Jackson v. State

• Decision Date: 09 April 1985
• Docket Number: 6 Div. 767
• Citation: 516 So.2d 726
• Parties: Carnel JACKSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 726

516 So.2d 726

Carnel JACKSON v. STATE.

6 Div. 767.

Court of Criminal Appeals of Alabama.

April 9, 1985.

As Modified on Denial of Rehearing

June 11, 1985.

Orson L. Johnson, George W. Andrews III and L. Dan Turberville, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little, Rivard Melson and Ed Carnes, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

Carnel Jackson, the appellant, was indicted in a three-count indictment for the capital murder of Myra Faye Tucker and Terry Wayne Tucker, under §§ 13A-5-31(a)(10), (2), and (3), Code of Alabama (Supp.1978) (repealed 1981), respectively. ¹

Upon conclusion of the State's evidence, the trial court, on motion of appellant, excluded Count 2, charging intentional murder during a robbery, for insufficient evidence. The case went to the jury on Counts 1 and 3, which are as follows:

"CARNEL JACKSON ... did, by one act or a series of acts, unlawfully, and with malice aforethought, intentionally cause the death of Myra Faye Tucker, a human being, by shooting her with a shotgun, and unlawfully and with malice aforethought did intentionally cause the death of Terry Wayne Tucker, a human being, by shooting him with a shotgun, in violation of § 13A-5-31(a)(10) of the Alabama Criminal Code.

" ...

"3rd: CARNEL JACKSON, a male, did engage in sexual intercourse with Myra Faye Tucker, a female, by forcible compulsion, and did forcibly ravish said Myra Faye Tucker, and in the course of said rape, the said CARNEL JACKSON did intentionally cause the death of another person, the said Myra Faye Tucker, by shooting her with a shotgun, in violation of § 13A-5-31(a)(3) of the Alabama Criminal Code."

Jackson pleaded not guilty. Prior to trial he had filed a written plea of not guilty by reason of mental disease which caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, but just prior to commencement of trial, his attorney stated to the court that Jackson would only enter a plea of not guilty. In his opening statement to the jury, Jackson's counsel stated, "To this indictment Carnel Jackson pleads not guilty." On November 19, 1981, the jury returned verdicts of guilty of the capital offenses charged in Counts 1 and 3.

At the sentence-determining phase conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1980), the jury fixed appellant's punishment at death. Thereafter, the trial court held a sentencing hearing and after weighing the aggravating and mitigating circumstances, and considering the fixing of the punishment of death by the jury, sentenced appellant to death by electrocution.

The bodies of Myra Faye Tucker and her husband, Terry Wayne Tucker, were discovered on an old mining road in Jefferson County, Alabama, on January 17, 1981. They were lying 15 to 20 feet apart. Found inside the blouse of Mrs. Tucker was a crumpled partial South Central Bell telephone bill bearing the number "925-9087" and the name "Godbolt." Three recently fired Remington Peters .12-gauge shotgun shells were found near the bodies. Two were marked "Express Power Piston 6" and one "Express Power Piston 5." There was a "depression" in the ground with the plastic wadding from a shotgun shell lying 12 inches from it. Mrs. Tucker had been shot once in the chest from a distance of 5 to 7 feet, and Mr. Tucker had been shot once in the back from a distance of 2 to 4 feet. They had been shot and killed where their bodies were found, and they had been dead for a period of a few hours to not more than twenty-four hours.

The autopsy of Mrs. Tucker's body disclosed that the massive injuries from the single shotgun blast were the cause of death. Microscopic examination of swab smears taken from her oral cavity, rectum, and vagina disclosed the presence of seminal fluid and sperm cells in all three body cavities. The seminal fluid and sperm cells from the vaginal cavity were from a male with a blood "ABO type O, secretor." The presence of sperm in the vagina was consistent with sexual intercourse. No determination as to the blood type was possible from the seminal fluid and sperm cells found in the oral and anal cavities. Both Mr. and Mrs. Tucker had type A blood. Seminal fluid and sperm cells from an ABO type O, secretor were also found on Mrs. Tucker's panties.

The autopsy of Mr. Tucker's body disclosed that he died from massive injuries caused by a single shotgun blast in the back. He had also suffered recent blunt force injuries to his head which caused a subdural hematoma and, also, abrasions to the front and back of his head and neck.

Shortly after the discovery of the bodies, the victims' automobile, stripped of its tires and partially burned, was discovered some distance away.

