Wallace v. State

• Decision Date: 10 March 1987
• Docket Number: 1 Div. 360
• Citation: 530 So.2d 849
• Parties: David WALLACE and Wayne Walker v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 849

530 So.2d 849

David WALLACE and Wayne Walker v. STATE.

1 Div. 360.

Court of Criminal Appeals of Alabama.

March 10, 1987.

Rehearing Denied Jan. 26, 1988.

John Bertolotti, Jr., Mobile, for appellant Walker.

Christopher Knight, Mobile, for appellant Wallace.

Charles A. Graddick, and Don Siegelman, Attys. Gen., and Gerrilyn Grant, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

David Wallace and Wayne Walker were found guilty of attempted murder, in violation of § 13A-4-2, Code of Alabama (1975). The appellants were each sentenced to life in the penitentiary without parole.

Howard Garrett testified that he owned a business called Howard's Gas and Snack. He testified that as he began to close his business on the night in question, he was reading the gas pumps when a black male entered his store looking for "sweets or snacks." Mr. Garrett stated that he walked back inside the store, whereupon the black male approached the counter and laid a package of potato chips and a package of cookies on the counter. Garrett testified that he (Garrett) was carrying a gun which was concealed under his vest. The black male indicated that he wanted something else. He walked back to the potato chip rack and looked toward the door. Garrett testified that he, therefore, also looked toward the door and observed another black male entering with a pistol in his hand. Garrett stated that after he turned around and looked back toward the man with the potato chips, he heard a shot. He testified that he then "looked over directly at him [the male with the gun] and the gun went off again." Garrett testified that he lay down on the floor and "played dead." He stated that during this time, he never pulled his gun until after the two black males had left, and when he thought it was safe to do so he got up and telephoned the police. In court, Garrett identified appellant Walker as the man who shot him and appellant Wallace as the man who walked in the store first. Garrett further testified that after he had called the police he had the inclination that the two men would be back to get him. Immediately thereafter, a foreign car drove up and Garrett fired his gun through the window. At the close of the direct examination of Howard Garrett, the following transpired:

"[Prosecutor]: Did the defendant Wallace that came in there and placed the items on the counter did he ever pay you for those items?

"A. He may have put some cash on the counter.

"Q. All right. Did you see him do that?

"A. Yes, he put some cash up on the counter.

"Q. All right. Was that cash still there?

"Q. Do you know how much that would have been? You said he had a bag of chips and some other item?

"A. Somewhere around a dollar."

Alex Powell testified that on the night in question he was working as a security guard at Van's Photos. Powell testified that at the time in question, he was sitting in the guard house reading a newspaper when he became aware that someone was looking at him through the window. Powell looked up and saw a man who turned, walked away and went around the corner. Powell followed the man and as Powell approached the middle of the parking lot he observed police cars at Howard's Gas and Snack. Powell stated that he asked the man what had happened and he said, "Somebody got shot." The man kept walking and Powell followed him whereupon the man stopped, turned around, and asked Powell to hide him. The man asked to be taken to Springhill Avenue; however, Powell responded that he did not have a car. Powell observed a police car driving down the street and the man quickly hid behind two cars. Powell then told the man to get in the guard shack. He instructed the man to "get down low and turn the lights off." Powell locked the man inside the guard shack; he then notified the police of the man's presence and the police thereafter took the man into custody.

James Mayo, Sr., a police sergeant with the Mobile Police Department, testified that he first talked to the appellant Wallace at the scene of the offense and that he was advised of his rights by Sergeant Powell. Sergeant Mayo also testified that once they got downtown, he again advised the appellant of his Miranda rights and attempted to question him. However, the appellant refused to sign a waiver form and would not make a statement. Two days later, Sergeant Mayo testified, the appellant was again advised of his rights; this time he signed a waiver form and made a statement. The trial court suppressed this statement, following a hearing. Sergeant Mayo also testified that he was present at the scene of the offense on the night in question. He testified that Officer Winn had been the initial officer on the scene and had locked the store after he left. When Sergeant Mayo arrived, "the station was as he [apparently Officer Winn] had left it," without any money lying on the counter.

