McGinnis v. State

• Decision Date: 18 December 1979
• Docket Number: 6 Div. 851
• Citation: 382 So.2d 605
• Parties: Ted Allen McGINNIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 605

382 So.2d 605

Ted Allen McGINNIS v. STATE.

6 Div. 851.

Court of Criminal Appeals of Alabama.

Dec. 18, 1979.

Rehearing Denied Jan. 22, 1980.

J. Massey Relfe, Jr., of Relfe, Ramsey & Evans, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., Paul E. Johnson, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted for the capital offense involving a nighttime burglary of an occupied dwelling when any of the occupants is intentionally killed. Alabama Code 1975, § 13-11-2(a)(4). The jury found the defendant "guilty in the nighttime with intent to steal of breaking into and entering the inhabited dwelling occupied by Florence Confer Kahler and in the course of said nighttime burglary of said occupied dwelling, did intentionally kill Florence Confer Kahler, as charged in the indictment" and fixed his punishment at death. After a sentencing hearing and after weighing the aggravating and mitigating circumstances, the trial court refused to accept the death penalty as fixed by the jury and sentenced the defendant to life imprisonment without parole.

Three issues are presented on appeal from this conviction: (1) Was the defendant tried by a "prosecution prone" jury because the veniremen were qualified on their beliefs regarding capital punishment?; (2) Does the death penalty constitute cruel and unusual punishment as applied to the defendant considering his involvement in the crime?; (3) Is the Alabama Death Penalty Act unconstitutional since the jury is not permitted to consider any lesser included offense and does not impose sentence after a finding of guilt?

I

Six veniremen were excluded for cause on the basis of their opposition to capital punishment. No claim is made under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), that it was error to exclude them. At trial, defense counsel made only a general objection without any specific grounds to the exclusion of each venireman.

From our review of the record we are satisfied that their exclusion was not error because from the voir dire testimony, read as a whole as to each juror, it is unmistakably clear that, irrespective of the evidence that would be presented, each excused juror would not return any vote which would impose the death penalty. Witherspoon; Wilson v. State, 371 So.2d 932 (Ala.Cr.App.1978), affirmed, 371 So.2d 943 (Ala.1979). The defendant does contend that the exclusion for cause of prospective jurors who had conscientious scruples against capital punishment subjected him to a "prosecution prone" jury in violation of his constitutional rights. This contention was not presented to the trial court and is initially asserted on appeal.

In Witherspoon, the petitioner alleged that a jury from which have been excluded those who say they could never vote to impose the death penalty, unlike a jury chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction. He maintained that "the kind of juror who would be unperturbed by the prospect of sending a man to his death, . . . , is the kind of juror who would too readily ignore the presumption of the defendant's innocence, accept the prosecution's version of the facts, and return a verdict of guilty". To support this view, the petitioner referred to three studies: W. C. Wilson, Belief in Capital Punishment and Jury Performance (Unpublished Manuscript, University of Texas, 1964); F. G. Goldberg, Attitude Toward Capital Punishment and Behavior As a Juror in Simulated Capital Cases (Unpublished Manuscript, Morehouse College, undated); and H. Zeisel, Some Insights Into the Operation of Criminal Juries 42 (Confidential First Draft, University of Chicago, November 1957). The Court commented upon this information.

"The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was." Witherspoon, 391 U.S. at 517-518, 88 S.Ct. at 1774-1775.

The Court indicated that competent evidence establishing "that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt" would be sufficient to show that the jury was not constitutionally "neutral". This language was qualified with a warning that it would be necessary to show "that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction". Witherspoon, 391 U.S. 518-520, 88 S.Ct. 1775-1776; W. White, The Constitutional Invalidity of Convictions Imposed by Death Qualified Juries, 58 Cornell Law Review 1176, 1188 (1973).

Here, the defendant has cited several additional studies, besides those available when Witherspoon was written, to support his contention: Bronson, On The Conviction Proneness and Representativeness of the Death Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U.Colo.L.Rev. 1 (1970); Goldberg, Toward Expansion of Witherspoon Capital Punishment Scruples, Jury Bias and Use of Psychological Data to Raise Presumptions in the Law, 5 Harv.Civ.Rights Civ.Lib.L.Rev. 53 (1969); Crosson, An Investigation Into Certain Personality Variables Among Capital Trial Jurors, Doctoral Dissertation, Western Reserve University (1966); Rokeach & McClellan, Dogmatism and the Death Penalty : A Reinterpretation of the Duquesne Poll Data, 8 Duq.L.Rev. 125 (1970); and White The Constitutional Invalidity of Convictions Imposed by Death Qualified Juries, 58 Corn.L.Rev. 1176 (1973).

In Witherspoon, fn. 11, 391 U.S. at 517, 88 S.Ct. at 1175-1176, the record was "almost totally lacking in the sort of factual information that would assist the Court". In this case the record is totally lacking. No evidence was presented to the trial court on this issue. Indeed, the issue now under discussion was not even made the basis for any objection in the circuit court. Specific objections are necessary before a ruling of the trial judge is subject to review, unless the matter is clearly not proper for any purpose. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Echols v. State, 256 Ala. 389, 55 So.2d 530 (1952). The Plain Error Rule is limited to cases "in which the death penalty has been imposed". Rule 45A, Alabama Rules of Appellate Procedure. This Court can only consider a case as presented by the record, Jackson v. State, 260 Ala. 641, 71 So.2d 825 (1954), and will not presume a fact not shown by the record and make it a ground for reversal. Duncan v. State, 88 Ala. 31, 7 So. 104 (1889). Furthermore, we do not think that the contention advanced by the defendant is so well established that it is subject to judicial knowledge. See C. Gamble, McElroy's Alabama Evidence, § 480.01 (3rd ed. 1977).

The argument that the State has no legitimate interest in qualifying a jury on the death penalty where that jury does not determine punishment but only guilt is not applicable to the statutory scheme in Alabama. True, under "Alabama's sentencing statute in death cases, the jury is powerless to fix any punishment other than death, if they...