Bell v. State, 5 Div. 286

• Decision Date: 13 October 1987
• Docket Number: 5 Div. 286
• Citation: 518 So.2d 840
• Parties: Randy Turpin BELL, Alias Randy Cole v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 840

518 So.2d 840

Randy Turpin BELL, Alias Randy Cole v. STATE.

5 Div. 286.

Court of Criminal Appeals of Alabama.

Oct. 13, 1987.

Rehearing Denied Nov. 24, 1987.

Certiorari Denied Jan. 22, 1988

Alabama Supreme Court 87-296.

J.T. Simonetti, Jr., Birmingham, for appellant.

Don Siegelman, Atty. Gen., and William Whatley and John Gibbs, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

In 1983, Randy Turpin Bell was indicted and convicted for the 1981 robbery-murder of Charles Mims and sentenced to death as authorized by Alabama Code 1975, § 13A-5-40(a)(2). That conviction and sentence were affirmed on appeal. Bell v. State, 475 So.2d 601 (Ala.Cr.App.1984), affirmed, Ex parte Bell, 475 So.2d 609 (Ala.1985), cert. denied, Bell v. Alabama, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985).

In 1986, Bell filed a petition for writ of error coram nobis, which was denied after an evidentiary hearing. The petition was heard by the same circuit court judge who presided over Bell's trial. On this appeal from that denial six issues are raised.

I

In the guilt-determining phase of Bell's trial, the judge charged the jury on the capital robbery-murder charged in the indictment and on the lesser included offenses of murder and robbery. Bell now argues that the jury should also have been instructed on the lesser included offenses of robbery in the second and third degrees and "attempted robbery" in the second and third degrees.

In denying the petition, the trial judge wrote a thorough and comprehensive order. He found that this claim was barred from review because it was not raised at trial or on direct appeal:

"This claim, enumerated in paragraphs 1 and 1a of the petition, is barred from review by a writ of error coram nobis because it could have been raised at trial and on direct appeal but was not. Coram nobis is not available to review new issues that were not raised at trial or on direct appeal. Ex parte Ellison, 410 So.2d 130, 132 (Ala.1982); Gwin v. State, 456 So.2d 845, 845 (Ala.Crim.App.), cert. denied, No. 83-1143 (Ala.1984); Magwood v. State, 449 So.2d 1267, 1268 (Ala.Crim.App.1984) (capital case); Jackson v. State, [Ms. 6 Div. 11, Oct. 14, 1986] So.2d (Ala.Crim.App.1986) (capital coram nobis). The failure to raise an issue which could have been raised at the original trial or on direct appeal bars the remedy of coram nobis review. Ex parte Boatwright, 471 So.2d 1257, 1259 (Ala.1985) (J. Maddox concurring specially). Coram nobis is not a means to obtain a second appeal. Bass v. State, 417 So.2d 582, 584 (Ala.Crim.App.) cert. denied, 417 So.2d 588 (Ala.1982). Petitioner cannot now for the first time raise issues available to him at trial. Ex parte Rudolph, 276 Ala. 392, 393, 162 So.2d 486 (1964); Summers v. State, 366 So.2d 336, 340 (Ala.Crim.App.1978), cert. denied, 366 So.2d 346 (Ala.1979). Because this issue was not raised at trial or on direct appeal, petitioner is not entitled to a hearing or relief on this claim."

An instruction on a lesser included offense must be given only if " 'there is any reasonable theory from the evidence which would support the position.' " Ex parte Julius, 455 So.2d 984, 986 (Ala.1984) (emphasis added), cert. denied, Julius v. Alabama, 469 U.S. 1132, 105 S.Ct. 817, 83 L.Ed.2d 809 (1985), quoting from Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1981). "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." Alabama Code 1975, § 13A-1-9(b) (emphasis added). Bell's arguments for instructions on robbery and attempted robbery in the second and third degrees are based on conjecture, speculation, and a vivid imagination. Additionally, given the alternative verdicts available to the jury and the verdict they returned, it is illogical to conclude that they might possibly have found Bell guilty of simple robbery or "attempted robbery" in any degree. Phelps v. State, 435 So.2d 158, 166 (Ala.Cr.App.1983). Additionally, we note that "[o]ur robbery statutes now define robbery as including what formerly would have been an attempt to commit robbery." Ex parte Curry, 471 So.2d 476, 478 (Ala.1984).

II

Bell contends that the trial judge committed reversible error in failing to charge the jury on the law regarding the testimony of accomplices and that that failure prevented the jury from making its own determination as to whether or not State's witness Michael Joe Hubbard was an accomplice and whether the evidence was sufficient to corroborate his testimony.