On January 21, 1981, appellant and Jerry Steven Godbolt ² were arrested. On January 26, 1981, Wayne Anthony Agee ³ was arrested. All three were charged with the murder of the Tuckers. At the time this incident occurred, appellant was 17 years old, Godbolt was 21 years old, and Agee was 19 years old.

Specimens of blood and saliva were taken from Jackson, Godbolt, and Agee and analyzed. Appellant's blood type was ABO type O, secretor. Godbolt's was also ABO type O, secretor. Agee's was type A.

On January 23, 1981, a .12-gauge Remington Sportsman shotgun was found in the yard of Godbolt's mother. There were blood stains on the gun, but an insufficient amount to determine whether it was human blood. A firearms expert testified that in his opinion all three shotgun shells found at the scene of the crime were fired from this shotgun. The shotgun was semi-automatic, the type that ejected empty shells automatically when fired. The shotgun belonged to Godbolt.

The firearms expert opined that the shell wadding retrieved near the bodies was from a Remington Peters .12-gauge shotgun shell. He was also of the opinion that the shot taken from Mrs. Tucker's chest were number 6 shot, and that the wadding taken from her chest was from a Remington Peters .12-gauge shotgun shell. He was further of the opinion that the shot taken from Mr. Tucker's back were number 5 shot, and that the wadding taken from the wound was from a Remington Peters .12-gauge shotgun shell.

A witness for the State, William Cole, testified that he had known appellant, Godbolt, and Agee for about four years. He testified that he had seen them together a few times and that he specifically saw them together at a party in Bessemer the night of the murder of the Tuckers. He stated that they arrived together in Agee's automobile, and that they later told him they were going to leave. He did not see them at the party after that, but later, about midnight, he saw Agee's automobile coming through the "project" about 300 feet from where Godbolt lived. The next morning (Saturday) around 9 or 10 o'clock, he went to appellant's house in the project, but appellant was not at home. Cole then went to Godbolt's apartment in the project and Godbolt and Agee were there. While there, he observed a shotgun standing in the corner of the room. He testified that it belonged to Godbolt, and he identified the shotgun in evidence as the same one he had previously seen in Godbolt's apartment. He further stated that appellant was coming toward Godbolt's apartment when he was leaving.

On September 8, 1981, Sgt. Ballard of the Birmingham Police Department received a telephone call from a person who identified himself as appellant and who asked to speak to Sgt. Gay, the detective in charge of the Tucker investigation. Sgt. Ballard advised the caller that Sgt. Gay was not in, and the caller left for Sgt. Gay the message that "he wanted Sgt. Gay to come to the County Jail and talk to him, that it was very important." Upon receiving the message, Sgt. Gay, accompanied by a Sgt. Miller, went to the Jefferson County Jail and called upon appellant. Sgt. Gay informed appellant of his Miranda rights, whereupon appellant made an oral statement implicating himself in the crime. We quote verbatim from the record Sgt. Gay's testimony concerning the oral statement of appellant:

"Q. And what did you--what was the conversation between you and Carnel Jackson on this occasion?

"A. Well, I went to the D cell, where he was and I asked Carnel did he want his attorney, and he said, 'No,' then I read him these rights. He said he didn't want to talk in front of Sergeant Miller, who was with me, and Sergeant Miller walked out. He said, 'I know it's your job to put people in jail, and I know when people violate the law you work hard to put people in jail.' He said, 'I don't hold that against you.' He said, 'I'm going to be tried first and no matter how my case turns out I will testify against Godbolt and Agee, because we all three were together.' I asked him if he had talked to his attorney about this and he said, 'No, I don't need to talk to him, because I have made up my mind to tell about it from the beginning.' He said, 'You know there are more people out there that know about it than you have as witnesses,' and I said 'Yes, I know,' and he said, 'After my trial I'll tell you.' I said, 'You don't want them to testify against you?' and he said, 'That's right.' He said it was Godbolt's idea. They were supposed to rob some place. He said he was under drugs 'when I killed the two people, all three of us was on drugs.' He said Godbolt shot into the ground, dirt flew up in his face and that pissed him off. He grabbed the shotgun, he shot her first and then him."

Appellant called several witnesses to testify concerning his various motions. He called one witness to testify before the jury during the trial in chief, Dr. John J. Callahan, a psychiatrist, who testified that he had examined appellant and that it was his opinion that appellant was functioning in either the dull normal or the borderline range of intelligence. He stated that his I.Q. range was between 70 and 85. On...