Cook v. State, 6 Div. 489

• Decision Date: 06 December 1977
• Docket Number: 6 Div. 489
• Citation: 369 So.2d 1243
• Parties: Recardo COOK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1243

369 So.2d 1243

Recardo COOK v. STATE.

6 Div. 489.

Court of Criminal Appeals of Alabama.

Dec. 6, 1977.

Rehearing Denied Jan. 24, 1978.

Charles M. Purvis, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and James L. O'Kelley, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

The appellant was indicted under the Alabama Death Penalty Act for robbery when the victim is intentionally killed and convicted as charged. Code of Alabama 1975, Section 13-11-2 (Code of Alabama 1940, Recompiled 1958, T. 15, § 342(4), 1975 Interim Supplement). Punishment was fixed at death.

On Friday, August 26, 1976, at approximately 6:45 A.M., the appellant was seen pacing back and forth, as if waiting for someone, immediately across the street and in front of the gate to the Sherman Concrete Products Company in Birmingham, Alabama. The deceased, Lewis Webb, always parked his automobile in this area and customarily carried large sums of money to work every Friday so he could cash the plant employees' payroll checks. When Webb arrived at his place of employment, he parked his car and walked across the street to where several of his friends met every morning beside the gate to discuss sports. The appellant, pulling a stocking mask over his head, came up behind Webb as he was crossing the street, whirled him around and demanded his money. Webb raised his hands and denied having any money. The appellant then reached under Webb's shirt, pulled out the money bag containing $3,000.00 and shot Webb once through the heart. The appellant then ran from the scene of the crime.

Walter Lee Hill and James Earl Jones were sitting outside the plant that morning talking with Webb when the robbery-murder occurred. Both men separately identified the appellant in a pre-trial lineup and testified that they observed the appellant in the area that morning. Hill testified that the appellant walked up one side of the street, crossed and then walked down the plant side of the street right in front of them. Jones stated that the appellant remained on the other side of the street pacing back and forth. Joe Goldson, Webb's brother-in-law, saw the appellant running from the scene as he came to work at Sherman Concrete that morning. When Goldson arrived at the plant gate, Hill told him that Webb had been shot and robbed and pointed in the direction the appellant had escaped and that Goldson had just come from. Goldson went back and saw the appellant in a Thunderbird driven by a woman pulling out of a "Mexican food place". He wrote down the license number of the escaping Thunderbird and returned to the plant.

The Thunderbird was registered to the appellant's sister who testified that the car was purchased in her name for the appellant.

The defense was alibi. Janet Jackson testified that she was living with the appellant at the time of the crime. On that particular morning they both went to her mother's house arriving about 6:50-6:55 A.M. They left about 7:06 A.M. She drove her mother's car and the appellant drove his Thunderbird and arrived at the Southside Citgo Service Station at 7:15-7:16 A.M. where the appellant left his car to have some work done on it. Ms. Jackson's mother verified this as did Curtis Pickens, the owner of the service station. The appellant took the stand, denied the killing and testified to his alibi.

In reviewing this conviction we are guided by the principle that an accused is entitled to a fair and impartial trial.

"(T)he law should prevail, without any reference to the magnitude or brutality of the offense charged. No matter how revolting the accusation, how clear the proof, or how degraded, or even brutal, the offender, the Constitution, the law, the very genius of Anglo-American liberty, demand a fair and impartial trial. If guilty, let him suffer such penalty as an impartial jury, unawed by outside pressure, may under the law inflict upon him. He is a human being and is entitled to this. Let not an outraged public, or one which deems itself outraged stain its own hands stamp on its soul the sin of a great crime on the false plea that it is but the avenger of the innocent." Seay v. State, 207 Ala. 453, 455, 93 So. 403, 405 (1922).

With these comments as the framework and basis for our review we now proceed to examine the merits of this cause.

I

Initially, the appellant argues that the imposition of the death penalty as provided by Alabama law is a violation of both state and federal constitutional provisions. The constitutionality of the Alabama Death Penalty Statute (see Code 1975, §§ 13-11-1 13-11-19) was initially proclaimed in Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977) and subsequently upheld and followed in John L. Jacobs v. State, 6 Div. 388 (Remanded for further proceedings, Ala.Cr.App., Ms. October 4, 1977), and Wayne Eugene Ritter and John Louis Evans, III v. State, 1 Div. 837 (Ala.Cr.App., Ms. October 25, 1977). Since the appellant has raised no new or additional reason which we have not previously considered for invalidating the Death Penalty Statute, we hereby reaffirm the constitutional soundness of that statute.

