Bohannon v. State

222 So.3d 457

Jerry BOHANNON

v.STATE of Alabama.

CR–13–0498.

Court of Criminal Appeals of Alabama.

Oct. 23, 2015.

Opinion Issued on Return to Remand Dec. 18, 2015.

Rehearing Denied March 11, 2016.

Glenn L. Davidson, Mobile; Randall S. Susskind, Montgomery; and Benjamin Woodforde Maxymuk, Montgomery (withdrew 11/03/2015), for appellant.

Luther Strange, atty. gen., and James C. Crenshaw and Lauren A. Simpson, asst. attys. gen., for appellee.

BURKE, Judge.

The appellant, Jerry Bohannon, appeals his convictions for two counts of murder defined as capital by § 13A–5–40(a)(10), Ala.Code 1975, because Anthony Harvey and Jerry DuBoise were murdered by one act or pursuant to one scheme or course of conduct. The jury recommended, by a vote of 11 to 1, that Bohannon be sentenced to death. The circuit court followed the jury's recommendation and sentenced Bohannon to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A–5–53, Ala.Code 1975.

The State's evidence tended to show the following. On December 11, 2010, police were dispatched to the Paradise Lounge nightclub in Mobile in response to an emergency 911 telephone call informing the dispatcher that a shooting was in progress. Officer John Deputy, a former officer with the Prichard Police Department, testified that when he arrived at the lounge he saw Bohannon standing in the parking lot with a weapon in his hand and his arm down at his side. A woman, later identified as Bohannon's wife, was standing in front of him and yelled: "Don't shoot." Officer Deputy testified that two bodies were on the ground in the parking lot and that two guns, a .22 caliber derringer pistol and a .32 caliber semiautomatic pistol, were near the bodies. One victim, he said, had a gunshot wound to his chest and multiple gunshot wounds to his head. The second victim had what appeared to be a single gunshot wound to his chest and what appeared to be "footprints on his face." (R. 1093.) Dr. John Krolikowski, a forensic pathologist, testified that Harvey died from a combination of a single gunshot wound to his chest and blunt-head trauma from multiple injuries and that DuBoise died from three gunshot wounds.

The owner of the lounge, William Graves, testified that there was an extensive security system in the lounge and that 8 cameras recorded the outside of the lounge and its parking lot and 14 or 15 cameras recorded the inside of the lounge. A customer sitting at the bar could watch a live video of the parking lot. Three recordings of the shootings from three different angles were introduced into evidence and played for the jury. Transcripts of several 911 emergency telephone calls, as the shootings were in progress, were also introduced and played to the jury.

The circuit court in its sentencing order gave the following account of the shootings as observed from the three videotapes:

"At around 7:30 a.m., according to one of the waitresses, a text came in to either DuBoise or Harvey stating that one of their girlfriends needed the car so the girlfriend could go to work. DuBoise packed up his pool cue into a carrying case and began to leave the Lounge. Bohannon's friend, Wade Brown, had gone outside to use his cell phone and came back into the Lounge to get his things because everyone was beginning to leave. DuBoise and Harvey came out into the parking lot in front of the Lounge and Harvey went over to their car and began examining the tire well. Bohannon, dressed in a plaid shirt and cowboy hat, came out into the parking lot and had a conversation with DuBoise. All of this was captured on video without audio. There were a total of three cameras that picked up the altercation.

"After a short conversation between Bohannon and DuBoise, DuBoise moved away from Bohannon and pushed him slightly, while gesturing to him to leave. Harvey left the car over by the side of the Lounge and walked back toward Bohannon and DuBoise and there was some additional conversation. DuBoise and Harvey turned to leave and had walked several feet away when Bohannon reached under his shirt to his back and produced a .357 Ruger revolver pistol. To fire the Ruger pistol the user must manually cock the hammer each time before pulling the trigger. After walking away several steps, both DuBoise and Harvey turned suddenly to look at Bohannon. Apparently, the hammer had been cocked. Both men then began running and Bohannon began running after them. There were no shots fired at this time. Both men ran around the corner of the Lounge to an area that was fenced in by an 8 foot privacy fence. There was a cutout in the building and both men wedged into that cutout. DuBoise and Harvey produced guns. One of the deceased had a .32 automatic and the other a 2–shot .22 caliber derringer. Both of these guns were later found to have been fired and there was at least one misfire of the .22 derringer and one unfired cartridge from the .32 which had been ejected.

