Borden v. State, CR-95-0701

• Decision Date: 20 June 1997
• Docket Number: CR-95-0701
• Citation: 711 So.2d 498
• Parties: Jeffery Lynn BORDEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 498

711 So.2d 498

Jeffery Lynn BORDEN v. STATE.

CR-95-0701.

Court of Criminal Appeals of Alabama.

June 20, 1997.

Rehearing Denied Aug. 22, 1997.

Sheldon Perhacs, Birmingham, for appellant.

Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.

LONG, Presiding Judge.

On May 6, 1994, a Jefferson County grand jury returned an indictment charging the appellant, Jeffery Lynn Borden, with two counts of capital murder. Count I of the indictment charged the appellant with the capital offense of murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct. § 13A-5-40(a)(10). Count II of the indictment charged the appellant with the capital offense of murder committed by or through the use of a deadly weapon fired from outside a dwelling while the victim was inside the dwelling. § 13A-5-40(a)(16), Ala.Code 1975. The jury returned verdicts finding the appellant guilty of capital murder, as charged in Count I of the indictment, and guilty of intentional murder, a lesser included offense of the capital murder charge in Count II of the indictment. See § 13A-6-2(a)(1), Ala.Code 1975. The trial court entered judgments of convictions on both verdicts.

With regard to the appellant's conviction for capital murder under Count I of the indictment, the jury, by a vote of 10 to 2, recommended that the appellant be sentenced to death. The trial court, following the jury's recommendation, sentenced the appellant to death by electrocution for capital murder. With regard to the appellant's conviction for intentional murder as a lesser included offense under Count II of the indictment, the trial court sentenced the appellant to life in prison.

The evidence tended to show that on Christmas Eve of 1993, there was a large family gathering at the home of Juanita and Roland Harris in Gardendale. At around 6:45 p.m., the appellant, who was married to but legally separated from the Harris's daughter, Cheryl Borden, arrived at the Harris's residence with his and Cheryl's three children. The children, who had continued to live with their mother in Gardendale after her separation from the appellant, had spent the previous week visiting the appellant in Huntsville--where the appellant was then residing. The appellant was to return the children to Gardendale in time to spend Christmas with their mother. When the children arrived at their grandparents' house, their grandfather, Roland Harris, came outside to help unload their clothes and Christmas gifts from the appellant's car. Shortly thereafter, the children's mother, Cheryl Borden, arrived at her parents' house and began to help her children move some of their things from the appellant's car to her car. In front of the children, the appellant then took out .380 caliber semiautomatic pistol and shot Cheryl Borden in the back of her head. Cheryl fell to the ground. Her father, Roland Harris, who was also present in the front yard, began to run toward the front door of the house yelling for someone to telephone 911. The appellant chased Harris and fired several shots toward him and in the direction of the house. Harris made it into the house as the appellant continued to shoot at him from the yard. One of the bullets fired from the appellant's gun struck and shattered a glass storm door at the front entrance of the house. Once inside the house, Harris collapsed on the floor. At some point during the shooting, a bullet had struck Harris in his back. As the appellant shot at Harris, the three children ran through the garage of the residence and came into the house through a back entrance, screaming that their father had shot their mother and that she was dead. Several other family members were inside the house during the incident and scrambled to take cover from the gunfire.

Cheryl Borden and her father, Roland Harris, were transported to a local hospital, where they died later that evening. The appellant was arrested and charged with their murders.

The pistol used in the shooting incident was recovered at the crime scene. Testimony at trial indicated that the pistol held a total of eight rounds of ammunition and that when it was recovered, it contained one unfired cartridge. There was evidence that at least some of the bullets fired by the appellant entered the living area of the house. ¹

I

The appellant contends that Count I of the indictment--which charged him with the capital offense of murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct--was duplicitous and violated his due process rights. Duplicative counts in an indictment result from the improper joinder of two or more separate and distinct offenses in one and the same count. Capps v. State, 587 So.2d 442 (Ala.Cr.App.1991); Tucker v. State, 537 So.2d 59 (Ala.Cr.App.1988). See 42 C.J.S., Indictments and Informations § 148 at 473 (1991); United States v. Burton, 871 F.2d 1566, 1573 (11th Cir.1989). In his argument that Count I is duplicitous, the appellant maintains that the murder of Cheryl Borden and the murder of Roland Harris constituted separate offenses, which, he says, should not have been joined in Count I of the indictment.

