Madison v. State, CR-90-336
| Decision Date | 21 August 1992 |
| Docket Number | CR-90-336 |
| Citation | 620 So.2d 62 |
| Parties | Vernon MADISON, Sr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Paul Brown, Mobile, for appellant.
James H. Evans, Atty. Gen., and Melissa G. Math and P. David Bjurberg, Asst. Attys. Gen., for appellee.
The appellant, Vernon Madison, Sr., was indicted on May 20, 1985, in Mobile County, in a two-count indictment for the capital offense of murder of a police officer while the officer was on duty or was performing an official or job-related act, knowing that the officer was on duty or was performing an official or job-related act, in violation of § 13A-5-40(a)(5), Code of Alabama 1975. 1 The indictment reads, in part, as follows:
To the indictment, Madison pleaded not guilty and not guilty by reason of mental disease or defect. On September 12, 1985, a jury found him guilty of the capital offense charged in the indictment and, after a sentencing hearing, returned an advisory verdict recommending the death penalty by a vote of 11 to 1. 2 The trial court, after a second sentencing hearing, adjudged Madison guilty and sentenced him to death.
On appeal of that conviction and sentence, we remanded the case to the trial court with instructions that that court conduct a hearing pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and Jackson v. State, 516 So.2d 768 (Ala.1986), to determine if the state had exercised its peremptory jury strikes in a racially discriminatory manner. The trial court conducted the hearing in accordance with our instructions and determined that the prosecuting attorney's explanations for the strikes were sufficient to overcome the presumption of discrimination that existed and that the explanations were race-neutral. Upon review, we found the findings of the trial court in this regard to be clearly erroneous, and we reversed its judgment and ordered a new trial. Madison v. State, 545 So.2d 94 (Ala.Cr.App.1988).
The new trial began on September 10, 1990, and on September 14, 1990, the jury found Madison "guilty of the capital felony as charged in the indictment." After a sentencing hearing held in accordance with §§ 13A-5-43 through -46, Code of Alabama 1975, the jury recommended the death penalty by a vote of 10 to 2. Thereafter, the trial court conducted another sentencing hearing pursuant to §§ 13A-5-47 through -52, and, after making specific findings on the existence or nonexistence of the aggravating and mitigating circumstances, weighing those circumstances, and considering the jury's recommendation, it again sentenced Madison to death.
The state's evidence showed as follows. On the date of the commission of the crime, April 18, 1985, Cheryl Greene and her 11-year-old daughter, Kimberly Hughes, resided at 1058 Etta Avenue in Mobile. The appellant, who was involved in a relationship with Cheryl, had also resided at this residence until a few days before the date of the commission of the offense charged in the indictment, when the relationship between Cheryl and the appellant apparently On the afternoon of April 18, 1985, Cheryl reported to the Mobile police that Kimberly was missing. Juvenile Officer Julius Schulte, the victim, was dispatched to the Greene residence to investigate the missing child complaint. When Officer Schulte arrived at the Greene residence, he discovered that the child had returned home; however, he found himself in the midst of a domestic dispute between Cheryl and the appellant. The appellant had earlier come to get his personal belongings, but when he learned that Kimberly was missing, he had left to look for her. He returned around 6:30 p.m., after Officer Schulte had arrived. Mary McCord, a former girlfriend of the appellant, had brought him and had parked her automobile some distance from the Greene residence. The appellant had left his .32 caliber pistol with Mary and had proceeded to the Greene residence on foot.
ended and the appellant moved out, leaving his personal belongings.
When he arrived, Madison saw Cheryl packing his clothing, and she asked him to leave. He was upset because the policeman was present. He said, "Why you call the cops?" and "Why in the hell did you call the police on me?" Cheryl was also packing some "things" for herself and Kimberly because she was planning to leave the residence for a few days because she was afraid of the appellant. One of Cheryl's friends asked Officer Schulte to remain on the scene until Cheryl and the child were safely away from the appellant. The appellant and Cheryl came out of the residence into the street and talked with Officer Schulte, who had remained in his police car. This car was unmarked, but it had a police radio antennae on the trunk and a "municipal" license tag. The appellant kept hollering, "I can't believe you called the cops." Officer Schulte kept telling the appellant to get his things and leave. The appellant told him that the police were not needed. The officer told the appellant if he was having a domestic dispute, the best thing for him to do was "just to go on and let things cool down." The appellant replied, "O.K., I'm gone." Then he left.
Thereafter the appellant went to where he had left Mary McCord, obtained his pistol from her, and immediately returned to the scene by a circuitous route. He approached the police car from the rear and, without warning, fired two shots into the back of Officer Schulte's head, wounding him severely. The officer died from these wounds a few hours later. After shooting Officer Schulte, the appellant pointed the gun at Cheryl as she ran away. He fired and she was struck in the back and fell. He straddled her as she lay in the street and fired several more shots, saying, "I'll show you bitch" and "You bitch, if you want to play this game I can play it too." The appellant then fled the scene on foot. Shortly after the shooting and some distance away, the appellant sought assistance from Ollie Doss. He approached her and told her that he had just shot a cop and asked her to take him to Bay Minette.
Four witnesses testified that they observed the appellant talking with the victim just before the shooting and heard the victim tell the appellant that he should get his clothes and leave. One of these witnesses testified that the appellant told the victim that he was not needed and that the victim told the appellant that he was there because of the report about Kimberly. He further testified that, when he told the appellant that he should do what the officer said, the appellant said, "O.K." Another witness testified that he heard the appellant tell the victim "O.K." and "that he was going to do so." Three of the witnesses testified that they saw the appellant leave; that in a few minutes he returned; that he approached the police car from the rear and from close range fired two shots from a pistol into the back of the victim's head. The witnesses testified that, at all times, the victim had been calm and had not abused or threatened the appellant.
When the appellant was arrested the following day, a .32 caliber pistol was seized from the automobile in which the appellant was riding. This pistol was determined to be the weapon that fired the two bullets that were recovered from the victim's head. It was a single shot revolver which had to be "cocked" each time before firing. In James Orso, deputy chief of police in charge of the juvenile division and the victim's supervisor, testified that the victim was on duty when he was shot, that he was in plain clothes, and that he was required to wear a pocket badge on the lapel of his coat. Kimberly Hughes testified that the officer's coat, which was draped over the seat of the car, had a police badge that was attached to the pocket and that was in plain view. Officer John Joseph Wynne, who arrived at the scene immediately after the shooting, testified that the victim wore a coat with a pocket police badge hanging from the upper coat pocket with the words "Mobile Police Department" embroidered under it. He further testified that the victim, who had been shot in the left temple, was sitting in the automobile, that the headlights and interior lights were on, that the engine was running, and that the victim's pistol was in a holster on the front seat. Lieutenant George H. Goodwin of the Mobile Police Department testified that when an officer becomes involved in a volatile situation, he must be guided by department procedural general orders and his experience. A copy of the pertinent general orders were introduced into evidence.
addition, the appellant's fingerprints were found on the top of the victim's automobile on the driver's side.
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