Coral v. State

• Decision Date: 27 March 1992
• Docket Number: CR-89-1117
• Citation: 628 So.2d 954
• Parties: Robert Lance CORAL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 954

628 So.2d 954

Robert Lance CORAL v. STATE.

CR-89-1117.

Court of Criminal Appeals of Alabama.

March 27, 1992.

W. Terry Travis, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Beth Jackson Hughes and Sandra J. Stewart, Asst. Attys. Gen., for appellee on return to remand.

On Return to Remand

PATTERSON, Presiding Judge.

On original submission, we remanded this case to the trial court with instructions to comply with §§ 13A-5-47 through -52, Code of Alabama 1975, by entering specific written findings concerning the existence or nonexistence of aggravating and mitigating circumstances and, once again, to decide the appropriate punishment by reweighing the proper aggravating circumstances against any proper mitigating circumstances. Coral v. State, 585 So.2d 248 (Ala.Cr.App.1991). We also instructed the trial court to enter written findings of fact summarizing the facts of the crime and Robert Lance Coral's participation in it. These findings by the trial court are essential for us to properly review its sentencing decision. We deferred addressing the other issues raised on appeal, pending compliance with our directions on remand.

In response to our remand, the trial court has filed a new sentencing order with findings. We will now address the issues raised by the appellant on appeal. We will address them in the order in which they are presented in his brief, when possible.

As we have previously stated in our opinion of May 31, 1991, the appellant was indicted on March 7, 1988, in Montgomery County, in a two-count indictment for the capital offenses of murder committed during a robbery in the first degree, in violation of § 13A-5-40(a)(2) (Count I), and of murder committed during a burglary in the first degree, in violation of § 13A-5-40(a)(4) (Count II). The indictment reads, in pertinent part, as follows:

"COUNT I: The Grand Jury of said County charge that before the finding of this indictment ROBERT LANCE CORAL ... did intentionally cause the death of Nancy Burt, by shooting her with a handgun and he caused her death during the time that he was in the course of committing a theft of lawful currency and/or coinage of the United States, of some value, and a wallet, of some value, better descriptions of which are unknown to the Grand Jury, the property of Nancy Burt, by the use of force against the person of Nancy Burt, with intent to overcome her physical resistance or physical power of resistance, while Robert Lance Coral ... was armed with a deadly weapon, a handgun, or caused serious physical injury to Nancy Burt, in violation of Section 13A-5-40 of the Code of Alabama....

"COUNT II: The Grand Jury of said County further charge that, before the finding of this indictment, ROBERT LANCE CORAL ... did intentionally cause the death of Nancy Burt by shooting her with a handgun and he caused her death during the time that he knowingly and unlawfully entered or remained unlawfully in the dwelling of Nancy Burt with intent to commit the crime of Robbery I and/or Theft of Property, therein, and while effecting entry or while in the dwelling or in immediate flight therefrom, Robert Lance Coral ... was armed with a deadly weapon, a handgun or caused serious physical injury to Nancy Burt, in violation of Section 13A-5-40 of the Code of Alabama...."

At arraignment, the appellant pleaded not guilty and not guilty by reason of mental disease or defect. On September 23, 1989, a jury found him guilty of the lesser included offense of murder (§ 13A-6-2(a)(1)) under Count I of the indictment and guilty of the capital offense of murder committed during a burglary in the first degree as charged in Count II (§ 13A-5-40(a)(4)). After a sentencing hearing was held before the jury in accordance with §§ 13A-5-43 through -46, the jury returned an advisory verdict, by a majority vote of eight to four, recommending a sentence of life imprisonment without parole for the conviction of the capital offense charged in Count II of the indictment. See § 13A-5-46(f) (providing, in part, that "an advisory verdict recommending a sentence of life imprisonment without parole must be based on a vote of a majority of the jurors"). Thereafter, the trial court held another sentencing hearing in accordance with §§ 13A-5-47 through -52, and sentenced the appellant to death.

I.