II

The appellant additionally argues that it was error for the trial court to overrule his demurrer to the indictment because of the misspelling of the word "intentionally" in that indictment. The indictment brought against the appellant read, "the defendant did Intentially kill the said Lewis Webb".

Before an objection because of false grammar, incorrect spelling, or mere clerical errors is entertained, the court should be satisfied of the tendency of the error to mislead, or to leave in doubt the meaning of the charge to a person of common understanding, reading, not for the purpose of finding defects, but to ascertain what is intended to be charged. Grant v. State, 55 Ala. 201 (1876). Neither clerical nor grammatical errors vitiate an indictment unless they change the words or obscure the meaning, Grant, supra, or unless the error changes a word into one of different import or the sense is so obscured that one of ordinary intelligence cannot determine with certainty the meaning from the context. Sanders v. State, 2 Ala.App. 13, 56 So. 69 (1911). Here the sense of the indictment is clear. The error in spelling did not obscure the sense and it is obvious what was intended to be charged. Therefore this defect was not fatal to the indictment. Verbal inaccuracies or clerical errors, which are explained and corrected by necessary intendment from other parts of the indictment, or errors of spelling, not obscuring the sense, are not fatal. Gary v. State, 18 Ala.App. 367, 92 So. 533 (1922). Examples of clerical or spelling errors which were held not to vitiate an indictment are: "aforethough", Sanders v. State, 2 Ala.App. 13 56 So. 69 (1911); "aforethgought", Frazer v. State, 29 Ala.App. 204, 195 So. 287, cert. denied, 239 Ala. 309, 195 So. 290 (1940); "atorethought", Curry v. State, 23 Ala.App. 182, 122 So. 298 (1929); "a forethought", Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); "bihphetamine" for "biphetamine", McKessick v. State, 291 Ala. 564, 284 So.2d 516 (1973); "bu" for "by", Burk v. State, 22 Ala.App. 107, 114 So. 71, cert. denied, 216 Ala. 655, 114 So. 772 (1927); "charged" for "charge", Salts v. State, 21 Ala.App. 573, 110 So. 169, cert. denied, 215 Ala. 247, 110 So. 170 (1926); "controll" for "controlled", Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976); "cornally" for "carnally", Brown v. State, 15 Ala.App. 611, 74 So. 733 (1917); "di" for "did", Holland v. State, 11 Ala.App. 134, 66 So. 126, cert. denied, 191 Ala. 662, 66 So. 1008 (1914); "fertilize" for "fertilizer", Kirk v. State, 13 Ala.App. 316, 69 So. 350 (1915); "fraudulently" for "fraudelently", Bell v. State, 139 Ala. 124, 35 So. 1021 (1904); "innocense" for "innocence", Mitchell v. State, 28 Ala.App. 119, 180 So. 119, cert. denied, 235 Ala. 530, 180 So. 123 (1938); "maltous" for "malt", Couch v. State, 6 Ala.App. 43, 60 So. 539 (1912); "on" for "one", Witt v. State, 5 Ala.App. 137, 59 So. 715 (1912); "papaper" for "paper", Askew v. State, 18 Ala.App. 345, 91 So. 911 (1922); "vive" for "five", Bozeman v. State, 40 Ala.App. 391, 114 So.2d 912, cert. denied, 269 Ala. 610, 114 So.2d 914 (1959). The only Alabama case we found holding the indictment fatally defective because of misspelling or the omission of letters from a word in the indictment is Parker v. State, 114 Ala. 690, 22 So. 791 (1896), "dwell-house" for "dwelling house". Therefore, under these authorities, we hold that the indictment was not vitiated by the appearance of "intentially" for "intentionally".

III

Finally the appellant alleges that his conviction is due to be reversed because of the comments of the prosecutor in closing argument.

A.

The first argument objected to occurred when the Assistant District Attorney made the following comment in closing argument.

"MR. JOHNSON: Don't you know that right now out there on every corner, in every little store, in every little Quick Mart, in every little 7-11 Store they are out there, the owners, the proprietors, and they are considering the odds. They are wondering which way you're going to stack them. Don't you know that the Recardo Cook's and the would be Recardo Cook's of this world are out there and they are considering the odds too. Don't you know they are wondering if you're going to say to them, 'We're going to give you a license. We're going to give you a license to kill'.

"MR. WILKINSON: We object to any argument that suggests the jury giving other people license to kill. We object to that.

"THE COURT: Well, that wouldn't be I sustain.

"MR. WILKINSON: Did you sustain?

"THE COURT: Yes, sir.

"MR. WILKINSON: Would you instruct the jury to disregard his last argument?

"THE COURT: I sustained. Go ahead."

The appellant merely asserts that it was error for the trial judge to refuse to instruct the jury to disregard the prosecutor's argument.

The objected to portion of the...