Dr. Thomas Irving testified that Howard Garrett, the victim, suffered two life threatening wounds.

A latent print was taken from a .357 Magnum revolver which was recovered in a neighborhood near the scene of the offense on the day following the offense. This print was positively identified as the print from appellant Wallace's left index finger.

I.

The appellants argue that the trial court erred in denying the defense motion for mistrial after the selection of the jury on the grounds that the prosecutor exercised his peremptory challenges in a racially discriminatory manner. The record indicates that there were nine black members of the venire and that the defense struck seven of them. In response to the defense counsel's motion, the prosecutor gave the following explanations for his strikes: a young black female was struck because she was a homemaker and "may have trouble making the necessary judgments that have to be made and that is the knowledge of what life is like out on the street"; a young black female who is a student made no indication that she was working and "would have not have the necessary experience to be able to draw on to make a judgment in this case"; an older black female who was retired and "maybe overly sympathetic based on the fact that she appeared to be a grandmotherly type;" a young black male who had a beard and "I [the prosecutor] tend to think that people that have beards are somehow those that try to go against the grain," and also, "both of the defense attorneys have beards and I felt like that he would somehow identify with the defense attorneys and would therefore lean in their direction"; a middle-aged, black male who was not working and "may be somewhat irresponsible"; and a middle-aged black female who was some type of supervisor and appeared to be in the same age group as the defendants' parents or mothers.

After the defense counsel made a prima facie showing of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the burden shifted to the State to produce neutral explanations for challenging the black jurors. As indicated above, the prosecution gave race-neutral explanations for his strikes.

" 'The reasons given in response to the court's inquiry need not be equivalent to those for a challenge for cause. If the party shows that the challenges were based on the particular case on trial, the parties or witnesses, or characteristics of the challenged persons other than race, then the inquiry should end and the jury selection should continue.' "

Ex parte Jackson, 516 So.2d 768 (Ala.1986), quoting State v. Neil, 457 So.2d 481, 487 (Fla.1984).

II. ISSUE RAISED BY APPELLANT WALKER

Appellant Walker contends that "the joinder of the two defendants resulted in an unfair trial." The record indicates that the trial court conducted a pretrial hearing in which the judge decided to consolidate the two appellants' cases. Thereafter, the following transpired:

"[COUNSEL FOR APPELLANT WALLACE]: ... In addition, not from my client's point of view but I guess Mr. Bertolotti's [counsel for appellant Walker] point of view, that if they didn't have joint trials, my client would testify on Mr. Bertolotti's client's behalf and say that he was not--According to the statements I think that John [Mr. Bertolotti] had is that he would testify that Mr. Bertolotti's client was not there and had nothing to do with it.

"THE COURT: Well, he can do that at the trial anyway can't he?

"[Counsel for appellant-Wallace]: I don't think he is going to take the stand, Judge.

"THE COURT: I see. Okay.

"[COUNSEL FOR APPELLANT WALLACE]: But he could be called as a witness in Mr. Bertolloti's case is what I am saying. That's not my objection; that's John's.

"MR. BERTOLOTTI: Well, if, in fact, [he] would so testify, I believe there is a possibility that if he were not tried with my client that he might testify that the other individual there was named Robert Hines and not Wayne Walker. But, if, in fact, [counsel for appellant Wallace] is correct that that is what he would testify to, then I would add that to the grounds that I have stated.

"THE COURT: I don't think there's been a sufficient showing of prejudice to either side. So, we are going to go ahead and consolidate them."

The record also indicates that appellant Wallace made an affidavit stating that had he and appellant Walker been tried separately he would have testified on Walker's behalf that he was present at the scene of the offense, saw Howard Garrett shot, and that Walker was not at the scene of the crime and did not shoot Garrett. However, this affidavit was not presented to the trial court until after the close of both parties' cases, just prior to the closing arguments. Appellant Wallace did not testify in front of the jury, while appellant Walker testified and presented a defense of alibi and identity.

Rule 15.4(b), Alabama Temporary Rules of Criminal Procedure, states:

"If defendants are charged in separate indictments, informations, or complaints, the court, on its own initiative or on motion of any party, may, no...