Jackson v. State, 6 Div. 746

CourtAlabama Court of Criminal Appeals
Writing for the CourtPATTERSON
Citation553 So.2d 647
PartiesCarnel JACKSON v. STATE.
Docket Number6 Div. 746
Decision Date21 July 1989

Page 647

553 So.2d 647
Carnel JACKSON
v.
STATE.
6 Div. 746.
Court of Criminal Appeals of Alabama.
July 21, 1989.
Rehearing Denied Aug. 25, 1989.
Certiorari Denied Dec. 1, 1989
Alabama Supreme Court 88-1568.

Page 648

L. Dan Turberville and James M. Wooten, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Carnel Jackson, was indicted April 17, 1981, in a three-count indictment, under the Alabama Death Penalty Act, 1975 Ala.Acts 213 (September 9, 1975), for robbery or an attempt thereof when the victim is intentionally killed, rape when the victim is intentionally killed, and murder in the first degree wherein two or more human beings are intentionally killed by one or a series of acts. §§ 13A-5-31(a)(2), (3), and (10), Code of Alabama (Supp.1978) (repealed 1981). 1

This case arose out of an incident involving Myra Faye Tucker and her husband, Terry Wayne Tucker, which occurred on

Page 649

January 17, 1981. The bodies of the Tuckers were discovered on an old mining road in Jefferson County, Alabama, on that date. They had been murdered where they were found, had been dead only a few hours, and had been killed by shotgun blasts. A few days thereafter, Jackson, Jerry Steven Godbolt, 2 and Wayne Anthony Agee 3 were arrested and charged with the crime.

The case was tried before a jury, and on November 19, 1981, the jury returned a verdict of guilty of two of the capital offenses charged in the indictment, i.e., rape when the victim is intentionally killed, and murder in the first degree when two or more human beings are intentionally killed by one or a series of acts, §§ 13A-5-31(a)(3) and (10). The count of the indictment charging robbery when the victim is intentionally killed was removed from the jury's consideration by the granting of a motion for a judgment of acquittal due to failure of proof. A sentencing determining hearing was held in accordance with Beck v. State, 396 So.2d 645 (Ala.1980), and the jury fixed appellant's punishment at death. Thereafter, the trial court held a separate sentencing hearing and, after weighing the aggravating and mitigating circumstances, and considering the jury's recommendation of the death sentence, sentenced appellant to death.

On appeal, we affirmed. Jackson v. State, 516 So.2d 726 (Ala.Cr.App.1985). The Alabama Supreme Court granted certiorari and remanded the case with instructions to afford appellant the opportunity to establish a prima facie case of purposeful discrimination in the selection of the petit jury which heard his case, in accordance with the holding and procedure outlined in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Ex parte Jackson, 516 So.2d 768 (Ala.1986). 4 We remanded the case to the trial court in accordance with our supreme court's instructions. Jackson v. State, 516 So.2d 774 (Ala.Cr.App.1987). Due return was made to this court advising us that an evidentiary hearing was held pursuant to Jackson and in accordance with Batson; that a prima facie showing of purposeful discrimination in the prosecutor's exercise of jury strikes was made; and that the prosecution was unable to produce race-neutral explanations for its peremptory strikes, while not conceding racial bias. The trial court sought instructions. It being clear to us that under these circumstances appellant was entitled to a new trial under the holdings in Jackson and Batson, we remanded the case again with instructions to enter the appropriate order. The trial court did so on October 16, 1987, setting aside the judgment of conviction and granting appellant a new trial. Jackson, 516 So.2d at 774-75.

The instant appeal is from appellant's second trial on the two counts of the indictment

Page 650

upon which he had been previously convicted, i.e., the rape and intentional killing of Myra Faye Tucker, § 13A-5-31(a)(3), and the intentional killing of Myra Faye Tucker and Terry Wayne Tucker by one or a series of acts, § 13A-5-31(a)(10), wherein he was convicted again after a jury trial on both counts as charged. The second trial was conducted in accordance with the bifurcated procedures outlined in Beck v. State. After a sentencing hearing, the jury recommended a sentence of life imprisonment without parole, the vote being nine for life without parole and three for death. The trial court then held a separate hearing and, after weighing the aggravating and mitigating circumstances, and considering the recommendation of the jury, sentenced appellant, on May 6, 1988, to life imprisonment without the possibility of parole. From this second conviction and sentence, appellant prosecutes this appeal. It is unnecessary to restate the general facts of the case. They are fully set out in Jackson, 516 So.2d at 735-37. Three issues are raised on appeal.

