Oryang v. State
| Decision Date | 30 September 1993 |
| Docket Number | CR-91-1800 |
| Citation | 642 So.2d 979 |
| Parties | Benjamin B. ORYANG v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Thomas M. Goggans, Montgomery, for appellant.
James H. Evans, Atty. Gen., and James Prude, Asst. Atty. Gen., for appellee.
The appellant was convicted of the murder of Julia Lindsey, the attempted murder of Cathy Wall, and the attempted murder of Barry Kelly. He was sentenced to concurrent terms of life imprisonment for the murder of Julia Lindsey and the attempted murder of Cathy Wall. He was sentenced to 50 years' imprisonment for the attempted murder of Barry Kelly, which sentence was to be served consecutively to the other sentences.
The record indicates the following facts. Tyrone Gibson, one of the appellant's codefendants, testified that McArthur Harris (another codefendant), the appellant, and he met at the appellant's house to drink beer and whiskey on the night of the offense. Gibson testified that they then got into Gibson's car to go "joy riding," and that the appellant brought his gun with him. Gibson said that they drove to Harris's house to see a gun he had there and, when they left his house, Harris brought the gun. They drove to Gibson's house and got his gun. Thereafter, during the ride, they saw a truck approaching them from behind at a fast rate of speed, and Gibson testified that this angered the appellant. Gibson testified that he slowed down to let the truck pass and as it did the appellant and Harris began shooting at the truck.
The record indicates that Barry Kelly, the driver of the truck, testified that upon approaching Gibson's vehicle, which he testified was traveling at approximately 40 miles per hour, the vehicle slowed down and moved off the road, so that it was barely moving. He testified when he passed the vehicle that he heard a blast, as if a firecracker had been thrown into his truck. He testified that, when he realized he was hearing gunshots, the shots began to come from both sides. He testified that damage was done to the passenger side of his truck, the back of his truck, the tire carrier, the tire in the carrier, and the rear bumper.
Gibson testified that, after this shooting, Harris, the appellant, and he continued drinking and driving down the road in the same direction. He testified that he assumed that they were still on the same road as they had been when they had shot at the truck. He testified that subsequently another car approached them and he became angry because, he said, he wanted to go home, but he did not know where he was. He testified that, while the car was still "a good distance back from us," he laid his gun on the top of his window. He testified that he began trying to time his actions so that, when the car passed him, he would shoot at the vehicle. He stated that he and another passenger in the vehicle shot at the driver's side of the car when it passed. He said he then looked in his rearview mirror and noticed that the car was on the side of the road and that the emergency lights were flashing. He stated that he was preparing to stop his car, when the appellant began "hollering" at him, saying that the police were there and laughing. Gibson testified that he became frightened and sped off.
Kelli Lowe, a 20-year old employee of the State Department of Public Health, testified that after work on the night in question she drove from her home to Montgomery to do some Christmas shopping. She testified that after she left the mall she planned to drive to her boyfriend's house. As she was driving, she noticed the car in front of her slowing down, and she thought that they had possibly missed a turn. She testified that, when she passed the vehicle, she heard a loud noise, but that she kept driving, believing that a tire had gone flat. She stated that she then She then "reached [her] hand [in her] stomach and [her] hand just stuck in." She pulled off of the road to determine what had happened, and she turned on her emergency flashers.
Gibson testified that they next approached a Pontiac Grand Prix automobile, which was ahead of them on the road, traveling in the same direction. He stated that they pulled alongside the car, and observed that the passenger was a female. He testified that they believed that the driver, who was "laid back in his seat," was a male. The appellant then asked the others if they thought that he should shoot this "B," and Gibson responded, "Do what you want to do." Gibson testified that as he began to pass the car, the appellant screamed an obscenity, lifted his gun, and fired into the car. Gibson testified that, when he looked back, he saw the vehicle approaching the back of his car; the car then hit Gibson's car. He testified that the impact scared him and that he sped ahead; however the appellant wanted to stop. The appellant asked the others if they had seen "how the female in the car leaned over in the car when he shot." Gibson testified that the appellant started joking and laughing about how she fell over.
Cathy Wall, who worked at George C. Wallace National Guard Armory and was a member of the Alabama Army National Guard, testified that on the night in question she and Julia Lindsey, a coemployee and also a member of the Alabama Army National Guard, had stopped by a club to pick up some Christmas ornaments. After getting the ornaments, Julia Lindsey told Cathy Wall that she was going to deliver her ornaments to her mother's house and asked if Cathy would like to ride with her. Wall agreed and they drove to Lindsey's mother's house in Eclectic. Cathy Wall testified that on the ride back to Montgomery she bent over to get a tube of lipstick from her purse and, when she did so, she heard glass shattering. She testified that she felt a bump and, believing that they had been in a wreck, she sat up. She stated that Lindsey then slumped against her and hit her side. The car began swerving off the road and, when Lindsey did not respond to Wall's screams, she pushed Lindsey over and stopped the car. The evidence indicated that Cathy Wall's window had also been blown out by a gunshot.
McArthur Harris testified that, on the night in question, Gibson, the appellant, and he all got their guns, because they planned to go deer hunting in Wetumpka. He testified that they had been drinking and that they continued doing so as they drove. He testified that, when Kelly's truck approached, all three of them began shooting at it. Then Gibson stopped the car, the appellant and Gibson got out of the vehicle, and they continued shooting at the truck. After driving on, they went to see if a friend of Harris's was at his house in Redland. He said that afterwards they were driving home when a car approached them. He testified that the appellant asked Gibson what he was "going to do," and Gibson said, "This is what I am going to do," and shot at the vehicle. Harris testified that he also shot at the vehicle, but that the appellant did not. Harris testified that he did not believe that any of the shots had hit the automobile, but they saw the vehicle's brake lights come on. The appellant said that a police car was coming and told Gibson to drive away. They continued on their way home, when they observed another vehicle traveling in their direction, which they approached. Harris stated that the appellant had rolled his window down, so he also rolled down the window on his side of the vehicle. Harris said that when the appellant rolled his window down, He testified that, before the appellant shot, he told Gibson to "go, go where the car was," meaning "go catch up with the car." Harris testified that he observed someone apparently ducking in the vehicle. Harris stated that the appellant shot his gun, and when he did, the driver's side window of the other vehicle shattered. Harris testified that he shot at the back of the vehicle. The car then swerved and hit Gibson's vehicle. Harris testified that Gibson wanted to stop, but the appellant began laughing, stating that "he know [sic] somebody shot in the head."
The appellant argues that the trial court erred in failing to grant his motion for a change of venue, because, he says, the extensive pretrial publicity had so saturated the community as to have a probable impact on the prospective jurors, and because, he says, the existence of actual prejudice was proven among the jury members.
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