Cook v. State

• Citation: 369 So.2d 1251
• Parties: In re Recardo COOK v. STATE of Alabama. Ex parte Recardo Cook. 77-320.
• Decision Date: 15 September 1978
• Court: Alabama Supreme Court

Page 1251

369 So.2d 1251

In re Recardo COOK v. STATE of Alabama.

Ex parte Recardo Cook.

77-320.

Supreme Court of Alabama.

Sept. 15, 1978.

As Corrected on Denial of Rehearing Feb. 9, 1979.

J. Louis Wilkinson and Charles M. Purvis of Wilkinson, Purvis & Pickard, Birmingham, for petitioner.

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

FAULKNER, Justice.

Recardo Cook was convicted of "robbery . . . when the victim is intentionally killed." § 13-11-2(a)(2), Code of Ala.1975. After a sentencing hearing held by the trial court, Cook was sentenced to death. His conviction and punishment were upheld by the Court of Criminal Appeals. This court granted certiorari as a matter of right. ARAP 39(c).

Cook urges two grounds for reversal: (1) that the Alabama Death Penalty Act is unconstitutional, and (2) that the trial court committed error by not correcting certain prosecutorial arguments allegedly containing prejudicial or erroneous material.

We affirm Cook's conviction, but opine that the sentencing hearing did not comport with the constitutional standards outlined in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Jacobs v. State (Ala.1978, opinion extended on rehearing Aug. 11, 1978), 361 So.2d 640, and remand for another sentencing hearing pursuant to the procedures outlined in this opinion.

On March 4, 1977, one week after the jury returned its guilty verdict, the trial judge held the sentencing hearing required by § 13-11-3, Code of Ala.1975. Present at the hearing were the trial judge, a district Defense counsel rebutted by pointing out that malicious mischief with a $100 fine probably would not equal a "significant history" and that Cook was still presumed innocent on the pending robbery charge. Counsel also stated briefly that it was shown at trial that Cook had a good work history at a local factory but had been laid off shortly before the murder. Defense counsel showed that Cook was 22 at the time the crime was committed, but the trial judge did not feel Cook's age presented a mitigating circumstance. Counsel then emphasized that immediately prior to trial Cook had been offered life imprisonment for a guilty plea, arguing that Cook should not now be sentenced to death simply because he insisted on a trial by jury. The State then asserted that it was now seeking the death penalty for deterrence reasons, to avoid "making it open season out there." The trial judge refused to consider these last arguments.

attorney, one member of Cook's defense team, and Cook himself. The State began by presenting Cook's "prior record or his involvement in other criminal activities." It was revealed that in 1972 Cook was charged with assault with intent to murder, but this charge was reduced to malicious destruction of property with a $100 fine. In addition, in 1975 Cook was alleged to have robbed the "Red One Shop." The trial judge was informed that there were two purported eyewitnesses and that a tag number was taken for Cook's sister's car (the same car reportedly used in the murder of Webb.) The witnesses did not appear at the hearing. According to the district attorney, "There was no physical violence involved at all other than the use of a gun."

After this brief discussion the trial judge began to consider, seriatim, the aggravating and mitigating circumstances listed in §§ 13-11-6 and 13-11-7, Code of Ala.1975. ¹ Under § 13-11-7 (mitigating circumstances) the trial judge stated, "I would agree that he probably has no significant history, but he does have a history." He later incorporated this statement in his findings of fact where he discussed the 1972 assault with intent to murder and its final outcome and also detailed the pending robbery charge. The trial judge thought this was the only mitigating circumstance present, although it was obviously very limited in his mind. Under § 13-11-6 (aggravating circumstances) the trial judge found two present, (4) a capital felony committed in the course of a robbery, and (6) a capital felony committed for pecuniary gain, and

these were both listed in his findings of fact. Consequently, since he did not think the mitigating circumstances outweighed the aggravating circumstances, the trial judge "allowed the jury's verdict to stand."

I.

