Cook v. State

• Decision Date: 11 March 1983
• Citation: 431 So.2d 1322
• Parties: Ex parte State of Alabama, ex rel. Attorney General. (Re Recardo COOK v. STATE of Alabama). 80-805.
• Court: Alabama Supreme Court

Page 1322

431 So.2d 1322

Ex parte State of Alabama, ex rel. Attorney General (Re Recardo COOK v. STATE of Alabama).

80-805.

Supreme Court of Alabama.

March 11, 1983.

Charles A. Graddick, Atty. Gen., and Ed Carnes and J. Thomas Leverette, Asst. Attys. Gen., for petitioner.

J. Louis Wilkinson, Birmingham, for respondent.

ADAMS, Justice.

The respondent in this case (Cook) stands convicted of robbery during the course of which the victim is intentionally killed, a capital offense under Code 1975, § 13-11-2(a)(2). He received a sentence of life imprisonment without parole.

We granted certiorari to consider whether the principles enunciated in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), were applicable to the facts in this case. While this case was pending before us, the United States Supreme Court issued its opinion in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). As that opinion shed light on the proper interpretation of Beck, supra, we granted the parties in this case an opportunity to submit supplemental briefs discussing the application of the Evans opinion.

A single issue is dispositive of this case, namely:

Is Cook entitled to a new trial because of the preclusion clause in § 13-11-2(a)(2) at the time of his conviction for the capital offense?

We find that he is not, and reverse the decision of the Court of Criminal Appeals.

The facts of the case, as set out in the State's A.R.A.P., Rule 39(k) motion, are as follows:

On August 27, 1976, Louis Webb (Webb) went to work carrying more than $3,000.00 in cash in a bank bag. It was payday, and Webb had established the practice of cashing the checks of his fellow employees from his own funds. Cook was waiting outside Webb's place of work. When Webb arrived, Cook robbed and shot him, causing his death. Cook was positively identified by two eyewitnesses. The automobile in which Cook fled was registered in the name of his sister, who testified that the car had been in Cook's possession at the time of the crime.

Cook's only defense was alibi, and the only witness who testified for the defense was Cook himself. ¹ He claimed that he had been with his girlfriend at the time of the crime, but did not know where she was at the time of the trial. He also testified that another person had seen him and his girlfriend at a service station when the crime was occurring elsewhere, but that he did not know where that person was. There was no defense evidence offered which would have supported a lesser included offense.

At Cook's first trial, he was found guilty and sentenced to death. This conviction was reversed in Cook v. State, 369 So.2d 1243 (Ala.Cr.App.1977), rev'd for new sentence hearing, 369 So.2d 1251 (Ala.1978), rev'd as to conviction, 369 So.2d 1260 (Ala.Cr.App.1979) (on remand).

On retrial, Cook was again found guilty, but received a sentence of life imprisonment without parole. This conviction was affirmed in Cook v. State, 384 So.2d 1158 (Ala.Cr.App.), cert. denied, 384 So.2d 1161 (Ala.1980). In February, 1981, Cook filed a petition for a writ of error coram nobis, claiming that his conviction and sentence were due to be set aside because of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Cook expressly declined to offer any testimony in support of the petition, and it was agreed that the petition was due to be submitted on the record of the retrial, along with a stipulation setting forth what had happened in the direct appeal of the retrial conviction. The circuit court denied the petition, and Cook appealed. On June 23, 1981, the Court of Criminal Appeals reversed, relying substantially on this court's intervening decision in Ritter v. State, 403 So.2d 154 (Ala.1981) (on rehearing). The State filed an application for rehearing accompanied by an A.R.A.P. Rule 39(k) motion. When the application for rehearing was denied, the State petitioned this court for certiorari.

In Ritter v. State, a majority of this court held:

Reversed and remanded to the Court of Criminal Appeals with directions to that Court to grant a new trial under the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980).

We believe this result is compelled by the decision of the Supreme Court of the United States in Beck and is consistent with the interpretation of that decision reached by the Court of Appeals for the Fifth Circuit in Evans v. Britton, 639 F.2d 221 (1981), which involved Ritter's partner in this crime.

Ritter v. State, 403 So.2d 154 (Ala.1981). Both this court and the Court of Appeals for the Fifth Circuit interpreted Beck v. Alabama, supra, to require that result. The Court of Appeals for the Fifth Circuit, in Evans v. Britton, cited in Ritter, supra, said:

In analyzing the Alabama [capital felony] statute in question, the [United States Supreme] Court stated as follows:

But in every case they [the defects in the statute] introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.

Beck v. Alabama, 447 U.S. 625, 643, 100 S.Ct. 2382, 2392, 65 L.Ed.2d 392 (1980). "Every case" means even cases in which the defendant tried to plead guilty. The Court has established that there are "constitutional error[s] of the first magnitude and no amount of showing of want of prejudice would cure [them]." Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). Unless the Supreme Court changes its language in Beck, we must conclude that the defects in the Alabama death statute fall into this category.

Evans v. Britton, 639 F.2d at 223 and 224.

However, in reviewing the Evans case on certiorari, the United States Supreme Court found that the Circuit Court had misread the Beck opinion, saying:

[The Circuit Court] concluded that we meant that the Alabama preclusion clause was a "brooding omnipresence" which might "infect virtually every aspect of any capital defendant's trial from beginning to end." 628 F.2d, at 401. It is important to note that our holding in Beck was limited to the question submitted on certiorari, and we expressly pointed out that we granted the writ in that case to decide whether a jury must be permitted to convict a defendant of a lesser included offense "when the evidence would have supported such a verdict ...." 447 U.S., at 627, 100 S.Ct., at 2384. Thus, our holding was that the jury must be permitted to consider a verdict of guilt of a non-capital offense "in every case" in which "the evidence would have supported such a verdict."

Hopper v. Evans, 102 S.Ct. at 2052.

The Court stated further:

Under Alabama law, the rule in non-capital cases is that a lesser included offense instruction should be given if "there is any reasonable theory from the evidence which would support the position." Fulghum v. State, 291 Ala. 71, 75, 277 So.2d 886, 890 (1973) .... The Alabama rule clearly does not offend federal constitutional standards, and no reason has been advanced why it should not apply in capital cases.

Hopper v. Evans, 102 S.Ct. at 2053.

The Court went on to hold that the mere existence of the preclusion clause had not so "infected" Evans's trial that he must be retried so that he might have the opportunity to introduce evidence of some lesser included offense:

Respondent suggests no plausible claim which he might conceivably have made, had there been no preclusion clause, that is not contradicted by his own testimony at trial. The preclusion clause did not prejudice respondent in any way, and a new trial is not warranted.

Hopper v. Evans, 102 S.Ct. at 2054 (footnote omitted).

This court has recently reconsidered the Ritter case in light of Hopper v. Evans, and has affirmed Ritter's conviction. Ritter v. State, 429 So.2d 928 (Ala.1983).

Although the facts of the case before us are not identical with those of Evans or Ritter, as Cook's defense was alibi, while Evans and Ritter confessed their guilt of the crime with which they were charged, the test of the effect of the preclusion clause on the trial is still the same: (1) Was there any evidence presented at trial upon which a conviction of a lesser included offense...