Hill v. State, 6 Div. 269

CourtAlabama Court of Criminal Appeals
Citation455 So.2d 930
Docket Number6 Div. 269
PartiesWalter HILL v. STATE.
Decision Date31 January 1984

Jackie McDougal, and Robert C. Boyce, III, Bessemer, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.

ON REHEARING

BOWEN, Presiding Judge.

In view of the sentence imposed in this case, we withdraw our opinion on original submission which did not specifically treat each and every issue Hill raised on this appeal. The opinion which follows addresses all the issues raised on appeal and becomes the opinion of the Court.

Walter Hill, the appellant, was indicted for the capital murder of Lois Gene Tatum, Willie Mae Hammock, and John Tatum, Jr. Alabama Code Section 13-11-2(a)(10) (1975). A jury found him guilty of "murder in the first degree with aggravating circumstances as charged in ... the indictment" and fixed punishment at death. At a separate sentencing hearing, a circuit judge accepted the jury's recommendation and sentenced Hill to death.

This appeal involves Hill's second conviction for the same capital offense. His first conviction was reversed in Hill v. State, 371 So.2d 64 (Ala.Cr.App.1979). His second conviction was reversed in Hill v. State, 407 So.2d 567 (Ala.Cr.App.), cert. denied, 407 So.2d 567 (Ala.1981), on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Ritter v. State, 403 So.2d 154 (Ala.1981). That cause was then vacated and remanded by the United States Supreme Court for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Alabama v. Hill, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982).

The indictment averred that Hill "unlawfully and with malice aforethought, killed Lois Gene Tatum, Willie Mae Hammock, and John Tatum, Jr., by shooting them with a pistol." The indictment did not aver in the statutory language the aggravating circumstance that the persons were intentionally killed "by one or a series of acts."

A capital offense "requires an intentional killing with aggravation." Beck v. State, 396 So.2d 645, 662 (Ala.1980). This is stressed in Alabama Code Section 13-11-1 (1975) which states: "In all cases where no aggravated circumstances enumerated in section 13-11-2 are expressly averred in the indictment, the trial shall proceed as now provided by law, except that the death penalty or life imprisonment without parole shall not be given." Section 13-11-2(a) specifically provides that the aggravation "must also be averred in the indictment."

"In Alabama, by statute, the aggravating circumstance must be alleged in the indictment where the death penalty is sought. The aggravating circumstances must be set forth in the indictment because the state is required to give the accused notice that a greater penalty is sought to be inflicted than for a first offense. It is fundamental that the accused must be advised and informed of the nature and extent of the offense with which he is charged.

"Under the Death Penalty Statute, the aggravating circumstance is a statutory element of the crime. Without it, one could not be charged and convicted for 'capital murder'."

Wilson v. State, 371 So.2d 932, 940 (Ala.Cr.App.1978), affirmed, 371 So.2d 943 (Ala.1979), vacated on other grounds, 448 U.S. 903 [100 S.Ct. 3042, 65 L.Ed.2d 1135] (1980), reversed on other grounds, 405 So.2d 696 (Ala.Cr.App.1981) (citations omitted).

We find that the necessary aggravating circumstance ("by one or a series of acts") is inherently present in the fact that multiple murders are charged in the same count of the indictment. It is clear to this Court that the purpose and intent of Section 13-11-2(a)(10) is to create a capital offense when multiple murders are committed by one defendant. The fact that the murders are averred in the conjunctive dictates that they occurred at the same time or so near to each other as to constitute the same offense. Burgess v. State, 44 Ala. 190 (1870). Additionally, we note that the fact that there are multiple murders constitutes the aggravating circumstance. We can conceive of no circumstances by which three people can be murdered without the murders being "committed by one or a series of acts."

Hill cannot complain that he had no notice that the death penalty was sought. See Ex parte Tomlin, 443 So.2d 59 (Ala.1983). Hill's original conviction for capital murder was reversed in Hill v. State, 371 So.2d 64 (Ala.Cr.App.1979), on authority of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). On retrial, Hill was again convicted of capital murder and sentenced to death. However, that conviction was reversed on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Hill v. State, 407 So.2d 567 (Ala.Cr.App.1981). See also Alabama v. Hill, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982). The very indictment which is now argued to be void has been subject to judicial scrutiny for six years. It has been the basis for two trials, two appeals, and one appeal before the United States Supreme Court. The purpose of the indictment has been fulfilled--Hill knew the nature of the charge and the evidence presented by the State supports that charge.

