Bush v. State

Decision Date01 December 1995
Docket NumberCR-90-1652
Citation695 So.2d 70
PartiesWilliam BUSH v. STATE.
CourtAlabama Court of Criminal Appeals

Order Overruling Application for Rehearing

March 8, 1996.

Page 80

Stephen R. Glassroth, Montgomery, and James R. Seale, Montgomery, for Appellant.

Jeff Sessions, Atty. Gen., and Randall McNeill, Asst. Atty. Gen., for Appellee.

PATTERSON, Judge.

The 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 attempted robbery in the first degree, see Ala.Code 1975, § 13A-5-40(a)(2). Each count of the indictment alleges the same offense based on the same facts, but each is worded slightly differently, and two counts include alternative allegations of attempted robbery. The appellant was convicted on November 18, 1981, after a jury trial, of the capital offense charged and, following a unanimous recommendation by the jury that the sentence be death, the trial court sentenced the appellant to death. On appeal, this court and the Supreme Court of Alabama affirmed the conviction and sentence. Bush v. State, 431 So.2d 555 (Ala.Cr.App.1982) (Bush I ), aff'd, 431 So.2d 563 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983).

Subsequently, the 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 the appellant, the federal court ordered that the writ be granted unless the state granted the appellant a new trial within 180 days. Bush v. Smith, Civil Action No. 83V-1438-N, U.S.Dist.Ct., Middle Dist. of Ala., Northern Division. 1

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A new trial was held on the same four-count indictment. It began on May 14, 1984, and culminated with a jury verdict on May 16, 1984, finding the appellant guilty of the capital offense as charged in the indictment. After the jury returned an advisory verdict of death, by a vote of 11 to 1, the trial court sentenced the appellant to death. On appeal, we reversed the judgment and remanded the case for a new trial on the ground that the trial court's jury instruction in the guilt phase indicating that the trial court had made a preliminary finding that the appellant's confession was voluntary and that the jury could not disregard that finding constituted plain error. Bush v. State, 523 So.2d 538 (Ala.Cr.App.1988) (Bush II ), cert. denied, 523 So.2d 538 (Ala.1988).

A third trial was ordered on the same four-count indictment; it began on January 28, 1991, and culminated in a jury verdict of guilty of the capital offense charged in the indictment on February 1, 1991. On the same date, the jury, after a separate sentencing hearing, unanimously recommended that the appellant be sentenced to life imprisonment without the possibility of parole. The trial court then held a second sentencing hearing and sentenced the appellant to death. The appellant appeals from this third conviction and his sentence of death, raising 24 issues. We will address the issues in the order that they appear in the appellant's brief. A rendition of the facts is necessary to an understanding of these issues.

The state presented evidence showing that around 3:00 a.m., on July 26, 1981, the appellant and a companion, Edward Lewis Pringle, 2 entered the Majik Market convenience store on Carter Hill Road in Montgomery, Alabama, with the intent to rob the cashier of money to buy drugs. When they entered, two people were in the store: Larry Dominguez, the store clerk, and his friend Tony Holmes. Dominguez was in the restroom. The appellant pointed a pistol at Holmes and forced him toward the restroom at the rear of the store. When Dominguez opened the restroom door, the appellant shot both Dominguez and Holmes. The appellant then returned to the front of the store and attempted unsuccessfully to open the cash register. Dominguez stumbled out of the restroom, and the appellant shot him again. Before departing, the appellant took two bags of "zodiac sign tags" from a rack behind the counter near the cash register. 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 quickly at the scene 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 throat and, although seriously injured, he survived. He was able to describe his assailant, the pistol, and the automobile the assailants were driving. He described the automobile as a 1973 white-over-green Chevrolet Monte Carlo and the pistol as a nickel-plated .38 caliber short-barreled special.

