Martin v. State, 3 Div. 460

• Decision Date: 26 January 1988
• Docket Number: 3 Div. 460
• Citation: 548 So.2d 488
• Parties: James Lewis MARTIN, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 488

548 So.2d 488

James Lewis MARTIN, Jr. v. STATE.

3 Div. 460.

Court of Criminal Appeals of Alabama.

Jan. 26, 1988.

Rehearing Denied March 8, 1988.

William R. Blanchard and Jeffery C. Duffey, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

James Lewis Martin, Jr., was convicted for the robbery-murder of Allen Powell, a capital offense under Alabama Code 1975, § 13A-5-40(a)(2), and was sentenced to death. Ten issues are raised on this appeal from that conviction.

I

Martin argues that the trial judge erred in granting the prosecution's challenges for cause to two venire members based upon their views on capital punishment. We disagree.

Our review of the record convinces us that the following is a fair and representative statement of venire member Lewis J. Stewart's expressed views on capital punishment: "Even though I don't think it is wrong, I don't think I could actually say this person should be put to death. * * * I personally believe there are times when a death penalty case should be imposed, yes. Personally myself saying that this person should be put to death, I couldn't do it. I don't believe I could."

The views of venire member Roxy C. Bethea on the death penalty are summarized in her response, "I'm not sure. I don't know. I'm stuck on that one. I'm really not sure. If the circumstances--I guess I don't know."

The proper standard for determining whether a prospective juror may be excluded for cause because of his or her views on capital punishment is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 2051, 95 L.Ed.2d 622 (1987). "The crucial inquiry is whether the venireman could follow the court's instructions and obey his oath, notwithstanding his views on capital punishment." Dutton v. Brown, 812 F.2d 593, 595 (10th Cir.), cert. denied, Dutton v. Maynard, 484 U.S. 836, 108 S.Ct. 116, 98 L.Ed.2d 74 (1987). A juror's bias need not be proved with "unmistakable clarity" because "juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism." Id.

A trial judge's finding on whether or not a particular juror is biased "is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province." Witt, 469 U.S. at 429, 105 S.Ct. at 855. That finding must be accorded proper deference on appeal. Id. "A trial court's rulings on challenges for cause based on bias [are] entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion." Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.) , cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala.1981).

II

Martin contends that the trial judge erred in refusing to grant his challenge for cause as to prospective juror Dora Stewart. Mrs. Stewart testified that she believed the death penalty was "right" and that "it should be given if you take someone else's life." She stated that she would always vote for death rather than life without parole. However, because Mrs. Stewart later stated that she could and would follow the court's instructions, the challenge for cause was properly denied.

A venire member who believes that the death penalty should automatically be imposed in every capital case should be excused. Bracewell v. State, 506 So.2d 354, 358 (Ala.Cr.App.1986). Persons who favor the death penalty should not be excused for cause where they indicate they will follow the court's instructions. Hance v. Zant, 696 F.2d 940, 956 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983).

III

Venire member Roger Norris testified that he heard that Martin had confessed. Norris initially stated, "I know I will not be able to forget it. It will affect my opinion." Although he consistently expressed his reservations about "hav[ing] a hard time wiping that out of [his] mind," after questioning by the trial court he stated that he "would try to the best of [his] ability" to consider only what the court instructed him to consider.

A juror is not disqualified where he testifies on voir dire that he has an opinion which might bias his verdict, but that he could try the case and render a verdict according to the evidence. Strickland v. State, 151 Ala. 31, 44 So. 90, 92 (1907). See also Berard v. State, 486 So.2d 458, 461-62 (Ala.Cr.App.1984), reversed on other grounds, 486 So.2d 476 (Ala.1986); Beck v. State, 485 So.2d 1203, 1205 (Ala.Cr.App.1984), affirmed, Ex parte Beck, 485 So.2d 1207 (Ala.1985). See also Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, Grayson v. Alabama, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985).

IV

In instructing the jury on the element of "reasonable doubt," the trial court charged that "[t]he doubt which would justify an acquittal must be an actual and substantial doubt" and that "[it] is not a fanciful, vague, conjectural or speculative doubt, but a reasonably substantial doubt arising from the evidence." In Williams v. State, 455 So.2d 210, 212 (Ala.Cr.App.1984), this Court explained that, while such an instruction may be subject to criticism, it does not constitute error. See also Baker v. State, 477 So.2d 496, 502-03 (Ala.Cr.App.1985), cert. denied, Baker v. Alabama, 475 U.S. 1029, 106 S.Ct. 1231, 89 L.Ed.2d 340 (1986).

