Kennedy v. State, 7 Div. 966

• Decision Date: 31 January 1984
• Docket Number: 7 Div. 966
• Parties: Victor KENNEDY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1092

472 So.2d 1092

Victor KENNEDY v. STATE.

7 Div. 966.

Court of Criminal Appeals of Alabama.

Jan. 31, 1984.

Rehearing Denied March 20, 1984.

Gould H.K. Blair, Homewood, and William T. Denson, Goodwater, for appellant.

Charles A. Graddick, Atty. Gen. and Edward Carnes and Billington M. Garrett, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

During the predawn hours of December 24, 1980, Victor Kennedy, the appellant, and co-defendant Darrell Grayson broke into the home of Mrs. Annie Laura Orr. After subduing the eighty-six-year-old woman, they tightly wrapped her head with a pillowcase and tape. Then the two men repeatedly terrorized, assaulted and raped their helpless victim who died from suffocation.

Kennedy was indicted for the capital offense defined in Alabama Code Section 13A-5-31(a)(4) (1975): "Nighttime burglary of an occupied dwelling when any of the occupants is intentionally killed by the defendant." A jury found him "guilty of the capital offense as charged in Count One and Count Two of the indictment." The two counts were identical except that Count I charged breaking and entering with the intent to commit "robbery", while Count II charged "robbery in the first degree."

A sentencing hearing was held and the jury recommended the death penalty. The trial judge ordered a presentence investigation and held the mandatory second sentencing hearing. After this hearing, the judge accepted the jury's recommendation and sentenced Kennedy to death by electrocution. Eight issues are argued on appeal.

I

Kennedy's motion for a change of venue was properly denied because he failed to show that "the trial setting was inherently prejudicial or that the jury selection process permitted an inference of actual prejudice." Dobbert v. Florida, 432 U.S. 282, 302, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977); Ex parte Magwood, 426 So.2d 929 (Ala.), cert. denied, Magwood v. Alabama, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983); Franklin v. State, 424 So.2d 1353 (Ala.Cr.App.1982).

There were no actual newspaper articles or examples of media coverage introduced into evidence. The telephone survey conducted to support Kennedy's allegation of a prejudiced and biased public opinion was, by the pollster's own admission, not representative of the entire county. The survey omitted a significant area of the county. Although the population of Shelby County was 66,000, only 100 people completed the survey. Fifty nine of those "recalled the incident", and thirty "felt as though the two men arrested were guilty." In itself, this is insufficient to demonstrate the existence of either actual prejudice or a pervasive hostility within the community. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

Appellate counsel speculates that "classical" prejudice is present because Kennedy was "male, black and indigent while the victim was white, female, elderly and of a prominent and well-known local family, the crimes as charged were rape, murder and robbery; and the crimes occurred in a small, peaceful and quiet town located in a generally small, peaceful and quiet county." The record simply does not support this contention. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742, 745 (1975) (prominence of victim); Chenault v. State, 234 Ga. 216, 215 S.E.2d 223, 227-228 (1975) (victim was well-known and highly respected); Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 140 (1978). Kennedy has failed to show that he could not or did not receive a fair trial in the jurisdiction in which he was convicted.

"To establish the existence of prejudice against a defendant sufficient to justify a change of venue, specific facts and circumstances must be established to indicate it will be practically impossible to obtain an impartial jury to try the case. Such a showing may not be based on speculation." State v. Salem, 230 Kan. 341, 634 P.2d 1109, 1112 (1981).

II

Kennedy argues that, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), he was denied due process when the trial judge refused to order the State to produce for his inspection co-defendant Grayson's confession. Although Grayson never testified at trial, the trial judge reviewed in camera his two written confessions and found that "none of the testimony contained therein would be of benefit to defendant." Our review confirms that finding.

Brady held that a prosecutor's failure to disclose evidence favorable to an accused, who specifically requests it, violates the defendant's right to due process when the evidence is material to guilt or punishment. The accused is ordinarily not entitled to pretrial inspection of statements of prosecution witnesses. Smith v. State, 282 Ala. 268, 276, 210 So.2d 826 (1968). This rule applies to statements of accomplices and co-defendants. Head v. State, 392 So.2d 860, 863 (Ala.Cr.App.1980), cert. denied, 392 So.2d 869 (Ala.1981); McLaren v. State, 353 So.2d 24, 32-3 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala.1977); Beard v. State, 337 So.2d 1372, 1377 (Ala.Cr.App.1976); Annot. 7 A.L.R.3d 8, Sections 16(b) and (d) (1966).