After leaving the Majik Market, the appellant and Pringle drove to a nearby Seven-Eleven convenience store on Narrow Lane Road in Montgomery, arriving there sometime before 4:00 a.m. The appellant entered the store and purchased a package of Kool cigarettes from the clerk, Thomas Adams. After Adams opened the cash register, the appellant forced him into an office area behind the counter and shot him in the neck with the same pistol he had used to shoot Dominguez and Holmes. 3 The shot to

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Adams's neck shattered his spinal cord and killed him instantly. When the shot was fired, the barrel of the pistol was either touching Adams's neck or within a fraction of an inch of it. The appellant took between $20 to $30 from the cash register, along with a bank bag and checks.

The appellant made a statement to the police in which he confessed to the crimes. Although in his first statement he claimed that Pringle was the triggerman in both shootings at the Majik Market and that he was the triggerman in the collateral capital offense at the Seven-Eleven store, in his second statement, he admitted that he fired the shots that killed Dominguez and Adams and that wounded Holmes. In assisting the officers in recovering the weapon, the appellant said to Officer R.T. Ward, when the pistol was recovered, "[T]hat's the weapon that was used to shoot all three people." Ballistic tests of the pistol--a nickel-plated .38 caliber short-barreled special--proved that it was the pistol that fired the shots in the commission of the three crimes.

For a more detailed recitation of the facts and circumstances surrounding the commission of the crimes and the appellant's involvement, see Bush II, 523 So.2d at 542.

The appellant did not testify at the guilt phase or at the sentencing phase of his trial. He offered no evidence in his defense at the guilt phase. He presented four witnesses at the sentencing phase before the jury, who testified to matters in mitigation of sentence, and he introduced letters that he had written and drawings that he had done while in prison.

It is apparent from the arguments of the appellant's trial counsel, the cross-examination of the state's witnesses, and the assertions made in the appellant's brief that his defense theory was mistaken identity. In furtherance of this theory, he sought to bolster Holmes's identification of Edward Pringle's brother, Cornelius Pringle, as the robber-assailant. He also points out that a number of fingerprints were lifted from the scene of the charged crime and that none matched his. He attempted to discredit the testimony of Patricia Pringle, the wife of Edward Pringle--that her husband had told her that he and the appellant had committed the three crimes and that the appellant had told her that he had shot Dominguez, Holmes, and Adams--by showing that she had received reward money for furnishing that information to the authorities. Finally, he attempted to discredit his incriminating statements by attempting to make it appear that the statements were obtained by coercion and in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In regard to the appellant's focus on Holmes's identification of Cornelius Pringle from a photographic lineup and from a live lineup, the record shows that the severe injuries suffered by Holmes may have affected his recollection of the events and his reasoning. The officers were skeptical of Holmes's identification of Cornelius Pringle from the beginning because he had difficulty communicating with them for days after he was shot and because they suspected that, in addition to the problems caused by his being shot in the face, he was mentally retarded, which proved to be the case. We are compelled to note, however, that we find that any disabilities resulting from his injuries and his stay in the hospital's intensive care unit and from his mental retardation do not cast doubt on his accurate descriptions of the getaway car and the pistol. Based on Holmes's description of the getaway vehicle, a BOLO was broadcast, and an automobile matching that description was found parked at Edward Pringle's residence at approximately 5:30 a.m. on the morning that the three crimes were committed. The motor was still warm. This automobile ultimately proved to be the getaway vehicle driven by the appellant and Edward Pringle in committing the three crimes. Holmes's description of the pistol also proved to be accurate. These descriptions were given

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shortly after the police arrived at the scene and thus were not subjected to the influences arising from the passage of time as was his identification of Cornelius Pringle as the assailant.

In regard to the appellant's attempt to discredit his two incriminating statements, the appellant states in the recitation of the facts in his brief that his interrogation was conducted at night, in a small room, over a period of approximately six hours, while he was handcuffed to a chair. He further states that he was refused a request for an attorney and that he was physically abused and threatened...

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