Ex parte Baldwin

• Decision Date: 13 July 1984
• Parties: Ex Parte Brian Keith Baldwin. (Re Brian Keith BALDWIN v. State). 83-276.
• Court: Alabama Supreme Court

Page 129

456 So.2d 129

Ex Parte Brian Keith Baldwin.

(Re Brian Keith BALDWIN v. State).

83-276.

Supreme Court of Alabama.

July 13, 1984.

Rehearing Denied Aug. 24, 1984.

John L. Carroll, Montgomery, for petitioner.

Charles A. Graddick, Atty. Gen., and William D. Little and Jean Williams Brown, Asst. Attys. Gen., for respondent.

PER CURIAM.

Brian Keith Baldwin was indicted for, and convicted of, the capital offense of "robbery ... with the aggravated circumstance of intentionally killing the victim." Ala.Code 1975, § 13-11-2(a)(2) (repealed 1981, Act No. 81-178, § 20, but effective as to conduct occurring before July 1, 1981). He was sentenced to death.

The conviction was affirmed originally by the Court of Criminal Appeals in 1978, Baldwin v. State, 372 So.2d 26 (Ala.Crim.App.1978), and by this Court in 1979, Ex Parte Baldwin, 372 So.2d 32 (Ala.1979) (Baldwin I ). After having granted certiorari, the United States Supreme Court vacated the judgment and remanded the case for further consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Baldwin v. Alabama, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980). This Court remanded the case to the Court of Criminal Appeals, Baldwin v. State, 405 So.2d 699 (Ala.1981), which once again affirmed the conviction, Baldwin v. State, 456 So.2d 117 (Ala.Crim.App.1983). Baldwin's present petition for writ of certiorari was granted as a matter of right under A.R.A.P., Rule 39(c).

The facts of this case have been set out repeatedly in the above decisions. We only briefly reiterate them. Petitioner and Edward Horsley, escapees from a North Carolina prison camp, abducted their young victim in Hudson, North Carolina. They took control of her automobile and locked her in the trunk. They then drove the car from North Carolina, through South Carolina and Georgia, to Monroe County, Alabama, where they intentionally killed her. Petitioner and Horsley had separate trials in the Circuit Court of Monroe County.

Petitioner now raises these issues:

(1) Was petitioner prejudiced at trial by the existence of the preclusion clause and, therefore, entitled to a new trial under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)?

(2) Was the prosecutor's remark in his opening statement, that the petitioner had escaped from a prison camp in North Carolina, reversible error?

(3) Was a prospective juror improperly excluded under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)?

(4) Are the sentencing provisions of the 1975 Death Penalty Act, under which petitioner was sentenced, unconstitutional?

(5) Was it improper to consider the petitioner's prior youthful offender and juvenile adjudications as aggravating circumstances to support the sentence of death?

I.

Petitioner's trial was held in 1977, before the preclusion clause of the 1975 Death Penalty Act was struck down by the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The only offense with which petitioner was charged, and for which he was tried, was the capital offense of robbery in which the victim is intentionally killed. In accordance with the then existing preclusion clause, contained in § 13-11-2(a), Ala.Code 1975, the jury was not allowed to consider any lesser included offenses during its deliberations. It returned a verdict of guilty of capital murder.

Petitioner now contends that under Beck v. Alabama, supra, he is entitled to a new trial because he was prejudiced by the existence of the preclusion clause. The complete test to determine the effect of the preclusion clause on a pre-Beck trial was set out in Cook v. State, 431 So.2d 1322 (Ala.1983):

"(1) Was there any evidence presented at trial upon which a conviction of a lesser included offense could have been based? (2) If not, has the defendant suggested any plausible claim which he might conceivably have made, had there been no preclusion clause, that is not contradicted by his own testimony at trial? If the answer to both of these questions is no, then a conviction at trial is due to be affirmed."

Cook v. State, 431 So.2d at 1324. The first question is taken from Beck v. Alabama, supra. The second one was posed first in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

Petitioner asserts that the answer to both questions is yes. We do not agree.

