Ex parte Beck

• Decision Date: 23 August 1985
• Citation: 485 So.2d 1207
• Parties: Ex parte Gilbert Franklin BECK. (Re Gilbert Franklin Beck v. State of Alabama). 83-1198.
• Court: Alabama Supreme Court

Page 1207

485 So.2d 1207

Ex parte Gilbert Franklin BECK (Re Gilbert Franklin Beck v. State of Alabama).

83-1198.

Supreme Court of Alabama.

Aug. 23, 1985.

Julian L. McPhillips, Jr. of McPhillips & DeBardelaben, Montgomery, for petitioner.

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

MADDOX, Justice.

This is a capital murder case.

In 1977, Gilbert Franklin Beck was convicted of capital murder, Code 1975, § 13-11-2(a)(2), in Etowah County, sentenced to die. His conviction was affirmed by the Alabama Court of Criminal Appeals, Beck v. State, 365 So.2d 985 (Ala.Crim.App.1978), and by this Court, Ex parte Beck, 365 So.2d 1006 (Ala.1978); however, his conviction was overturned by the United States Supreme Court, Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), which held the "preclusion clause" of the Alabama Death Penalty Act to be unconstitutional. Based upon the Supreme Court's decision, this Court held that the legislature intended to pass a constitutional act, and that the preclusion clause could be severed from the Death Penalty Act. Based upon that reasoning, this Court reversed and remanded Beck's case to the Court of Criminal Appeals, Beck v. State, 396 So.2d 645 (Ala.1981) [hereinafter cited as Beck II ], which, in turn, reversed and remanded the case to the Circuit Court of Etowah County for new trial, Beck v. State, 396 So.2d 666 (Ala.Crim.App.1981). Upon retrial, Beck was again convicted and sentenced to die. He again appealed to the Court of Criminal Appeals, claiming that his sentence of death should be vacated; the Court of Criminal Appeals agreed, and remanded his case to the trial court for a hearing to determine whether another retrial should be conducted based upon the holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Beck v. State, 485 So.2d 1196 (Ala.Crim.App.1982). After receiving a record of that hearing, the Court of Criminal Appeals, holding that a "Witherspoon error" did occur at Beck's first retrial, reversed and remanded. Beck v. State, [MS. 7 Div. 909, March 1, 1983] (Ala.Crim.App.1983). The State petitioned here for certiorari, which this Court granted, and reversed and remanded the cause to the Court of Criminal Appeals, holding that while Beck was entitled to a new sentencing hearing under Witherspoon, he was not entitled to a new determination of his guilt. Ex parte State, 485 So.2d 1201 (Ala.1984). On remand, the Court of Criminal Appeals affirmed Beck's conviction but remanded to the trial court for resentencing. Beck v. State, 485 So.2d 1203 (Ala.Crim.App.1984). Before a resentencing proceeding could be held, however, Beck again petitioned here for certiorari, asking this Court to review the propriety of his conviction. The State agreed that this Court should review the issue of Beck's guilt, even though resentencing was still pending. This Court granted certiorari and heard oral arguments and has now reviewed the record.

The issues now before this Court are (1) whether an inculpatory statement made by Beck was incident to an illegal arrest and, therefore, improperly admitted; (2) whether the trial court erred in not dismissing all prospective jurors who knew of Beck's previous conviction arising out of the same occurrence; (3) whether the trial court's charge to the jury, particularly as to lesser included offenses, was incorrect and misleading, and; (4) whether this Court's decision in Beck II was an unconstitutional usurpation of legislative authority. We will first address issue four and then proceed to address the remaining issues in order.

I

Did this Court usurp legislative power in Beck v. State, 396 So.2d 645? The answer is in the negative.

In Ex parte Clisby, 456 So.2d 95 (Ala.1983), the defendant/petitioner raised this same argument now advanced by Beck, that by striking the preclusion clause from the Alabama Death Penalty Act in Beck II, this Court usurped the authority of the legislature. In Clisby, this Court, speaking through Justice Faulkner, held that all actions taken by the Court in Beck II were constitutional. Our opinion regarding the constitutionality of the statute under which Beck was convicted has not changed; therefore, Beck is not entitled to a reversal of his conviction on this ground.

