McCray v. State
Decision Date | 25 May 1990 |
Docket Number | 5 Div. 650 |
Parties | Robert McCRAY, alias v. STATE. |
Court | Alabama Court of Criminal Appeals |
Charles R. Gillenwaters, Alexander City, for appellant.
Don Siegelman, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.
Robert McCray (the appellant) and Boise Minor were jointly indicted in a three-count indictment: (1) count I charged the appellant with kidnapping in the first degree, in violation of § 13A-6-43, Code of Alabama 1975; (2) count II charged the appellant with attempted murder, in violation of §§ 13A-4-2 and 13A-6-2, Code of Alabama 1975; and (3) count III charged the appellant with theft of property in the first degree, in violation of § 13A-8-3, Code of Alabama 1975. The petit jury found the appellant guilty of "kidnapping in the second degree and assault in the second degree" and found him not guilty of theft of property. The trial judge sentenced the appellant to 15 years' imprisonment for the kidnapping charge and 10 years' imprisonment for the assault charge, both of these to run concurrently. The trial judge also ordered the appellant to pay $50 to the Alabama Crime Victims Compensation Fund.
Because the jury deliberation room at the Macon County Courthouse is so small, the trial judge permitted the jury to deliberate in the courtroom. During the deliberating process, some of the jurors spotted and read portions of the Alabama Pattern Jury Instructions on the trial judge's bench.
The appellant filed a motion for a new trial following his conviction. A hearing was held on this motion, and testimony was taken from five of the former jurors. See Dumas v. State, 491 So.2d 1083 (Ala.Cr.App.1986) ( ); Allen v. State, 494 So.2d 777 (Ala.Cr.App.1985) (same). Of the five jurors, four admitted that they either looked at the book or saw someone looking at it. All four jurors stated that the discussion based on the pattern jury instructions did not affect their verdict. They also stated that they did not understand what they read.
The testimony of these jurors further established that, after a few hours of deliberations, they were deadlocked (11 for conviction and 1 for acquittal). The judge then released the jury for the day and told them to come back the following morning.
The next morning, the jury returned and began deliberating again. The sole juror who continued to hold out against conviction told others that she would be willing to compromise on a lesser verdict. It was at this time that some of the jurors looked at the pattern jury instructions.
One of the jurors, Fanny Fitzpatrick, testified that they (the jurors) discussed the appropriate crime for which they could convict the appellant. Ms. Fitzpatrick, however, testified that one of the jurors, whose name she did not know, told the other jurors that they could not convict the appellant for that crime, based on what she had read in the book.
In Ex parte Lasley, 505 So.2d 1263 (Ala.1987), three of the jurors conducted home experiments, and one of the jurors consulted law books before the jury reached a verdict. Justice Almon, writing for the Supreme Court, stated:
In Gilliland v. State, 266 Ala. 24, 93 So.2d 745 (1957), the jurors used the witness room to deliberate. The coroner, a witness in the trial, had inadvertently...
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