the policy providing for it. A preliminary hearing is not a prerequisite to a valid indictment. ... Neither a preliminary hearing nor a failure to conduct a preliminary hearing impairs an indictment; nor does either substantially affect the course of a prosecution based upon an indictment."

Daniels v. State, 335 So.2d 412, 414 (Ala.Cr.App.1976).

"Constitutionally, a preliminary hearing is not necessary to satisfy the requisites of due process." Duncan v. State, 369 So.2d 885, 887 (Ala.Cr.App.1979). Although § 15-11-1, Code of Alabama (1975), establishes the right to a preliminary hearing where it is demanded within 30 days following the arrest, where an indictment is returned prior to the hearing, the accused is no longer entitled to the preliminary hearing.

"If the accused makes such a demand within thirty days of his arrest, the preliminary hearing must be held within a reasonable time following his demand; however, based on Duncan and the persuasive authority of Rule 5.1(a)(4) of the Proposed Alabama Rules of...