Bush v. State, 3 Div. 46

• Decision Date: 26 January 1988
• Docket Number: 3 Div. 46
• Parties: William BUSH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 538

523 So.2d 538

William BUSH v. STATE.

3 Div. 46.

Court of Criminal Appeals of Alabama.

Jan. 26, 1988.

Rehearing Denied March 8, 1988.

Certiorari Denied April 29, 1988

Alabama Supreme Court 87-727.

Dennis N. Balske, Balske & Van Almen, Montgomery, and Rick Harris and Stephen R. Glassroth of Moore, Kendrick, Glassroth, Harris & White, Montgomery, for appellant.

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

PATTERSON, Judge.

Appellant, William Bush, was indicted on September 11, 1981, in a four-count indictment for the capital offense of murder of Larry Dominguez during a robbery in the first degree or an attempt thereof, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. Each count of the indictment alleges the same offense based on the same facts, but each is worded slightly differently, and two of the counts include alternative allegations of attempted robbery. ¹

Appellant was duly arraigned on September 28, 1981, and pleaded not guilty and not guilty by reason of insanity. A jury found him guilty on November 18, 1981, of the capital offense as charged and, after a sentencing hearing, unanimously recommended punishment by death. After a separate sentencing hearing, the trial court accepted the jury's recommendation and sentenced appellant to death. On appeal, this court affirmed appellant's conviction and sentence of death. Bush v. State, 431 So.2d 555 (Ala.Cr.App.1982). Affirmance by the Supreme Court of Alabama followed. Bush v. State, 431 So.2d 563 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983).

Subsequently, appellant filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Alabama and, on March 19, 1984, pursuant to a stipulation between the state and appellant, the federal court ordered that the writ would be granted unless the state granted appellant a new trial within 180 days. This action was precipitated by a conflict of whether the prosecution had given to the defense a police memorandum showing that the only eyewitness to the murders had identified a person other than appellant as the assailant. It was conceded that if the exculpatory information had been turned over to trial counsel, counsel's failure to develop it at trial would have constituted a Sixth Amendment violation, and if it was not turned over, it would have constituted a Fifth Amendment violation. On these alternative bases, a new trial was required.

A new trial was ordered on the same four-count indictment. It began on May 14, 1984, and culminated with the following The state presented evidence showing that around 3:00 a.m., on July 26, 1981, appellant and a companion, Edward Lewis Pringle, ² entered a Majik Market convenience store on Carter Hill Road in Montgomery, Alabama. When they entered, two people were in the store: Larry Dominguez, the store clerk, and his friend, Tony Holmes. Dominguez was in the restroom. Appellant pointed a pistol at Holmes and forced him toward the restroom at the rear of the store. When Dominguez opened the restroom door, appellant shot both Dominguez and Holmes with the pistol. Appellant then returned to the front of the store and attempted to open the cash register. Dominguez stumbled out of the restroom, and appellant shot him again. Appellant took two bags of "zodiac sign tags" from the store and departed. The first shot striking Dominguez passed through his chin, lodging in his neck and severing a large artery. The second shot striking Dominguez entered his right shoulder and passed through his lungs and heart. He died from the injuries caused by the second shot; however, the injuries sustained as a result of the first shot were potentially fatal. Holmes was shot in the neck and, although seriously injured, survived. He was able to give a description of his assailant and of the getaway automobile. He described the automobile as a 1973 white-over-green Chevrolet Monte Carlo.

                jury verdict on May 16, 1984:  "We, the jury, find the defendant guilty as charged in the indictment, capital murder."   On May 17, 1984, the jury, after a separate sentencing hearing and by a vote of eleven to one, recommended the advisory verdict of death.  The trial court then held a second sentencing hearing and found the existence of three aggravating circumstances and no mitigating circumstance.  The trial court did note in its findings that appellant presented witnesses who stated that he was a "good person;  that he had been a good brother, son and friend."   The trial court weighed the aggravating circumstances, while taking into consideration all the evidence offered during the trial of the case and all circumstances and evidence offered on behalf of and pertaining to appellant, and on June 13, 1984, sentenced appellant to death, thereby accepting the death penalty as recommended by the jury.  It is from this second conviction and sentence that appellant now prosecutes this appeal
                

