Bell v. State, 4 Div. 142

• Decision Date: 20 March 1984
• Docket Number: 4 Div. 142
• Citation: 461 So.2d 855
• Parties: Elton BELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 855

461 So.2d 855

Elton BELL v. STATE.

4 Div. 142.

Court of Criminal Appeals of Alabama.

March 20, 1984.

Rehearing Denied April 24, 1984.

Certiorari Quashed Nov. 9, 1984

Alabama Supreme Court 83-831.

Jerry E. Stokes and Earl V. Johnson, Andalusia, for appellant.

Charles A. Graddick, Atty. Gen. and Rivard Melson and William D. Little, Asst. Attys. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) "guilty of capital murder" on an issue raised by defendant's plea of not guilty to the following indictment:

"THE GRAND JURY OF COVINGTON COUNTY CHARGES THAT BEFORE THE FINDING OF THIS INDICTMENT, ELTON BELL, DID INTENTIONALLY

CAUSE THE DEATH OF MILDRED HART BY STRANGLING HER WITH A TOWEL, OR BY STRANGLING HER WITH HIS HANDS OR BY DROWNING HER WITH HIS HANDS OR BY SOME OTHER MEANS UNKNOWN TO THE GRAND JURY, AND ELTON BELL, CAUSED SAID DEATH DURING THE TIME THAT ELTON BELL DID SUBJECT, OR ATTEMPT TO SUBJECT, MILDRED HART TO SEXUAL CONTACT BY FORCIBLE COMPULSION IN VIOLATION OF TITLE 13A-5-40(a)(8) OF THE CODE OF ALABAMA, 1975, AND AS LAST AMENDED, AGAINST THE PEACE AND DIGNITY OF THE STATE OF ALABAMA."

Soon after the verdict was returned, a comprehensive hearing was conducted before the same jury at which much testimony was presented on the question of both mitigating and aggravating circumstances; arguments were made to the jury and to the trial court by the attorneys for the respective parties; the trial court orally instructed the jury as to its duty in considering whether defendant's punishment should be fixed at death or life imprisonment without parole. The jury thereafter returned the following advisory verdict, signed by the foreman:

"We the jury recommend to the Court that the defendant's penalty be life imprisonment without parole. The number voting for the verdict eleven, the number voting against the verdict one."

Soon after excusing the jury, the following occurred:

"THE COURT: Bring the defendant around.

"(At which time the defendant and his counsel approached the bench).

"THE COURT: Mr. Bell, the jury has found you guilty of the capital offense, do you have anything to say before the judgment of the Court is pronounced upon you?

"(Whereupon the defendant shook his head in the negative).

"THE COURT: I adjudge you guilty of the capital offense and I will set your sentence hearing for the twenty-fifth day of February...."

For good reason, as to which there is no contention otherwise, the sentence hearing was not conducted on the day originally set, but it transpired on March 18, 1983, with all necessary parties present, and at the beginning of the hearing, the following occurred:

"THE COURT: The jury, after trial convicted you and you were sentenced on a capital offense charge in the indictment. The jury recommended life imprisonment without parole, and based on the evidence that was submitted to the jury and the presentence report, there is no reason for the Court not to take the recommendation of the jury. So, at this time, do you have anything to say before I pronounce sentence upon you?

"MR. BELL: (Whereupon Defendant shook head in the negative).

"THE COURT: All right, I will sentence you [the word 'to' seems to have been inadvertently omitted from the transcript] life imprisonment without parole. You do have the right to appeal. Do you wish to give notice of appeal?

"MR. STOKES [An attorney for the defendant]: Yes, sir. We have an outstanding motion for a new trial for judgment not withstanding verdict, which the Court can hear, you know, at some future time....

"....

"THE COURT: All right, Mr. Johnson and Mr. Stokes [the attorneys who represented the defendant, an indigent, on the trial by appointment of the trial court] will be appointed to represent you on the appeal and the Court will order the transcript according to the statute. A judgment will be entered."

Defendant's motion, captioned: "MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, MOTION FOR NEW TRIAL," filed February 25, 1983, was "overruled and denied" after a hearing thereof. The first four grounds of the thirty-ground motion are as follows:

"1. The evidence was insufficient to support the charge of capital murder contained in the indictment.

"2. The evidence was insufficient to prove beyond a reasonable doubt that the defendant either participated in the alleged murder of Mildred Hart or was a willing accomplice to the alleged murder of Mildred Hart.

"3. The verdict of the jury is contrary to the great preponderance of the evidence in the case.

"4. The verdict of the jury was contrary to the evidence and the law in this case."

