May v. State

• Decision Date: 22 August 1997
• Docket Number: CR-95-2162
• Citation: 710 So.2d 1362
• Parties: James Kenneth MAY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1362

710 So.2d 1362

James Kenneth MAY v. STATE.

CR-95-2162.

Court of Criminal Appeals of Alabama.

Aug. 22, 1997.

Rehearing Denied Oct. 17, 1997.

Certiorari Denied Feb. 20, 1998

Alabama Supreme Court 1970208.

J. Paul Whitehurst, Tuscaloosa, for appellant.

Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for appellee.

COBB, Judge.

James Kenneth May was convicted of capital murder in connection with the shooting death of Gary Dewayne Marcum while Marcum was in a vehicle. § 13A-5-40(a)(17), Ala.Code 1975. He was sentenced to life imprisonment without the possibility of parole. May raises 13 issues on appeal.

I.

May argues that § 13A-5-40(a)(17), Ala.Code 1975, which makes murder committed by use of a deadly weapon while the victim is in a vehicle a capital crime, violates his right to equal protection. He alleges that § 13A-5-40(a)(17) is unconstitutional because it effectively denies him the possibility of parole while others whose victims were not in vehicles are eligible for parole. We find this argument without merit.

" 'The essence of the theory of equal protection of the laws is that all similarly situated are treated alike.' City of Birmingham v. Stacy Williams Co., Inc., 356 So.2d 608, 611 (Ala.1978).... Equal protection of the laws does not compel uniformity in the face of difference. Hadnott v. City of Prattville, 309 F.Supp. 967 (N.D.Ala.1970). The Equal Protection Clause does not mean that a state may not draw lines that treat one class of individuals differently from the others. The test is whether the difference in treatment is an invidious discrimination. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). Classification of subjects in a statute is not arbitrary and invalid if based on some difference which bears a reasonable and just relation to the attempted classification. Board of Com'rs of City of Mobile v. Orr, 181 Ala. 308, 61 So. 920 (1913)."

State v. Spurlock, 393 So.2d 1052, 1056 (Ala.Cr.App.1981).

" 'The Equal Protection Clause of the Fourteenth Amendment goes no further than to prohibit invidious discrimination. ... If there is some reasonable basis for the recognition of separate classes, and if the disparate treatment of the classes has a rational relation to the object sought to be achieved by the lawmakers, the Constitution is not offended. The transgression arises only when the classification rests upon grounds wholly irrelevant to achievement of the State's objective; the separate treatment must admit of but one conclusion beyond a rational doubt, i.e., that the basis therefore is arbitrary and unreasonable and without relevance to the legislative goal.' "

Goodson v. State, 588 So.2d 509, 514 (Ala.Cr.App.1991)(quoting State v. Thompson, 133 N.J.Super. 180, 336 A.2d 11,14 (1975)).

The only act made capital by § 13A-5-40(a)(17), Ala.Code 1975, is the intentional murder of a person in a vehicle. "Murder is not a constitutionally protected activity." Ex parte Woodard, 631 So.2d 1065, 1068 (Ala.Cr.App.1993), cert. denied, 662 So.2d 929 (Ala.), cert. denied, 513 U.S. 869, 115 S.Ct. 190, 130 L.Ed.2d 123 (1994). Even so, there is a rational basis for the legislature's recognition of killers whose victims are killed while in a vehicle as a separate class, and making that offense punishable by either life imprisonment or the death penalty. The facts in the instant case serve well to demonstrate one rational basis which the legislature could have considered in enacting the statute. Marcum, suffering a mortal wound, attempted to drive from the scene of the shooting. He lost control of the car and crashed into other vehicles parked nearby. Fortunately, no one else was injured by the runaway vehicle in this instance.

Here, the classification by the legislature of the killer of a person in a vehicle as one guilty of a capital offense has a rational basis. The statute additionally does not proscribe any legally protected activities and does not involve any legally cognizable "suspect" class. See Ex parte Woodard, 631 So.2d at 1073.

It is the holding of this Court that § 13A-5-40(a)(17) is constitutional.

II.

