Parker v. State

• Decision Date: 31 January 1992
• Citation: 610 So.2d 1171
• Parties: John Forrest PARKER v. STATE. CR 89-838.
• Court: Alabama Court of Criminal Appeals

Page 1171

610 So.2d 1171

John Forrest PARKER v. STATE.

CR 89-838.

Court of Criminal Appeals of Alabama.

Jan. 31, 1992.

Rehearing Denied March 13, 1992.

H. Thomas Heflin, Jr., Tuscumbia, and Gene M. Hamby, Sheffield, for appellant.

James H. Evans, Atty. Gen., and J. Thomas Leverette and Sandra J. Stewart, Asst. Attys. Gen., for appellee.

ON RETURN TO REMAND

BOWEN, Judge.

The appellant, John Forrest Parker, was convicted of the capital offense of murder for pecuniary gain, as defined in Ala.Code 1975, § 13A-5-40(a)(7), and sentenced to death. Parker v. State, 587 So.2d 1072 (Ala.Cr.App.1991). On original submission, we remanded this cause with directions that the trial court (1) conduct an evidentiary hearing in accordance with Ex parte Bankhead, 585 So.2d 112 (Ala.1991), and require the prosecutor to state his reasons for striking black veniremembers, Parker, 587 So.2d at 1077, and (2) correct certain errors and omissions in the imposition of sentence, id. at 1100.

I.

After conducting an evidentiary hearing on the matter, the trial judge, with commendable thoroughness and a conscientiousness warranted by the sentence imposed in this case, entered a written order in which she made specific findings of fact and concluded that the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were not violated by the prosecution's use of its peremptory strikes to remove eight black venire members. That order is attached to this opinion as Appendix I.

The findings and conclusions contained in that order are fully supported by our own independent review of the record and are approved by this Court. We find that no violation of the principles of Batson v. Kentucky, supra, or Ex parte Branch, 526 So.2d 609 (Ala.1987), occurred in this case. See Ex parte Bird and Warner, 594 So.2d 676 (Ala.1991).

II.

In remanding this cause on original submission, this Court explicitly instructed the trial court to "1) make new findings regarding the aggravating and mitigating circumstances, 2) weigh those aggravating and mitigating circumstances and determine whether the aggravating circumstances outweigh the mitigating circumstances, and 3) enter a proper sentencing order as required by Ala.Code 1975, § 13A-5-47(d)." Parker, 587 So.2d at 1100. In response, the trial judge entered an "AMENDED ORDER OF COURT ON IMPOSITION OF SENTENCE." That order is attached to this opinion as Appendix II.

In that amended sentencing order, the trial judge, as required by § 13A-5-47(d), entered specific written findings concerning the existence or nonexistence of each of the eight statutory aggravating circumstances set forth in § 13A-5-49, and the existence or nonexistence of each of the seven statutory mitigating circumstances set forth in § 13A-5-51. The trial judge found the existence of one aggravating circumstance: that the capital offense was committed for pecuniary gain. § 13A-5-49(6). The trial judge found the existence of two statutory mitigating circumstances: that the appellant has no significant history of prior criminal activity, § 13A-5-51(1); and that the appellant was 19 years old at the time of the commission of the crime, § 13A-5-51(7). The trial judge found the existence of two nonstatutory mitigating circumstances: the jury's recommendation of life without parole and the appellant's remorse. The trial judge then concluded that the aggravating circumstance outweigh the mitigating circumstances.

III.

The appellant contends that there is no evidence to support the trial court's finding that the Appellant and Smith held Mrs. Sennett "down with a small blue chair and stabbing her while she was asking them not to hurt her." R. 25 and 28. The finding is directly supported by the appellant's statement to Investigator May. See R. 1419.

IV.

The amended order of the trial court is proper, is supported by the record, and This Court has searched the record and found no error which "has or probably has adversely affected the substantial right of the appellant." Rule 45A, A.R.App.P.; accord, § 13A-5-53(a). There is no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. § 13A-5-53(b)(1). This Court's independent weighing of the aggravating and mitigating circumstances indicates that death was the proper sentence. § 13A-5-53(b)(2). The sentence of death in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. § 13A-5-53(b)(3).

fully complies with the requirements of § 13A-5-47(d). Therefore, this Court now reviews the propriety of the sentence of death imposed by the trial court.

