White v. State

• Decision Date: 24 August 1990
• Docket Number: 8 Div. 473
• Parties: Leroy WHITE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1218

587 So.2d 1218

Leroy WHITE v. STATE.

8 Div. 473.

Court of Criminal Appeals of Alabama.

Aug. 24, 1990.

Rehearing Denied Oct. 12, 1990.

Richard S. Jaffe, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and J. Thomas Leverette and William D. Little, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

Leroy White was indicted and convicted for the capital burglary-murder of his wife, Ruby White, under Ala.Code 1975, § 13A-5-40(a)(4). He was sentenced to death by electrocution. His trial and sentencing procedures were in accord with the applicable sections of Alabama's 1981 Death Penalty Act, found in Ala.Code 1975, § 13A-5-39 et seq. The defendant raises 20 issues on this appeal from that conviction and sentence.

I.

The defendant contends that blacks were under-represented on the jury venire because the proportionate number of blacks on the venire did not equal their composition of the population in Madison County. This issue was not presented at trial. From the record it is impossible to ascertain the racial composition of the venire, although it can be determined that the jury was struck from a panel of 64 members, of whom at least seven were black. The defendant's appellate counsel states that he "has been unable to obtain any statistics which would show the true racial composition of Madison County." Appellant's brief at 46.

"In order to establish a prima facie violation of the fair-cross-section requirement [of the Sixth Amendment], the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

The defendant has also failed to establish a prima facie violation of the equal protection clause of the fourteenth amendment by proving that the jurors were selected in an intentionally discriminatory fashion, Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), or a prima facie violation of fundamental fairness under the due process clause, see Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984). The record does not even raise the inference of unconstitutional jury selection. See Ex parte Watkins, 509 So.2d 1074, 1076-77 (Ala.), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987) ("The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred.").

II.

The record does show that the defendant's rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987), were not violated by the prosecutor's exercise of two of his peremptory strikes to remove black veniremembers.

The prosecutor's stated reasons for striking each veniremember were racially neutral. One veniremember admitted that he and the defendant had mutual friends and that this would affect his ability to serve. The other black veniremember had previously been arrested for assault and resisting arrest. Scales v. State, 539 So.2d 1074, 1075 (Ala.1988) (prior arrest record); Levert v. State, 512 So.2d 790, 795 (Ala.Cr.App.1987) (juror not sure she could be fair and impartial); State v. Guillory, 544 So.2d 643, 650 (La.App.), cert. denied, 551 So.2d 1334 (La.1989) (shared the same friends).

III.

The defendant argues that his conviction is not supported by the evidence because, he argues, that evidence does not show that he knowingly and unlawfully entered his wife's residence with the intent to commit the crime of murder. He contends that he is not guilty of burglary because, he argues, he was licensed or privileged to enter the marital residence. This issue of whether one spouse may burglarize the residence of the estranged spouse is one of first impression in Alabama.

The trial judge's "finding of facts summarizing the crime" are supported by the record:

"The victim in this case, Ruby White, was the estranged wife of the defendant, Leroy White. The parties had separated during the month of August or September, 1988, when Ruby White left the marital dwelling at 2217 Evans Drive, Huntsville, Alabama, and moved into a shelter for abused spouses. During previous difficulties between the defendant and his wife, the defendant had shot her in the leg.

"Following their separation, Ruby White employed an attorney and filed a petition for divorce. A pendente lite hearing was scheduled at which time the defendant and Ruby White verbally agreed that the defendant would move out of the dwelling at 2217 Evans Drive and would allow Ruby White and her two children to return to the dwelling. The residence at 2217 Evans Drive was owned solely by Ruby White prior to her marriage to the defendant.

"After her return to 2217 Evans Drive, Ruby White changed the door locks and her sister, Stella Lanier, moved in with Ruby and her two children. The children were Brian Smith, age 16, son of Ruby White and a former husband [John Smith] and Latonia White, age 17 months, daughter of Ruby White and Leroy White.

