Holladay v. State

• Decision Date: 20 September 1988
• Docket Number: 7 Div. 913
• Citation: 549 So.2d 122
• Parties: Glenn HOLLADAY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 122

549 So.2d 122

Glenn HOLLADAY, alias v. STATE.

7 Div. 913.

Court of Criminal Appeals of Alabama.

Sept. 20, 1988.

Rehearing Denied Nov. 10, 1988.

Kathleen M. Warren and Howard B. Warren, Gadsden, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Glenn Holladay was indicted for the capital offense of "murder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct," in violation of § 13A-5-40(a)(10), Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment" and recommended the death sentence by a vote of 12-0. The trial judge accepted the jury's recommendation and sentenced this appellant to death by electrocution.

Richard John Hearty testified he met the appellant in Nashville, Tennessee in August of 1986. The appellant identified himself as Bobby Hill and stated he was from Gadsden, Alabama. On August 23, 1986, the appellant visited Hearty at his residence. While there, the appellant told Hearty that his ex-wife's name was Becky and "she had a new boyfriend and that if she didn't stop seeing him, he [the appellant] was going to kill her." (R. 1324-1325).

In August of 1986, the appellant's former wife, Rebecca Ledbetter Holladay, was living in a mobile home in Gadsden, Alabama. On the night of August 24-25, 1986, Rebecca Holladay retired to her bedroom to go to sleep. Also present in the mobile home that night were Rebecca's boyfriend, David Robinson, her son, Shea Ledbetter, her sister, Katrina Ledbetter, and Larry Thomas, Jr., her son's friend who lived nearby. At some point, Larry Thomas, Jr., left the mobile home to return to his residence for the purpose of getting something to eat. As Thomas walked outside, the occupants of the trailer heard two gunshots outside. Thomas's body was later discovered outside the trailer. Immediately thereafter, the appellant forced his way inside his ex-wife's trailer. Upon entry, the appellant shoved Katrina Ledbetter as she was calling to her sister the fact that the appellant was inside the trailer.

As the appellant proceeded down the hallway, he stopped at Shea Ledbetter's bedroom and attempted to turn on the lights. After the appellant left Shea's bedroom, Shea managed to run out of the trailer. Shea and Katrina ran to Larry Thomas's parents' home.

The appellant continued down the hallway and entered the back bedroom where he found David Robinson and Rebecca Holladay. The appellant shot David Robinson in the chest and arm. He shot Rebecca Holladay in the back of the head. David Robinson, Larry Thomas, Jr., and Rebecca Ledbetter Holladay all died as a result of the gunshot wounds they received on the night in question.

On the afternoon of August 29, 1986, the appellant called Doris Ruth Nance, a neighbor of the appellant's father. He told Nance that he had "done a bad thing." (R. 1437). The appellant stated that he had not meant to kill Larry Thomas. He thought Thomas was his ex-wife's boyfriend.

The appellant was apprehended for this offense on October 9, 1986, after he was shot by a police officer in Gainesville, Florida.

The appellant testified in his own behalf. He denied being at Rebecca Holladay's trailer home on the night in question and stated he was in Nashville, Tennessee at the time. He denied killing any of the victims.

I

A

The appellant contends that his motion for change of venue should have been granted because of the pre-trial publicity which surrounded his case. He argued that this made it impossible for him to obtain a fair and impartial trial in Etowah County, Alabama.

"A defendant is entitled to a change of venue if he can demonstrate to the trial court that he cannot receive a fair and impartial trial in the county where he is to be tried. Ala.Code, § 15-2-20 (1975); Nelson v. State, 440 So.2d 1130 (Ala.Crim.App.), cert. denied, 440 So.2d 1130 (Ala.1983); Anderson v. State, 362 So.2d 1296 (Ala.Crim.App.1978).

" 'There are two situations in which a change of venue is mandated. The first is when the defendant can show that prejudicial pre-trial publicity "has so saturated the community as to have a probable impact on the prospective jurors" and thus renders the trial setting "inherently suspect." McWilliams v. United States, 394 F.2d 41 (U.S.C.A. 8th Cir.1968); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In this situation, a "pattern of deep and bitter prejudice" must exist in the community. Irvin v. Dowd, [366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) ] supra.

