Sanders v. State
| Decision Date | 02 November 1982 |
| Docket Number | 6 Div. 657 |
| Citation | 426 So.2d 497 |
| Parties | James Earl SANDERS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
George A. Nassaney, Jr., Tuscaloosa, for appellant.
Charles A. Graddick, Atty. Gen. and Jeanne Weston, Asst. Atty. Gen., for the State.
James Earl Sanders was indicted by the January 1981, term of the Tuscaloosa County Grand Jury for the December 20, 1980, murder of his estranged wife Pamela Sue Sanders. Ala.Code 1975, § 13A-6-2. At the time of her death, the victim was five months' pregnant with appellant's child. Trial was had with the jury finding him guilty as charged. He was sentenced to life imprisonment. Hence this appeal.
Appellant, on appeal, does not challenge the sufficiency of the State's evidence.
Sometime between 8:25 p.m. and 9:00 p.m. on December 20, 1981, the victim, her brother Dennis Kimbrell, and his girlfriend Denise Trawick returned from a family reunion to the home of the victim's parents located in the Flatwoods Community of Tuscaloosa County. Upon arriving at the house, they noticed the appellant's truck parked outside. Shortly thereafter, appellant walked from around the side of the house. All four entered the house and a short time later, appellant and Kimbrell unloaded some furniture from Kimbrell's truck. Afterwards, they went inside.
Appellant and the victim were left alone in the living room where they talked about reconciling their marital problems. After several minutes, Kimbrell and Trawick decided to leave and Kimbrell went to his truck. Moments thereafter, Trawick screamed to Kimbrell that appellant was pushing the victim. Before he could enter the house, Kimbrell heard three gunshots. Upon entering, Kimbrell saw appellant fire two or three more shots at his sister. He quickly moved toward the appellant, who then fired a shot at him. Kimbrell tackled appellant and disarmed him. Appellant stated, "Oh my God I have shot my wife." He then fled the scene. The victim died from a gunshot wound to the brain.
Appellant fled to Birmingham where, on December 20, he was arrested for public drunkenness. Afterwards, he went to Chattanooga, Tennessee, where he registered in a motel under a false name. He also listed on the room registration a false model and license plate number for the vehicle he was driving. From Chattanooga, appellant traveled to Hamilton, Mississippi, where relatives persuaded him to surrender.
Appellant contends that the trial court erred in overruling his motions to quash the indictment and the petit jury venire. He asserts that the selection of the grand and petit juries solely from the Tuscaloosa County voter registration list caused both juries to be selected from an unfair and unrepresentative cross-section of the community, contrary to the Sixth Amendment to the United States Constitution. We do not agree.
We are not persuaded that compilation of a county's jury master list exclusively from that county's voter registration list, as is the practice in Tuscaloosa County, is constitutionally or statutorily impermissible. In fact, the applicable statute, § 12-16-57, Ala.Code 1975, suggests the registered voter list as a possible source for compiling the jury master list. By implication then, the statute authorizes the use of the registered voter list in compiling the jury master list so long as such a process will (1) foster a policy of having a fair cross-section of the population without denying qualified citizens the opportunity to serve, and (2) prevent exclusion from jury service of any citizen on account of race, color, religion, sex, national origin or economic status. In the case at bar, there is nothing in the record to suggest that either qualifying condition was violated.
Appellant does not meet the burden of showing that the jury selection process systematically and arbitrarily excluded a cognizable class from jury service, and he falls far short in demonstrating a violation of his Sixth Amendment right to trial by an impartial jury representing a fair cross-section of the community. United States v. Arlt, 567 F.2d 1295 (5th Cir.1978); Durden v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).
Additionally, the motions to quash were not timely filed in that they were filed after appellant's plea to the indictment and after expiration of the extended time within which to change pleas, file motions or plead further.
The trial court's actions in overruling appellant's motion to quash were entirely proper.
Appellant contends that the trial court erred in sustaining the State's objections to certain questions propounded to witness Dennis Kimbrell on cross-examination. His questions were directed to the victim's use of marijuana. We quote the following pertinent portions of the record.
To the first question, Kimbrell negatively replied, albeit after the trial court had sustained the State's objection. The State did not move to have the answer excluded. In this instance, we find no error in the trial court's ruling. Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980); see generally Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980); cert. denied, 392 So.2d 1266 (Ala.1981).
As to the second instance, the form of appellant's question was objectionable. Further, the testimony of Kimbrell does not indicate any difficulty in his recalling the events of December 20. In addition, during his direct examination, appellant testified to the substance of that which he elicited from Kimbrell. Consequently, we find no error in the trial court's ruling.
Appellant contends that the trial court erred in denying him the right to rebut the State's evidence of his flight after he had shot the victim.
On direct examination, Tuscaloosa Sheriff's Department Investigator Robert McFerrin testified that appellant went to Mississippi where he saw him and took him into custody. McFerrin then transported appellant to Tuscaloosa where he was charged with murder.
On cross-examination, McFerrin stated that he had received a report concerning appellant and afterwards traveled to Mississippi and took him into custody. However, to the questions of whether appellant surrendered and waived extradition, respectively, the State's objections were sustained.
During both his direct and cross-examination, appellant testified that after fleeing the scene and traveling to Birmingham and Chattanooga, he went to Hamilton, Mississippi, where he had relatives residing, and voluntarily surrendered to the local authorities.
The State's evidence proved that appellant fled the scene after the shooting. When the flight of an accused is established, the accused, in response to such, may prove that he voluntarily surrendered. Allen v. State, 146 Ala. 61, 41 So. 624 (1906); Carden v. State, 84 Ala. 417, 4 So. 823 (1888); Pierce v. State, 51 Ala.App. 166, 283 So.2d 618 (1973); C. Gamble, McElroy's Alabama Evidence, § 190.01(3) (3rd ed. 1977).
Any error in excluding the testimony of McFerrin in this regard was rendered harmless by the subsequent disclosure of facts of substantially the same effect through the testimony of appellant. Error in excluding evidence is harmless where evidence of the same substance and effect is substantially placed before the jury. Smith v. State, 393 So.2d 529 (Ala.Cr.App.1981); Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. denied, 378 So.2d 1173 (Ala.1979).
Appellant contends that the trial court erred in allowing the State to cross-examine him concerning prior violent acts he perpetrated against the victim.
On cross-examination, appellant initially testified that he had struck the victim only once before the instant incident. He denied striking her two or three weeks prior to the instant incident and denied knowledge of the victim being hospitalized around that time. In addition, he denied ever firing a gun at her. Subsequent thereto, the State asked the following questions:
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