"On the afternoon of October 17, 1988, the defendant, Leroy White, purchased a shotgun from Blue Springs Pawn Shop. After purchasing the shotgun, he went to Larry's Pawn Shop and purchased some double-aught shotgun shells. After making these purchases, the defendant drove to the home of Ruby White at 2217 Evans Drive. The testimony indicated that the defendant had been drinking alcoholic beverages during the day. On his first arrival at the home on Evans Drive, the defendant pulled his car into the driveway and almost ran over his 17 month old daughter. Stella Lanier observed this and the defendant and Stella got into an argument about his driving. The defendant then placed his daughter in the car and drove off.

"At approximately 5:15 p.m. the defendant returned to the Evans Drive residence of his wife and exited his vehicle armed with a [12 gauge] shotgun and a [.38 caliber] pistol. Ruby and Stella observed the defendant pull up and get out of his car with the shotgun and pistol. They went into the house and locked the doors. Brian Smith was sent to a rear bedroom by his mother and told to hide under the bed. Latonia White was still in the defendant's car.

"The defendant then came up to the front door of 2217 Evans Drive and finding it locked, shot the glass out of the storm door and shot the lock off the wooden front door. He then kicked the door open, entered the house and began to scuffle with Ruby and her sister, Stella. As Stella tried to flee the house, the defendant ran out on the front porch and shot four times. Stella fell in the yard [having been wounded in her right arm and right leg].

"The defendant then went back in the house and confronted Ruby who was begging and pleading for her life. After a brief confrontation, Ruby ran out into the front yard at which time the defendant told her to stop or he would blow her legs off. She stopped and the defendant confronted her with the shotgun. Ruby grabbed the barrel of the shotgun and continued to plead for her life. Her daughter Latonia was in the defendant's car and her son Brian was in the house.

"Finally, the defendant shoved Ruby away from the gun and fired at her at point blank range with the double-aught buckshot. The blast tore the flesh from her right arm as she tried to shield herself and the pellets penetrated her chest and abdomen. Ruby fell to the ground moaning but she was not dead. Testimony revealed that the defendant then went back into the house and called for Brian to come out of his hiding place. When Brian came out, the defendant told him to tell his daddy that '... when I get out of this, I'm going to kill him, too.'

"The defendant then went back outside, walked up to where Ruby lay on the ground moaning and said, 'Bitch, you ain't dead yet.' He then went to his car, re-loaded the shotgun, picked up his 17 month old daughter and walked back over to where Ruby lay on the ground. As he placed the muzzle of the shotgun to her neck, he said, 'Bitch, this is the last thing you will see." He then smiled and pulled the trigger.

"The blast tore a hole in Ruby's neck where the gun shot entered and blew off the back side of her head where it exited.

"At this time, the police arrived and the defendant surrendered without incident."

In Alabama, "[b]urglary, like trespass, is an offense against the possession, and hence the test for the purpose of determining in whom the ownership of the premises should be laid in an indictment is not the title, but the occupancy or possession at the time the offense was committed." Hamilton v. State, 283 Ala. 540, 545, 219 So.2d 369, 374, cert. denied, 396 U.S. 868, 90 S.Ct. 134, 24 L.Ed.2d 121 (1969) (quoting Fuller v. State, 28 Ala.App. 28, 30, 177 So. 353, 354 (1937)). "A person 'enters or remains unlawfully' in or upon premises when he is not licensed, invited or privileged to do so." Ala.Code 1975, § 13A-7-1(4). Under Alabama law, a person who is licensed or privileged to enter premises cannot commit criminal trespass or burglary. Johnson v. State, 473 So.2d 607, 609 (Ala.Cr.App.1985).

At the time of the crime, the defendant and his wife were separated. The wife had filed for divorce and a court hearing had been set for September 23, 1988, for the purpose of forcing the defendant out of the marital residence. On the day of the scheduled hearing, the defendant and his wife, represented by their lawyers, negotiated a settlement. The defendant agreed to vacate the house and did so the very next day, taking all of his belongings with him. On that day, September 24, the victim changed the locks on her house....