Beck v. State

• Decision Date: 19 December 1980
• Citation: 396 So.2d 645
• Parties: In the Matter of Gilbert Franklin BECK v. STATE of Alabama. 77-530.
• Court: Alabama Supreme Court

Page 645

396 So.2d 645

In the Matter of Gilbert Franklin BECK v. STATE of Alabama.

77-530.

Supreme Court of Alabama.

Dec. 19, 1980.

As Modified on Denial of Rehearing March 6, 1981.

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

Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for respondent.

MADDOX, Justice.

The Supreme Court of the United States, upon review of this case, framed the issue presented to that Court as follows:

May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict?

A majority of the Supreme Court of the United States determined that a death sentence may not be imposed after a jury verdict of guilt of a capital offense when the jury is not permitted to consider a verdict of guilt of a lesser included offense, when the evidence would have supported such a verdict. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

The State concedes that there was an evidentiary basis for lesser included offense instructions in Beck's case, and also concedes that Beck is entitled to a new trial, but contends that the death penalty would be an available option to the State in Beck's new trial. Beck agrees with the State that he is entitled to a new trial, but strongly disagrees that the death penalty would be an available option to the State in his new trial, claiming that the Supreme Court of the United States has found Alabama's Death Penalty Statute, when viewed as a whole, patently unconstitutional.

The issue, therefore, is clearly drawn. The State argues that this Court can sever two provisions from Alabama's Death Penalty Statute in a manner that would permit the imposition of death as a punishment; defendant Beck strongly disagrees.

The two clauses of Alabama's Death Penalty Statute which are involved in this dispute are found in Code 1975, § 13-11-2(a). That section provides:

(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses.... (Emphasis supplied.)

The last phrase of § 13-11-2(a), which precludes the trial judge from giving lesser included offense instructions in capital cases, is the one found constitutionally infirm by the Supreme Court of the United States. The State argues that this Court can sever this clause from the statute and requests that this Court do exactly that. The State also asks this Court to sever the clause which requires that the jury fix the punishment at death if it finds the defendant guilty of a capital offense.

Because of the importance of our decision on not only this case, but possibly other capital cases which have been tried under Alabama's Death Penalty Statute, we will discuss in this opinion the historical development of the death penalty in Alabama, the category of crimes for which the death penalty could be imposed, and the effect of decisions by the Supreme Court of the United States, particularly the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), on the imposition of the death penalty. We will also determine legislative intent in passing the Death Penalty Statute now under consideration, and will decide whether this Court can, or should, exercise its inherent power to formulate guidelines which the Supreme Court of the United States has judicially determined to be constitutionally required in death cases.

HISTORY OF THE DEATH PENALTY IN ALABAMA

The death penalty has always existed in Alabama as a means of punishing those who commit the most serious crimes. What constituted the most serious crimes was necessarily dependent upon societal interests and values existing at the time the various death penalty statutes were adopted. These societal interests and values most often reflected traditional views of what offenses authorized the imposition of death and, during part of Alabama's history, reflected the interaction and relative position of the races, especially during the period prior to the Civil War, when slaves and free Negroes were admittedly singled out for special treatment insofar as capital punishment was concerned. Nevertheless, with that one exception, the history of capital punishment in this state, from pioneer days until the present, reveals a decided attitude that for certain aggravated offenses, especially those which involve the intentional killing of another, only death stands as a commensurate punishment.

