Murrell v. State

• Decision Date: 17 July 1979
• Docket Number: 4 Div. 723
• Citation: 377 So.2d 1102
• Parties: Ralph MURRELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1102

377 So.2d 1102

Ralph MURRELL v. STATE.

4 Div. 723.

Court of Criminal Appeals of Alabama.

July 17, 1979.

Rehearing Denied Aug. 21, 1979.

Gary E. Davis of Phillips, Funderburk & Davis, Phenix City, for appellant.

Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The defendant was convicted for the first degree murder of James Pickett by shooting him "with a gun". Sentence was fixed at life imprisonment.

The State's evidence revealed that between approximately one and two o'clock on the morning of July 18, 1967, the defendant came to the home of Mr. and Mrs. Willie George Williams exclaiming, "Have mercy", "Come to the door." Mr. Williams opened the door and the defendant handed him a baby which the defendant told him to keep. Mrs. Williams testified that "the baby had blood on it on its undershirt and blanket she had wrapped around her". Mr. Williams stated that when he asked the defendant what was wrong "he told me that he had killed both of them". Mrs Williams also heard this confession. The defendant admitted to Mr. Williams that he had shot James Pickett and had beaten Barbara Brown to death. The Williamses were next door neighbors of Ms. Brown. Before leaving, the defendant told Mr. Williams "to give him two hours before he called the police".

On February 14, 1977, Special Agent David Hogan of the Federal Bureau of Investigation in Albany, New York, discovered the defendant living in Saratoga Springs, New York, under the alias, Henry Allen Taylor. On that date a warrant was executed against the defendant for unlawful flight to avoid prosecution.

The defendant told Agent Hogan that in 1965 or 1966 Ms. Brown had informed him she was pregnant by him and that consequently he had "set her up" in an apartment in Phenix City, her home town. The defendant stated that he had been constantly "dunned" by Ms. Brown for money and clothing and that in July of 1967 she told him to meet her in Phenix City. On arriving at her apartment he found James Pickett lying on the bed "with a hole in his neck" and Ms. Brown holding a pistol in the living room. As he attempted to administer aid to Pickett, Ms. Brown stabbed him in the neck with a ten inch "barlow" knife and tried to shoot him with a .22 caliber rifle. The defendant told Agent Hogan that "he became incensed with these acts", and wrested the rifle from her and began beating her with it. After beating her, he took the baby to neighbors, informed them that both Pickett and Brown were dead, and fled the state. With some variations, the defendant's testimony at trial was basically the same.

On rebuttal, Mrs. Williams testified that the defendant had come to her home prior to July 18th, when Ms. Brown was there with her baby, and that he had pointed the pistol at Ms. Brown. "(H)e didn't knock or anything. He just burst in and pulled the trigger on her about three times."

I

The defendant contends that it was error for the trial court to overrule his "motion to quash the venire or in the alternative for plea in abatement to the venire" which was based on the manner in which the talesmen jurors were selected.

The evidence concerning the selection of the talesmen jurors reveals that on September 15, 1977, the regular jury venire consisting of seventy-five jurors was drawn. By September 28, the Circuit Clerk determined that thirty-eight of the original seventy-five jurors had actually been served with notice and had not been excused from service. On September 30th, the trial judge decided to draw an additional twenty talesmen "so that we would have sufficient jurors to go to trial" in the event some were disqualified. All of the talesmen jurors were selected from Beat 1 in Russell County, which includes Phenix City, in order to meet the "five mile" requirement of Alabama Code Section 12-16-102 (1975), which provides for the selection of talesmen in the event of a deficiency in the number of regular jurors competent to try a criminal case. On October 3rd, the day the jury was struck and the trial began in the case against the defendant, thirty-two jurors of the original seventy-five and nine of the twenty talesmen jurors were available for striking. The jury was struck from the entire venire. The number of regular jurors was never reduced below twenty-four.

The defendant questions the selection of the talesmen jurors in two ways: Initially, he maintains that the selection of the additional jurors, which was made strictly from Beat 1 of Russell County to satisfy the five mile requirement, was racially imbalanced when compared to the ratio of blacks to whites for the county as a whole. Secondly, the defendant submits that the trial court was utterly without authority to select the talesmen jurors because at no time was the number of jurors competent to try him from the original seventy-five reduced below twenty-four.

We need not consider the merits of the defendant's argument since the record demonstrates that any prejudice he might have suffered was the result of his own action.

