Jacobs v. State

• Decision Date: 04 October 1977
• Docket Number: 6 Div. 388
• Parties: John L. JACOBS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 429

371 So.2d 429

John L. JACOBS v. STATE.

6 Div. 388.

Court of Criminal Appeals of Alabama.

Oct. 4, 1977.

After Remandment May 16, 1978.

Rehearing Denied June 20, 1978.

Southern Poverty Law Center, Montgomery, Morris S. Dees, Pamela Horowitz and John L. Carroll, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.

HARRIS, Judge.

John L. Jacobs was convicted of murder under Alabama's new Death Penalty Act committed during the course of the robbery of a seventy-nine year old man, and the jury returned a verdict fixing his punishment at death.

Prior to trial appellant filed a motion for a continuance and a motion for change of venue. Both motions alleged that this appellant could not get a fair and impartial trial in Blount County for the reason that the day before this case was set for trial appellant's brother had been tried, convicted and sentenced to death by a jury drawn from the same venire that appellant would be forced to strike from. These motions further alleged that the remaining veniremen from which a jury must be selected to try this appellant had knowledge that appellant's brother had been given the death penalty and the facts in both cases were similar.

It developed that after the jury was selected to try the case against Jerry Wayne Jacobs all the rest of the jurors were excused and were told not to come back to the courthouse for two days. When they returned for the trial of appellant's case, some of the veniremen heard talk around the courthouse that the jury in the first case had given that defendant the death penalty. However, a number of the prospective jurors had not heard the outcome of the first trial. At least 19 jurors out of the 56 left on the panel after the jury was struck in the first case did not know what the verdict was in the first case. Most of the other 37 jurors had heard that the Jerry Wayne Jacobs case was over and some heard the jury gave him the death penalty and some heard he got life imprisonment.

The trial judge stated that he would reserve ruling on the motions until the jury had been qualified. Mr Rountree requested that he be permitted to voir dire the jury panel individually and separate and apart from the other jurors on the panel. This request was granted and each juror on the panel was called into an office next to the courtroom, and the trial judge told defense counsel they could ask the prospective jurors any questions they wanted to ask. The voir dire examination of the jury panel covered 141 pages of the transcript. All of the jurors on the panel stated under oath that they would go strictly by the evidence and those who were asked if this appellant could get a fair and impartial trial in Blount County answered in the affirmative.

At the conclusion of the voir dire examination counsel for appellant renewed his motion for a continuance and for a change of venue. No other evidence was offered on the motion for change of venue. Both motions were denied by the trial court and the case proceeded to trial with a struck jury.

This is the second death penalty case to reach this court since the Legislature of Alabama passed Act No. 213 in 1975 which became effective 180 days after its approval by the Governor on September 9, 1975. See the opinion released by this Court on July 26, 1977, in the case of Jacobs v. State, Ala.Cr.App., 361 So.2d 607, brother of this appellant.

What this Court said in the Jerry Wayne Jacobs case as to the constitutionality of Alabama's new death penalty law is hereby adopted by reference to that case.

Most of the facts and circumstances leading up to and culminating in the death of the deceased, Walter Robert Knight, were set forth in the opinion in the Jerry Wayne Jacobs case and will not be repeated here. Most of the issues raised in the present case were raised, treated and resolved in the Jerry Wayne case and will not be dealt with again in this case.

We will set forth the facts in the present case which show John L. Jacobs's involvement in the robbery and murder of Mr. Knight.

The facts in the record before us show that John L. Jacobs was the only one of the trio who was personally acquainted with the deceased. He had known Mr. Knight for several years and had on occasions played poker with him. He knew the deceased carried large sums of money on his person and he had discussed robbing him long prior to July 17, 1976, the date of the robbery and death of Mr. Knight.

Mr. Raymond Mack Brown testified that he was 20 years of age and lived on Route 8, Cullman, Alabama, and had known this appellant most of his life. He stated that he got out of the service some time in April of 1976 and he and appellant hitchhiked to California and back. The round trip took 11 days. He said that during this trip appellant mentioned the name of the deceased several times and told him that Mr. Knight carried large sums of money and "how easy picking Mr. Knight would be to rob." He further testified that appellant talked about robbing Mr. Knight before they made the trip to California.