In 1807, the Legislative Council and House of Representatives of the Mississippi Territory enacted the first "criminal code" to be in force in the territory (a portion of which would later become the State of Alabama). See, H. Toulmin, A Digest of the Laws of the State of Alabama, Tit. 17 (1823). This criminal code authorized death by hanging as a mode of punishment (Tit. 17, Chapt. 1, § 50), and specified ten capital crimes. These original capital crimes were willful murder (Tit. 17, Chapt. 1, § 1), arson (Tit. 17, Chapt. 1, § 8), rape (Tit. 17, Chapt. 1, § 6), robbery (Tit. 17, Chapt. 1, § 10), burglary (Tit. 17, Chapt. 1, § 11), accessory before the fact to any murder, arson, rape, robbery or burglary (Tit. 17, Chapt. 1, § 12), treason (Tit. 17, Chapt. 1, § 2), slave stealing (Tit. 17, Chapt. 1, § 18), selling a free person as a slave (Tit. 17, Chapt. 1, § 7), and counterfeiting coins (Tit. 17, Chapt. 1, § 26). In 1812, an amendment to the 1807 Code was passed specifying three additional capital By the close of the Legislative General Assembly in January of 1833, the death penalty laws of the state had not undergone any significant changes. See, J. Aikin, A Digest of the Laws of the State of Alabama (1833). The thirteen crimes previously specified were again found deserving of capital punishment. In addition, a new subsection was added to the criminal code entitled Crimes and Misdemeanors by Persons of Color. This subsection recognized three new capitally punishable crimes, viz., any second conviction of any Negro or mulatto whatsoever (p. 113, § 75), accessory of any sort to a capital crime or maiming of any white person by a slave (p. 114, § 78), and any attempt to commit a rape on any free white female by any person of color (p. 114, § 80). Outside of this subsection, the only new capital crime found under the Code was circulating seditious papers for the purpose of inciting insurrection among the slaves (p. 111, § 66). The penalty under these statutes was again mandatory. The only major alteration, whether deemed procedural or substantive, that took place in the usage of the death penalty was pursuant to § 36 of the 1833 Code, which provided that the death penalty could not be imposed except in those cases expressly authorized by statute; however, a dramatic change took place on January 9, 1836, when the legislature of the State passed an act to mitigate the severity of its penal laws (1836 Ala. Acts, Act No. 48). That act provided that white citizens could no longer be capitally punished for the crimes of arson, robbery or burglary; Blacks convicted of those crimes could be sentenced to death. In addition, punishment for the crimes of forgery and counterfeiting was reduced to terms of imprisonment. As a result of this act, only the following crimes (excluding those based upon cultural and racial considerations) could be punished by the imposition of death murder, rape and treason. As for these crimes, the death penalty was mandatory.

crimes, i. e., aiding any insurrection by slaves (Tit. 17, Chapt. 5, § 3), conspiracy by any slave to commit murder or rebel (Tit. 17, Chapt. 5, § 7), and forgery (Tit. 17, Chapt. 6, § 6). Each of these capital statutes was mandatory in nature, providing that any person who committed the specified crimes "shall suffer death." Excluding those statutes which were founded upon societal values extant during the period when slavery was legal in Alabama, only the following crimes were deemed serious enough to warrant the death penalty murder, arson, rape, robbery, burglary, treason, forgery and counterfeiting.

In 1841, history was made in Alabama with the passage and enactment of Alabama's first official penal code. See, A. Meek, A Supplement to Aikin's Digest on the Laws of the State of Alabama (1841). This penal code accomplished a variety of things, including the establishment of a statewide penitentiary system. As concerns the usage and imposition of the death penalty, the mandatory language of prior statutes was removed and jury discretion was authorized. ¹ The statutes enacted at this time represent the forerunners of the death penalty statutes eradicated in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Under this 1841 code, the death penalty (or life imprisonment at the discretion of the jury), could be imposed for the following offenses treason (Penal Code, Chapter II, § 1), murder in the first degree (Penal Code, Chapter III, § 1), aiding any insurrection by slaves (Penal Code, Chapter II, § 2), circulating seditious papers for the purpose of inciting insurrection among slaves (Penal Code, Chapter II, § 4), and killing any slave in a barbarous manner (Penal Code, Chapter III, § 5). Rape, which under every statute prior to 1841 was punished capitally, could now only be punished by life imprisonment (Penal Code, Chapter III, § 14). Punishments for The final chapter of the Penal Code of 1841 pertained to crimes by slaves and free Negroes. Admittedly, as was true of the societal values then existing, the Code treated these individuals much more harshly. The imposition of the death penalty for...