Richardson v. State

• Decision Date: 13 January 1987
• Docket Number: 1 Div. 271
• Citation: 508 So.2d 289
• Parties: Cornelius RICHARDSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 289

508 So.2d 289

Cornelius RICHARDSON v. STATE.

1 Div. 271.

Court of Criminal Appeals of Alabama.

Jan. 13, 1987.

Rehearing Denied Feb. 10, 1987.

Arthur J. Madden III, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Cornelius Richardson was indicted for capital murder in violation of § 13A-5-31(a)(2), Code of Alabama 1975 (repealed by Acts 1981, No. 81-178, § 20 effective July 1, 1981). The jury found the appellant "guilty of the capital offense as charged in the indictment." He was sentenced to "life in prison without the possibility of parole."

Since the appellant did not raise the issue of the sufficiency of the evidence, the facts of this case will be only briefly stated.

On April 21, 1981 a security guard was shot and killed outside Van's Photo in Mobile, Alabama. Later, on December 13, 1984, this appellant was indicted for this offense. He was tried for this offense on December 9-11, 1985.

The identity of the assailant was the central issue at trial. The bulk of the State's case against the appellant consisted of testimony from several of his acquaintances, three of whom were convicted felons. The one eye-witness to the homicide was unable to identify this appellant as the assailant.

Mrs. Rosemary Leatherwood Chambers testified that she had used drugs with the appellant during 1981 and that, prior to the shooting, she had told him that the Van's Photo security guard carried a lot of money in his wallet.

Ms. Wanda Jackson testified that she also had told the appellant, prior to the shooting, that the security guard at Van's Photo carried a lot of money in his wallet. She also said that sometime following the shooting the appellant told her that he had a gun which a friend of his had used to kill someone and that he needed to get rid of same.

Percy Dennis, a convicted felon, testified that, following the shooting, the appellant told him that he had shot and stabbed a security guard at Van's Photo.

Douglas Parker, Jr. testified that he and the appellant had planned to rob the security guard and that, after the shooting, the appellant told him that he had shot the security guard twice and taken his gun.

Jimmy Lee Clemmons testified that he had given the appellant some drugs "on credit" on the night of the homicide and, when he saw the appellant later, the appellant had two pistols and had asked him if "that man" had died after Clemmons told him that he had been questioned by the police about the shooting.

I

The only issue raised on appeal by the appellant concerns the trial judge's handling of the jury deliberation process. The appellant contends that the trial judge erred to reversal in polling the deadlocked jury as to their numerical division.

He also asserts as erroneous the judge's actions in determining through a show of hands whether the jury regarded being able to review the testimony of a particular witness as essential to achieving a verdict and allowing the jury to take the transcripts of the testimony of three government witnesses with them into the jury room.

The pertinent portion of the record reveals the following:

"(The jurors began their deliberations at 10:55 a.m. and returned to the courtroom with questions at 11:22 a.m.)

"JUROR: Do I presume and I understand you to say that if we requested that a replay of a certain individual's testimony while he was under oath during the trial could not be replayed?

"THE COURT: It's very difficult. The law doesn't like me to do that, or the Supreme Court doesn't like me to do that for the reason that it says that it gives undue emphasis to the weight of a particular witness. However, under certain circumstances I might do that. It's not easy to transcribe the testimony of a witness. I mean, it takes her I forget how many hours doing it out of court for every hour in court of testimony that it takes. But which particular witness were you talking about.

"JUROR: The one known as Big Bobby.

"THE COURT: Big Bobby. I don't know how long he testified.

"MR. COPELAND: I'm sorry, Judge?

"THE COURT: I'm trying to figure out how long he was on the witness stand.

"MR. COPELAND: He wasn't one of the longer witnesses.

"THE COURT: Is there something in particular in that testimony that you were looking for? I mean, I might be able to find a particular portion of it. We might be able to get the whole thing. I don't know how long it was.

"JUROR: He had a conversation with the defendant that we were interested in. Each one of them testified to a conversation and it's kind of running together as to which one said what.

"THE COURT: We might get in--well, let me think about that. Go ahead and try to reach a verdict based on the evidence you have and let me give that some thought.

"(The jurors leave the courtroom and resume their deliberations at 11:31 a.m.)

