Baldwin v. State

• Decision Date: 01 November 1983
• Docket Number: 1 Div. 901
• Citation: 456 So.2d 117
• Parties: Brian Keith BALDWIN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 117

456 So.2d 117

Brian Keith BALDWIN v. STATE of Alabama.

1 Div. 901.

Court of Criminal Appeals of Alabama.

Nov. 1, 1983.

Rehearing Denied Nov. 29, 1983.

John L. Carroll and Stephen J. Ellmann, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and Jean Williams Brown, Asst. Attys. Gen., for appellee.

TYSON, Judge.

Brian Keith Baldwin was indicted for the capital offense of robbery when the victim is intentionally killed by the defendant. At trial, the jury found the appellant "guilty as charged in the indictment." The trial judge, after weighing the aggravating and mitigating circumstances in this case, fixed the appellant's punishment at death by electrocution. See Appendix A, hereto attached and made a part hereof.

The appellant's conviction was originally affirmed by this court in Baldwin v. State, 372 So.2d 26 (Ala.Cr.App.1978) and by the Alabama Supreme Court at 372 So.2d 32 (Ala.1979). The United States Supreme Court, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133, vacated the judgment and remanded the case for further consideration in light of BECK V. ALABAMA, 447 U.S. 625, 100 S.CT. 2382, 65 L.ED.2D 392 (1980)¹. Thereafter, the Alabama Supreme Court, 405 So.2d 698, remanded the case to this court, 405 So.2d 699, for further consideration and we reversed and remanded on authority of Beck. The State has requested a rehearing and for the reasons set forth below, we once again affirm this appellant's judgment of conviction and sentence of death.

The facts of this case as set out in this court's original opinion and quoted by the Alabama Supreme Court, are as follows:

"The victim of the appellant's vicious crime was a sixteen-year-old girl named Naomi Rolon. On November 25, 1976, she was driving across town in Hudson, North Carolina, to visit her father who was in a local hospital. She was abducted before reaching her destination by the appellant and his companion, Edward Horsley, both of whom were escapees from a North Carolina prison camp at the time. They took control of her automobile and drove to Charlotte, North Carolina, where they attempted to rape her and to choke her to death. They stripped her of all her clothing except her shoes and socks. She was stabbed with a knife in various parts of her body and then locked in the trunk of the automobile she had been driving. Baldwin and Horsley then drove the car through South Carolina to Atlanta, Georgia, where they spent the night. They next drove to Montgomery, Alabama, on Interstate Highway 85 and then proceeded to Camden, Alabama, located in Wilcox County. The victim remained locked in the trunk of the car during the entire trip.

"In Camden, the appellant stole a pickup truck which contained a hatchet. Horsley drove the automobile, and the appellant drove the truck to an isolated spot in Monroe County. There they removed the victim from the trunk of the car, and Horsley attempted to run the car over her. After several unsuccessful attempts to kill the victim with the automobile, the appellant took the hatchet from the trunk and killed her with a blow leaving a gaping wound in the base of her neck. The two killers were later arrested in Lanett, Alabama, where they were traveling in the stolen truck. The automobile tag from the victim's car was found in the truck which appellant was driving. Both were transported to the Wilcox County Jail on the truck theft charge."

Baldwin v. State, 372 So.2d 26 (Ala.Cr.App.1978).

I

The first issue the appellant raises is essentially the same issue he raised on his initial appeal and which was addressed both by this court and the Supreme Court in the two previous opinions. However The principal question this court must resolve is whether the appellant is entitled to a new trial because the preclusion clause was in effect at the time of his conviction for the instant offense. The appellant contends that although the intentional killing most probably took place in Alabama, the robbery occurred in North Carolina. If such was the case, the appellant claims the State of Alabama did not have jurisdiction over the robbery and thus the appellant could have only been convicted of first degree murder at most in Alabama. Thus, the jury should have been entitled to an instruction on the lesser included offense of murder.

this court must now analyze this issue in a different light because of Beck.

The United States Supreme Court in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) stated:

"Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury's discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence."

