Edwards v. State

Decision Date28 April 1987
Docket Number1 Div. 997
Citation515 So.2d 86
PartiesRichard Lee EDWARDS v. STATE.
CourtAlabama Court of Criminal Appeals

James H. Lackey, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson and William D. Little, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Richard Lee Edwards, was indicted under § 13A-5-40(a)(10) for the intentional murder of Edgar Neese and William Dial. The jury returned a verdict finding appellant guilty as charged in the indictment. Thereafter, in accordance with the recommendation of the jury, the trial court imposed the death penalty on appellant.

The record reveals that on March 13, 1984, appellant was employed by Otto Neese, Sr., on a painting crew that was performing work on a house in Prichard, Alabama. Appellant rode to the work site with another employee, Kenneth Crosby. Crosby testified that appellant had been drinking and that he stopped and purchased a bottle of wine on the way to work. Appellant, on the way to work, told Crosby that he was going to kill Edgar Neese and Douglas Neese, father and son, who were also employees of Neese Construction Company. Crosby paid little heed to the threat, however, because appellant had, in the past, made a number of similar threats to other workers.

The workers at the site took their lunch break between 11:30 and 12:00. During this time, appellant left and went to his house, which was nearby. When he returned, he had a bottle of wine in one hand and a 12-gauge shotgun in the other. At this time Crosby and co-worker Cedric Ellis were sitting in the cab of a truck at the site. Edgar Neese, Douglas Neese, and an electrician, James Creel, were standing at the rear of the truck.

Appellant approached the three men at the rear of the truck and said, "I done killed one and I'm gonna kill y'all." Edgar Neese turned towards appellant, put up his hands and said, "Now, Jim, there's nobody Ellis and Crosby were also able to escape to a wooded area across the street from the job site. As they ran, Crosby testified, he heard a third shot and heard buckshot sprinkling down in the bushes.

gonna hurt...." Before Edgar Neese could finish the sentence, appellant shot him in the face, killing him. Douglas Neese ran around the truck and tried to get in the truck with Ellis and Crosby. Appellant pursued him and shot him in the right shoulder as he tried to get into the truck. Douglas Neese, after being shot, was able to make his escape, by running through a nearby ditch, and summon authorities.

Officer Crenshaw, of the Prichard Police Department, arrived at the scene and discovered Edgar Neese lying dead behind the truck. He also found two spent shotgun shells at the scene.

Officers English and Barrow, of the Prichard Police Department, at approximately this same time, were dispatched to a shooting at 718 Neese Street. When they arrived, they observed William Dial lying dead in the street by a bicycle. He had suffered gunshot wounds to the chest, neck, and face. Near his body, they discovered three spent shotgun shells. The bodies of William Dial and Edgar Neese were separated by a distance of approximately three hundred yards.

Officer English asked a group of onlookers, "Who did the shooting?" At this, appellant came forward and said, "I did the shooting." Appellant was placed in custody.

Officer Harbin, of the Prichard Police Department, then approached Officers Barrow and English and asked them, "Where is the gun?" Appellant spoke up and said, "It's in the house, I'll show you where it is." At this, he went with officers to his house, where the officers retrieved a pump shotgun from the wall in his front bedroom. When Officer Harbin picked up the gun, appellant said, "That's the pump I used."

It was stipulated at trial that all of the spent shotgun shells found at each shooting scene were fired from the same pump shotgun that was recovered from appellant's home.

I

The appellant contends that the trial court erred when it granted the challenges of all jurors who stated that they had a fixed opinion against the death penalty and that they would not return a verdict of death by electrocution under any circumstances. Appellant contends that because the jury was "death qualified" he was denied the right to a fair and impartial jury in the guilt phase of the trial. He further contends that such a "death qualified" jury is more likely to convict in the guilt phase of the trial.

