Ex parte Arthur

• Decision Date: 05 April 1985
• Citation: 472 So.2d 665
• Parties: Ex parte Thomas Douglas ARTHUR. (Re: Thomas D. Arthur v. State). 83-1008.
• Court: Alabama Supreme Court

Page 665

472 So.2d 665

Ex parte Thomas Douglas ARTHUR (Re: Thomas D. Arthur v. State).

83-1008.

Supreme Court of Alabama.

April 5, 1985.

Rehearing Denied May 10, 1985.

Wesley M. Lavender and John E. Mays, Decatur, for petitioner.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.

BEATTY, Justice.

The defendant, Thomas Douglas Arthur, was indicted for the capital offense of murder after having been previously convicted of a murder. Code of 1975, § 13A-5-40(a)(13). He was convicted and was sentenced to death in accord with the jury's recommendation. The Court of Criminal Appeals affirmed his conviction in Arthur v. State, 472 So.2d 650 (Ala.Crim.App.1984). We granted certiorari as a matter of right under Code of 1975, § 13A-5-53, and Rule 39(c), A.R.A.P.

The basic facts of this case are set out in the opinion of the Court of Criminal Appeals and need not be repeated here. We will set forth additional facts as necessary in this opinion.

The defendant has raised several issues regarding the fact that the indictment in the present case included a charge that he had been previously convicted of murder in the second degree. Among his contentions is the assertion that the inclusion in the indictment of the prior conviction deprived him of his due process rights. However, it is clear that the prior conviction, which is the aggravating circumstance under § 13A-5-40(a)(13), must be alleged in the indictment in order to afford the defendant due process:

"In Alabama, by statute, the aggravating circumstance must be alleged in the indictment where the death penalty is sought.... The aggravating circumstances must be set forth in the indictment because the state is required to give the accused notice that a greater penalty is sought to be inflicted than for a first offense. It is fundamental that the accused must be advised and informed of the nature and extent of the offense with which he is charged.

"Under the Death Penalty Statute, the aggravating circumstance is a statutory element of the crime. Without it, one could not be charged and convicted for 'capital murder.' ..." (Citations omitted.)

Wilson v. State, 371 So.2d 932, 940 (Ala.Crim.App.1978), aff'd, 371 So.2d 943 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1133 (1980), rev'd on other grounds, 405 So.2d 696 (Ala.1981) (quoted in Hubbard v. State, 382 So.2d 577, 590 (Ala.Crim.App.1979), aff'd, 382 So.2d 597 (Ala.1980), rev'd on other grounds, 405 So.2d 695 (Ala.1981)) (both cases involving convictions under § 13-11-2(a)(13) which was the forerunner of the present § 13A-5-40(a)(13)).

The defendant's other arguments concerning the inclusion of the prior conviction in the indictment are also without merit and need no discussion.

In a capital case, the aggravating circumstances not only must be alleged in the indictment, but they must also be proven beyond a reasonable doubt. Beck v. State, 396 So.2d 645, 663 (Ala.1980). The aggravating circumstance in the present case was the defendant's conviction for "any other murder in the 20 years preceding the crime." Code of 1975, § 13A-5-40(a)(13). Through the testimony of Pride Gann, the Circuit Clerk of Marion County, the State introduced a certified copy of the minute entry of defendant's 1977 conviction for second degree murder. This was a proper method of proving the defendant's prior conviction. Thigpen v. State, 355 So.2d 392, 397 (Ala.Crim.App.), aff'd, 355 So.2d 400 (Ala.1977); see Julius v. State, 407 So.2d 141, 147 (Ala.Crim.App.1980), rev'd on other grounds, 407 So.2d 152 (Ala.1981).

The State also introduced, over the defendant's objection, the details surrounding the defendant's prior murder conviction. Although conceding for the purposes of this argument that the fact that he had a prior murder conviction may have been admissible to prove the capital offense, the defendant maintains that the details surrounding this conviction were inadmissible under the general exclusionary rule. We are constrained to agree.

In C. Gamble, McElroy's Alabama Evidence § 69.01(1) (3d ed. 1977), the general exclusionary rule is discussed as follows:

"On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question....

"This exclusionary rule is simply an application of the character rule which forbids the state to prove the accused's bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors." (Footnotes omitted.)

Thus, the purpose of the rule is to protect the defendant's right to a fair trial by preventing convictions based on the jury's belief that the defendant is a "bad" person or one prone to commit criminal acts. See Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983).

There are several well-defined exceptions to the general exclusionary rule. See generally Brewer v. State, 440 So.2d 1155 (Ala.Crim.App.1983). In the present case, the State argued that evidence concerning the details of Arthur's prior murder conviction was admissible under the identity exception. The trial court permitted the introduction of the evidence under this exception and, in its oral charge, instructed the jury that this evidence was to be considered by them only for purposes of identity.

The following language concerning the identity exception is found in McElroy's, supra, at § 69.01(8):

"All evidence tending to prove a person's guilt of the now-charged crime may be said to identify him as the guilty person. However, the identity exception to the general exclusionary rule is much more specific in that it contemplates the situation where the now-charged crime was committed in a novel and peculiar manner and the state is allowed to show that the accused has committed other similar offenses, in the same novel and peculiar manner, in order to show him the perpetrator of the now-charged crime." (Emphasis added.) (Footnote omitted.)

In other words, evidence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime "exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person." Brewer, 440 So.2d at 1161.

The State argued at trial and now asserts on appeal that the details surrounding the defendant's prior murder conviction were admissible under the identity exception, because in both the prior case and the present case: (1) the victim was killed by a single gunshot wound to the right eye; (2) the defendant had been drinking prior to the murder; and (3) the murder weapon was never recovered.

While these factors were common to both murders, they cannot be taken out of context to stand alone for comparison. The entire circumstances surrounding both murders must be compared. Cf. United States v. Dothard, 666 F.2d 498, 502 (11th Cir.1982) (when seeking to admit evidence of prior crimes under the plan, scheme, or design exception, which is closely akin to the identity exception in that both the prior crime and the now-charged crime must have been committed in a similar manner, a mere similarity in results is not sufficient; there must be "such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations "). (Emphasis in original.)

The murder for which the defendant was previously convicted took...