V

On cross-examination of prosecution witness Robert Elliott, defense counsel asked, "Mr. Elliott, don't you have a problem with mind-altering drugs?" The trial court properly sustained the prosecutor's objection. Defense counsel's offer of proof showed that Elliott had used drugs, including marijuana, LSD, cocaine, and valium, extensively for a substantial period of time but that he had quit approximately three years before the defendant's trial and approximately two years before the events as to which he was testifying.

"A witness' addiction to a narcotic drug is not admissible to impeach him unless one of the following [is] shown: (1) that he is under the influence of the drug at the time of his testifying, (2) that he was under the influence of the drug at the time of the event of which he testifies or (3) that his mind is generally impaired by the habitual use of narcotic drugs." C. Gamble, McElroy's Alabama Evidence, § 141.01(3) (3rd ed. 1977).

See also Luker v. State, 361 So.2d 1124, 1126 (Ala.Cr.App.), cert. dismissed, Luker v. State, 361 So.2d 1127 (Ala.1978). "Most courts which have specifically decided or discussed this issue appear to take the view that evidence of drug use proffered to show lack of veracity is inadmissible." Annot., 65 A.L.R.3d 705, 713 (1975).

VI

The defendant argues that the State failed to present a prima facie case of the capital robbery-murder charged because there was no evidence that the defendant intentionally killed the victim.

"[N]o defendant is guilty of a capital offense unless he had an intent to kill." Beck v. State, 396 So.2d 645, 662 (Ala.1981); Lewis v. State, 456 So.2d 413, 416 (Ala.Cr.App.1984); Alabama Code 1975, § 13A-5-40(b)(c).

In compliance with § 13A-5-47(d), the trial court entered written findings of fact summarizing the crime and the defendant's participation in it:

"From the evidence, both testimonial and from physical exhibits, the Court states the following factual circumstances of the instant case.

"On Wednesday, May 29, 1985, in the early evening hours, Allen Powell and Kathleen Ellison, both employees at Jack Ingram Motors, met at a parking lot on the campus of Auburn University at Montgomery. Their reported purpose in meeting was so that Ms. Ellison could test drive a Datsun 300 ZX that her husband was considering purchasing. From there, the two drove the car on a route that eventually led them to a sparsely developed subdivision known as Timberlane off of Vaughn Road in Montgomery County. The couple parked the car, according to Ms. Ellison, so that Mr. Powell could exchange places with Ms. Ellison who had been driving up to that point. As they sat there and while Mr. Powell explained the various features and instrumentation on the car, two white males approached the car on foot.

"Ms. Ellison testified that the two were wearing blue jeans, ball caps and were shirtless. One was carrying a rifle by his side. They positioned themselves on the driver's side of the car, the one with the rifle toward the front and the other toward the rear. Testimony revealed that the individual with the rifle asked Powell, 'Where are you going?' Mr. Powell responded, 'We are leaving,' to which the individual with the weapon countered 'No, you are not.' When Mr. Powell attempted to crank the car and drive off, the individual with the rifle raised it and pointed it at the couple in the car. The individual at the rear of the auto was heard to say at that point, 'Don't do it.'

"As Mr. Powell began to drive off, he was shot once through the upper left arm. The bullet traveled through his arm and into the chest area, causing a mortal wound. After traveling a short distance, and while the car was still in motion, Mr. Powell lost consciousness and slumped over the steering wheel. Ms. Ellison was able to stop the auto by applying the emergency brake. The car had travelled approximately 150 yards from the point of the assault.

"Between the point that Mr. Powell was shot, and the point that the car was stopped, another shot was fired but struck neither the car nor the occupants.

"Ms. Ellison exited the car, proceeded to the driver's side and attempted to move Mr. Powell over. After being unsuccessful, she pulled him from the automobile laying him on his back in the roadway. She then drove off in order to seek assistance.

"John Sims and his family reside at 915 Timberlane Drive. In the late afternoon...