Regarding the first part of the test, petitioner contends that although the murder most probably occurred in Alabama, the great weight of the evidence shows that the robbery, if any, took place entirely within North Carolina, where he and Horsley took control of the victim's car. Petitioner argues that he committed, at most, first degree murder in Alabama, and he would have been entitled to a jury charge on this offense had the preclusion clause not existed.

Alabama's jurisdiction to try and convict petitioner for the capital offense of robbery in which the victim is intentionally killed is not dependent upon the venue of the robbery. Petitioner may be convicted of this offense regardless of where the robbery occurred. Therefore, evidence that the robbery took place in North Carolina does not entitle petitioner to a jury charge on first degree murder. We made this clear in Baldwin I when we defined this capital offense and held that Alabama had jurisdiction to convict petitioner of the crime:

"The crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating with the act of intentionally killing the victim. The offense consists of two elements, robbing and intentionally killing, but does not consist of two separate offenses. See Ex parte Clements, 370 So.2d 723 (Ala.1979); Horsley v. State, (Ala.Crim.App.1978). Therefore, although the offense was commenced in North Carolina, it was not consummated until Naomi Rolon was killed in Monroe County, Alabama.

"The place where the crime was consummated is the place where the crime was committed and the place where the defendant may be tried. 21 Am.Jur.2d Criminal Law § 399, at 416. Section 15-2-4 provides:

" 'When the commission of an offense commenced elsewhere is consummated within the boundaries of the state of Alabama, the offender is liable to punishment in Alabama, although he was out of the state at the commission of the offense charged, if he consummated it in this state through the intervention of an innocent or guilty agent or by any other means proceeding directly from himself; and venue in such case is in the county in which the offense was consummated, unless otherwise provided by law.'

" § 15-2-4, Code 1975.

"Accordingly, venue did lie in Monroe County and petitioner was properly tried and convicted. The decision of the Court of Criminal Appeals is affirmed."

Baldwin I, 372 So.2d at 33, 34.

We have searched the entire record and have found no other evidence to support a verdict of guilty of a lesser included offense. Petitioner is not entitled to a new trial under Beck v. Alabama, supra, and the answer to the first question must be no.

Prior to closing arguments at trial, the trial court ruled that Alabama had jurisdiction to convict the petitioner of the capital offense, if both the robbery and the intentional killing occurred in Alabama. It also determined that the venue of the crime was a question of fact to be determined by the jury. It instructed the jury accordingly:

"I think this case really comes down to this, ladies and gentlemen. I want to put it to you in two different questions. There are two questions that this jury must answer: First, did the defendant rob Naomi Rolon in Monroe County, Alabama, as I have defined the term? Second, did the defendant intentionally kill Naomi Rolon in Monroe County, Alabama, in the course of said robbery?

"If each and every one of you are convinced beyond a reasonable doubt and to a moral certainty that the answer to each of these questions is 'yes,' your verdict should be guilty. If you are not so convinced, your verdict should be not guilty."

Petitioner correctly argues that the decision in Baldwin I necessarily holds that the trial court's charge to the jury was incorrect. However, petitioner was not prejudiced by this error. Under the court's charge, the jury was required to find not only that the petitioner intentionally killed the victim in Monroe County, but also that he robbed her there. This charge, although erroneous, was to petitioner's benefit, not his detriment. Petitioner argues otherwise. He contends that this charge presented to the jury the very dilemma that the United States Supreme Court hoped to eradicate by its decision in Beck v. Alabama, supra. It was concerned that a jury would convict a defendant of a capital offense, even if it had some doubt as to the existence of some element of the crime, rather than let the defendant go free. However, we find that petitioner's case is different. Even if the jury had some doubt about the venue of the robbery, its conviction on the capital offense is supported by the evidence, because, under Baldwin I, petitioner is guilty of the offense, regardless of where the robbery took place. The effect of the incorrect jury instruction made it more difficult to convict petitioner, but it did not result in an unconstitutional conviction.

Petitioner next argues that if we affirm Baldwin I, which we have done, then his defense at trial was invalid and frivolous, and, consequently, he received ineffective assistance of counsel.

The burden of proof is upon the petitioner. The United States Supreme Court, in a very recent decision, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), explicitly described the burden of proof with regard to this claim. First, petitioner must show that counsel's performance was so deficient as to fall below an objective standard of reasonableness. Counsel's...