This witness further testified that he had known Mr. Knight about eight to ten years and had seen him in the Star Billiard Parlor on several occasions; that he and Mr. Knight both lived in Cullman, Alabama.

On cross-examination he stated that he knew Eugene Brown well but did not come into contact with him very often. He said he was distantly related to Eugene Brown and knew he was under indictment for murder involving the death of Mr. Knight.

Sherril Edward Brown testified that he lived at Simco, a community in Cullman County, Alabama, and had known appellant all of his life. He stated that he knew Mr. Walter Robert Knight during his lifetime and had known him for 20 years. He said that he was related to appellant by marriage explaining that his brother married appellant's sister.

Sherril Brown further testified that ten or 12 days before Mr. Knight was killed he and appellant went to Huntsville, Alabama, to drink beer at the Pendleton Club. He stated on that occasion appellant told him he was thinking about robbing Mr. Knight and previous to this trip to Huntsville, appellant had tried to borrow a gun from him. He said that on the way back from Huntsville appellant was still talking about robbing Mr. Knight and Mr. Brown told him that "Mr. Knight will shoot you." Appellant replied, "I can do it in a way that he won't do it. I can drop him in that water down there, and nobody will ever find him." It developed that the place appellant was referring to was an old rock quarry that was full of water and was near Blount Springs in Blount County.

On cross-examination this witness testified that the gun appellant tried to borrow from him was a .22 caliber pistol and was in the glove compartment of his car. He did not loan the pistol to appellant and stated that the gun was now in his home.

The only logical deduction that can be drawn from the testimony of the foregoing witnesses is that John L. Jacobs had planned to rob Mr. Knight long before July 17, 1976, the date Mr. Knight was kidnapped by this appellant, his brother Jerry Wayne Jacobs, and Thomas Eugene Brown and carried from Cullman County into Blount County where he was robbed and murdered. From the undisputed testimony it is clear that this appellant not only planned to rob Mr. Knight but to kill him also and put his body in a rock quarry that was full of water where no one would ever find his body.

Thomas Eugene Brown testified for the State in both cases against the Jacobs brothers. There were some minor discrepancies in his testimony but these discrepancies did not detract in the least from the overall conception of the robbery and murder of Mr. Knight. According to this witness's testimony John L. Jacobs told them that Mr. Knight carried between two and three thousand dollars with him at all times and this statement was made while this trio was parked in the parking lot just across the street from the Star Billiard Parlor waiting for Mr. Knight to start his walk home; that when Mr. Knight emerged from the pool hall and started walking home John L. Jacobs drove the automobile past Mr. Knight and parked on the corner of the next block. When Mr. Knight approached the car, John L. Jacobs said:

" 'Mr. Knight, do you want to go play some poker?' Mr. Knight said, 'I don't reckon. Not today.' John L. then said, 'Well, let me carry you home. It's fixing to rain.' "

Mr. Knight then got in the back seat of the car and instead of taking him home John L. Jacobs locked all doors to the car and drove to Blount County, Alabama, to a place on abandoned Highway 31 South Jerry Wayne told John L. to stop the car and Jerry Wayne ordered Mr. Knight out of the car and, with the sawed-off .22 caliber rifle in one hand, he took Mr. Knight by the arm with his free hand and led him into a wooded area where he was bludgeoned and shot while pleading for his life. Thomas Eugene Brown further testified that John L. walked on one side of Mr. Knight and Jerry Wayne walked on the other side. According to Brown, John L. did not go into the woods with Jerry Wayne and Mr. Knight but returned to the car and was at the car when he heard three shots. After the shots were fired Jerry Wayne came out of the woods wiping blood off his hands and when he got to the car John L. asked him why he did it and Jerry Wayne said, "Keep your cool."

All of the other facts and the physical evidence are set out in the Jerry Wayne Jacobs case to which reference is invited.

After this appellant and his brother were apprehended in North Carolina, they were returned to Alabama. This appellant was given the Miranda rights and warnings and said he understood his rights. He signed a waiver of rights form stating that he did not want a lawyer and was willing to give a voluntary statement. His statement was tape-recorded and later transcribed. The transcription was compared...