From the record "THE COURT: At this time I will overrule the motion and the case will stand for trial. Mr. Benton (District Attorney), come around for a moment. While we are here, the Court will on its own motion strike for the purpose of this trial the nine jurors who have appeared this morning which were selected last Thursday. I will on my own motion strike those and allow you to strike from the thirty-five

"MR. KIKER (Circuit Clerk): Judge, it would be thirty-two to strike from.

"THE COURT: Thirty-two to strike from.

"MR. BENTON: The State would give the defendant the option of whichever way they chose if the Court will allow them to. We have no objection either way.

"THE COURT: We would either let you select from the full panel or the thirty-two who were originally selected.

"MR. DAVIS (Defense Counsel): Your Honor, may I have just a moment? (Pause) Your Honor, we will take this position: we don't want to waive defect in the procedure that we have filed for here today. We will do this, we will strike from the thirty-two on the original list as long as this remains part of this motion to quash the venire or in the alternative the plea in abatement be reserved as part of the record.

"THE COURT: Is there any objection?

"MR. BENTON: Under that sort of an arrangement, if it please the Court, frankly he is bringing it up now that he wants to go back to the original drawing and say I still want to reserve my exception of which he is not entitled to.

"MR. DAVIS: Your Honor, at this point we are challenging the constitutionality of the statute itself as well as the procedure used.

"THE COURT: Well, I will overrule the motion and we will strike from the entire venire.

"MR. DAVIS: Is the Court withdrawing the alternative given to the defense counsel?

"THE COURT: Yes, sir. The Court would withdraw it . . . ."

A defendant cannot by his own voluntary conduct invite error and then seek to profit thereby. Boutwell v. State, 279 Ala. 176, 183 So.2d 774 (1966); Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965); Buford v. State, 214 Ala. 457, 108 So. 74 (1926); Barber v. State, 151 Ala. 56, 43 So. 808 (1907). "It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice." Aldridge, 278 Ala. at 474, 179 So.2d at 54; Jackson v. State, 38 Ala.App. 114, 116, 78 So.2d 665, cert. denied, 262 Ala. 702, 78 So.2d 667 (1955). This is not a situation where a defendant merely remained silent and permitted error to occur. Turner v. State, 54 Ala.App. 467, 309 So.2d 503 (1975).

However, even if the talesmen were improperly selected, the defendant was not entitled to have the entire jury venire quashed. The defendant's objection went to those individual talesmen jurors and not the whole jury panel. Nickerson v. State, 283 Ala. 387, 217 So.2d 536 (1969); Burton v. State, 194 Ala. 2, 69 So. 913 (1915); Davidson v. State, 211 Ala. 471, 100 So. 641 (1924); Junior v. State, 47 Ala.App. 518, 257 So.2d 844 (1971), cert. denied, 288 Ala. 744, 257 So.2d 852, cert. denied, 407 U.S. 923, 92 S.Ct. 2473, 32 L.Ed.2d 810 (1972). Moreover, we note that the evidence presented by the defendant was insufficient to support a charge of intentional discrimination or systematic exclusion in the selection of the talesmen jurors. Smith v. State, 364 So.2d 1, 11 (Ala.Cr.App.1978).

For these reasons, the action of the trial court in overruling the defendant's motion was not error.

II

Next, the defendant contends that it was error for Officer Chappell Ray of the Phenix City Police Department to state his opinion as to how long certain candy wrappers, cake wrappers, and milk cartons, which he found at the scene of the double murder, had been there.

The day after the murders Officer Ray, in examining the house, discovered two small holes in the ceiling, one in the living room directly over the couch, and one in the bedroom over the bed. Ray climbed into the attic and discovered candy wrappers, cake wrappers and milk cartons next to the two holes. After Officer Ray had testified to these facts the following occurred:

"Q. (District Attorney): Did you make a determination with regards to the items that you found there whether they had been there for any length of time?

"A. (Officer Ray): In my opinion they had been there only a short time.

"MR. DAVIS (Defense attorney): We object to the opinion; there is no predicate laid for that.

"THE COURT: If he knows that they were there for a lengthy time I will let him answer.

"A. In my opinion they hadn't been there too long.

"Q. Was there any debris that was edible there around these wrappers?

"A. Yes, there were crumbs around the wrappers in the ceiling floor where they had been.

"Q. Were those soft or hard at the time you examined them?

"A. They were soft."

Officer Ray's opinion was admissible because it constituted a "collective fact" or a "shorthand rendition of...