Ex parte Giles

• Decision Date: 29 October 1993
• Citation: 632 So.2d 577
• Parties: Ex parte Arthur Lee GILES. (Re Arthur Lee Giles v. State). 1920375.
• Court: Alabama Supreme Court

Page 577

632 So.2d 577

Ex parte Arthur Lee GILES.

(Re Arthur Lee Giles v. State).

1920375.

Supreme Court of Alabama.

Oct. 29, 1993.

On Application for Rehearing Jan. 14, 1994.

Bernard E. Harcourt, Montgomery, and Herbert B. Sparks, Jr., Birmingham, for petitioner.

James H. Evans, Atty. Gen., and Melissa G. Math, Deputy Atty. Gen., for respondent.

ADAMS, Justice.

We granted Arthur Lee Giles's petition for certiorari review of a judgment of the Court of Criminal Appeals affirming his sentence of death. We affirm.

The operative facts forming the basis for Giles's conviction have already been set forth in a number of opinions. The facts are that at approximately 3:27 a.m. on November 10, 1978, Arthur Giles and Aaron Jones, armed with handguns and a knife, entered a home occupied by Carl and Wilene Nelson; their three children, Tony, 13-year-old Brenda, and 10-year-old Charlie; and Carl's mother, 86-year-old Annie Nelson, with intent to rob the family. Giles entered Tony's bedroom and turned on the light. Some conversation followed, which awakened Carl Nelson, who then ordered Giles out of the house.

Tony followed Giles as he exited through the rear door of the house. As Tony stepped onto the porch, Giles shot him in the chest. Giles then reentered the house, but not before shooting Tony a second time as he lay on the porch.

Once back inside the house, Giles encountered Annie Nelson, who had awakened and was standing in the doorway of Charlie's bedroom. He shot her in the face. Giles then proceeded to another bedroom, occupied by Carl, Wilene, and Brenda. There, he shot Wilene and Carl Nelson--Wilene in the left shoulder, and Carl through the left arm and the heart. Brenda, who was lying on her mother's bed, covered her face with a pillow. Giles pulled the pillow away from her face and shot her in the left eye.

Carl and Wilene, both of whom were still alive, were then stabbed repeatedly. Charlie ran into the melee and leaped onto the bed with Brenda, where he was subsequently stabbed twice in the back. Brenda, notwithstanding her pleas for mercy, was also stabbed. ¹

After Giles and Jones had left the house and driven away, Tony, who had managed to crawl underneath his father's truck for safety, went to the house in search of his family. Inside, he found all the family members covered with blood, having been shot, stabbed, or both. Carl and Wilene were dead. Carl had been shot twice and stabbed eight times. Wilene had been shot once, stabbed 17 times, and "slashed" 12 times. A number of them had also been bludgeoned about their heads. Tony managed to get medical attention for himself and the other survivors.

In separate trials, Jones and Giles were both convicted, pursuant to Ala.Code 1975, § 13-11-2(a)(10), for the capital murders of Carl and Wilene Nelson, and both men were sentenced to death by electrocution. Jones v. State, 403 So.2d 1 (Ala.Crim.App.1981), on return to remand, 520 So.2d 543 (Ala.Crim.App.1984), affirmed, Ex parte Jones, 520 So.2d 553 (Ala.), cert. denied, Jones v. Alabama, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988); Giles v. State, 405 So.2d 50 (Ala.Crim.App.1981), on return to remand, 554 So.2d 1073 (Ala.Crim.App.1985), sentence reversed, Ex parte Giles, 554 So.2d 1089 (Ala.1987), on second return to remand, Giles v. State, 632 So.2d 568 (Ala.Crim.App.1992). The Court of Criminal Appeals reversed both convictions and remanded for new trials in light of the bifurcated procedure outlined by this Court in Beck v. State, 396 So.2d 645 (Ala.1980). Jones, 403 So.2d 1; Giles, 405 So.2d 50. Following a second trial, Jones was again convicted and sentenced to death. 520 So.2d 543. This Court affirmed Jones's second conviction and death sentence. 520 So.2d 553.

Giles's second trial, which occurred in December 1982, also resulted in a conviction and sentence of death, both of which were affirmed by the Court of Criminal Appeals. 554 So.2d 1073. This Court affirmed the judgment of the Court of Criminal Appeals as to Giles's conviction. 554 So.2d 1089. As to the sentence, however, we reversed and remanded, holding that the trial court had "impermissibly suggested to the jury that [it] favored a death sentence in the case." Id. at 1092.

Following the sentencing hearing conducted on the second remand, the jury, after considerable deliberations, informed the court that it had "reached an impasse." The judge then questioned the jurors, individually, whether further deliberations would be fruitless. Concluding that further deliberations would not produce a unanimous verdict, the judge dismissed the jury. That result represented a de facto recommendation of life without the possibility of parole, as we interpreted §§ 13-11-1 to -9 in Beck v. State. However, at a subsequent sentencing hearing, the trial judge sentenced Giles to death.

