Ex parte Kennedy

• Citation: 472 So.2d 1106
• Parties: Ex parte Victor KENNEDY. (Re: Victor Kennedy v. State of Alabama). 83-664.
• Decision Date: 22 March 1985
• Court: Supreme Court of Alabama

Page 1106

472 So.2d 1106

Ex parte Victor KENNEDY (Re: Victor Kennedy v. State of Alabama).

83-664.

Supreme Court of Alabama.

March 22, 1985.

Rehearing Denied June 7, 1985.

Gould H. K. Blair, Birmingham, and William T. Denson, Goodwater, for petitioner.

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

MADDOX, Justice.

This is a capital murder case. The facts are fully and accurately reported in the opinion of the Court of Criminal Appeals, 472 So.2d 1096; therefore, we briefly summarize the facts here only to the extent necessary to our holding.

On December 24, 1980, petitioner entered the home of eighty-six-year-old Mrs. Annie Laura Orr in Montevallo. Petitioner was accompanied by Darrell Grayson. (See Grayson v. State, [7 Div. 3, Jan. 31, 1984] (Ala.Crim.App.1984), affirmed, [MS. 83-756, Feb. 15, 1985] (Ala.1985).) One of the men was armed with a pistol. Inside Mrs. Orr's home the two men assaulted Mrs. Orr and placed a pillowcase over her head. They then wrapped her head with masking tape so that her head resembled that of a mummy. Mrs. Orr was repeatedly raped and terrorized with threats and gunfire. Finally, petitioner and Grayson left the house with two decks of playing cards, Mrs. Orr's wallet, and a small amount of money. Mrs. Orr slowly suffocated to death.

Petitioner was convicted of capital murder and sentenced to death. The Court of Criminal Appeals affirmed his conviction and overruled his application for rehearing. We granted certiorari as a matter of right pursuant to Rule 39(c), Ala. R.A.P. Petitioner presents seven issues for our review.

I

Relying on Bufford v. State, 382 So.2d 1162 (Ala.Crim.App.1980), petitioner contends that during the sentencing phase, the judge's instructions to the jury regarding aggravating circumstances included an offense which constituted an element of the indictment and, as a result, he contends he was being punished twice for the same offense. We disagree.

As the Court of Criminal Appeals correctly held, Bufford was effectively overruled in Kyzer v. State, 399 So.2d 330, 334-39 (Ala.1981), and Beck v. State, 396 So.2d 645 (Ala.1980); Dobard v. State, 435 So.2d 1338 (Ala.Crim.App.1982), affirmed, Ex parte Dobard, 435 So.2d 1351 (Ala.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984).

Kennedy contends that the effect of Bufford cannot be overruled because the language of Code 1975, § 13A-5-31, mandates that a death sentence be imposed only if certain crimes are committed "with aggravation." The trial court found the following aggravating circumstances: (1) The capital felony was committed while the defendant was engaged in the commission of a rape, robbery, and burglary; and, (2) the capital felony was especially heinous, atrocious, and cruel, especially when compared to other capital felonies.

We have reviewed the findings made by the trial judge and hold that the evidence supports the judge's determination that two aggravating circumstances were present in this case.

Finally, Kennedy contends that even though Bufford has been overruled, the instant offense was committed before it was overruled; consequently he contends that if Bufford is not applied, the result is an ex post facto violation. Again, we find this argument to be without merit.

As the Court of Criminal Appeals indicated, the Bufford court's misinterpretation of Code 1975, § 13A-5-31, was corrected in Kyzer v. State, supra. It is a settled principle that the constitutional ban on ex post facto laws applies strictly to legislative acts and does not extend to changes in law effected by judicial decisions. This principle was expressly stated in the following Supreme Court cases: Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915); Ross v. Oregon, 227 U.S. 150, 33 S.Ct. 220, 57 L.Ed. 458 (1913); Calder v. Bull, 3 U.S. 386, 3 Dall 386, 1

L.Ed. 648 (1798). Specifically, it was declared in Frank v. Mangum, supra, that the constitutional prohibition against state enactment of ex post facto laws is, "as its terms indicate, directed against legislative action only, and does not reach erroneous or inconsistent decisions by the court." 237 U.S. at 344, 35 S.Ct. at 593. (Emphasis added.)

