Murry v. State

• Decision Date: 12 April 1988
• Docket Number: 3 Div. 419
• Citation: 562 So.2d 1348
• Parties: Paul Edward MURRY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1348

562 So.2d 1348

Paul Edward MURRY v. STATE.

3 Div. 419.

Court of Criminal Appeals of Alabama.

April 12, 1988.

As Corrected on Denial of Rehearing May 10, 1988.

On Return to Remand July 21 and Nov. 17, 1989.

Rehearing Denied Dec. 29, 1989.

Certiorari Quashed April 20, 1990 alabama Supreme Court 89-558.

Rick Harris and L. Gilbert Kendrick of Moore, Kendrick, Glassroth, Harris, Bush & White, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

The appellant, Paul Edward Murry, was indicted for the capital offense of the murder of Mary Pearl McCord, a police officer, while she was on duty, or because of some official or job-related act or performance of Officer McCord. Ala.Code (1975), § 13A-5-40(a)(5). His first conviction and sentence of death for this offense were affirmed. Murry v. State, 455 So.2d 53 (Ala.Cr.App.1983). However, this decision was reversed by our supreme court on the ground that the trial court erred in failing to instruct the jury that, in the event the jury found Murry guilty of murder, the murder could be raised to a capital offense only if Murry knew that the victim was a peace officer on duty or recklessly disregarded facts putting him on notice that the victim was a peace officer. 455 So.2d 72 (Ala.1984). A new trial was ordered. 455 So.2d 82 (Ala.Cr.App.1984).

This new trial began on October 15, 1985, and on October 18, the jury found Murry guilty as charged. After a sentencing hearing held in accordance with §§ 13A-5- The prosecution presented the following facts and circumstances of the capital offense for which Murry was charged and convicted. On January 5, 1982, about dusk, Officer Tony Burks drove his partner, Officer McCord, to Traction Avenue to show her several places where drugs were sold. She had been in the Vice and Narcotics Division for only two months. They were travelling in a four-door, hardtop, tan Chevrolet Malibu with a small police antenna on the back of the trunk and with plain black-walled tires and small, cheap hubcaps, and they were dressed in plain clothes. As they drove down Traction Avenue at a speed of 10 to 15 miles per hour, a small group of people scattered when the group saw the car. A Lisa Branum, who was in her car, was there to buy marijuana. Usually, the dealers on Traction Avenue approach the buyer in the buyer's car and ask what the buyer needs. As the police vehicle drove by at approximately 5:30 p.m. or 6:00 p.m., Ms. Branum knew it was a "cop undercover" vehicle, so she told the two men with her that they had better leave because the "heat" was there. Everyone else scattered, too, because most of them noticed that the car was an unmarked police vehicle.

45 and -46, the jury recommended, by a unanimous vote, that Murry be sentenced to life imprisonment without possibility of parole. Thereafter, the trial court conducted a sentencing hearing pursuant to § 13A-5-47 et seq., made specific findings on the existence or nonexistence of the aggravating and mitigating circumstances, and sentenced Murry to death by electrocution.

Officers Burks and McCord continued down Traction Avenue until Burks noticed a black male, who Burks identified at trial as Murry, standing behind a vehicle parked partially off the road and trying to wave them down. Murry was holding, in his right hand, several manila envelopes, which Burks recognized as the kind he had always discovered to contain marijuana. When Burks stopped at Murry's vehicle, McCord got out on the passenger side of the vehicle. As she was getting out, she said to Murry, "I can't believe you're trying to sell police officers drugs." Burks put the vehicle's transmission in "park," got out, and observed some small, brown manila envelopes on the trunk of Murry's vehicle. As he reached the area behind Murry's vehicle where Murry and McCord were standing, he observed McCord and Murry standing about four to five feet apart and pointing guns at each other. When Burks stopped, he was also standing four to five feet from Murry. He heard McCord tell Murry that Murry was under arrest for possession of drugs. Immediately, Murry looked at Burks and warned him that if he tried to shoot Murry, Murry would shoot McCord first. At that time, Burks drew his weapon, identified himself as Investigator Burks with the Montgomery Police Department, and told Murry that they would have to take him to jail. Then, Murry repeated his warning that if Burks tried to shoot him, he would shoot McCord first, and he continued pointing his gun at McCord.