This court has previously addressed these arguments and has determined them adversely to appellant. Clark v. State, 451 So.2d 368 (Ala.Cr.App.1984); Taylor v. State, 442 So.2d 128 (Ala.Cr.App.1983); McGinnis v. State, 382 So.2d 605 (Ala.Cr.App.1979), cert. denied, 382 So.2d 609 (Ala.1980). Recently, the United States Supreme Court considered the question: "Does the Constitution prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial?" Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). The Court held, even if certain studies which McCree presented were assumed to be adequate to establish that "death qualification," in fact, produces juries somewhat more "conviction prone" than "non-death qualified" juries, that the Constitution does not prohibit the States from "death qualifying" juries in capital cases. Lockhart, 476 U.S. at 173, 106 S.Ct. at 1764. The Court held that the "death qualification" of the jury does not violate the Sixth Amendment's "fair cross-section" requirement, and that it also does not violate the defendant's right to trial by an impartial jury. The Court noted that "the Constitution presupposes that a jury selected from a fair cross-section of the community is impartial Upon the foregoing authority, the appellant's argument regarding the death qualification of the jury in this case must fail.

regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case." 476 U.S. at 184, 106 S.Ct. at 1770.

II

The appellant contends that because Alabama's capital punishment statute vests final sentencing authority with the trial court, it violates Article I, Section 11, of the Alabama Constitution of 1901. This issue has been fully addressed by this court, and it was determined that "the advisory nature of the jury's sentence verdict under § 13A-5-46, Code of Alabama 1975, is not violative of Article I, Section 11." Crowe v. State, 485 So.2d 351, at 364 (Ala.Cr.App.1984), reversed on other grounds, Ex parte Crowe, 485 So.2d 373 (Ala.1985).

The appellant also contends that Article I, Section 11, of the Alabama Constitution of 1901 is violated by § 13A-5-46(f), which allows the jury to return an advisory verdict based on the vote of 10 of the jurors. Appellant argues precisely that the "allowance of the imposition of the ultimate penalty on a 10-2 vote violates Article I, Section 11, of the Constitution and renders the statute unconstitutional." Contrary to appellant's argument, the death penalty is not invoked on the basis of the jury's recommendation. The jury's role in sentencing under our bifurcated trial process is merely advisory in nature. This procedure was established in Beck v. State, 396 So.2d 645 (Ala.1980), and was determined to be constitutional. Appellant raises no legitimate argument as to why this procedure, as established, should now be found to be unconstitutional. For the foregoing reasons, appellant's attack on the constitutionality of our present sentencing procedure in capital cases must fail.

III

Appellant contends that the process of weighing aggravating and mitigating circumstances under Alabama's capital punishment statute violates the Eighth and Fourteenth Amendments to the United States Constitution. He contends that sentencing under the statute is arbitrary and capricious because no exact weight is assigned to each of the aggravating and mitigating circumstances.

Our courts have held that the determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but, instead is based upon the gravity of the aggravating circumstances compared to that of the mitigating circumstances. Murry v. State, 455 So.2d 53 (Ala.Cr.App.1983), reversed on other grounds, 455 So.2d 72 (Ala.1984); Ex parte Clisby, 456 So.2d 105 (Ala.1984), cert. denied, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391 (1985). The trial judge is, therefore, free to consider each case on an individual basis in order to determine whether aggravating circumstances outweigh mitigating circumstances and vice versa. Ex parte Clisby, supra; Moore v. Balkcom, 716 F.2d 1511 (11th Cir.1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984).

In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), Proffitt argued a nearly identical issue as that now presented by appellant. He argued that it was impossible to make a rational determination in the weighing of aggravating and mitigating circumstances "since the state law assigns no specific weight to any of the various circumstances to be considered." Proffitt, 428 U.S. at 257, 96 S.Ct. at 2969. The Court held that "[w]hile these questions and decisions may be hard, they require no more line drawing than is commonly required of a factfinder in a lawsuit." Proffitt, 428 U.S. at 257, 96 S.Ct. at 2969. The Court continued:

"While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority's discretion is guided and...

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