Morrison v. State, 4 Div. 284

• Citation: 500 So.2d 36
• Decision Date: 20 August 1985
• Docket Number: 4 Div. 284
• Parties: Jesse Lee MORRISON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 36

500 So.2d 36

Jesse Lee MORRISON v. STATE.

4 Div. 284.

Court of Criminal Appeals of Alabama.

Aug. 20, 1985.

As Corrected on Denial

of Rehearing Oct. 22, 1985.

Donald J. McKinnon, Clayton, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and Rivard Melson, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

This cause was originally before this court in Morrison v. State, 398 So.2d 730 (Ala.Cr.App.1979), in which this court affirmed appellant's conviction and sentence of death for the murder of Marguerite McClenny during the course of a robbery. Thereafter, this court, at the direction of our Supreme Court's ruling in Morrison v. State, 398 So.2d 751 (Ala.Cr.App.1981), reversed and remanded the case for a new trial on the basis of Beck v. State, 396 So.2d 645 (Ala.1980).

On remand the appellant was afforded a new trial which comported with the bifurcated trial requirements of Beck. Appellant was again convicted and sentenced to death, and it is from this result that he now appeals.

A detailed account of the facts of this case appear in Morrison v. State, 398 So.2d 730 (Ala.Cr.App.1979). On retrial the facts were substantially the same and, finding a detailed restatement of the facts unnecessary, we refer the reader to Morrison, supra, for a complete statement of the facts.

As a short rendition of the facts, however, we now include the relevant portion of the trial court's findings of fact, which are as follows:

"On the 4th day of February, 1977, the defendant and his brother went to McClenny Furniture Company in Eufaula, Alabama, for the purpose of committing a robbery. The defendant's brother, James Morrison, remained in the automobile while the defendant went inside for such purpose. Mrs. Marguerite McClenny was in charge of the store at the time the defendant entered and was alone. Mrs. McClenny had just returned from the bank where she had deposited almost all of the money on hand at the store on that day, keeping only five dollars. The defendant deliberately shot her either in the stomach or the chest and while she was immobilized by such shot, and in no position to present any threat to him, he undertook to shoot her a second time, although the first shot was sufficient to cause death. In attempting to fire the second shot his pistol jammed and it was necessary for him to manually extract the live round of ammunition and place another round in the chamber, at which time he completed his vicious execution of Mrs. McClenny. Whereupon, he left with the fruits of his crime, which consisted of a trucker's type wallet which contained five dollars in currency, a silver one-half dollar, and several keys to various vehicles belonging to the McClenny Furniture Company. These items were later recovered in a storm sewer, which was pointed out to them by the defendant after he had been apprehended some months later and had confessed to the crime.

"The defendant, Jesse Lee Morrison, was tried under an indictment which charged him with the capital offense of intentionally killing the victim while committing a robbery as set out in Section 13-11-2(a)(2), Code of Alabama, 1975.

"Immediately upon receipt of the jury's verdict of guilty to such capital offense, the Court held a hearing before the same jury to allow the State and defendant to present further evidence of aggravating and mitigating circumstances and to present arguments for and against the imposition of the death penalty in this case. The State introduced the evidence taken during the guilt phase of the trial and argued for the death penalty. The defendant also offered the evidence taken upon the guilt phase of the trial. After the State and defense had argued and the Court had instructed the jury as to the law, the jury retired and, after deliberation, returned a verdict fixing the defendant's punishment at death."

From this conviction and sentence, the defendant now appeals raising the following twenty-four issues.

I

The appellant Jesse Lee Morrison first contends that the Alabama Supreme Court's decision in Beck v. State, 396 So.2d 645 (Ala.1980), which was the basis of his retrial, usurped the power of the legislature in violation of Article III, Sections 42 and 43 of the Alabama Constitution of 1901, and violated the Eighth and Fourteenth Amendments to the United States Constitution.

The Alabama Supreme Court in Beck stated that "under the separation of powers doctrine, this Court cannot change the offense, but a change in procedure to comport with constitutional requirements is not impermissible." The Alabama Supreme Court has since repeatedly held that the judicial reconstruction accomplished in Beck was procedural and therefore constitutional. Clisby v. State, 456 So.2d 95 (Ala.1983), Ex parte Potts, 426 So.2d 896 (Ala.1983). We therefore must reject the appellant's argument that the Beck decision usurped the authority of the Alabama Legislature in violation of Article III, Sections 42 and 43 of the Alabama Constitution of 1901. We further hold that appellant's retrial under the authority of the Beck decision in no way violated the Eighth and Fourteenth Amendments to the United States Constitution.