II

Petitioner argues that an inculpatory statement he made after his arrest should not have been admitted into evidence because it was the "first" of his illegal arrests. The trial court found that petitioner's arrest was not illegal, specifically stating the following:

"An investigation by the Detective Division of the Etowah County Sheriff's Department led to the arrest of the Defendant, Gilbert Franklin Beck and another alleged accomplice, Roy Frank Clements. The investigating officer testified that a lead was obtained by a witness who described a pickup truck that he had seen at the scene earlier that afternoon. The officer arrived at the trailer of Beck, the Defendant, and observed a metal barrel which was smoldering. On the Defendant's shoes, there was [sic] spots of blood that was later identified scientifically as Type O, which was the same blood type as the victim. The Defendant, Beck was arrested and later made a voluntary statement to the Detective, that he had been at the victim's home with an accomplice, Roy Frank Clements and was present at the time the victim was killed, but that he did not actually cut the victim's throat, but rather blamed the accomplice with the actual act."

The Court of Criminal Appeals affirmed the judgment of the trial court and, regarding the admission of the inculpatory statement, held:

"While the investigating officers were conducting their preliminary investigation of the double homicide at the Malone home, Mr. Marlin Bartlett informed them that earlier that afternoon, he had seen appellant's blue pick-up truck parked in front of the Malone home. The officers determined that Bartlett had seen appellant's truck at the murder scene at the time the murders were committed. They drove to appellant's home to question the appellant. Outside appellant's home they observed appellant's blue pick-up truck and saw, in plain view, in the bed of the truck a pair of blood-spattered boots. They also noticed a smoldering trash barrel outside, behind appellant's home. Based on Bartlett's information, their own observations outside appellant's residence, and the reactions of the appellant and his wife when the officers informed them of the nature of the investigation, the officers placed the appellant under their custody."

Petitioner argues, in brief, that these findings of fact are "incorrect." He states:

"Though the officers were told that defendant's pick-up truck had been seen at the Malone home earlier in the day, there is no testimony in the record to the effect that the officers determined the truck had been there at the time of the murders.

"When officers first went to question the defendant, they took him into custody. After transporting him to the jail they returned to his trailer. Only when they returned to the trailer, after they had placed defendant in custody, did they discover a pair of boots.

"Just as importantly, it was not until after the police returned to defendant's residence to search (after he had been taken to police headquarters) that they discovered a smoldering trash barrel.

"The sole reason defendant was arrested was stated by the officer who arrested him, detective Longshore. The question and answer are repeated here in full:

"Q. On what basis did you have him confined in Etowah County Jail?

"A. On the information that we had received from an informer that saw his truck there that afternoon. We arrived at approximately the time that the incident took place, and that's the way we picked him up."

The State counters by arguing that "[t]he pages to which reference is made are part of the defendant's first trial," and that "[a] portion of that transcript was included in the record of this case on appeal as a supplemental transcript on motion of the defendant; however, the pages to which the defendant refers were not included in the supplemental transcript and thus are not part of the record in this case. An appellate court generally cannot consider any matter outside of the record. Dates v. State, 282 Ala. 457, 212 So.2d 845 (1968)."

The State also argues that the record in the current case supports the findings made by the trial court and the Court of Criminal Appeals regarding the time when the boots were found. In brief, the State points out:

"With regard to the existence of probable cause the defendant asserts that the arrest was based solely on the information that his truck was seen at the Malone home, where the crime occurred, on the afternoon of the robbery/murder. This assertion is not supported by the record. Deputy Don Longshore testified that the defendant was arrested at his trailer in the early evening of November 8, 1976, and that before the officers went to the trailer they observed in the bed of the defendant's pickup truck a pair of bloody boots. This is consistent with the trial court's findings. Thus two things connected the defendant with the crime at the time of his arrest, the information that his truck had been at the Malone house on the afternoon of the crime and the discovery in his truck of the boots."

The actual testimony of the investigating officer is as follows:

"Q Let me show you State's Exhibit Nine here [boots]. Have you ever seen State's Exhibit Nine before?

"A Yes, sir, I have.

"Q Where did you see this?

"A At the trailer of Gilbert Beck, in the back of a pickup truck.

"Q Now, was that before you went in the trailer [to arrest Beck], or where?

"A It was before, yes, sir.

"Q All right, sir. Whereabouts in the trailer was it?--I mean, in the back of the pickup truck, whereabouts?

"A In the back of the bed in the pickup truck.

"Q In open view?

"A Yes,...