Heath v. State

• Decision Date: 05 July 1983
• Docket Number: 4 Div. 134
• Citation: 455 So.2d 898
• Parties: Larry Gene HEATH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 898

455 So.2d 898

Larry Gene HEATH v. STATE.

4 Div. 134.

Court of Criminal Appeals of Alabama.

July 5, 1983.

Rehearing Denied Aug. 2, 1983.

Larry W. Roney, Phenix City, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and Ed Carnes, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

In August of 1981, Rebecca McQuire Heath was nine months pregnant. In that same month, she was kidnapped from her home in Russell County, Alabama, and executed by a single gunshot wound to her head. Her body was discovered in Troup County, Georgia. Her executioners had been hired by her husband, the defendant, for the sum of $2000.

The defendant was indicted for murder during a kidnapping in the first degree in violation of Section 13A-5-40(a)(1), Code of Alabama 1975. At the guilt-finding phase of his trial, a jury found the defendant guilty as charged in the indictment. At the sentence-determining phase, the jury fixed the defendant's punishment at death. The trial judge then held the hearing mandated by Section 13A-5-47, found that the aggravating circumstance outweighed the mitigating circumstance and sentenced the defendant to death. The written findings of the trial court are attached to this opinion as Exhibit A. The trial and sentencing proceedings were conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1981), and Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). One issue is presented on appeal.

I

The defendant's sole contention on appeal is that his pleas of autrefois convict and former jeopardy were due to be granted. The defendant pled guilty to his wife's murder before the Superior Court of Troup County, Georgia, in February of 1982. He was sentenced to life imprisonment. The defendant argues that this prior Georgia conviction should have barred his subsequent trial and conviction in Alabama for the same criminal conduct.

The double jeopardy clauses of both the Fifth Amendment to the Constitution of the United States and Section 9, Art. I, of the Alabama Constitution, provide that no person shall "for the same offense" be twice put in jeopardy of life or limb. Consequently,

"A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law." Racine v. State, 291 Ala. 684, 687 286 So.2d 896 (1973).

The doctrine of dual sovereignty provides that, "in the absence of a statute, the rule against double jeopardy applies only to offenses against the same sovereignty." 22 C.J.S. Criminal Law, Section 296 (1961). Barnett v. State, 373 So.2d 1226 (Ala.Cr.App.1979), cert. denied, 373 So.2d 1230 (Ala.1980). The United States Supreme Court has recognized this doctrine in holding that a single act may constitute an offense against both state and federal governments and that the offender may be prosecuted by both governments. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Also recognizing the principle that a person convicted in a state court may subsequently be prosecuted for the same act in federal court are United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), rehearing denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970); United States v. NG, 699 F.2d 63 (2nd Cir.1983); Pope v. Thone, 671 F.2d 298 (8th Cir.1982), cert. denied, 457 U.S. 1140, 102 S.Ct. 2974, 73 L.Ed.2d 1360 (1982); Brown v. United States, 551 F.2d 619 (5th Cir.1977).

We have been cited to no federal case involving jeopardy and multiple state prosecutions. However, the courts of various states have recognized that a single act may constitute offenses against two different states and therefore prosecution in In Hare v. State, 387 So.2d 299, 300 (Ala.Cr.App.1980), this Court held that such dual prosecutions are permitted.

both states is constitutionally permissible under the principle of dual sovereignty. People v. Walker, 123 Cal.App. 3d 981, 177 Cal.Rptr. 147 (1981); State v. Booth, 418 So.2d 385 (Fla.App.1982); State v. Brown, 2 Ohio App.3d 321, 441 N.E.2d 1126 (1981); State v. Straw, 626 S.W.2d 286 (Tenn.Cr.App.1981); State v. Glover, 500 S.W.2d 271 (Mo.App.1973).

" 'A conviction in one state for an act in violation of its laws is not a bar to a prosecution in another for the same act, if it violates the laws of the latter state, unless it is otherwise provided by statute, or unless by compact between the states it has been agreed that the jurisdiction shall vest exclusively in the state first apprehending and arresting accused.' 22 C.J.S. Criminal Law, Section 296(c) (1961)."

In the absence of any statutory exception to the dual sovereignty doctrine, see Barnett, supra, we adhere to the principle stated in Hare, supra, and find no error in the denial of the defendant's pleas of former jeopardy.