* * *

* * *

"(The jurors return to the courtroom at 12:10 p.m.) "Ladies and Gentlemen, you now have the case for your deliberation. I just want to say this to you before you go to lunch. Although you have it for your deliberations you're still not at liberty to discuss it among yourselves or with anyone else until all twelve of you are back in the juryroom. So please don't discuss it over lunch. And when you get back from lunch you may then resume your deliberations.

"(A luncheon recess was had, after which the jurors resumed their deliberations and returned to the courtroom at 4:05 p.m.)

"THE COURT: Ladies and Gentlemen, do I understand the jury has a question?

"JUROR: I'm sorry?

"THE COURT: Do you have a question?

"JUROR: Your Honor, we've been unable to reach a unanimous decision for or against the defendant.

"THE COURT: Is there any particular point of law that I might help you with which might assist you in reaching a verdict?

"JUROR: I believe the biggest problem that we had was in determining the credibility of the witnesses in order to accept their testimony, Your Honor.

"THE COURT: All right. I don't want to know which way you're hung, but would you tell me your numerical division of numbers?

"JUROR: We're at seven and five as it stands.

"THE COURT: Is there any juror who has a question that I might be able to answer which might assist you in arriving at a verdict? (No response.) You don't feel that further deliberation would be helpful to you?

"JUROR: I think we've reached a decision that, no, sir, it's an individual thing that this person has got to satisfy himself as to the credibility of the evidence presented by some of the witnesses.

"THE COURT: The question that you asked me for earlier, is the answer to that question important to your decision?

"JUROR: It could lend to it, Your Honor; yes, sir. This area is one of the areas as to the credibility of that particular person's testimony as to whether we accept it or to not accept it.

"THE COURT: All right, Are you referring to the facial hair or the other?

"JUROR: Oh, no, sir, the one about giving the transcript of the testimony.

"THE COURT: You mean that you believe that if you had the transcript of the testimony of Big Bobby or whatever his name was that you might be able to reach a verdict?

"JUROR: Yes, sir. As to whether we accept the credibility of his testimony.

"THE COURT: All right. Let me think about that a moment. Ask that you step back to the juryroom.

"(Jury out)

* * *

* * *

"(The jurors return to the courtroom at this point.)

"THE COURT: Ladies and Gentlemen, the best information that I can get is that it will take us about three hours to transcribe this testimony. If you believe that it's important to your decision then I'm going to do that and I'm going to submit it to you in the morning.

"How many of you think with that testimony you can arrive at a verdict?

"JUROR: It's a possibility.

"THE COURT: Let me put it this way. How many of you think you cannot reach a verdict with that testimony?

"I don't want you to place any undue emphasis on this testimony in the sense that the Supreme Court tells us that if I submit this to you that there is a danger that you might overly emphasize the testimony of the other witnesses. And I want you to think about it, and I want you to think about it tonight and I want you to think about it in terms of whether or not you need any more testimony transcribed and report that fact to me in the morning when you get back.

"You have the case for your deliberation. You're still not at liberty to discuss it until you return in the morning. Ask that you step back to the juryroom and we'll bring you back down here in the morning and you may resume your deliberations and hopefully we'll have the testimony by that time.

"MR. COPELAND: Judge, before you release them may we approach the bench?

"THE COURT: Sure.

"(An off the record discussion was had at the bench.)

"THE COURT: Thank you very much, Ladies and Gentlemen. Please retire to the juryroom.

"(Jury out.)

* * *

* * *

"(End of proceedings on the 11th day of December, 1985.)

"(On the 12th day of December, 1985, Court was called to order and the following proceedings were had with the jury present:)

"THE COURT: Ladies and gentlemen, yesterday I had a message that you wanted the testimony of two additional witnesses and my Reporter has transcribed their testimony--and they are who? Who are the witnesses?

"REPORTER: Demming, Dennis and Leatherwood.

"THE COURT: And are those the two additions that you wanted?

"I just want to caution you once again. I'm going to give you this testimony but I want you to still consider all of the evidence in the case and not give undue weight to this testimony simply because it's been transcribed. I understand there may be a few points you want to consider, so I'm going to deliver it to you right now and you may consider it. You may resume your deliberations.

"Any other questions? (No response.) Okay. Thank you very much.

"MR. CLARK: Judge, before you--may we approach the bench?

"THE COURT: Sure.

"(An off the record...