Ex parte Giles

• Decision Date: 25 September 1987
• Citation: 554 So.2d 1089
• Parties: Ex Parte Arthur Lee GILES. (Re Arthur Lee Giles v. State). 86-416.
• Court: Alabama Supreme Court

Page 1089

554 So.2d 1089

Ex Parte Arthur Lee GILES (Re Arthur Lee Giles v. State).

86-416.

Supreme Court of Alabama.

Sept. 25, 1987.

Dennis N. Balske of Balske and Van Almen, Montgomery, for petitioner.

Don Siegelman, Atty. Gen., and William D. Little and Thomas R. Allison, Asst. Attys. Gen., for respondent.

PER CURIAM.

Giles was initially convicted and sentenced to death in 1979; however, his conviction and sentence were overturned, and he was granted a new trial pursuant to our holding in Beck v. State, 396 So.2d 645 (Ala.1980). Giles v. State, 405 So.2d 50 (Ala.Crim.App.1981). His second trial resulted in a conviction and sentence of death also. The Court of Criminal Appeals affirmed, 554 So.2d 1073, and his petition for writ of certiorari was granted. We affirm the judgment of the Court of Criminal Appeals insofar as it affirmed the conviction, but reverse it insofar as it affirmed the sentence, and remand the cause to the Court of Criminal Appeals with instructions to remand to the trial court for a new sentencing hearing before a jury.

Defense counsel conceded in his opening statement at trial that the evidence would establish that Giles was guilty of murder. Consequently, on appeal, the defendant does not challenge the sufficiency of the evidence establishing his guilt. The defendant takes issue with pretrial rulings on change of venue, recusal, and exclusion of jurors; with prosecutorial comments to the venire; with court instructions to the jury; and with the trial court's decision during the sentencing hearing to send the jury back for further deliberations after the jury foreman informed the court that the jurors were hopelessly deadlocked.

After a careful review of all the questions raised by the defendant, we find that the only issue with merit concerns the court's response to the jury foreman's announcement that the jury was hopelessly deadlocked.

After lengthy instructions on aggravating and mitigating circumstances at the sentencing hearing, the trial court concluded its oral charge to the jury by stating:

"You are to presume that if you sentence Arthur Giles to life imprisonment without the possibility of parole, he will spend the rest of his life in prison. You are to make no other presumptions.

"In this proceeding, if your verdict is not unanimous, the defendant will be sentenced to life imprisonment without the possibility of parole.

"Now, then, ladies and gentlemen, after considering all of the evidence concerning the sentence phase in this case, you will have one of two verdicts. If you find that the State did prove beyond a reasonable doubt the existence of one or more of the three aggravating circumstances that I instructed you on, but that aggravating circumstance or circumstances was outweighed by the mitigating circumstances in this case, then you should also return this form of verdict that I just read to you, life imprisonment without parole.

"If you unanimously find that the State proved beyond a reasonable doubt the existence of one or more of the three aggravating circumstances that I instructed you on, and if you unanimously find that aggravating circumstance or circumstances outweighs the mitigating circumstances in this case, then you should return the form of verdict as follows: We, the Jury, fix the punishment of the Defendant, Arthur Lee Giles, at death.

"Your verdict must be unanimous. All twelve of you must agree before you can reach any punishment verdict on this case. Any punishment verdict that you reach must be the verdict of each and every one of you."

The jury was then dismissed from the courtroom so that the trial court could entertain objections. Defense counsel's objection to the court's charge on the necessity of unanimity was stated and resolved as follows:

"MR. CARROLL: And we also object to the Court's charge on whether or not the Jury has to be unanimous in its verdict to impose a sentence of life imprisonment without parole. The Court gave the charge requested by the Defendant, which indicates exactly what you stated the law is, but under Beck versus The State that is if one juror disagrees with the imposition of the death sentence, then a sentence of life without parole must be imposed. The Court gave that charge, but at the end of the charge indicated that the sentence had to be unanimous. We contend that that's an incorrect statement of law.

"THE COURT: Now, I'm not sure that I understand you, Mr. Carroll.

"MR. BURTTRAM: I believe he's right. I believe that's the way you ended your charge.

"MR. CARROLL: You gave our charge, which we contend is a correct version of the law, which says in this proceeding if your verdict is not unanimous, the Defendant will be sentenced to life imprisonment without the possibility of parole.

"THE COURT: What are you objecting to?

"MR. CARROLL: The fact that ... the last thing you said in your charge was that any sentence must be unanimous, any sentencing verdict.

"THE COURT: The verdict must be unanimous.

"MR. CARROLL: It has to be unanimous on the issue of death, but does not have to be--

"THE COURT: All twelve of you must agree before you can reach any punishment verdict.

"MR. CARROLL: Right. And we contend that that's not true.

"THE COURT: It would be true, unless they were not able to agree, then it would be life imprisonment without parole.

"MR. CARROLL: Right. So, therefore, their sentencing verdict would not have to be unanimous. If they can't agree, then a sentence of life imprisonment without parole is imposed.

"THE COURT: All right. Bring the Jury back. I will give further instructions. Would you be satisfied if I read your instructions?

"MR. CARROLL: Yes.

(Jury present.)

"PROSPECTIVE JUROR SUMMERS: Your Honor, would you clarify one statement. Did you say that it has to be a unanimous verdict for death, but if we don't reach a unanimous verdict, it's automatic life without parole.

"THE COURT: All right. That's exactly what I was going to reinstruct you about. I gave you an instruction in this case that if your verdict is not unanimous--Well, if you are not able to reach a verdict in the case, I'll say it that way, then the Defendant would be sentenced to life imprisonment without parole. To sentence the Defendant to death, then it must be a unanimous verdict of all twelve of this Jury.

"All right. You may retire. Do you want to consider this case tonight?

(Jury responded yes.)

"THE COURT: All right. Then you may retire to the jury room to consider the case. You will have out with you the evidence which was introduced by the parties and the forms. We have prepared the forms of verdict here. You will have out the forms of verdict and the evidence presented to you in this case and when you have reached a verdict, you signify that fact and we will be at the pleasure of the Jury. If you want to work tonight or want to come back tomorrow, all you have to do is let us know."

The jury retired at 6:50 p.m. and returned at 9:10 p.m., at which time the following transpired:

"THE COURT: Ladies and gentlemen of the Jury, at this point have you been able to reach a verdict in this case?

"THE FOREMAN: Your Honor, we are hopelessly deadlocked. And we were awaiting instructions from you on just what to do.

"THE COURT: All right. Ladies and gentlemen, we have been here since Tuesday morning in this case, which is now at least four-and-a-half days. You have been deliberating this question for a little better than two hours. I do not feel that two hours with the length of time that it took to try it would be adequate time. I know that all of you are tired, as well as the Court and everybody else that's here. I think that the Clerk has rooms reserved for you, already had them reserved.

"I think that what we will do, and maybe we will get a fresh start in the morning, is recess you until 9:00 in the morning.

"Now ladies and gentlemen of the Jury, it is imperative that under the instructions that I have previously given that you do not discuss this case with anyone whatsoever. I'm going to recess you under the same instructions that you have been under at all times.

"So ladies and gentlemen, I'm going to recess you now until 9:00 in the morning."

The defendant contends that the trial court erred in requiring the deadlocked jury to return the next morning for further deliberations. He argues that the trial court instead should have entered a sentence of life without parole. He also argues that the trial court's actions impermissibly...