II

The appellant contends that the death qualification of the trial jury denied his rights to trial by a fair, impartial, and representative jury and to reliability in the capital sentencing process, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

Appellant notes that this precise issue was decided unfavorably to him in Smith v. Balkcom, 660 F.2d 573 (5th Cir.1981), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). Furthermore, in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the United States Supreme Court clarified its decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and set forth "the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment." The Court stated that the standard 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,' " 469 U.S. at 433, 105 S.Ct. at 857, quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). The Court also stated that "in addition to dispensing with Witherspoon's reference to 'automatic' decisionmaking, this standard likewise does not require that a juror's bias be proved with 'unmistakable clarity.' " 469 U.S. at 424, 105 S.Ct. at 852.

Following is the excerpt from the record which led to the dismissal of Mr. Elzie L. Woods because of his position against imposing the death penalty. Mr. LeMaistre began by stating:

"We are trying today a very important and serious case. It carries, possibly, the death penalty, assuming you find this defendant guilty of the crime with which he is charged. I need to ask you these questions to find out if you have any deep abiding opposition to the death penalty and imposition--. So, if any of these questions I ask you to answer would be yes, please raise your hand.

"Do any of you have any [conscientious scruples] or moral convictions or religious opposition to the use of the death penalty in a proper case?

"JUROR: I would.

"MR. LeMAISTRE: Would you give us your name, please.

"JUROR: Elzie L. Woods. And I would not recommend the death penalty.

"MR. LeMAISTRE: You would not?

"ELZIE WOODS: No. I would exercise mercy.

"MR. LeMAISTRE: You would exercise mercy?

"ELZIE WOODS: Yes.

"MR. LeMAISTRE: Let me ask you a couple more questions about this, then. Is this opinion in opposition to the use of the death penalty an opinion that you have had for a long time and one that you couldn't change in this particular case?

"ELZIE WOODS: I just think I could stick with it.

"MR. LeMAISTRE: Sir?

"ELZIE WOODS: I think as a minister I could stick with it. I would have to. I would be willing to stick with that opinion.

"MR. LeMAISTRE: You would be willing to stick with your opinion of not imposing the death penalty?

"ELZIE WOODS: (Nods head up and down.)

"MR. LeMAISTRE: Let me ask you one last question. Is it your opinion if you were selected as a juror in this case that your opposition to the death penalty is such that you would not return a verdict which carried the death penalty regardless of the evidence and instructions from the Court?

"ELZIE WOODS: I just--I'm kind of hesitant to--I kind of doubt myself on that.

"MR. LeMAISTRE: Please speak up, sir.

"ELZIE WOODS: I doubt myself on that--in that case.

"MR. LeMAISTRE: You doubt that you would be able to?

"ELZIE WOODS: I doubt it.

"MR. LeMAISTRE: Regardless of what the Court told you you doubt you would be able to?

"ELZIE WOODS: (Nods head up and down.)

"MR. LeMAISTRE: Judge, I challenge.

"THE COURT: I grant the challenge.

"MR. McKINNON: Your Honor, could--

"THE COURT: (Interposing) Do you want to ask him a question?

"MR. McKINNON: Yes, sir.

"Reverend, if you were instructed by the Court that if certain conditions and circumstances existed in this case, that it is your duty to render this punishment would you still be unable to render this punishment in spite of the Court's instructions?

"ELZIE WOODS: Some things I would go against the Court on, yes. That is one of the things I would stand on.

"MR. LeMAISTRE: We renew our challenge.

"THE COURT: I grant it. You can come down. I'll grant the challenge on that. And I appreciate you letting us know that information.

"ELZIE WOODS: Yes, sir.

"MR. LeMAISTRE: And we appreciate your honesty, Reverend.

"(Mr. Elzie Woods excused.)"

Mr. Woods's position and views on capital punishment were clearly such that they "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Witt, supra. We hold, therefore, that Mr. Woods was properly...