The record reflects that the appellant filed a pretrial motion to dismiss the indictment on the grounds that it was multiplicitous and exposed him to double jeopardy. ² The appellant argued in support of this motion during his trial. The thrust of his argument at trial was that the two counts of capital murder in the indictment each arose out of a single act and thus exposed him to double jeopardy. On appeal, for the first time, the appellant argues that Count I of the indictment was duplicitous, in that it joined two separate offenses in the same count. Because this issue was not presented to the trial court, we must evaluate the appellant's claim on appeal under the plain error standard of review. Rule 45A, Ala.R.App.P; see Jenkins v. State, 627 So.2d 1034 (Ala.Cr.App.1992), aff'd, 627 So.2d 1054, (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1388, 128 L.Ed.2d 63 (1994).

The charging portion of Count I of indictment returned against the appellant provided as follows:

"JEFFERY LYNN BORDEN, whose name is to the grand jury otherwise unknown, did by one act or pursuant to one scheme or course of conduct, did intentionally cause the death of Cheryl Borden by shooting her with a pistol and did intentionally cause the death of Roland Dean Harris by shooting him with a pistol, in violation of Section 13A-5-40(a)(10) of the Alabama Criminal Code, against the peace and dignity of the State of Alabama."

(C. 13.)

Section 13A-5-40(a)(10), Ala.Code 1975, provides that the following is a capital offense:

"Murder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct."

" 'An indictment is sufficient which substantially follows the language of the statute, provided the statute prescribes with definiteness the constituents of the offense.' " Tucker, 537 So.2d at 60, quoting Ex parte Allred, 393 So.2d 1030, 1032 (Ala.1981). Count I of the indictment in this case accurately conformed to the statutory language of § 13A-5-40(a)(10), which defines the capital offense of multiple murder. It did not improperly join two separate and distinct offenses, but charged one offense--the capital offense of murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct. It alleged all the elements of the charged offense, was sufficiently definite to inform the appellant of what he was called upon to defend, and would not tend to result in a conviction based on a jury's finding that the appellant had murdered only one of the persons named in the indictment. See Williams v. State, 710 So.2d 1276 (Ala.Cr.App.1996); Tucker, 537 So.2d at 60-61; Rule 13.2 and 13.3, Ala.R.Crim.P. Count I of the indictment satisfied the constitutional requirements of due process. There was no error, plain or otherwise, with respect to this issue.

II

Although the indictment returned against the appellant was facially valid, we find that the trial court was without jurisdiction to adjudge the appellant guilty of both capital murder for the double murder of Cheryl Borden and Roland Harris, as charged in Count I of the indictment, and guilty of the intentional murder of Roland Harris, as a lesser included offense of the capital murder charge in Count II of the indictment. The record establishes that these two offenses arose out of the same conduct and that the appellant's conviction for the intentional murder of Roland Harris under Count II of the indictment constituted a conviction for the same murder of Roland Harris that was an element of the capital offense of double murder for which the appellant was also convicted under Count I of the indictment. Section § 13A-1-8(b), Ala.Code 1975, provides, in part, as follows:

"When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:

"(1) One offense is included in the other, as defined in section § 13A-1-9...."

Because intentional murder, as defined in § 13A-6-2(a)(1), Ala.Code 1975, is an element of the capital offense of double murder, as defined in § 13A-5-40(a)(10), Ala.Code 1975, and this element must be proven to support a conviction of the capital offense, "intentional murder is by definition and statute a lesser-included offense of § 13A-5-40(a)(10)." Holladay v. State, 549 So.2d 122 (Ala.Cr.App.1988), aff'd, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989). See Ala.Code 1975, § 13A-1-9(a)(1) ("[a]n offense is an included one if ... '[i]t is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged' "). Thus, the...