Ex parte Godbolt

• Decision Date: 15 May 1987
• Citation: 546 So.2d 991
• Parties: Ex parte Jerry Steven GODBOLT. (Re Jerry Steven Godbolt v. State). 85-1287.
• Court: Alabama Supreme Court

Page 991

546 So.2d 991

Ex parte Jerry Steven GODBOLT.

(Re Jerry Steven Godbolt v. State).

85-1287.

Supreme Court of Alabama.

May 15, 1987.

Rehearing Denied July 24, 1987.

Charles M. Purvis and Virginia A. Vinson of Wilkinson, Purvis & Vinson and Ronda H. Lacey, Birmingham, for petitioner.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for respondent.

HOUSTON, Justice.

This is a capital murder case. A detailed statement of the facts is contained in the opinion of the Court of Criminal Appeals, Godbolt v. State, 546 So.2d 982 (Ala.Cr.App.1986).

Jerry Steven Godbolt, the defendant, was indicted by a Jefferson County Grand Jury for murdering Myra Faye Tucker and her husband, Terry Wayne Tucker, while robbing them. The defendant was first tried for the capital murder of Mrs. Tucker. The jury found him guilty and recommended the death sentence. The trial court sentenced him to life imprisonment without parole. That conviction and the sentence were later affirmed on appeal. Godbolt v. State, 429 So.2d 1131 (Ala.Cr.App.1982). (The defendant's trial for the murder of Mrs. Tucker will sometimes be referred to in this opinion as his "first trial.")

The defendant was later tried for the capital murder of Mr. Tucker; the jury found him guilty and recommended the death sentence. Pursuant to that recommendation, the trial court sentenced the defendant to death in accordance with § 13A-5-31(a)(2), Code 1975 (repealed 1981). ¹ The Court of Criminal Appeals affirmed that conviction and sentence and later overruled the defendant's application for rehearing. He then filed this petition for a writ of certiorari seeking review of Applying the principles of collateral estoppel and double jeopardy, the defendant contends that because his first trial resulted in a sentence of life imprisonment without parole, the state was precluded from seeking the death sentence in this case. We disagree.

his conviction and sentence for the capital murder of Mr. Tucker. We granted the writ pursuant to Rule 39(c), Ala.R.App.P.

The defendant primarily relies on Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), we find the following synopsis of Bullington:

"In Bullington v. Missouri, supra, this Court held that a defendant sentenced to life imprisonment by a capital sentencing jury is protected by the Double Jeopardy Clause against imposition of the death penalty in the event that he obtains reversal of his conviction and is retried and reconvicted. The Court recognized the usual rule to be that when a defendant obtains reversal of his conviction on appeal,

'the original conviction has been nullified and "the slate wiped clean." Therefore, if the defendant is convicted again, he constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served.' Id., 451 U.S., at 442, 101 S.Ct., at 1860 (quoting North Carolina v. Pearce, 395 U.S. 711, 721, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969)).

However, the Court found that its prior decisions had created an exception to this rule: '[T]he "clean slate" rationale ... is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case.' Bullington, supra, 451 U.S. at 443, 101 S.Ct., at 1860. Although it is usually 'impossible to conclude that a sentence less than the statutory maximum "constitute[s] a decision to the effect that the government has failed to prove its case," ' ibid. (quoting Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978)), the Court found that Missouri, by 'enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, ... explicitly requires the jury to determine whether the prosecution has "proved its case," ' id., at 444, 101 S.Ct., at 1861 (emphasis in original).* Accordingly, the Court held that the jury's decision to sentence Bullington to life imprisonment after his first conviction should be treated as an 'acquittal' of the death penalty under the Double Jeopardy Clause."

476 U.S. at 151-152, 106 S.Ct. at 1753-54.

In Ashe, three or four armed, masked men robbed six men playing poker in the home of one of the victims. The defendant was charged in separate counts with the robbery of each of the six players. He was tried on one count and acquitted because there was insufficient evidence to convince the jury that he was present when the victims were robbed. The Supreme Court held that the principle of collateral estoppel is embodied within the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution and, because it had been previously determined by a jury that the defendant was not present when the victims were robbed, the state was precluded on double jeopardy grounds from thereafter prosecuting him for the robbery of a different player. The Court noted:

" 'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated The defendant's argument, as we understand it, is that the life sentence imposed by the trial court at his first trial was, under Bullington and Ashe, conclusive on the trial court in this case. He reasons that because the deaths of the Tuckers were the result of one continuous transaction consisting of several inextricably intertwined acts, the aggravating and mitigating circumstances would necessarily be the same in both cases; therefore, he argues that when the trial court at his first trial sentenced him to life imprisonment without parole for the murder of Mrs. Tucker (pursuant to its consideration of the aggravating and mitigating circumstances which it found to exist) the issue of whether the death sentence was appropriate for the murder of Mr. Tucker was also determined in his favor (i.e., that he was acquitted of the death sentence for both offenses under Bullington ). Thus, the defendant seeks to foreclose a "reconsideration" of the death sentence in this case under the rationale of Ashe.

between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 [1916]...."

At this point we should note that although one continuous transaction led to the deaths of the Tuckers, the record in this case, as well as the record from the first trial, clearly shows that separate, distinct offenses were committed against each victim. A plea of double jeopardy is unavailing unless the offense presently charged is the same in law and fact as the former one relied on under the plea. Therefore, the defendant was subject to prosecution for each of these killings. See Clift v. State, 352 So.2d 838 (Ala.1977); Colston v. State, 350 So.2d 337 (Ala.1977); Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973).

When Bullington is considered in conjunction with Alabama's capital sentencing proceeding (in which the trial court, not the jury, is the ultimate sentencing authority) ² it stands for the proposition that a defendant sentenced to life imprisonment without parole by the trial court is protected against the later imposition of the death sentence in the event that he obtains a reversal of the conviction and is retried and reconvicted for the same offense. As previously stated, the defendant was first convicted and sentenced to life imprisonment without parole for the capital murder of Mrs. Tucker. Under Bullington, the defendant was acquitted of the death sentence for that offense. However, he was then convicted and sentenced to death for the capital murder of Mr. Tucker in this case. As we understand Bullington, it does not apply where a defendant is tried for and convicted of one capital murder and sentenced to life in the penitentiary without parole and then later tried and convicted of a completely separate capital murder and sentenced to death. Accord, Wheat v. State, 420 So.2d 229 (Miss.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1507, 75 L.Ed.2d 936 (1983).

However, the defendant insists that it was determined at his first trial that he should not receive the death sentence in this case. This conclusion is based upon the defendant's assertion that the aggravating and mitigating circumstances were the same in both cases. Thus, the defendant's position is that Bullington applies because, he says, he has been "tried" and "convicted" twice on the issue of the propriety of the death sentence in his case.

At the risk of belaboring the point, we must state again that the defendant was indicted, convicted, and sentenced at this first trial for the capital murder of Mrs. Tucker, not Mr. Tucker. A sentence in a capital murder case, be it life imprisonment without parole or death, is imposed by the trial court only after careful consideration of the aggravating and mitigating circumstances In fixing the defendant's sentence at death in this case, the trial court specifically found three aggravating circumstances:

which it finds to exist in the particular case. No specific findings with regard to those circumstances were made by the trial court at the defendant's first trial. The trial court stated only that "The court having considered the aggravating and mitigating factors and all the evidence in the case, the court does now commute the sentence to life imprisonment without parole...." We note that the trial court instructed the jury on the aggravating circumstances set out in § 13A-5-35(4), Code...