When McCord started moving away from Burks, Murry also moved to continue facing her. Then, Burks grabbed Murry's right wrist, and Murry grabbed the cylinder of Burks's weapon, which prevented Burks from firing his weapon. They tusseled and, during the struggle, Burks begged Murry to release him so they could talk. Murry responded with the warning that "he was going to take [Burks] with him." Burks repeated that he was Investigator Burks with the Police Department. During the struggle, Murry fired his weapon. Burks received a .22 shot in his wrist and another shot made a hole in his shoulder holster, but did not enter his body. This latter shot was fired with the weapon either in contact with Burks's body or a half-inch away. Burks yelled to McCord to shoot, but she did not. At this time, she was 25 to 30 feet from the two men. After she did not shoot, another shot was fired. During the struggle, all the shots in Murry's gun were fired. In addition, sometime during the struggle, Murry grabbed Burks's weapon again and Burks fired it, but the shot did not hit Murry.

Then, Burks lost his weapon to Murry and, as he was trying to get to the police vehicle to get a shotgun, Murry shot him in the lower back and he fell. Murry ran toward a nearby house, but returned a few seconds later and stood over Burks. As he pointed Burks's weapon at Burks, Murry said, "Mother fucker, you ain't dead yet?" Burks did not respond. Then, Murry dropped the weapon by Burks's feet and yelled for someone to call the police. He grabbed something off the trunk of his car and ran toward a nearby house. Burks immediately grabbed his weapon and crawled toward the police car. When he reached the vehicle, he observed McCord on the driver's side of the vehicle, positioned half in and half out of the vehicle, with her right arm extended toward the police radio. She had been wounded by a gunshot to her left, upper, anterior chest. Shortly thereafter, she died. A subsequent autopsy revealed that the wound had been inflicted by a .22 caliber bullet (fired by a .22 caliber weapon) which travelled through her chest in the following direction: from left to right, front to back, and downward.

Burks summoned help and after several police officers arrived, Murry approached them with his hands in the air and stated, "I shot them." He was taken into custody and, as he was being transported to police headquarters, he stated that he was an employee of the City Sanitation Department, that he had shot two people, and that he thought the two people he had encountered were trying to rob him. When the officer asked, "Well, you knew they were police officers," Murry responded, "No, I didn't know or I wouldn't have done it." Murry further admitted that he shot them with the gun that he had taken away from the black male with whom he had been struggling. Murry's statement was made after he had been informed of his Miranda rights, and it was voluntary.

Meanwhile, the evidence technician collected evidence at the scene. Burks's .357 caliber revolver was discovered between the two vehicles. Near it lay four live .357 cartridges, and the gun contained only two spent cartridges in its cylinder. The technician noticed that the dirt behind Murry's vehicle had been disturbed. He further discovered Burks's cap and handcuffs in the nearby ditch and, within arm's reach of these items, a pill box containing what later tested to be three Diazepam and five phenobarbital pills. A .22 caliber RG revolver was also seized. Its cylinder held six expended .22 cartridge cases. A subsequent examination of this gun by a firearms expert confirmed that it had been recently fired.

Murry's vehicle was also searched. A paper bag containing plant residue that tested to be marijuana was seized from the trunk. Cigarette papers were found in a pocket of a coat seized from the passenger compartment, and a small manila envelope was found in a pocket of a shirt seized from this same area. An analysis of the contents of this envelope revealed that they consisted of 1.7 grams of marijuana.

Back at the police station, it was discovered that Murry had been shot. He explained that, when he saw that the black male had drawn his weapon, he pulled his small caliber gun from his pocket, and that as he did so, his weapon discharged. Murry continued by stating that he threw his weapon into the ditch at the black man's order; that, when he turned around, he grabbed the other man's gun; that they wrestled over the gun; and that, when he took it away from the other man, he shot the man and, then, shot the woman.

Murry made another statement while en route to the hospital. It began at 7:45 p.m. with the explanation and waiver of his Miranda rights. He stated that, when the man and woman stopped by his car, one of them ordered him to put his hands up; that, after Murry explained that he did not have anything, the male grabbed him and put a pistol to his neck; that he shot himself while retrieving his pistol from his pocket; that he grabbed the stranger's gun and told him to drop it because he did not want any trouble; that he kept shooting in the air to summon help, called out to a friend that he was being robbed, and told the stranger to stay back; that, when the stranger pushed him, he dropped his gun and they wrestled over the stranger's A firearms expert studied...