Thus, " '[t]he jury must be permitted to consider a verdict of guilt of a non-capital offense' only when 'the evidence would have supported such a verdict.' (Additional emphasis supplied.) Hopper v. Evans, supra." Bryars v. State, 456 So.2d 1122 (Ala.Cr.App.1983).

Following the United States Supreme Court's decisions in Beck and Hopper, the Alabama Supreme Court in Cook v. State, 431 So.2d 1322 (Ala.1983) stated that in the determination of whether an appellant, who was convicted of a capital offense when the preclusion clause was in effect, is entitled to a new trial, the test to be applied is:

"(1) Was there any evidence presented at trial upon which a conviction of a lesser included offense could have been based? (2) If not, has the defendant suggested any plausible claim which he might conceivably have made, had there been no preclusion clause, that is not contradicted by his own testimony at trial? If the answer to both of these questions is no, then a conviction at trial is due to be affirmed."

The evidence at trial conclusively established that the appellant and his companion took control of the vehicle in which the victim was driving in North Carolina. There was some conflicting evidence presented as to whether the victim was killed in Alabama or North Carolina. The appellant urges that if the robbery occurred in North Carolina and the killing took place in Alabama, then he could only be convicted of murder in Alabama and robbery in North Carolina because the two acts were separate offenses. Thus, reversible error occurred because the jury was prohibited by the preclusion clause from considering the lesser included offense of murder.

We do not agree. As Judge Bookout stated in his opinion in this appellant's original appeal, quoting from the opinion in the appellant's companion's appeal [Horsley v. State, 374 So.2d 363 (Ala.Cr.App.1978) ]:

" 'Notwithstanding the importance of robbery as an essential element of the crime charged, it did not constitute the crime charged in the indictment or a crime proscribed by the death penalty statute. No crime proscribed by that statute falls short of an intentional killing. Each of the fourteen crimes enumerated in the statute has within it the culminating factor of an intentional homicide. The statute is for the prevention and punishment of homicides committed under legislatively determined aggravating circumstances. It is impossible to complete, to consummate, any of the fourteen crimes enumerated without the intentional[ly] taking of the life of a human being...' "

Baldwin v. State, 372 So.2d 26 (Ala.Cr.App.1978).

Justice Torbert, reiterating this position in his opinion in this case said:

"The crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating with the act of intentionally killing the victim. The offense consists of two elements, robbing and intentionally killing, but does not consist of two separate offenses. See Ex parte Clements, 370 So.2d 723 (Ala.1979); Horsley v. State [374 So.2d 363], [1 Div. 931] (Ala.Crim.App.1978). Therefore, although the offense was commenced in North Carolina, it was not consummated until Naomi Rolon was killed in Monroe County, Alabama."

Baldwin v. State, 372 So.2d 32 (Ala.1979).

Therefore, the robbery at issue was a continuing offense which began in North Carolina and culminated in Alabama. Thus, this issue was resolved by the jury which properly found that the robbery and the killing occurred in Alabama.

Furthermore, even if there was evidence that both the robbery and intentional killing took place in North Carolina, the appellant would still not be entitled to request a lesser included offense instruction. If both of these crimes were committed in North Carolina, then Alabama would have no jurisdiction over the case and the appellant could not have been convicted of either offense in Alabama. Whether the killing took place in North Carolina or Alabama was a question for the jury which they properly resolved after considering all of the evidence.

After reviewing the evidence in this case and the theories which the appellant has raised in light of Beck, and the cases which have followed, we conclude the appellant was not due an instruction on the lesser included offense of murder.

II

The appellant urges that the prosecutor's remark during his opening statement concerning the appellant's escape from a prison camp in North Carolina constitutes error.

Generally, evidence of other crimes which a defendant has committed is not admissible at his trial on a particular offense. McElroy's Alabama Evidence, § 69.01(1), Third Edition (1977). However, the prosecutor's statement falls within one of the widely recognized exceptions to the general rule.

"... [I]f two or more crimes constitute one criminal transaction, evidence of the other crime or crimes is admissible. In Parsons v. State, 251 Ala. 467, 477, 38 So.2d 209, it was stated:

'But the rule is that if several crimes in fact constitute one criminal...