Evans v. State, 1 Div. 837

• Decision Date: 25 October 1977
• Docket Number: 1 Div. 837
• Citation: 361 So.2d 654
• Parties: John Louis EVANS, III, alias and Wayne Eugene Ritter, alias, v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 654

361 So.2d 654

John Louis EVANS, III, alias and Wayne Eugene Ritter, alias, v. STATE.

1 Div. 837.

Court of Criminal Appeals of Alabama.

Oct. 25, 1977.

Rehearing Denied Nov. 15, 1977.

Al Pennington, Mobile, Francis A. Poggi, Jr., Fairhope, Reggie H. Stephens, Mobile, for appellants.

William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.

TYSON, Presiding Judge.

John Louis Evans, III, and Wayne Eugene Ritter were each charged by indictment with the first degree murder of one Edward A. Nassar by shooting him with a pistol while in the commission of a robbery, being a "capital murder" offense within the meaning of Act No. 213, Section 2, Subsection (b), Acts of Alabama 1975, Regular Session.

Experienced counsel was appointed by the trial court to represent each appellant. These attorneys separately moved for a psychiatric examination of each appellant. The trial court granted these motions, and Dr. Claude L. Brown of Mobile filed his report on Appellant Evans April 21, 1977, and on Appellant Ritter April 22, 1977. Each report indicated that the appellant was "competent, rational, and able to stand trial, that he understood thoroughly the nature and results of his actions, had no mental problems, was responsible for his actions, and that each was entirely capable of exercising control and judgment of his conduct." Each report also indicated that each appellant "sincerely seeked the death sentence, preferring this to a long prison sentence." These reports were not submitted to the trial jury.

At arraignment, and against the advice of their respective attorneys, both Evans and Ritter entered guilty pleas. Each further filed a written waiver of any challenge to the composition of the Mobile County Grand Jury after the trial court explained to them in open court that there was a constitutional infirmity in the composition as declared by the United States District Court. Each appellant waived his challenge to this, with the trial court first ascertaining that each was a high school graduate, had been consulted by his attorney concerning his rights to make such challenge, and in writing waived same.

Each appellant also stated in open court that his attorney had explained to him his rights under the Fifth Amendment to the United States Constitution, his right to summon witnesses and cross-examine them, and each further stated in open court that he was aware that one of the punishments which might be imposed was death by electrocution. Each stated that he was aware of his rights to enter not guilty pleas or not Each appellant also indicated that his attorney had advised him not to take the stand at trial and not to consult with the press, also not to make public statements.

guilty by reason of insanity, and that this had been explained to him by his respective attorney. Each nevertheless at arraignment stated his intention to enter the guilty plea with full knowledge of its consequences.

Each appellant nevertheless consented in writing that the trial be open to television cameras, newspaper photographers, and radio recordings. Each appellant filed a written statement consenting to this.

At arraignment, the trial court advised each appellant that he had a right to a separate trial, but each, separately and in open court, stated that it was his desire to be tried together with the other. This request was granted.

The jury found each appellant guilty as charged in the indictment and fixed punishment at death by electrocution.

Thereafter, the trial court conducted a separate hearing on the aggravating, as well as the mitigating, circumstances presented, then entered judgment with extensive findings that such crime was especially heinous and vicious, and that the judgment of the court having considered both the aggravating and mitigating circumstances shown by the evidence, that the death penalty as fixed by the jury should be and was thereby accepted in each case. The trial court then entered judgment setting sentence at death by electrocution in each case.

This appeal comes to this Court under the "automatic appeal" statute, applicable to judgments wherein the death penalty is pronounced in the trial court.

I

Michael Wayne Crosby testified that he was employed at Dueitt's Battery and Supply Company in Mobile on January 5, 1977. John Dueitt was also on duty on the afternoon in question when each of them heard a shot next door at the pawn shop wherein Edward A. Nassar was employed. Each of the men stated that he went next door to 3225 Springhill Avenue and saw two white males run out of the store. Crosby made a positive in-court identification of the appellant Evans, and stated that he saw him "putting a gun down the front of his pants" as he ran from the store.

Inside the pawn shop, Crosby and Dueitt found two little girls, ages six and nine, who were the daughters of Nassar, the victim. Crosby stated that Nassar was conscious, that he stated to him that he had been robbed and to call the police. He stated that Dueitt took the two little girls out of the shop, and that he waited there until the police arrived. Crosby stated that he was present when Nassar was placed in an ambulance and taken to the Mobile General Hospital.