II

Petitioner next contends that the trial judge's instruction defining "aiding and abetting" violated the eighth and fourteenth amendments, which prohibit the imposition of the death penalty on one who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. He cites Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). We find that Enmund is not applicable to the case at hand.

Prior to instructing the jury regarding the meaning of "aiding and abetting," the trial judge familiarized the jury with the meaning of "intent to kill." He instructed the jury as follows:

"The intent to kill must be independent of the act of committing the burglary itself but the two, the burglary and the intent to kill, must co-exist before this defendant could be convicted of the capital offense, as I have mentioned to you, and that is the highest offense included in this indictment."

It was after the judge had thoroughly instructed the jury on the need for finding that Kennedy intended to kill that the trial judge instructed the jury regarding the complicity statute and the definition of "aiding and abetting." The jury was instructed as follows:

"Now, ladies and gentlemen of the jury, I will charge you as to Title 13A-2-23 of the 1975 Code of Alabama entitled complicity.

"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of a crime, one, he procures, induces or causes the other person to commit the offense or, two, he aids or abets such other person in committing the offense or, three, having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make.

"Aiding and abetting comprehends all assistance rendered by acts or words of encouragement or support, actual or constructive, to render assistance should it become necessary and no particular acts are necessary." (Emphasis added.)

The Court of Criminal Appeals, in addressing this issue, held:

"Kennedy's sentence of death does not violate Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368 (1982), holding that the Eighth Amendment prohibits the imposition of the death penalty on one who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.

"In imposing the death penalty, the trial judge made specific factual findings that Kennedy 'participated in every aspect of the capital offense,' and that he 'beat, raped, and intentionally killed' Mrs. Orr. The evidence shows that before entering the house Kennedy had given his pistol to Grayson. The trial judge repeatedly instructed the jury that an intent to kill was an essential element of the capital offense.

"In reviewing a capital conviction in which the accused concedes at trial that he participated in the underlying felony but denies that he committed or aided and abetted the intentional killing, this Court must apply a two-part test. 'To affirm a finding of a "particularized intent to kill," the jury must be properly charged on the intent to kill issue, and there must be sufficient evidence from "Kennedy's speculation that the jury found him guilty even though they did not believe he committed or participated in the killing is totally unacceptable. The jury was properly instructed on the relevant law, and it must be presumed that they followed the judge's instructions. Marshall v. Lonberger, U.S. 103 S.Ct. 843, 853-854, n. 6 (1983).

                which a rational jury could conclude that the defendant possessed the intent to kill.'   Ex parte Raines, 429 So.2d 1111, 1113 (Ala.1982).  Both prongs of this test are satisfied in this case
                

" 'A crucial assumption underlying that system (of trial by jury) is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed.' Parker v. Randolph, 442 U.S. 62, 73 [99 S.Ct. 2132, 2139, 60 L.Ed.2d 713] (1979) (White, J., dissenting)."

We adopt the holding of the Court of Criminal Appeals as being the law of this case.

III

Petitioner's third contention is that the trial judge's instructions during the sentencing phase of the trial had the effect of misleading the jury into believing that voluntary intoxication was immaterial to the determination of his sentence. We disagree.

The specific instruction which Kennedy contends to be misleading is as follows:

"In evaluating the testimony presented at this sentence hearing, you are to abide by the same rules of law which I have given you concerning the evaluation of testimony presented during the guilt phase of the trial."

Having carefully reviewed this charge in the context in which it was heard by the jury, we find no error. We agree with the Court of Criminal Appeals' finding that the above charge merely instructed the jury to apply the same rules and guidelines in ascertaining the factual truth from the evidence presented in the sentencing phase as they applied in the guilt phase. Furthermore, at the sentencing hearing, although the trial judge did not specifically instruct the jury on intoxication, he did instruct the jury that they could consider "a substantially lessened or substantially diminished capacity" as a mitigating factor.

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