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11/10/94 GARY STEWART DUNNING v. STATE

November 10, 1994

GARY STEWART DUNNING
v.
STATE



Appeal from Jefferson Circuit Court. (CC-93-2596). Alfred Bahakel, TRIAL JUDGE.

Rule 39(k) Motion Denied December 29, 1994. Rehearing Denied December 29, 1994. Certiorari Denied April 21, 1995. Released for Publication August 28, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Gary Stewart Dunning, was convicted of robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. He was sentenced to 25 years in the penitentiary.

The state's evidence tended to show that on December 2, 1992, between 10:00 p.m. and 11:00 p.m., the appellant robbed Odessa Jones at her residence in Birmingham. Jones testified as follows: She had just returned home from church with her four children. Shortly thereafter, Jones heard someone coming through her front door. When she entered her living room, she saw two men with guns coming through the front door. Jones attempted to flee through the back door but encountered another man with a gun. She then returned to the living room, where the appellant began shouting, "Where is my damn money?" Jones testified that the appellant was referring to money that her brother Doony (who was in prison) allegedly owed him. Jones offered to look in a closet in the bedroom for money. Finding none, she told the appellant that he could look in her brother's yellow Ford automobile. She stated that the appellant took the keys to the Ford and went outside with Jones's 12-year-old daughter Valencia Simmons to search the car. He told Jones to stay in the bedroom with the other children. After approximately 20 minutes, Jones left the bedroom to look for Valencia. In the meantime, the appellant had left and Valencia had gone to a neighbor's house to call the police. Later, Jones said that her purse and a gold chain were missing from the house.

Officer Tony Joe Barnwell of the Birmingham Police Department testified that he responded to the call and proceeded to Jones's residence. While en route, he observed three black men running away from the general area of Jones's house. Over the radio, Officer Barnwell briefly described their clothing and then proceeded to follow them. A few blocks away, Officer Barnwell came upon the appellant and asked him to approach the police car. Barnwell testified that the appellant was sweating, which was unusual because it was a cool night. Officer Barnwell asked the appellant why he was perspiring, and the appellant responded, "Well, I've got to hurry to get home." Barnwell then patted down the appellant for weapons and placed him in his patrol car. He took the appellant to Jones's residence to see if anyone could identify him as one of the robbers. Jones identified the appellant as one of the men who entered her house and robbed her. Valencia also testified at trial and identified the appellant as one of the robbers.

The appellant raises three issues on appeal.

I

The appellant first contends that the trial court erred in not removing from the jury a juror who, after the trial had begun, recalled knowing the victim.

During the lunch recess on the first day of trial, a juror brought to the trial court's attention the fact that he remembered the victim's face from high school. However, the juror indicated that he had never really known her personally and that he had not seen her since he graduated from high school in 1976. Furthermore, he said that he could be totally impartial in the case despite remembering her from high school. The appellant's counsel moved to have the trial court strike the juror from the panel or, in the alternative, to make the juror the alternate. The trial court denied this motion and the juror remained on the jury. Essentially, the appellant argues on appeal that this "relationship" between the juror and the victim rises to the level of a challenge for cause. We hold that it does not.

The test for determining whether a strike rises to the level of a challenge for cause is "whether a juror can set aside their opinions and try the case fairly and impartially, according to the law and the evidence." Marshall v. State, 598 So. 2d 14, 16 (Ala. Cr. App. 1991). "Broad discretion is vested with the trial court in determining whether or not to sustain challenges for cause." Ex parte Nettles, 435 So. 2d 151, 153 (Ala. 1983). "The decision of the trial court 'on such questions is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion.'" Nettles, 435 So. 2d at 153. In Marshall v. State, 598 So. 2d 14 (Ala. Cr. App. 1991), this court held that it was not error for a trial court to deny challenges for cause of two jurors who stated that they knew the victim or her family. One veniremember had been employed as a maid by the victim's family and the other stated that she knew the victim's family. Marshall, 598 So. 2d at 16. This court held that this relationship was not grounds for a challenge for cause as long as the juror indicates that he or she can be fair and impartial. 598 So. 2d at 16. In the present case, the juror remembered the victim's face from high school, but was not, and had not been, personally acquainted with the victim.

Therefore, the trial did not err in allowing the juror to ...


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