Bracewell v. State, 4 Div. 646

• Citation: 475 So.2d 616
• Decision Date: 31 July 1984
• Docket Number: 4 Div. 646
• Parties: Charles BRACEWELL, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 616

475 So.2d 616

Charles BRACEWELL, alias v. STATE.

4 Div. 646.

Court of Criminal Appeals of Alabama.

July 31, 1984.

Rehearing Denied Oct. 9, 1984.

Certiorari Quashed Aug. 30, 1985

Alabama Supreme Court 84-120.

Griffin Sikes of Sikes, Johnson, Stokes & Taylor, and John Givhan of Albrittons & Givhan, Andalusia, for appellant.

Charles A. Graddick, Atty. Gen., J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

AFTER REMANDMENT FROM THE UNITED STATES SUPREME COURT

HARRIS, Judge.

Charles Bracewell, the appellant herein, was convicted of the capital offense of robbing and murdering Rex Carnley, whose body was found inside his rural store near Opp, Alabama, where he had been shot numerous times in the face and head with his own .22 caliber pistol. The trial court held a separate sentencing hearing and sentenced the appellant to death by electrocution.

The trial court's judgment of conviction was eventually reversed and remanded by the Alabama Court of Criminal Appeals on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Ritter v. State, 403 So.2d 154 (Ala.1981). See Bracewell v. State, 407 So.2d 827 (Ala.Crim.App.), remanded, 407 So.2d 845 (Ala.1979), on remand, 407 So.2d 848 (Ala.Crim.App.1980), reversed, 407 So.2d 853 (Ala.), after remandment, 407 So.2d 854 (Ala.Crim.App.), cert. denied, 407 So.2d 854 (Ala.1981). However, the United States Supreme Court vacated that decision and remanded appellant's case to us for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Alabama v. Bracewell, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982). For the reasons explained herein, appellant's conviction is now due to be reversed.

The appellant was convicted of murdering Rex Carnley with Carnley's own .22 caliber pistol during a robbery inside Carnley's store on the morning of August 15, 1977. The details of the crime pertinent to this case are adequately set forth in Bracewell v. State, 407 So.2d 827 (Ala.Crim.App.), supra. See also, Debra Bracewell v. State, 447 So.2d 815, affirmed, 447 So.2d 827 (Ala.1984). Only those facts applicable to the issues now before us will be repeated herein.

As the State points out in brief, most of those issues raised in appellant's original appeal to this court, incorporated in this appeal by reference, were addressed and properly decided adversely to the appellant in Bracewell v. State, 407 So.2d 827, supra. Those issues which have thus been resolved will not be re-addressed at this time.

Consequently, the only guilt-phase issue now before us is appellant's contention that the existence of the preclusion clause in Alabama's death penalty statute denied him a fair trial either because at trial there was evidence of a lesser included offense or because there are plausible lesser included offense claims that he might have made had there been no preclusion clause.

The resolution of this issue is governed by the two-prong test derived from Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), and prescribed by the Alabama Supreme Court in Cook v. State, 431 So.2d 1322 (Ala.1983); as follows:

"(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 each of these questions is "no" then the existence of the preclusion clause does not entitle the appellant to a new trial. See, Cook v. State, supra.

After a careful review of the record before us we have concluded, in spite of appellant's claims to the contrary, that there was no evidence presented to the jury to support a conviction for a lesser included offense. The State proved that Carnley was the victim of a brutal murder during the course of a robbery and that the appellant and his wife, Debra Bracewell, were the murderers. It was undisputed at trial that Carnley died as a result of multiple gunshot wounds to his face and head. He was found inside his store face down in a pool of blood. It was also undisputed that his wallet and its contents, including a large amount of cash, had been taken at the time of the murder. All of the evidence presented at trial supported the theory that the person or persons who murdered Carnley also took his wallet. Appellant's confessions, presented by the State, confirmed the fact that the appellant was an active participant in this robbery-murder. Neither the State nor the appellant presented any evidence or any theory that the appellant might have been guilty of only the murder or of only the robbery, but not both. And neither presented any other evidence of a lesser included offense.