To award Hill a new trial at which he unquestionably will, once again, be found guilty is not only fundamentally unfair but also inherently unsound when judged by the standards of common sense and reason. To grant a new trial on the basis argued by Hill would be to apply highly technical, formalistic rules of law that have absolutely no relation to the individual rights of anyone.

II

Hill was prosecuted under Alabama's Death Penalty Act (Alabama Code Sections 13-11-1 through 9), which was condemned in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) because it contained a preclusion clause which provided that a capital offense, under that act, did not include any lesser offenses. Section 13-11-2(a). Our Supreme Court severed the preclusion clause from this Death Penalty Act in Beck v. State, 396 So.2d 645 (Ala.1980) and affirmed the constitutionality of the act after changing the rules of procedure to be followed in capital cases to comport with constitutional requirements.

The issue here is whether Hill has the right to a new trial or sentencing procedure because of the presence of the preclusion clause in the statute at the time of his trial and conviction.

The arguments advanced by Hill have been considered in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Ritter v. State, 429 So.2d 928 (Ala.1983), and most recently in Tomlin v. State, 443 So.2d 59 (Ala.1983), wherein our Supreme Court held: "A defendant convicted under Section 13-11-2 of the 1975 statute is entitled to a new trial because of the preclusion clause in the statute if there was evidence introduced at trial which would have warranted a jury instruction on a lesser included offense or if the defendant suggests any plausible claim not contradicted by his own testimony which he might conceivably have made which would have entitled him to a jury instruction on a lesser included offense. Cook v. State, 431 So.2d 1322, 1324 (Ala.1983)." Both Tomlin and Cook stand for the proposition that, when a defendant testifies that he was in a distant location when the crime was committed, his own testimony directly contradicts any evidence he might have introduced Hill argues that he did not present an alibi defense because, although he admitted being on the premises when the crime occurred, "it is obvious from the testimony that the Defendant had at least some knowledge of what was occurring." (Appellant's Supplemental Brief, p. 6).

to show that he was guilty of a lesser included offense.

Hill did not have to present evidence or testify that he was in an adjoining county or a distant place in order to establish a defense of alibi. In this case, his trial testimony that he merely drove his automobile to the residence where the killings had either just or recently occurred, that he did not go inside the residence, that his pistol was missing, and that he did not kill "those three people" was sufficient, if believed by the jury, to establish an alibi defense.

An alibi is "a traverse of the material averment in the indictment that the defendant did, or participated in, the particular act charged." Allbritton v. State, 94 Ala. 76, 10 So. 426 (1892). "(T)he essence of alibi is the impossibility of the defendant's guilt based on his physical absence from the locus of the crime." Roper v. United States, 403 F.2d 796, 798 (5th Cir.1968). Our review of the record convinces us that the evidence in this case simply would not have supported a lesser included offense under any analysis.

Hill has not suggested "any plausible claim not contradicted by his own testimony which he might conceivably have made which would have entitled him to a jury instruction on a lesser included offense." Tomlin, supra (emphasis added). His suggestions of prejudice are the speculative and theoretical type rejected in Evans, Tomlin, Cook, and Ritter. Consequently, we find that the presence of the preclusion clause in the statutory scheme under which Hill was convicted did not prejudice him and does not entitle him to either a new trial or sentencing hearing.

III

The trial judge properly dismissed counts one (charging the murder of Lois Gene Tatum), two (the murder of Willie Mae Hammock), and three (the murder of John Tatum, Jr.) of the indictment and permitted Hill to be tried under count four only (charging the murder of all three victims). Hill objects because the dismissal of the three counts occurred after the jury had been struck.

Wooster v. State, 55 Ala. 217, 220 (1876), held: "It was the right of the solicitor, certainly at any time before the trial was commenced, ... with the consent of the court, to enter a nol. pros. as to either count in the...

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