As to the first issue raised by the defendant, the constitutionality of Alabama's Death Penalty Act, our recent consideration of this point in Jacobs v. State eliminates the need for further discussion of the general statutory provisions here.

II.

Nor do we find merit in defendant's contention that his conviction must be reversed because of allegedly prejudicial or erroneous material in the prosecutor's closing argument. Specifically, defendant objects to two portions of the argument. The first comment complained of occurred as follows:

"MR. JOHNSON (Assistant District Attorney): 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 Cooks and the would be Recardo Cooks 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 (Defense Counsel): 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."

It is clear that a district attorney in closing argument may make a general appeal for law enforcement. Embrey v. State, 283 Ala. 110, 118, 214 So.2d 567 (1968). In Cross v. State, 68 Ala. 476 (1881), this Court observed:

"(C)ounsel is in legitimate bounds, when he urges a firm and fearless administration of the criminal law, as the great conservator of human life, and of the repose of society; and is not within reversible grounds, when he complains generally that juries are frequently more inclined to mercy than to judgment. On the other hand, counsel may warn juries against hasty or harsh verdicts, and may invoke the humane mercies of the law, which accords to persons accused the saving benefit of all reasonable doubts." 68 Ala. at 483.

In line with this principle, this court allowed the argument of the district attorney in Embrey that, " 'You have got to determine whether or not these juries are going to stop these robberies from going on.' " 283 Ala. at 118, 214 So.2d at 575. See also Davidson v. State, 211 Ala. 471, 100 So. 641 (1924). In fact, the comment objected to in this case is distinguishable only in the severity of the crime and punishment from that allowed in Blalock v. State, 8 Ala.App. 349, 63 So. 26 (1913), where the solicitor stated, " 'If you turn this man loose, it will be a license for all them people up there in beat 24 to turn their stock out.' " In approving this argument the Court of Appeals stated:

"The excerpt from the argument of the solicitor . . . cannot be taken to mean more, when construed in connection with the evidence, than that it was the duty of the jury to convict the defendant, if the evidence was sufficient, for the purpose of deterring others from committing similar offenses. This is one of the objects sought to be attained by the enforcement of the criminal laws and punishment of offenders against it. At most it could be deemed no more than an argument, intended to illustrate the evil consequences Since the argument complained of did not imply that Cook himself would commit other illegal acts in the future the comment did not overstep the bounds of legitimate argument.

that might result from a failure of the jury to do their duty in the premises if the evidence was sufficient to authorize a conviction. It does not appear from the isolated excerpt set out that the solicitor was asserting any fact, and it is not error to refuse to exclude the argument of counsel, although not strictly pertinent, when no fact is asserted, but simply an inference is drawn and argument made thereon."

In this same vein defendant also objects to another portion of the district attorney's closing argument where the following occurred:

"MR. JOHNSON: This is the first case that the death penalty was reinstated. Don't you think the people who represent the people of Alabama have something in mind when they restored the death penalty. Don't you think that they had in mind people like the Mr. Tortoricis of the world out in their grocery stores.

"MR. WILKINSON: We object to all this referring to other specific incidents and things of that sort, that type of argument, and we object to it.

"THE COURT: Overrule.

"MR. WILKINSON: We except."

The rule governing the permissible scope of argument was succinctly stated by this court in Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961):

"It is sometimes difficult to draw the line between allowable argument and improper statements in argument. The rule is that an attorney cannot be allowed to state anything as a fact as to which there is no evidence. . . . But the solicitor may properly comment upon the evil generally of the crime which the law he is seeking to enforce intends to prevent . . . It is only when the statement is of a substantive, outside fact stated as a fact and which manifestly bears on a material inquiry before the jury, that the court can interfere and arrest discussion." 272 Ala. at 637, 133 So.2d at 56.

Here defendant objected to the prosecutor's remark about "Mr. Tortorici" as a reference to "other specific incidents." Certainly counsel could not draw comparisons between the case at bar and another case, the...