I.

Appellant contends, as he did in his first trial, that the trial court committed reversible error in denying his motion to suppress his alleged confession. The facts pertaining to the taking of the confession are set out in detail in our opinion rendered on the first appeal. 516 So.2d 741-46. We have carefully reviewed the record of the second trial now before us, including the evidence presented in support of the motion to suppress, and we find that this evidence is practically identical to that presented at the first trial and set out in our opinion. As in the first trial, appellant did not testify during the suppression hearing.

We have thoroughly reviewed the totality of the circumstances surrounding the confession, and we are again convinced that the confession was voluntarily given after a knowing and intelligent waiver, by appellant, of his Fifth and Sixth Amendment rights. No new...

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4 practice notes
  • Samuels v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 26, 1991
    ...the trial court's discretion and will be reviewed only to determine whether there has been an abuse of that discretion. Jackson v. State, 553 So.2d 647 (Ala.Crim.App.1989); Barnes v. State, 445 So.2d 995 (Ala.Crim.App.1984). Photographs of the crime scene tend to lead the jury to a better u......
  • Cure v. State, CR-90-0391
    • United States
    • Alabama Court of Criminal Appeals
    • February 28, 1992
    ...objection does not preserve an issue for appellate review. Thompson v. State, 575 So.2d 1238 (Ala.Crim.App.1991); Jackson v. State, 553 So.2d 647 (Ala.Crim.App.1989). James Taylor's guilty plea was also brought out without any objection during the State's direct examination of James Taylor ......
  • Bradford v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 5, 1999
    ...of hearsay. The trial court cannot be placed in error on grounds not asserted, and those not asserted are waived. Jackson v. State, 553 So.2d 647 (Ala.Crim.App. 1989); Johnson v. State, 421 So.2d 1306 Moreover, the trial court examined the statements in camera and held that the statements o......
  • Weaver v. State, CR-89-772
    • United States
    • Alabama Court of Criminal Appeals
    • June 28, 1991
    ..."The trial court cannot be placed in error on grounds not asserted, and those not asserted are waived." Jackson v. State, 553 So.2d 647, 650 In Ex parte Frith, 526 So.2d 880, 882 (Ala.1987), our supreme court ruled that an objection to the admission of a letter, wherein a hospital......
4 cases
  • Samuels v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 26, 1991
    ...the trial court's discretion and will be reviewed only to determine whether there has been an abuse of that discretion. Jackson v. State, 553 So.2d 647 (Ala.Crim.App.1989); Barnes v. State, 445 So.2d 995 (Ala.Crim.App.1984). Photographs of the crime scene tend to lead the jury to a better u......
  • Cure v. State, CR-90-0391
    • United States
    • Alabama Court of Criminal Appeals
    • February 28, 1992
    ...objection does not preserve an issue for appellate review. Thompson v. State, 575 So.2d 1238 (Ala.Crim.App.1991); Jackson v. State, 553 So.2d 647 (Ala.Crim.App.1989). James Taylor's guilty plea was also brought out without any objection during the State's direct examination of James Taylor ......
  • Bradford v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 5, 1999
    ...of hearsay. The trial court cannot be placed in error on grounds not asserted, and those not asserted are waived. Jackson v. State, 553 So.2d 647 (Ala.Crim.App. 1989); Johnson v. State, 421 So.2d 1306 Moreover, the trial court examined the statements in camera and held that the statements o......
  • Weaver v. State, CR-89-772
    • United States
    • Alabama Court of Criminal Appeals
    • June 28, 1991
    ..."The trial court cannot be placed in error on grounds not asserted, and those not asserted are waived." Jackson v. State, 553 So.2d 647, 650 In Ex parte Frith, 526 So.2d 880, 882 (Ala.1987), our supreme court ruled that an objection to the admission of a letter, wherein a hospital......

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