Among the fifteen separate issues presented in appellant's brief, most of them raise questions that were raised on the trial of the case and on defendant's motion for a new trial. The fifteenth issue is thus captioned in appellant's brief:

"WHETHER THE TRIAL COURT ERRED IN FAILING TO ORDER DISMISSAL OF THE CHARGE OF CAPITAL MURDER AND DISCHARGE THE DEFENDANT OR IN FAILING TO GRANT DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, MOTION FOR NEW TRIAL IN THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CHARGE OF CAPITAL MURDER CONTAINED IN THE INDICTMENT; IN THAT THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT EITHER PARTICIPATED IN THE ALLEGED MURDER OR WAS A WILLING ACCOMPLICE TO THE ALLEGED MURDER; IN THAT THE VERDICT OF THE JURY WAS CONTRARY TO THE GREAT PREPONDERANCE OF THE EVIDENCE; AND, IN THAT THE VERDICT OF THE LAW WAS CONTRARY TO THE EVIDENCE AND THE LAW OF THE CASE."

We now proceed to consider whether the trial court should have granted the defendant's motion for a new trial that contained grounds to the effect that the verdict of the jury was so contrary to the weight of the evidence that a new trial should have been granted him. It is well established that literal precision in the statement of the grounds challenging the verdict as contrary to the weight or the preponderance of the evidence is not necessary. Stallings v. State, 249 Ala. 1, 3, 32 So.2d 233 (1946); Lightfoot v. State, 250 Ala. 392, 393, 34 So.2d 619 (1948). The record, inclusive of the court reporter's transcript of the proceedings, is so extraordinarily voluminous that even a fair summary thereof is necessarily extensive. We will endeavor to condense it as much as feasible by borrowing at times statements found in briefs of the parties on appeal.

According to the undisputed evidence, the victim, Miss Mildred Hart, sixty-seven years of age, one of the most outstanding and highly regarded citizens of South Alabama, with countless friends, admirers, young and old, whose feelings toward her were of utmost love and affection, was raped and killed in her home in Andalusia on Saturday, May 15, 1982. Her body was not discovered until the next day. She lived alone. She was last seen alive by any witness in the case at about 11:00 A.M. on Saturday, May 15, as she was paying for her groceries at a well known store in Andalusia. The following morning, a friend of the victim, Mrs. Mary Braxton, attempted to telephone Miss Hart, as she was wont to do, knowing that on Sunday mornings Miss Hart was generally preparing to teach her Sunday school class. Receiving no answer to her telephone call, Mrs. Braxton, accompanied by another lady, went to the Hart residence, entered through the rear door and discovered that the house was in a state of disarray. The rear door of the house was closed but unlocked. Upon discovery of the condition of the house, Mrs. Braxton and her friend went immediately to a nearby neighbor's home and telephoned the police. After calling the police, the two returned to the Hart home and waited out front until the police arrived.

Officer Steve Spivey of the Andalusia Police Department, accompanied by Officer Hooks, went to the Hart residence and entered through the unlocked back door. As Officer Spivey stepped into the bathroom, he observed someone lying in the bathtub, which was half filled with water. The body of Miss Hart was lying face down with a towel wrapped around her head. There was blood in the water. To his right, inside the doorway, was "a sink" on which Officer Spivey saw a "butcher knife."

The officers then made a room-to-room search to be certain no one was in the house; they saw that each room had been "ransacked." In the bedroom, just past the bathroom, the bed sheets were rumpled and had been pulled up and were tossed. Drawers were taken from cabinets, wires had been cut of lamps and telephones, and books were on the floor. The house was then made secure until the arrival of Mr. Charles F. Brooks of the Enterprise State Forensic Sciences Laboratory at about 10:00 A.M. Mr. Brooks found the body of Miss Hart totally nude except for a pair of stockings "which were below her knees." The body was lying on the right side with the face down in three or four inches of water. Both arms were flexed, and underneath the body were pieces of white electric cord tied to each wrist.

According to the undisputed evidence contained in the testimony of Mr. Williams H. Landrum, a forensic serologist of the Alabama Department of Forensic Sciences, he meticulously examined vaginal, anal and oral smears and swabs from the body of the victim. He said:

"I first of all, examined the swabs for the presence of semen which they were positive. And then I performed serological analyses of the swabs to determine the secretor substances which are present and I found the presence of A and H secretor substances."

Mr. Landrum further testified that he examined some bloodstains in the house and that they revealed "the blood to be Group A." Blood taken from appellant was "Group O." He also examined blood of the victim and determined it to be Group A. In addition, he determined that blood taken from J.W. Johnston, who repeatedly was referred to on the trial as a...