Although there were two amendments to the original coram nobis petition, this particular issue was never raised in the coram nobis proceeding. For the same reasons stated in Part I of this opinion, we find that this issue, presented here for the first time, has not been preserved for review.

Additionally, the issue of the failure of the trial judge to instruct the jury on the law of accomplices was decided adversely to Bell on direct appeal.

In Ex parte Bell, 475 So.2d 609 (Ala.1985), cert. denied, Bell v. Alabama, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985), our Supreme Court found that Bell's requested jury charges on accomplice testimony were properly refused, 475 So.2d at 612-13, and that, even assuming that Hubbard was in fact an accomplice, the evidence sufficiently corroborated his testimony. 475 So.2d at 613-14.

III

Bell argues that he is entitled to a new trial under the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In denying the petition, the trial judge found and held:

"This claim, enumerated in paragraphs 6, 6a, 6b and 6c of the petition, is barred from review by a writ of error coram nobis because it could have been raised at trial and on direct appeal but was not. As noted above, as to Claim Three, coram nobis does not lie to review claims that could have been raised at trial and on direct appeal but were not. As this claim could have been raised by an appropriate motion or objection at trial, and no such objection or motion was made, petitioner is not entitled to a hearing or relief on this claim, for the reasons set out as to Claim Three above.

"In the alternative of this finding of procedural default, Court took testimony at the coram nobis hearing as to this claim in light of the United States Supreme Court decision in Batson v. Kentucky, U.S. , 106 S.Ct. 1712 (1986).

"This Court heard testimony from the District Attorney, Janice Williams, that the black members of the venire, whom she peremptorily struck, were not struck because they were black. Williams testified that she struck the black members of the venire because all of them had said they knew petitioner in response to voir dire questioning. Petitioner presented no evidence to contradict this testimony and the Court finds that it is credible.

"This Court finds as a fact that the black venire members were not struck solely because of their race. In addition to being procedurally barred, this claim is without merit."

The United States Supreme Court denied certiorari in Bell's direct appeal of his conviction in 1985. Batson was decided in 1986. "[T]he Batson decision should not be applied retroactively on collateral review of convictions that became final prior to its announcement." Ex parte Love, 507 So.2d 979, 980 (Ala.1987), following, Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986).

IV

The trial judge did not engage in a mere mechanical or numerical tallying of the aggravating and mitigating circumstances in sentencing Bell to death.

We agree with the conclusions of the trial judge:

"This claim, enumerated in petitioner's First Amendment to the petition, is barred from review by a writ of error coram nobis because it was decided adversely to petitioner on direct appeal. Bell v. State, 475 So.2d 601, 608 (Ala.Crim.App.1984), aff'd, 475 So.2d 609, 616 (Ala.1985). Coram nobis does not provide the means to relitigate issues already decided on direct appeal. Richardson v. State, 419 So.2d 289 (Ala.Crim.App.) cert. denied, No. 81-937 (Ala.1982); Bass v. State, 417 So.2d 582, 584 (Ala.Crim.App.), cert. denied, 417 So.2d 588 (Ala.1982). A coram nobis petition is due to be denied where the claims raised were reviewed on direct appeal. Ex parte Rudolph, 276 Ala. 392, 393, 162 So.2d 486 (1964); Bies v. State, 418 So.2d 940, 941-942 (Ala.Crim.App.1982); Summers v. State, 366 So.2d 336, 340 (Ala.Crim.App.1978), cert. denied, 366 So.2d 346 (Ala.1979). As petitioner's claim was decided against him by the Alabama Court of Criminal Appeals and the Alabama Supreme Court, petitioner is not entitled to a new hearing or relief on this claim."

On direct appeal, this Court "independently weighed the aggravating and mitigating circumstances of this case and ... agree[d] with the decision of the trial court that death is the proper sentence in this case." Bell, 475 So.2d at 608. Our Supreme Court also "reviewed the propriety of the death sentence in this case, ... and [found] that the sentence of death was appropriate." Bell, 475 So.2d at 616.

V

Citing McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), Bell states that it was "more than likely" that he would receive the death sentence given his "race and economic status and the race and status of his victim." Appellant's brief, p. 33. McCleskey held, among other things, that statistical evidence from the state of Georgia that black defendants who killed white victims have the greatest likelihood of receiving the death penalty was insufficient to demonstrate unconstitutional discrimination in the Fourteenth Amendment context or to show irrationality, arbitrariness, and capriciousness under Eighth Amendment analysis. Although Bell is aware of no similar statistical evidence in Alabama, he "still asserts this issue." Appellant's brief, p. 33. We reject his assertion on authority of McCleskey.

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