May argues that the trial court's order, which sentenced him to life imprisonment and additionally provides that he can not be paroled, violates the separation of powers doctrine of the Alabama Constitution, he says, because the trial court, effectively, has made a determination as to his parole. May's argument is based on the incorrect assumption that the executive branch alone is empowered by § 124, Constitution of Alabama 1901, to enter orders relating to pardons and paroles. This section was amended in 1939 by Amendment No.38, which provides the legislature with the power to provide for pardons and paroles. Swift v. Esdale, 293 Ala. 520, 306 So.2d 268 (1975). Section 13A-5-40(a)(17), Ala.Code 1975, enacted by the legislature, gave the trial court the authority to sentence May to life imprisonment without parole. Therefore, we find this to be argument to be without merit.

III.

May argues that the trial court erred in denying his request for additional funds to hire an expert--a statistician to assist in challenging the jury venire. May alleged at trial that the venire from which his jury was selected did not represent a fair cross-section of the community, because, he says, young black males were underrepresented. He argues that he was entitled to funds to hire a statistician to prove that the percentage of young black males on the venire was disproportionately low. The trial court denied his request after finding that young black males were not a distinctive group for purposes of a fair cross-section challenge. May did not make a threshold showing that there was a reasonable probability that the statistical expert would be of assistance to his fair cross-section challenge; thus, his request for an expert was properly denied.

This Court has previously addressed the showing a defendant must make to receive court-ordered funds for a nonpsychiatric expert for the defense:

"The United States Supreme Court, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), held that an indigent defendant is entitled to the assistance of a competent psychiatrist when the defendant's sanity at the time of the offense is a significant factor at trial. In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the United States Supreme Court found no need to determine what kind of showing a defendant would have to make to be entitled to the assistance of an expert if the defendant offered nothing more than mere assertions that the requested experts would have been beneficial to his or her defense. The Alabama Supreme Court has interpreted Ake and Caldwell, taken together, to 'hold that a defendant, to be entitled to funds to pay for an expert, must show more than a mere possibility of assistance from an expert.' Dubose v. State, 662 So.2d 1189, 1192 (Ala.1995). '[A] fair reading of [Ake and Caldwell ] is that a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.' Dubose v. State, 662 So.2d 1156, 1182 (Ala.Cr.App.1993), aff'd, 662 So.2d 1189 (Ala.1995) quoting Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). The appellate courts of this state have upheld the denial of a jury selection expert. See Duren v. State, 507 So.2d 111, 119 (Ala.Cr.App.1986), aff'd, 507 So.2d 121 (Ala.1987), cert. denied, 484 U.S. 905, 108 S.Ct. 249, 98 L.Ed.2d 206 (1987)."

MacEwan v. State, 701 So.2d 66 (Ala.Cr.App.), cert. denied, 701 So.2d 66 (Ala. 1997).

May's request was supported solely by his assertion that the venire was not a fair cross-section of the community. However, since May only asserted that there was a variance between the percentage of young black males on the venire and the percentage in the community and the trial court determined that young black males were not a distinctive group for fair cross-section purposes, May failed to make any showing that the assistance of a statistical expert was necessary.

"In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process."

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

This Court has held that distinctions based on age are not sufficient to establish a violation of an accused's right to a fair cross-section on the jury venire. See Aultman v. State, 621 So.2d 353 (Ala.Cr.App.1992), cert. denied, 510 U.S. 954, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993) (holding that young adults of university-student age and particularly those under the age of 21 were not a distinctive group); Rutledge v. State, 482 So.2d 1250 (Ala.Cr.App.1983), rev'd on other grounds 482 So.2d 1262 (Ala.1984) (holding that young persons 19 to 24 years old who were Alabama residents and Auburn University students were not a distinctive group). Additionally, May had not shown any systematic exclusion of black males in the selection process.

The court did not err in denying May's request for additional funds for a statistician because it had already found that he had failed to demonstrate a violation of the fair cross-section requirement. There was no reasonable probability that the statistician would have affected the outcome of May's venire challenge.

The trial court did not err in denying May's request for a...