Therefore, the appellant's conviction for capital murder and his sentence to death are affirmed.

OPINION EXTENDED;

AFFIRMED.

All Judges concur.

APPENDIX I

State of Alabama Colbert County

In the Circuit Court of Colbert County, Alabama

John Forrest Parker, Appellant

vs.

State of Alabama

Case Nos. CR 89-838, CC 88-105.

Dec. 3, 1991.

ORDER

This cause was heretofore remanded by the Court of Criminal Appeals, State of Alabama, for an evidentiary hearing at which the prosecution was ORDERED to give reasons for its use of peremptory challenges against black venire members and if not able to articulate specific race-neutral explanations that are related to this particular case a new trial be granted the appellant. This Court notes that the defendant has never established a prima facie case of discrimination and this is not a case where the prosecutor has volunteered his reasons prior to the trial court's determination on the defendant's establishment of a prima facie case of discrimination. The present hearing is required pursuant to Ex parte Bankhead, 585 So.2d 112 (Ala.1991). A hearing was set for November 12, 1991 at 2:30 p.m. The State's attorneys, Gary Alverson and Ronald Hudson, were present and defendant, John Forrest Parker, was present in person and represented by his attorneys, Thomas Heflin and Gene Hamby. An additional hearing was held on motion of defendant on November 18, 1991, at 2:10 p.m. The same parties were present. The Court having proceeded to consider the testimony given by the District Attorney, Gary Alverson, on behalf of the State, as well as having considered all of the testimony and evidence presented on behalf of the defendant, and the court noting for the record that 59 jurors from the original jury venire were present, having responded to subpoenas issued by the defendant, and the Court further having considered the original jury venire list which was stipulated to by the parties and which is already a part of the record on appeal, beginning with No. 3, S.A. and ending with No. 129, M.W., which list also reflects the strikes made by the State and the strikes made by the defendant, and the Court having considered all of the testimony and evidence presented in open Court, and based upon said evidence and testimony, the Court does find that the venire consisted of 79 prospective jurors, 10 of which were excused, leaving the number at 69. There were 9 black jurors on said venire, and 60 white jurors. The 9 black venire members comprised 13% of the venire. The blacks comprised 8% of the trial jury.

The Court further finds that the State presented evidence which indicated that venire member No. 3, a black female named S.A., was stricken by the State because she was the daughter of E.A., who was being prosecuted by the District Attorney at that The Court further finds that venire member No. 21, a black female, was stricken by the State because she knew the victim's husband's girlfriend, D.T. The victim's husband had procured this defendant and his co-defendants to kill his wife, and D.T. was a prospective witness for the defendant at the time of selection of the jury. The District Attorney also testified that she was stricken because she was related to one R.C. who had been prosecuted for violation of the Alabama Uniform Controlled Substance Act and because of her statement that she was generally opposed to the death penalty. The State further presented evidence that B.R., white veniremember No. 92, was struck for the same general reasons by the State. The State further presented evidence that said veniremember T.C. indicated during voir dire that she had some knowledge and training in psychology. The District Attorney testified that he struck all veniremembers who had training in the field of psychology because they might place undue emphasis on defense witness Dr. Crowder's testimony. The District Attorney testified that white veniremember No. 129, M.W., white veniremember No. 92, B.R., white veniremember No. 63, R.L., white veniremember No. 58, S.L., white veniremember No. 9, R.B., and white veniremember No. 82, M.N., were all stricken for that same reason, inasmuch as they responded during voir dire that they had some knowledge and training in the field of psychology.

time for the offense of Theft of Property in the First Degree.

With respect to veniremember No. 25, a black male by the name of J.D., the State indicated that the reason they struck said veniremember was because he indicated during voir dire that he had has [sic] difficulty staying overnight, and white veniremember 53, J.J., and white veniremember No. 40, P.H., were stricken for the same reason by the State. The State further presented evidence that J.D. had stated during voir dire: "I really don't want to be here" and that that was an additional reason the State struck veniremember No. 25, J.D.

The State presented evidence that they had stricken veniremember No. 67, a black female by the name of W.M., because she indicated during voir dire that she has worked with members of the family of Billy Gray Williams, the black co-defendant to the defendant of this case, whose case had been tried at the time; that she had heard discussions regarding this case, and white veniremember No. 68,...