Ex parte Harrell

• Decision Date: 15 March 1985
• Parties: Ex parte Ed HARRELL, Jr. (Re: Ed Harrell, Jr. v. State). 83-1287.
• Court: Alabama Supreme Court

Page 1309

470 So.2d 1309

Ex parte Ed HARRELL, Jr. (Re: Ed Harrell, Jr. v. State).

83-1287.

Supreme Court of Alabama.

March 15, 1985.

Rehearing Denied May 10, 1985.

Jake V. Bivona of Paden, Green, Paden & Bivona, Bessemer, 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 which the defendant has been sentenced to die.

It is undisputed that on October 1, 1981, Ed Harrell, Jr., shot and killed Tommy Lee Thedford. At the time of the shooting, Thedford was an on-duty police officer employed by the City of Bessemer. Harrell was indicted for capital murder pursuant to Code 1975, § 13A-5-40(a)(5). He initially entered a plea of not guilty by reason of insanity, but, after a psychiatric examination provided no evidence to support this defense, changed his plea to not guilty.

After hearing all testimony, the jury found Harrell guilty of murder, and, after considering aggravating and mitigating circumstances, pursuant to Code 1975, § 13A-5-46, rendered an advisory verdict recommending that Harrell be sentenced to life in prison without parole. After considering the jury's recommendation, all evidence presented at trial, all mitigating and aggravating circumstances, and a written pre-sentencing investigation report, prepared pursuant to Code 1975, § 13A-5-47(b), the trial judge refused to accept the jury's recommendation and sentenced Harrell to death by electrocution.

Harrell appealed to the Court of Criminal Appeals and that court affirmed his conviction. 470 So.2d 1303 He then petitioned here for certiorari, and raised several issues.

Harrell argues in his brief: (1) that Alabama's Death Penalty Act violates the prohibition against cruel and unusual punishment found in the eighth amendment to the United States Constitution; (2) that §§ 13A-5-46 and -47, which allow a jury to return an advisory verdict recommending that the defendant be sentenced to life without parole, but also allow the trial judge to "override" that sentence and impose the sentence he deems appropriate, is violative of the fifth, sixth, eighth, and fourteenth amendments to the United States Constitution; (3) that even if jury override is constitutional on its face, Alabama's standard for the application thereof is too vague and broad to pass constitutional muster; (4) that Code 1975, § 13A-5-40(a)(5), which makes the killing of an on-duty police officer a capital offense, is unconstitutionally arbitrary and vague, because it imposes greater punishment for the murder of a police officer than for the murder of someone else; (5) that because the trial judge was an elected official of Jefferson County, Bessemer Division, and the victim/police officer was an employee of the City of Bessemer, the judge's override of the jury's recommended sentence was the result of passion or prejudice; and (6) that the trial court erred in failing to find and consider the existence of certain non-statutory mitigating circumstances which supported the jury's recommended sentence.

I

During oral argument before this Court, Harrell raised, for the first time, the question of whether the trial judge should have instructed the jury that, in order to be found guilty of the capital offense, Harrell must have known at the time he fired the fatal shot that his victim was a police officer. Harrell argues that he is entitled to a new trial based upon this Court's majority opinion in Ex parte Murry, 455 So.2d 72 (Ala.1984), which was decided one day before Harrell filed his petition for certiorari in this case. In Murry, a majority of this Court held that the trial court erred in failing to give a requested jury instruction that, in the event the jury found the defendant guilty of murdering a police officer, the murder could be a capital offense, pursuant to § 13A-5-40(a)(5), only if the defendant knew at the time of the murder that the victim was an on-duty police officer. Murry, supra, at 78. It is undisputed that no similar instruction was given in the present case, but it is also undisputed that no such instruction was requested by Harrell. It is further undisputed that he did not object at trial to the court's failure to give such an instruction and that in the Court of Criminal Appeals he did not raise the issue he now raises before us.

During oral argument, Harrell's counsel argued that this Court must reverse the present conviction on the authority of Murry. The State, on the other hand, argued that the case sub judice is distinguishable from Murry, because here there was no request that the instruction in question be given and no objection raised when it was not given.