The appellant did not present any witnesses in his behalf and he did not testify during the guilt-phase of the trial. He did re-call Carnley's former wife ¹ and did "cross-examine" her concerning a possible motive she might have had for killing Carnley. However, there is nothing in the record of the guilt-phase of the trial to indicate how this line of questioning would have supported a conviction for a lesser included offense. As the State points out, evidence tending to prove that Mrs. Carnley killed her former husband, by itself, would have totally exonerated the appellant. There was no evidence, whatsoever, that the appellant only committed some lesser offense either before or after Carnley was murdered.

Nevertheless, the appellant now proposes on appeal three theories which he claims might have supported a conviction for the lesser included offenses of either larceny or murder. First, he argues that the fact that after the body was discovered money was found in the victim's front pants pocket and in several other locations inside the store might have persuaded the jury that Carnley was murdered but not robbed, a conclusion which would have supported a murder conviction. Secondly, he contends that the fact that the padlock on the outside of the front door of Carnley's store, a padlock which had been locked by Mrs. Carnley the previous evening, had been unlocked on the morning of the murder before Carnley's body was discovered might have convinced the jury that Mrs. Carnley, who had a key to the padlock, unlocked the padlock and committed the murder and that the appellant and Debra Bracewell, merely took Carnley's wallet after he had been killed. Finally, he contends that the jury might have concluded from the evidence that Debra Bracewell shot Carnley first, that she alone was the murderer and that the appellant was only a participant in the robbery, a conclusion which might have led to a felony-murder conviction. ²

Appellant's arguments that the evidence presented to the jury supported these theories are unconvincing. The fact that other valuables were not taken during the robbery would not have supported a conclusion that there was no robbery. It was undisputed that the victim's wallet and its contents were taken. Mrs. Carnley testified that Carnley had the wallet in his back pocket when she left him inside the store at 8:00 p.m. the night before he was killed. The wallet and its contents were missing when the body was discovered the next morning. In appellant's several confessions introduced by the State at trial, which constituted the only evidence of what transpired during the course of the incident which resulted in Carnley's death, the appellant consistently stated that he and Debra went to Carnley's store to rob Carnley, that they threatened Carnley with a pistol and demanded money, and that they shot him and took his wallet and its contents from the back pocket of his trousers. There was no other evidence to explain the disappearance of the wallet. ³ If the appellant murdered Carnley, his only reasonable motive was robbery. Any other theory was simply not evidenced in the record.

The condition of the padlock on the front door, by itself, was of no probative value. For aught that appears in the record Carnley, himself, opened the store that morning and began preparations for another normal business day before the Bracewells arrived. He customarily opened the store very early in the morning. His body was discovered by a neighbor who had driven to Carnley's store to purchase some gasoline, because he knew that it would be open that early in the morning. Apparently, Carnley had exited through the rear sliding door and had walked around the building to the front and had unlocked the padlock on the front door from the outside. In his confessions, the appellant stated that Carnley indeed let them in through the front door. When Carnley's body was discovered, the front door was open, as the appellant had described it, and the rear sliding door was open. Furthermore, even if the jury had believed that the condition of the padlock implicated Mrs. Carnley, such a belief would have totally exonerated the appellant (for the same reasons as discussed above with reference to the evidence of Mrs. Carnley's alleged motive). There simply was no basis from the evidence presented to support a conclusion that Mrs. Carnley was the killer and that the Bracewells merely took the wallet after Carnley was dead.

As noted above, the only evidence of what transpired inside Carnley's Store that morning came from appellant's numerous confessions, in which he consistently stated that, after Debra had shot Carnley in the back of the head, he, the appellant, while Carnley was still alive, took the pistol from Debra and deliberately fired five or six more rounds into Carnley's face. There was no evidence to refute the fact that the appellant, at the very least, assisted in killing Carnley, i.e., there was no evidence disputing the fact that the appellant intentionally shot...