The Court of Criminal Appeals affirmed the sentence. Giles v. State, 632 So.2d 568 (Ala.Crim.App.1992). Pursuant to Ala.Code 1975, §§ 13A-5-53 to -55, and Ala.R.App.P. 39(c), we granted Giles's petition for certiorari review of that judgment.

Giles contends that Ala.Code 1975, §§ 13-11-1 to -8, the sentencing scheme in effect at the time of the murders in this case, did not expressly authorize the trial judge to override the jury's de facto sentence of life imprisonment. Therefore, he insists, the death sentence cannot be imposed.

In Ex parte Hays, 518 So.2d 768 (Ala.1986), we addressed arguments substantially identical to those propounded by Giles. In that case, we held that §§ 13-11-3 and -4 authorized the trial judge to override the jury's recommendation of imprisonment, if, after independently reviewing the mitigating and aggravating factors, he concluded that the death penalty was warranted. 518 So.2d at 775-76. Because Giles's arguments have been thoroughly discussed and decided, we will not revisit those contentions here.

Giles further contends that the de facto sentence of life imprisonment resulting from the jury's failure to agree unanimously on a death sentence is protected by Ala. Const. 1901, § 11, which provides: "That the right of trial by jury shall remain inviolate." Therefore, he insists, § 11 prohibits the judicial override of that verdict and the consequent entry of a sentence of death. For this proposition, he cites Henderson v. Alabama Power Co., 627 So.2d 878 (Ala.1993), in which we held that Ala.Code 1975, § 6-11-21, which limited to $250,000 an award of punitive damages in a civil case, violated the right to a trial by jury as guaranteed by § 11.

Giles concedes that the common law did not invest juries with sentencing discretion in capital cases. Indeed, "[b]y the common law, the jury determined merely the guilt or innocence of the prisoner; and, if their verdict was guilty, their duties were at an end. They had nothing whatever to say as to the punishment to be inflicted." Fields v. State, 47 Ala. 603, 606 (1872). "The court alone determined what the punishment should be, its extent and its severity; with that the jury had nothing to do. Their whole duty was discharged when the verdict of guilty was pronounced." Id.

On this ground, the Court of Criminal Appeals has held that Ala.Code 1975, § 13A-5-46, which designates merely as "advisory" the jury's verdict in capital cases, does not violate § 11. Crowe v. State, 485 So.2d 351, 363 (Ala.Crim.App.1984), reversed on other grounds, Ex parte Crowe, 485 So.2d 373 (Ala.1985) (citing George v. People, 167 Ill. 447, 47 N.E. 741 (1897)); State v. Reynolds, 608 S.W.2d 422 (Mo.1980); State v. Hamey, 168 Mo. 167, 67 S.W. 620 (1902); Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914); Ex parte Moser, 602 S.W.2d 530 (Tex.Crim.App.1980); 1 Bishop's New Criminal Procedure § 43, at 20 (1913); and 4 W. Blackstone, Blackstone's Commentaries 354-55, 366-69 (reprint 1979). The Crowe court stated:

"We must agree with the above authorities and hold that Article I, Section 11, confers the right of trial by jury as [it] existed at common law and the time of Alabama's first state constitution. This provision did not incorporate the statutes conferring sentencing authority upon the jury which were in force at the time of the adoption of the 1901 Alabama Constitution."

Crowe, 485 So.2d at 364 (emphasis added); see also Frazier v. State, 562 So.2d 543, 550 (Ala.Crim.App.1989), reversed on other grounds, Ex parte Frazier, 562 So.2d 560 (Ala.1990).

Giles, however, observes that in 1901, when the present constitution was adopted, Alabama juries were authorized by statute to sentence defendants to death or life imprisonment at the jury's option. Ala.Code 1907, § 7088; Ala.Code 1896, § 4858. He cites Gilbreath v. Wallace, 292 Ala. 267, 269, 292 So.2d 651, 652 (1974), for the proposition that § 11 "effected a 'freezing' of the right to jury trial as of 1901." (Emphasis added.) He contends, in effect, that § 11 "freezes" the sentencing procedure that existed in 1901. Thus, he insists, the judicial override exercised in this case violated his right to trial by jury.

In our view, Giles reads too much into Gilbreath. To be sure, that case did hold that § 11 preserved inviolate the right, which existed by statute in 1901, to a trial by jury in an action to contest the validity of a will. 292 Ala. at 273, 292 So.2d at 656. However, it reached this conclusion only after an extensive analysis of the history of the claimed right. Indeed, the Court expressly noted certain "exceptions to the general rule" in which the legislature was permitted to alter the character of the fact-finding tribunal, despite the fact that in each case a trial by jury was provided by statute in 1901. 292 Ala. at 270 n. 2, 292 So.2d at 653 n. 2. The Court referred specifically to procedures involving disbarment, id. (citing Ex parte Thompson, 228 Ala. 113, 152 So. 229 (1933)) and those involving insanity inquisitions, id. (citing Smith v. Smith, 254 Ala. 404, 48 So.2d 546 (1950)). Significantly, the holdings in both Thompson and Smith...