Here, there was no suppression of exculpatory evidence like that condemned in Brady. Defense counsel admitted that he had seen the statement: "I had it in my hand and glanced at it briefly." Although the State made no reference to Grayson's statements, defense counsel, on cross examination of Sheriff's Investigator Reed Smith, attempted to elicit patently inadmissible hearsay information about what Grayson had told Reed. When counsel continued this line of inquiry after the court had sustained the State's objection, the prosecutor offered "to stipulate Mr. Grayson's statements in evidence if Mr. Denson (defense counsel) would like to have them." At that point, the judge remarked that nothing contained in the statements would benefit the defendant.

In the jury's absence, the trial judge inquired into defense counsel's reaction to the State's offer to stipulate to Grayson's statements. The trial judge offered defense counsel the opportunity to see the statements before ruling on the State's motion. Counsel declined both the State's offer to stipulate and the judge's offer to inspect. Error cannot be predicated on the nondisclosure of statements where defense counsel declined the opportunity to review the information.

It is also argued that the State failed to produce the first statement Kennedy gave the police after his arrest. At trial, defense counsel argued that he had no prior knowledge of this statement. His allegations were contradicted by the prosecutor, who took the witness stand and was cross examined by defense counsel. The District Attorney testified that he had given defense counsel a copy of the particular statement and that counsel had referred to it in a previous trial. An assistant district attorney, in denying the alleged failure to produce, stated that "we specifically gave the defense counsel all copies of any statements made by the Defendant" and that "less than thirty days ago when a trial involving the same defendant and the same attorney and the same witness, Mr. Reed Smith was under oath and in response to questions by defense counsel, Mr. Bill Denson, he was advised that he took a statement on the 24th day of December from Victor E. Kennedy concerning this case."

After hearing arguments, testimony, and having an off-the-record discussion with counsel, the trial judge specifically found that "the district attorney ... or a member of his office had substantially complied with the Court's previous order" granting discovery. There is nothing in the record to dispute this factual determination.

We have reviewed both statements Grayson gave the police. Although Grayson does admit that he was the one who actually taped the pillowcase over Mrs. Orr's head and that he was the last one in the room with her, his statements implicate Kennedy as an active participant in the offense and incriminate him the way no other evidence could. Our review confirms the trial judge's finding that nothing in Grayson's statements would benefit Kennedy and explains why defense counsel refused the State's offer to place them in evidence and even the opportunity to review them at trial.

Finally, we note that the use of Grayson's statements at trial would not have changed the result by creating a reasonable doubt where one did not otherwise exist. "Even where there is total nondisclosure of information the test is whether the use of the information at trial would have changed the result by creating a reasonable doubt where one did not otherwise exist." Raines v. State, 429 So.2d 1104, 1108 (Ala.Cr.App.1982).

III

Kennedy argues that the admission into evidence of a transcript of his tape-recorded statement without the production of the actual tape recording constituted error in violation of the best evidence rule. We disagree.

Mrs. Orr's body was discovered at approximately 9:00 A.M., December 24, 1980. After his arrest, Kennedy gave three statements to Sheriff's Investigator Reed Smith. The first was given at 4:50 P.M. on the afternoon of December 24th. In that statement, which was very short and general, Kennedy stated that he went to Mrs. Orr's home with Grayson and "stood at the corner stooping down watching while he (Grayson) went inside." Kennedy signed this written statement.

His second statement was given at 9:50 on the morning of December 26th. This was also a written statement which Kennedy signed. In this statement, Kennedy admits going into Mrs. Orr's home with Grayson but states that it was Grayson who committed the rape. The substance of this confession is that Grayson was responsible for everything that happened to Mrs. Orr because Kennedy was searching the rest of the house while Grayson was in the bedroom with Mrs. Orr.

The third statement was given at 9:35 on the morning of December 29th. This statement was tape-recorded. This third statement...