" 'The second situation occurs when the defendant shows "a connection between the publicity generated by the news articles, radio and television broadcasts and the existence of actual jury prejudice." McWilliams v. United States, supra.'

"Nelson, 440 So.2d at 1131-32."

Thomas v. State, 539 So.2d 375 (Ala.Crim.App.1988). See also Robinson v. State, 430 So.2d 883 (Ala.Crim.App.1983).

There is no doubt that there was extensive publicity surrounding this case. At the time this appellant allegedly committed the capital offense at issue, he was an escapee from the Cherokee County, Alabama Jail. One of Rebecca Holladay's relatives was also murdered within several weeks of the murders in question in this case. The appellant was a prime suspect in that murder as well. The appellant was at large until he was shot and captured by a deputy with the Alachua County Sheriff's Department in Gainesville, Florida. These facts were extensively reported by the press.

Certainly there was widespread media coverage of the events surrounding this case. See Clerk's Record 134-744. However, in order to obtain a change of venue, it must be shown that the pre-trial publicity surrounding the case was inherently prejudicial. Anderson.

After our review of the defense's exhibits relating to this issue and the testimony adduced at the hearing on this question, we conclude that the publicity in this case was factual and objective. The bulk of the publicity surrounding this case dealt with the details of the appellant's offense and the developments in his case.

The appellant seems to contend that the pre-trial publicity made the community fearful of the appellant, and thus, prejudiced him within the community. While we admit the community was afraid of the appellant before his capture, we believe this was due more to the fact that "there was a killer on the loose" than to statements by the media concerning the appellant.

The great majority of the publicity in this case occurred between the time of the murders in August of 1986 and the appellant's capture in October of 1986. Thereafter, the publicity in this case greatly diminished. The appellant's trial took place in June of 1987, seven months after the bulk of the media coverage in this case. The passage of time cannot be ignored as a factor in bringing objectivity to a case in which there has been extensive pre-trial publicity. Robinson v. State, 430 So.2d 883 (Ala.Crim.App.), cert. denied, 430 So.2d 883 (Ala.1983); Langham v. State, 494 So.2d 910 (Ala.Crim.App.), cert. denied, 494 So.2d 910 (Ala.1986).

Thus, we do not believe that the appellant has shown that the community was saturated with inherently prejudicial pre-trial publicity to the extent he could not receive a fair and impartial trial in Etowah County, Alabama.

Furthermore, we do not believe that the appellant has shown actual jury prejudice as a result of the alleged pre-trial publicity.

The way to demonstrate actual jury prejudice is through an extensive and thorough voir dire examination. Anderson. There is no question that the voir dire examination in the case at bar was both thorough and extensive as to each prospective juror's knowledge of and feelings about this case. The fact that virtually every prospective juror had some knowledge of the appellant's case does not mean the appellant could not receive a fair and impartial trial. See Thomas. Merely because these jurors were not totally ignorant of the facts and issues in this case, does not mean they were unable to render a fair and unbiased verdict. Anderson.

There were 101 prospective jurors in this case. One juror was excused. The trial judge granted 29 of the appellant's challenges for cause. Of these jurors, at least eight had a fixed opinion based on pre-trial publicity. Another five had fixed opinions as to the appellant's guilt based on other reasons (knew the victim or family). The other 16 prospective jurors expressed reservations as to whether they could be fair based on the pre-trial publicity or other reasons. Obviously, the trial judge granted the challenges for cause as to these 16 jurors out of an abundance of caution. All of the prospective jurors who either had a fixed opinion or expressed reservations about their impartiality were excused. Thus, the appellant has failed to demonstrate a connection between the pre-trial publicity in this case and the existence of actual jury prejudice.

Thus, the trial judge correctly denied the appellant's motion for a change of venue.

B

The appellant further contends that the trial court erred by denying his motion for extraordinary expenses for a public opinion poll. We disagree.

" 'The 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), not through extensive and expensive surveys." 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).

II

The appellant contends that the trial court erred by admitting into evidence two oral statements made by him after he was Officer Pete Brigette arrived at the scene where the appellant was apprehended shortly after he had been shot. The appellant had been shot in the abdomen and in the left arm and chest area. The paramedics transported the appellant...