Hill v. State, 6 Div. 670

• Decision Date: 27 March 1979
• Docket Number: 6 Div. 670
• Parties: Walter HILL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 64

371 So.2d 64

Walter HILL v. STATE.

6 Div. 670.

Court of Criminal Appeals of Alabama.

March 27, 1979.

Supplemental Opinion May 1, 1979.

ORDER

TYSON, Judge.

This Court did, by opinion dated October 31, 1978, Hill v. State, Ala.Cr.App., 371 So.2d 60, cert. denied, Alabama Supreme Court, 371 So.2d 64, January 19, 1979, remand this cause with directions to the Circuit Court of Jefferson County, Alabama, Bessemer Division, for a further hearing with instructions to that court to determine the views of two members of the venire; namely, Samuel Ford and Izesh Hatcher, who were called during the week of October 19, 1977, to ascertain the views of the aforesaid two prospective jurors as to their belief in capital punishment, and, having such belief, whether or not they would be irrevocably committed to vote against a conviction and the imposition of the penalty of death, regardless of the facts and circumstances which might emerge during the course of the trial.

The Circuit Court of Jefferson County, Alabama, Bessemer Division, did conduct a hearing as directed and has sent this Court a supplemental transcript containing testimony of the two aforesaid jurors, which supplemental transcript is dated February 22, 1979, and certified by the court reporter under date of March 8, 1979. This supplemental transcript also contains an order of the circuit judge, dated February 22, 1979.

Each member of this Court has carefully examined the supplemental transcript, dated February 22, 1979, and the majority is of the opinion that the Circuit Court of Jefferson County, Alabama, Bessemer Division, did fail to carry out the directions and mandate of this Court in its opinion of October 31, 1978, as aforesaid. Therefore, this Court does hereby remand this case with directions to the Circuit Court of Jefferson County, Alabama, Bessemer Division, with specific instructions to hold a new hearing, with the defendant, Walter Hill, and his attorneys present, and the testimony therein taken from the two prospective jurors; namely, Samuel Ford and Izesh Hatcher, and the Circuit Court is specifically directed to ask precisely these questions as hereinafter set forth and to ascertain the proper answers from each of the two jurors, with the appellant, Walter Hill, and his attorneys having full right of cross-examination.

The questions shall read as follows:

"Did you, Samuel Ford (and/or Izesh Hatcher), at the time of the original trial of Walter Hill, in the Circuit Court of Jefferson County, Alabama, Bessemer Division, being the week of to-wit October 19, 1977, believe in or entertain a belief against the use of capital punishment before the trial of Walter Hill had begun?"

An appropriate definite Yes or No answer Must be ascertained.

If either Samuel Ford and/or Izesh Hatcher should answer question one in the affirmative, then the Circuit Court is directed to ask the following specific question and obtain a definite specific Yes or No answer to this question:

"Since you, Samuel Ford (or Izesh Hatcher), have stated under oath that you do not believe you could impose the death penalty against Walter Hill in the case at bar, would you be irrevokably committed to vote against a conviction of Walter Hill and an imposition of the death penalty as punishment for such conviction, regardless of the facts and circumstances that might emerge during the course of the trial proceedings?"

Again, a definite Yes or No answer Must be obtained from each of the two prospective veniremen to the questions as hereinabove set forth. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433; Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971); and Mathis v. State, 288 Ala. 464, 262 So.2d 287 (1972).

After conducting the hearing, as herein directed, the Circuit Court is instructed to have a complete supplemental transcript of such hearing transcribed, together with the trial judge's findings and conclusions on the evidence adduced included therein, and such supplemental transcript of these proceedings, under the seal of the circuit clerk, should be promptly forwarded to this Court.

The Circuit Court is further instructed that such hearing be conducted as speedily as is feasible.

This case is hereby remanded with the foregoing directions to the Circuit Court of Jefferson County, Alabama, Bessemer Division, for further proceedings in accordance with this opinion.

REMANDED WITH DIRECTIONS.

HARRIS, P. J., and DeCARLO, J., concur.

BOOKOUT and BOWEN, JJ., dissent.

BOOKOUT, Judge, dissenting:

On our original consideration of the instant appeal, we found that prospective jurors Samuel Ford and Izesh Hatcher were excused from the venire for having a fixed opinion against the death penalty. From the record, it was not clear whether the two jurors were irrevocably committed to vote against a conviction and imposition of the death penalty regardless of the facts and circumstances that might arise during the course of the trial pursuant to Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This court, therefore, remanded to the trial court for a hearing to determine whether either of those two prospective jurors in fact held such a fixed opinion. A transcript of those proceedings in the circuit court has been filed with this court in answer to the remand. The majority of this court has now determined that the cause should again be remanded to the trial court.

From my reading of the transcript from the hearing in question, it appears that a second remandment is completely unnecessary. The majority is of the opinion that the two jurors were equivocating in their replies as to whether they would automatically vote against the death penalty regardless of the evidence. I disagree.

The following are excerpts from the testimony of Samuel Ford:

"Q. Let me rephrase it and make myself a little more clear. Under the existing Alabama statute, if a person is tried as in this case for a murder of more than one person, here we had three people. The law is, as I understand the law, is that if the jury is convinced beyond a reasonable doubt and to a moral certainty that he is guilty of that offense, the only alternative they have if they find him guilty, is that he be electrocuted, that his life be taken in the electric chair.

"That was the premise in which I asked that question, knowing that you would be unable even if you were convinced that he was guilty, be unable to sentence him to die.

"A. If he was guilty, he killed the peoples, my feeling would have to be the electric chair.

"Q. Would you give him the electric chair?

"A. I would have to.

"Q. Let me ask you this: That would be a difficult decision for you, wouldn't it?

"A. Yes, it is.

"A. It is difficult to do. My opinion, I wouldn't want to electrocute him. But, if you find him guilty of killing three peoples, well, he has got to be punished one way or another.

"Q. If the only way was the electric chair "A. Please, let me explain myself. He has to be punished one way or another. I take myself, if I killed three peoples, and I go to court, and he finds me guilty of killing three peoples, and the Court finds me guilty to go to the electric chair, they are supposed to send me to the electric chair.

"Q. We are not talking about the Court, though. We are talking about the jury.

"A. I said the jury. I said the jury find me guilty of killing three peoples, they are supposed to send me to the electric chair.

"Q. Let me ask you this: Would the difficulty of that decision, would that interfere with you giving the defendant and the State of Alabama a fair trial?

"A. No, sir.

"Q. Would not? Would you put upon the State of Alabama a burden beyond a reasonable doubt and to a moral certainty in finding a man guilty, would you require proof beyond any capricious doubt?

"A. (Witness shakes head as if to indicate the negative manner.)"

It appears from the above testimony that Samuel Ford, contrary to his general opposition to the death penalty, would have voted for the death penalty in the instant case if the State proved that the appellant had killed three people as charged.

The following are excerpts from the testimony of Izesh Hatcher:

"Q. Now, let me ask you this: Has your attitude...