II

We have fulfilled our statutory duty and searched the record for error affecting any substantial right of the defendant but have found none. Alabama Code Section 12-22-241 (1975); A.R.A.P. 45A.

We now review the propriety of the death sentence as required by Section 13A-5-53, Code of Alabama 1975. We have reviewed the sentencing proceedings and find therein no error adversely affecting the rights of the defendant. The trial court's finding of the aggravating and mitigating circumstances is supported by the evidence. The only aggravating circumstance relied on (the capital offense was committed while the defendant was an accomplice in the commission of a kidnapping, Section 13A-5-49(4)) was established by the verdict of conviction itself. This was proper under Section 13A-5-50, Code of Alabama 1975.

Explicitly addressing each of the three questions specified in Section 13A-5-53(b), we find that death is the proper sentence in this case.

(1) Under Section 13A-5-53(b)(1), there is no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. The trial court instructed the jury in its oral charge in the sentencing hearing not to let any sympathy, bias, passion, or prejudice affect their deliberations or sentence verdict. In the absence of any evidence to the contrary, we must assume that the jurors followed these instructions. Marshall v. Lonberger, 459 U.S. 422, 438, n. 6, 103 S.Ct. 843, 853, n. 6, 74 L.Ed.2d 646 (U.S.1983); Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979).

(2) Our independent weighing of the aggravating and mitigating circumstances required by Section 13A-5-53(b)(2) indicates that death is the proper sentence. The record discloses the chronicle of a murder deliberately planned and engineered. The defendant overcame every obstacle in his path to insure the consummation of his wicked scheme. In consideration of the evidence presented, we do not see how the jury could have returned any verdict but that of guilty with a punishment of death.

In consideration of the third factor in determining whether the death sentence was proper, Section 13A-5-53(b)(3), we find that the sentence of death is neither excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. See Williamson v. State, 370 So.2d 1054 (Ala.Cr.App.1978), affirmed, 370 So.2d 1066 (Ala.1979), vacated and remanded on other grounds, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1132 (1980).

In reviewing this factor, we have considered the punishments and convictions of the defendant's accomplices in the State of Georgia. Each accomplice was indicted for murder during kidnapping first degree.

The defendant's girlfriend, Denise Paige Lambert, pled guilty to conspiracy to commit murder and was sentenced to ten years' imprisonment. Sanders Williams, who was hired to commit the murder but disappeared after several attempts "fell through", also pled guilty to conspiracy to commit murder and received a ten-year sentence.

Jerry Heath, the defendant's brother, who allegedly furnished the defendant with the name of someone who would commit the murder, was tried and acquitted. The two hired assassins, Charles Edward Owens and Gregory Hughes Lumpkin, were convicted of murder and received life sentences.

Our review of the entire record convinces us that the judgment of the circuit court is due to be and it is hereby affirmed.

AFFIRMED.

All Judges concur.

EXHIBIT A

STATE OF ALABAMA, ) IN THE CIRCUIT COURT OF

Plaintiff ) RUSSELL COUNTY, ALABAMA

) CRIMINAL ACTION NO. CC 82-392

vs. )

)

LARRY GENE HEATH, )

Defendant )

)

DETERMINATION OF SENTENCE BY THE COURT

The defendant herein, with assistance of counsel at all proceedings, was found guilty as charged in the indictment. Thereafter a sentence hearing with participation by the same jury as at trial was held. Pursuant to Section 13A-5-47, Code of Alabama 1975, the Court makes the following findings of fact summarizing the crime herein and the defendant's participation in the crime:

FINDINGS OF FACT

GUILT PHASE

In early August, 1982 defendant contacted his brother, Jerry Heath, and Jerry Heath set up a meeting at which he, defendant, and Ricky Heath, another brother of defendant, discussed defendant's intentions to kill his wife, Rebecca Heath. Defendant gave Ricky Heath $40.00 for his expenses toward accomplishing that result; however, nothing developed from this meeting.

Defendant thereupon contacted Jerry Heath a second time. Jerry Heath told defendant he knew somebody else that might commit the murder. Subsequently Jerry Heath told defendant to meet a person at an apartment in Columbus, Georgia. This person was Charles Edward Owens. Sometime later Owens and two other men, Gregory Hughes Lumpkin and Sanders Williams, went...