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01/13/95 KENDRICK MCKINNEY v. STATE

January 13, 1995

KENDRICK MCKINNEY
v.
STATE



Appeal from Jefferson Circuit Court. (CC-93-1370). Michael McCormick, Trial Judge.

Released for Publication April 22, 1995.

Montiel, Judge. All the Judges concur.

The opinion of the court was delivered by: Montiel

MONTIEL, JUDGE

The appellant, Kendrick McKinney, was indicted on a charge of murder made capital because it was committed during the course of a robbery. § 13A-5-40(a)(2), Code of Alabama 1975. A jury found McKinney guilty as charged in the indictment and recommended that he be sentenced to life in prison without parole. The trial court followed the jury's recommendation and sentenced McKinney to life in prison without parole.

The evidence adduced at trial tended to show the following: On September 26, 1992, at about 11:30 p.m., Birmingham police responded to a call in the Fountain Heights neighborhood, according to testimony from Officer James Lewis. A neighbor sent police to Christopher Hughes's home, where they found a .45 caliber pistol on the porch and keys in the front door, Lewis said. A tote bag holding clothes and papers was found at the bottom of the steps leading to the porch. Lewis testified that police found Hughes's body across the street.

Hughes's mother, Emily Hughes, testified that Hughes had been at her house at about 11:00 on the night of the murder. She said he had just gotten off work and that he wanted her to help him count money he had in a green First Alabama Bank deposit bag. Ms. Hughes said that her son then changed his mind about counting the money that night and put the bank deposit bag into the tote bag he had with him. Ms. Hughes testified that when she went to the murder scene, she saw the tote bag, but she did not see the First Alabama Bank deposit bag.

Juliette Abroms, a neighbor of Hughes's, testified that she saw Hughes come home at about 11:30 on the night of the murder. She said that she saw Hughes get out of his car and that he was carrying groceries. Just as Hughes reached the top step of the porch, Ms. Abroms said, a black male, later identified as McKinney, jumped out from the side of the porch. As Hughes put his key in the door, Ms. Abroms said, McKinney jumped at him. She said she saw McKinney point something at Hughes, and that she then heard a gunshot. She said Hughes jumped off the porch and ran, yelling, "Oh, Lord, help me." Ms. Abroms testified that she heard only one shot, and that she did not hear any conversation or argument between Hughes and McKinney. McKinney ran from Hughes's yard, but Ms. Abroms said that she did not see him take anything from the yard.

Officer Stan McConnell of the Birmingham Police Department testified that he examined Hughes's tote bag at the crime scene. In the bag, he said, was clothing, papers, $532 in bills and $2.96 in coins.

Dr. Bruce Alexander testified that he conducted the autopsy on Hughes and that, in his opinion, Hughes died from a single gunshot wound to the chest.

Albert Herndon testified that he knew the codefendant in this case, John Martin. Herndon said that on the night of September 26, 1992, he saw Martin circle the block on which Herndon lived in Fountain Heights at least three times. Two of those times there was someone in the car with Martin, Herndon said. That person was later identified as McKinney. The third time Martin drove around the block, he stopped the car in front of Herndon's house. Herndon said that he got in the car and smoked some marijuana with Martin, but that no one was in the car with Martin at that time. Herndon said that Martin told him that he was in the neighborhood because "he had one of his boys handling some business." Herndon further testified that Martin appeared jumpy and that he kept looking over his shoulder. Herndon said that as Martin drove away from his house, Herndon heard a gunshot. Herndon said that Martin drove to a corner where McKinney jumped in the car, and then drove away.

Dorothy Dowdell testified for McKinney. She said that she had worked with Hughes for about three or four years and that she had never seen him with a bank deposit bag. She said that he always put his money in the tote bag that was found at the crime scene.

I

McKinney first argues that the trial court erred by denying his motion for a mistrial made during opening statements when the prosecutor made a remark McKinney argues was a direct comment on his failure to testify. This argument is without merit.

During the prosecutor's opening statement, the following occurred:

"MS. MONTGOMERY [prosecutor]: You'll learn about him being located or finding him located several houses down from where his house was. He was able to make it there, but that he died on that step. You will also hear at least three times what Mr. McKinney tells you occurred, how he sets up the scenario. And I'll ask you to listen intently, intensely to that, and from this neighbor, Ms. Abroms, as far as what happened on that porch that night. That is the subject of this particular indictment.

"MR. BRAMER: [defense counsel]: Judge, I'd like to make an objection and approach the bench, please.

"THE COURT: All right."

The following occurred out of the presence of the jury.

"MR. BRAMER: I made a motion when we had the off-the-record Discussion, and I asked the Judge that I be allowed to put this on the record.

"My objection would be -- during opening remarks it was stated that the jury would hear from Kendrick McKinney at least three times, and my objection is using the terms, 'at least,' means that they could hear more if he chooses to testify. And using the term, 'at least three ...


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