"A gunfight ensued with Bohannon firing and hitting the concrete block building and at or near the same time a shot being fired toward Bohannon. Harvey ran from the hiding place and received a single gunshot wound to the upper left chest and there was skull trauma including what appeared to be a shoe print on Harvey's face. DuBoise also ran from the hiding place and received multiple gunshot wounds. One bullet entered the anterior chest striking his liver; one bullet entered in the ribs striking the stomach and the kidney, the entry being from the posterior lower back close to the kidney and the spleen; and another entered on the left side which involved the lung and the heart. Forensics could not determine the sequence of bullets entering, but the video of DuBoise would indicate that the posterior back entry was first and that Bohannon was over DuBoise when the next two bullets entered. The police investigation team collected spent cartridges around the deceased and they were later confirmed to have been fired from a .357 Ruger which caused the deaths of DuBoise and Harvey. Spent cartridges from the other two guns were recovered as well.

"Additional crime scene collections included two small bags of methamphetamine found on DuBoise inside a magnetic key holder such as could be placed in the tire well of a car. In addition to DuBoise having been shot 3 times, according to witnesses, Bohannon then pistol whipped DuBoise with the butt-end of the Ruger, which ultimately broke. DuBoise's teeth were dislodged from his mouth and he suffered a skull fracture....

"After Bohannon had killed DuBoise and Harvey, Bohannon removed his own cowboy hat and put on a baseball cap belonging to one of the victims."

(C.R. 71–74.)

Wade Brown, a friend and employee of Bohannon's, testified that on the evening of December 10, 2010, he, Bohannon, and Bohannon's wife, Donna, went out for the evening. They went to the lounge early in the evening and played pool and left and went to several other bars, drank alcohol, and played pool. In the early morning hours of December 11, 2010, the three returned to the lounge. Brown did not know what happened until after the first shots had been fired, and he did not see Bohannon have any altercation with either Harvey or DuBoise before the first shots were fired.

Robert Hoss, a regular at the lounge, testified that he was at the lounge when the shootings occurred. He said that the victims had been in the lounge playing pool before the shootings and that around 7:00 a.m. he heard a "big bang" and went to the door of the lounge to see what was happening. He testified that he saw DuBoise lying on the ground, that he telephoned emergency 911, that he saw Harvey running and saw Bohannon shoot Harvey, that Bohannon went to the victims and started beating one of them with his pistol and kicking him, and that Bohannon then searched DuBoise's pockets and took money from his pockets. (R. 1180.) A transcript of Hoss's 911 telephone call was introduced during his testimony and played to the jury. During the emergency call, Hoss screamed: "He's just shooting people like they were nothing."

Melissa Weaver testified that she had worked at the lounge off and on for 10 years, that she was a bartender, that DuBoise and Harvey were regulars at the lounge, that they played pool, that on the morning of the shootings she started work at 12:00 a.m., that Bohannon and two others came in the lounge around 12:00 a.m. left and came back around 2:00 a.m. or 3:00 a.m., that when Bohannon came back he asked her for "an ounce of meth," that she told Bohannon that she could not get him any methamphetamine, that she did not observe any altercation between Bohannon and the victims, that after the first shots were fired she locked the door to the lounge, and that she and the other patrons watched what was happening on the video monitors. Weaver said that sometime before the shootings, Bohannon had called her over and said to her: "[I]f something happens in here tonight, I want you to know that it's not your fault." (R. 1198.)

Sharon Thompson testified that she had worked at the lounge for six years and was at the Lounge on the morning of the shootings but was not working. Thompson said that she came to the lounge with Harvey and DuBoise and that the three of them shot pool all night. When the shooting started she looked out the door and saw DuBoise on the ground. Someone pulled her back into the lounge. Thompson testified that, before the shootings, Weaver asked her to watch the bar while she went to the restroom. At that time, she said, Bohannon approached her and asked her if she could get him some "meth." (R. 1213.) She told Bohannon no and walked off.

Officer Victor Myles of the Prichard Police Department testified that Bohannon made a spontaneous statement as another officer placed Bohannon in his patrol car after Bohannon had been read his Miranda ¹ rights. Bohannon said: "It should be self-defense, because he owed me money." (R. 1290.)

Bohannon's defense was that he acted in...