Bush v. State, 3 Div. 494

• Decision Date: 12 October 1982
• Docket Number: 3 Div. 494
• Citation: 431 So.2d 555
• Parties: William BUSH v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 555

431 So.2d 555

William BUSH v. STATE of Alabama.

3 Div. 494.

Court of Criminal Appeals of Alabama.

Oct. 12, 1982.

Rehearing Denied Nov. 2, 1982.

George W. Cameron, Montgomery, for appellant.

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

TYSON, Judge.

The appellant was indicted for and convicted of the capital offense of murdering Larry Dominguez, the cashier of a convenience store in Montgomery, Alabama, by shooting him with a pistol during a robbery in the first degree, in violation of Alabama Code § 13A-5-40(a)(2) (1975). After a separate hearing on aggravating and mitigating Subsequently, the trial court weighed the aggravating and mitigating circumstances, pursuant to Alabama Code § 13A-5-47 (1975) and sentenced appellant to death. The trial court entered specific written findings in support of the death sentence concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Code of Alabama, and also each mitigating circumstance enumerated in § 13A-5-51, and certain other mitigating circumstances which were offered pursuant to § 13A-5-52. ¹

circumstances, the jury returned a verdict unanimously recommending that appellant's punishment be "fixed at death."

Also pursuant to Alabama Code § 13A-5-47(d) (1975), the trial court made and entered of record the following findings of fact regarding this capital offense which we hereby adopt as correct for the purpose of this opinion:

"On July 26, 1981 at approximately 3:05 a.m. the Defendant, William Bush, and Edward Pringle entered a convenience store--Majik Mart--on Carter Hill Road in Montgomery, Alabama. Edward Pringle has capital cases pending against him in this Circuit.

"William Bush pointed a pistol at the witness, Tony Holmes, and forced him to the rear of the store where the cashier, Larry Dominguez, was using the restroom. When Dominguez opened the bathroom door, William Bush shot both Tony Holmes and Dominguez with the pistol. Bush shot Holmes in the face and Dominguez in the chest area. Bush then walked to the front of the store and tried to get into the cash register. When Larry Dominguez stumbled out of the bathroom, William Bush shot him again, this time in the face. Larry Dominguez died from the wounds he received. Bush shot Holmes and Dominguez so that there would be no witnesses to the robbery of the convenience store. Bush took two bags of Zodiac sign tags out of the Majik Market.

"After the shootings at the Carter Hill Road convenience store, Bush and Pringle drove to another convenience store. The second convenience store was a Seven-Eleven store on Narrow Lane Road in Montgomery, Alabama. Bush bought some cigarettes from the cashier, Thomas Adams, to get him to open the cash register. Then Bush forced Adams to go to a small room--an office area behind the counter. Bush shot Adams in the head with the same pistol he had previously used to shoot Tony Holmes and Larry Dominguez. Thomas Adams died from the wound he received. Bush and Pringle took the money from the cash register at the Seven-Eleven Store." (R. 682-683).

I

The appellant asserts that his demurrer to the indictment should have been granted because the indictment failed to aver the "time" of the offense. Appellant argues on this appeal, as he did by way of demurrer, that in the time period between the respective dates of the United States Supreme Court decision in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) and the Alabama Supreme Court decision in Beck v. State, 396 So.2d 645 (Ala.1980), June 20, 1980 and December 19, 1980, there was no statute or other law providing for the death penalty in Alabama. The appellant contends that since the time of the offense is not averred in the indictment the offense could have "happened at a time between June 20, 1980 and December 19, 1980," a time period when in appellant's estimation there was no death penalty provision in this state. (R. 667). We disagree.

The essential premise of appellant's argument, that Alabama had no law providing for capital punishment for offenses committed in the interval between the United States Supreme Court decision in Beck v. Alabama, supra, and the subsequent decision by the Alabama Supreme Court in First, the United States Supreme Court opinion in Beck v. Alabama, supra, did not invalidate Alabama's capital felony statute in its entirety, but simply struck down as unconstitutional that part of the statute which did not permit the jury to consider a verdict of guilt of "a lesser included offense" when the evidence would have supported such a verdict. The Alabama Supreme Court in Beck v. State, supra, judicially severed the preclusion clause which contained this, from the statute in order that the statute might comport with constitutional requirements. Thus, the changes in the statutes which were wrought by Beck v. Alabama, supra, and Beck v. State, supra, were procedural in nature and not substantive, such that Alabama was left without a death penalty provision for capital offenses committed in the interim period referred to by appellant.

Beck v. State, supra, is faulty. This is so for two reasons:

Secondly, in the recent case of Percy Leo Dobard v. State, [Ms. 2 Div. 305, June 29, 1982] --- So.2d ---- (Ala.Cr.App.1982), this court affirmed the death sentence of a defendant convicted of committing a capital offense which occurred on June 21, 1980, one day after the United States Supreme Court decision in Beck v. Alabama, supra. Thus, it was recognized in Dobard, supra, albeit tacitly, that Alabama did have a death penalty law in full force and effect for capital felonies committed during the period in question. Therefore, appellant's contention that the capital offense in the present case could have been committed during a time when there was no law providing for the death penalty in Alabama is unfounded, and without legal merit.

Moreover, the general rule, and the rule that is controlling in the instant case, is that it is not necessary to state in an indictment the precise time at which the offense was committed. Kelley v. State, 409 So.2d 909, 912 (Ala.Cr.App.1981); Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284 (1953); Alabama Code § 15-8-30 (1975). We find none of the exceptions to the general rule applicable to appellant's argument.

In Deep v. State, 414 So.2d 141, 147 (Ala.Cr.App.1982), this court reiterated what Judge Harris so definitively stated in Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978) as follows:

"The constitutional right of an accused to demand the nature and cause of the accusation against him is not a technical right, but is fundamental and essential to the guaranty that no person shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense.

"An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record.

"The indictment in this case is couched in language so clear that any person of common understanding would know that the crime of robbery was charged against appellant."

Despite appellant's allegation that the time of the offense should have been averred, a plain reading of the indictment demonstrates that it is "couched in language so clear that any person of common understanding would know" that the appellant was charged with committing the capital felony of murder during a robbery in the first degree or attempt thereof.

Having reviewed all the circumstances involved, we have determined that the trial court properly overruled the demurrer on the grounds alleged therein.

II

There is no requirement under Alabama's new capital felony statute ² that the jury make specific findings as to the existence of aggravating circumstances during the sentencing phase of the proceedings. The jury's verdict whether to sentence a defendant to death or to life without parole is advisory only. Alabama Code § 13A-5-46 (1975).

Any such contention that the jury should make specific findings enumerating the aggravating circumstances it found to exist was foreclosed by Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) which upheld the Florida statute and its advisory verdict provisions, which also do not require the verdict to specify the aggravating circumstances relied upon by the jury. It is sufficient that the trial court, which is in no way bound by the jury's recommendation concerning sentence, ³ is required to enter specific written findings concerning the existence or non-existence of each aggravating circumstance. ⁴

III

Appellant's final allegation of error is that under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) the State was required to disclose that one of the police officers who took his confession had had a complaint lodged against him alleging brutality ⁵ in an unrelated case by one Neal Martin, a nine-time convicted felon. This issue was raised by appellant for the first time in his motion for new trial. The trial court, after conducting a full evidentiary hearing and considering the totality of the circumstances in light of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), denied appellant's motion. It should be noted that only hearsay allegations were forthcoming at the hearing in support of the motion. There was no demonstrable evidence presented that Martin had actually been mistreated in the...