In this case, the trial court charged the jury on the elements of the capital offense, as follows:

"This indictment alleges that Ed Harrell, Jr., whose name to the Grand Jury is otherwise unknown, did on or about October 1st, 1981, did intentionally cause the death of Tommy Lee Thedford, by shooting him with a pistol, while the said Tommy Lee Thedford was on duty as a police officer of the City of Bessemer, Alabama, and in violation of the Code of Alabama. That is the capital offense.

"Before you would be authorized in finding this defendant guilty of that offense, you must find from the evidence beyond a reasonable doubt, that Ed Harrell, Jr., did on or about that day intentionally cause the death of Tommy Lee Thedford by shooting him with a pistol. And at the time of the shooting, Tommy Lee Thedford was on duty as a police officer of the City of Bessemer, Alabama. That is the capital offense charged in this indictment.

"The key word I would imagine in that charge is the word intent. It is the law of this state that a person acts intentionally with respect to a result or a conduct described by law when his purpose is to cause that result or engage in that conduct. In other words, in order to find the defendant guilty of the capital offense, you must find that he did intentionally, that is his purpose was to kill Tommy Lee Thedford, and at that time Officer Thedford was on duty as a police officer for the City of Bessemer. That is the capital offense."

At the conclusion of his charge, the court asked counsel if there were any exceptions, and defendant's counsel answered in the negative.

The controlling question is whether the failure of the trial judge to instruct the jury that they must find that the defendant knew his victim was a police officer was "plain error" which we "may" notice pursuant to the provisions of Rule 39(k), Ala.R.App.P., which provides, in part, as follows:

"In all cases in which the death penalty has been imposed, upon review of the opinion of the Court of Criminal Appeals on certiorari, the Supreme Court may notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner."

To answer that question, we must first answer this question: What is "plain error" which this Court "may" notice, especially in matters involving instructions to juries in capital cases? That this Court may apply the "plain error" rule in capital cases to oral instructions to the jury was established in Jacobs v. State, 371 So.2d 448, 450 (Ala.1979) (Maddox, Faulkner, and Almon, JJ., dissenting on the ground the Court had applied the "plain error" doctrine "hypertechnically, erroneously, and contrary to its true intent"), wherein the majority stated:

"Our new plain error rule, Rule 39(k), ARAP, provides, viz.:

" 'In all cases in which the death penalty has been imposed, upon review of the opinion of the Court of Criminal Appeals on certiorari, the Supreme Court may notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof whenever such error has or probably has adversely affected the substantial rights of the petitioner. [Amended 10-2-78, eff. 12-1-78.]'

"Thus, in death penalty cases, the supreme court may notice plain error in the proceeding under review, whether or not brought to the trial court's attention. The new rule is broader than the old rule and includes oral instructions to the jury."

In answering the question of what constitutes "plain error," we look to the Federal Rules of Criminal Procedure, which define "harmless error" and "plain error" as follows:

"Rule 52. Harmless Error and Plain Error.

"(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

"(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

In 8B Moore's Federal Practice, p 52.02 (2d ed. 1984), it is stated:

"The provision which permits the court to notice 'plain error' not raised at the trial is a restatement of pre-Rules decisional law. What is the meaning of 'plain error' as used in Subdivision (b)? The language of the Rule speaks of 'plain error' and 'defects affecting substantial rights' in the disjunctive. But if error which is 'plain' does not also 'affect substantial rights' there would not be much point to Subdivision (b). Then the only consequence of finding a 'plain' error would be that the court could 'notice' it but not make it a basis for reversal. Obviously, 'plain error' was intended to apply to errors of substance." (Footnotes omitted.)

This Court has previously considered a capital case in which it applied the "plain error" rule to an instruction to the jury. In Ex parte Womack, 435 So.2d 766 (Ala.1983), Justice Beatty, writing for the Court, and with all Justices concurring, opined as follows:

"Petitioner made no objection as to the content of this charge; instead he merely asked for an...