After leaving the Majik Market, appellant and Pringle drove to a Seven-Eleven convenience store on Narrow Lane Road in Montgomery, arriving there sometime prior to 4:00 a.m. Appellant entered the store and purchased a package of cigarettes from the clerk, Thomas Adams. After Adams opened the cash register, appellant forced him into an office area behind the counter and shot him in the head with the same pistol he had used to shoot Dominguez and Holmes. The shot to Adams's head apparently killed him instantly. Appellant took from $20.00 to $30.00 from the cash register.

Appellant did not testify at the guilt phase or at the sentencing phase of his trial. It is apparent from the arguments of his counsel, cross-examination of the state's witnesses, and questions asked defense witnesses, that his defense was based upon a theory of mistaken identity. He attempted, in every way possible, to bolster Holmes's identification of Edward Pringle's brother, Cornelias Pringle, as the triggerman, while at the same time trying to discredit the testimony of Patricia Pringle, the wife of Edward Lewis Pringle, who testified that appellant had told her that he had shot Dominguez, Holmes, and Adams. He endeavored to point the finger of suspicion Twelve issues are raised by appellant on appeal.

at Edward and Cornelias Pringle and away from himself. Cross-examination of the officers and arguments to the jury show an attempt to discredit appellant's incriminating statements. Appellant attempted to make it appear that the statements had been coerced and that the words in the statements were not appellant's but the officers'. In other words, the thrust of defense counsel's argument is that the officers had made up the statements and forced appellant to adopt them as his own. Defense counsel attempted to explain appellant's knowledge of the whereabouts of the murder weapon by claiming that appellant purchased it from someone on the street after the robbery-murders and prior to the time he was arrested. Counsel based this explanation on an investigator's testimony that appellant had told him that he had purchased the pistol after the crimes had been committed.

I

Appellant first contends that the police arrested him without probable cause and that his subsequent custodial statements and the pistol seized as a result of his arrest should have been suppressed. He principally relies upon Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), which holds that confessions obtained during an illegal detention are inadmissible even if the Fifth Amendment is complied with unless there has been a sufficient break in the causal connection between the illegality and the confessions. The exclusionary sanction clearly applies to confessions or statements of the accused obtained during an illegal arrest or detention as well as to other fruits of his illegal arrest. Ex parte Meeks, 434 So.2d 844 (Ala.), on remand, 434 So.2d 848 (Ala.Cr.App.1983).

We first must determine if there was an arrest. While there appears to be some reluctance on the part of the officers to characterize the detention of appellant as an arrest, we conclude, after reviewing all the facts and circumstances, that appellant was actually arrested at his home and transported to police headquarters, where the interrogation took place. In determining whether a person is in custody at a given time, the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); McCants v. State, 459 So.2d 992 (Ala.Cr.App.1984). It is clear that appellant was taken into custody at his home and subjected to the actual control and will of the arresting officers. See Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Waldrop v. State, 462 So.2d 1021 (Ala.Cr.App.1984), cert. denied, 462 So.2d 1021 (Ala.), cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985); 6A C.J.S. Arrest § 2 (1975).

We next determine the question of whether the police had sufficient probable cause to validly arrest appellant without a warrant, for in order for a warrantless arrest to be valid, the arresting officer must have probable cause to make the arrest. See Waldrop v. State; Foy v. State, 387 So.2d 321 (Ala.Cr.App.1980); Braxton v. State, 350 So.2d 753 (Ala.Cr.App.1977); § 15-10-3(3). The arresting officer does not have probable cause unless he is possessed of information upon which, if submitted to a magistrate, a warrant would be issued. Ex parte Meeks; Knight v. State, 346 So.2d 478 (Ala.Cr.App.1977). "Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonable trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Knight, 356 So.2d at 481. "Probable cause is concerned with 'probabilities,' that ...