The appellant contends that he was twice put in jeopardy for the same offense because he was convicted of the lesser included offense of murder under Count I, which alleged the capital offense of murder-robbery, and he was also convicted of the capital offense of murder-burglary under Count II. It is clear that these two offenses arose out of the same conduct and that his murder conviction constitutes a conviction for the same murder that was an element of the capital offense of murder-burglary for which he was also convicted. While the appellant was in fact sentenced only for the greater offense, his murder conviction under Count I cannot stand. Section § 13A-1-8(b) provides, in part, as follows:

"When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:

"(1) One offense is included in the other, as defined in section § 13A-1-9...."

Clearly, under § 13A-1-9, murder is included in the capital offense of murder-burglary. See also Meyer v. State, 575 So.2d 1212 (Ala.Cr.App.1990), for discussion of double jeopardy principles. Accordingly, this cause is remanded for the trial court to vacate the appellant's conviction for murder under Count I of the indictment. However, the appellant's conviction for the capital offense of murder-burglary was proper in this regard and thus it stands.

II-A.

The appellant contends that the evidence presented by the state was insufficient to support the conviction of murder during a first degree burglary. He preserved this issue for review in motions for judgment of acquittal made at the close of the state's case-in-chief and again at the close of the trial after all the evidence had been presented and in a motion for a new trial.

The state's evidence disclosed that, on September 19, 1987, at approximately 4:15 a.m., the body of Nancy Burt (hereinafter referred to as "the victim") was discovered by her live-in boyfriend in her apartment located in the Red Lion Apartments in Montgomery, Alabama. The body was fully clothed, and the victim was wearing jewelry, including a wrist watch, gold rings, necklaces, and "wrist chains"; however, the victim's pantyhose and undergarments had been pulled down to her knees, and her dress had been pulled up exposing her genitalia. There was no scientific evidence indicating a sexual assault. A further examination of her body revealed that she had been severely beaten about the face, that her nose was broken, that there were bruises and fingernail marks on her neck indicating that an attempt had been made to strangle her, and that she had suffered a contact gunshot wound to her head. The wounds on her face were consistent with having been beaten with the butt of a pistol. The evidence at the scene showed that the killer had placed a pillow over the pistol to muffle the shot when it was fired. The cause of death was the gunshot to her head, and death was apparently instantaneous.

The evidence at the scene indicated that the victim was first attacked in the bedroom and that the struggle continued until the victim was killed in the hallway. Blood was splattered about in the victim's bedroom, in the hallway where the body was found, and in the vicinity of the dining room table. The blood type of some blood under one of the victim's fingernails could not be determined because of the insufficiency of the amount. Blood that was found on the patio breezeway of the victim's apartment was determined to be type ABO Group O, secretor H. A saliva sample taken from the appellant disclosed an H-secretor substance; however, the appellant's blood type was apparently not determined. The victim and her live-in boyfriend had the same blood type, which was ABO Group A.

When the victim's body was found, the front door of her apartment was locked from the inside by a dead-bolt lock; however, the sliding patio door was unlocked. There were scratch marks on the patio door around the latch. The victim's open purse was sitting on an ice chest in the kitchen; her checkbook was lying nearby on the kitchen floor near the trash can; deposit slips and coins of small denominations were scattered about on the kitchen floor; and her wallet, where she usually kept her driver's license, credit cards, and money, was missing. She had received payment from her employer earlier on the date of her death; however, no currency was found in the apartment.

The state's firearms expert concluded that the victim had been killed by a bullet from a .32 caliber pistol, fired by a Smith and Wesson, Harrington and Richardson, or Iver Johnson "breakdown in the middle type" revolver. In his opinion, the powder marks on the pillow used by the killer to muffle the sound of the pistol shot supported his conclusion that the murder weapon was a short-barrelled .32 caliber revolver.

Earlier on the night of her murder, the victim and her boyfriend had attended a cookout at the residence of her boyfriend's brother, where they had eaten hamburgers. The victim had arrived at the cookout between 6:15 and 6:30 p.m. After eating, she left the cookout alone between 8:15 to 8:30 p.m. and apparently drove directly to her apartment. The autopsy revealed approximately one-half cup of undigested hamburger meat in her stomach. The pathologist testified that the stomach would have been completely emptied through the digestive process within two hours after eating, concluding that the victim had been killed "well within" two hours after she had eaten.

The appellant, an automobile mechanic, was a resident of...