Dueitt stated that he had known the deceased, Edward A. Nassar for about six months prior to January 5, 1977. Dueitt indicated that upon hearing the shot, he and Crosby ran next door and saw two white males, who appeared to be in their early twenties, running from the pawn shop. Dueitt made a positive in-court identification of Wayne Eugene Ritter as being one of the two men he saw leaving the pawn shop. He stated that he then took the two little girls next door to his office while Mr. Crosby telephoned the police and an ambulance.

Richard Patterson, age fourteen, stated that shortly after school on the afternoon of January 5, 1977, he was walking with Nena Knipp and Cindy Giardarelli along Springhill Avenue when he saw a light blue Cutlass Supreme automobile, either a 1975 or a 1976 model, circle the block, then park near the railroad tracks. He stated that the automobile twice circled the block before parking. Patterson indicated that two white males in their early twenties got out and walked a short distance. A few minutes later, the two men were running toward the automobile, and that Cindy Giardarelli called out the tag number and he wrote it down on a yellow card which he had in his pocket. Patterson gave the yellow Cindy Giardarelli stated that she and Richard Patterson and Nena Knipp were walking near Springhill Avenue after school on the afternoon of January 5, 1977. She saw a 1976 or 1977 light blue Oldsmobile Cutlass Supreme circle the block twice, and on the third time it stopped near the railroad tracks. Two white males got out and walked toward Springhill Avenue, and about fifteen to twenty minutes later, she saw the two men running to the car. The automobile turned around in the driveway, then sped away down the street. As it was turning around, she called out the numbers on the tag, which tag was white in color with blue numbers, and Richard Patterson wrote them on a yellow card. A short time later this information was given to the police.

card with the tag number to Detective Bowman that afternoon. Patterson identified State's Exhibit 9 as the card in question.

Mrs. Jimmie Louise Tagert and her husband were stopped on Springhill Avenue in Mobile on January 5, 1977, near the entrance to the pawn shop. Her husband had gone inside and pawned a ring. She saw two men in their early twenties enter the pawn shop, one behind the other, and then she drove away. Mrs. Tagert made a positive in-court identification of Evans and Ritter as being the two men she observed enter the pawn shop immediately after her husband came out.

Mobile Police Officer Wayne Farmer stated that he entered the pawn shop, located at 3225 Springhill Avenue, in response to a call and found Edward A. Nassar lying behind the counter. Farmer stated that Nassar had been shot in the back, and he attempted to straighten out his body in order that he might breathe more easily. He stated that he told Nassar that his two daughters were next door and that they were safe. He stated that he helped Sergeant Bowman place Nassar in an ambulance, which took him to the Mobile General Hospital. Officer Farmer then identified some photographs of the pawn shop area.

Dr. Floyd Thomas Boudreaux testified that he was a pathologist at the Mobile Infirmary and was also Deputy Coroner of Mobile County. He stated that he performed an autopsy on a white male, approximately thirty-two years of age, on January 6, 1977, and that he was assisted by Mr. Kenneth Marx, that Sergeant Moore of the Mobile Police Department was also present. He stated that the victim had a gunshot wound entrance, approximately in the middle of his back, and that the bullet had damaged one of the large veins which leads to the heart, perforated the right upper level of the lung, and came to rest in the large musculature of the interior chest, on the right, from whence it was recovered.

Dr. Boudreaux stated that the cause of death was "exsanguination from the wounds of the vena cava, heart, and right lung." (R. p. 144) He stated this was caused by the bullet wound, and that he recovered a thirty-eight caliber bullet, which was placed in a plastic bag and handed to his assistant, Mr. Kenneth Marx.

Mr. Kenneth Marx identified a plastic bag in which was placed a lead bullet by Dr. Boudreaux while he was assisting him with an autopsy on the body of one Edward A. Nassar. Mr. Marx stated that he sealed the bag and then placed his initials on the tag and handed it to Sergeant Robert Moore.

Sergeant Robert Moore testified he was present with Dr. Boudreaux and Mr. Marx when the autopsy was performed on January 6, 1977. He stated that he received a bullet in a plastic bag, which he, too, placed his initials on, then...