Ex parte Murry

• Decision Date: 13 July 1984
• Parties: Ex parte Paul Edward MURRAY (In re Paul Edward Murray v. State of Alabama). 82-743.
• Court: Alabama Supreme Court

Page 72

455 So.2d 72

Ex parte Paul Edward MURRAY (In re Paul Edward Murray v. State of Alabama).

82-743.

Supreme Court of Alabama.

July 13, 1984.

Rehearing Denied Aug. 24, 1984.

William W. Gobrecht, Montgomery, for petitioner.

Charles A. Graddick, Atty. Gen., and Edward E. Carnes, Asst. Atty. Gen., for respondent.

PER CURIAM.

This is a death penalty case. The Court of Criminal Appeals affirmed petitioner's conviction for capital murder and sentence of death. Petitioner asserts that the capital offense of murder of a police officer requires knowledge of the officer's status and that a trial judge should not be allowed, under the sentencing provisions of the Alabama Criminal Code, to impose a sentence of death after a jury recommends life without parole.

Paul Edward Murry was indicted on February 5, 1982, the grand jury charging that he

"did intentionally cause the death of Mary Pearl McCord by shooting the said Mary Pearl McCord with a pistol while the said Mary Pearl McCord was on duty as a Police Officer for the City of Montgomery, Alabama or because of some official act or job-related act or performance of the said Mary Pearl McCord as a Police Officer for the City of Montgomery, Alabama, to-wit: because Mary Pearl McCord was attempting to arrest the said Paul Edward Murry ...."

Murry pleaded not guilty at his arraignment.

The case came to trial on May 17, 1982. On May 19 the jury pronounced Murry guilty of capital murder and reconvened immediately to deliberate on a sentence. The jury voted 11 to 1 to recommend life without parole. The trial judge conducted a presentence hearing on June 11 and entered a detailed sentence order on June 22, 1982, ordering that Murry be sentenced to death. The Court of Criminal Appeals affirmed the conviction and sentence, 455 So.2d 53 (Ala.Crim.App.1983), whereupon Murry petitioned this Court for a writ of certiorari to the Court of Criminal Appeals.

Murry states his first issue as follows: "whether the offense of the murder of a police officer who is in the performance of his duty requires proof of knowledge that the victim is in fact a police officer before the offense may be elevated to a capital one." Murry made statements immediately after the incident and at trial that he did not know the people he shot were police officers, but thought they were trying to rob him. The trial judge refused to charge the jury that the offense of capital murder of a police officer required the defendant to know that the victim was a police officer on duty.

The statute under which Murry was convicted and sentenced is the 1981 capital offense statute. 1981 Acts of Alabama, Act No. 81-178; Code 1975, §§ 13A-5-39 through -59 (1982 replacement volume). He was indicted under the following provision of § 13A-5-40:

"(a) The following are capital offenses:

"...

"(5) Murder of any police officer, sheriff, deputy, state trooper, federal law enforcement officer or any other state or federal peace officer of any kind, or prison or jail guard, while such officer or guard is on duty or because of some official or job-related act or performance of such officer or guard ...." [Emphasis added.]

This case squarely raises the issue of whether this statute requires that the accused know that the victim was a peace officer in order for the murder to be a capital offense.

Clearly, a murder "because of some official or job-related act" requires that the perpetrator know the victim is a peace officer and is or was performing an official act. A reading of § 13A-5-40 shows two similar offenses: murder of a public official which "stems from or is caused by or is related to [the victim's] official position, act, or capacity," § 13A-5-40(a)(11); and murder of a witness "when the murder stems from, is caused by, or is related to the capacity or role of the victim as a witness," § 13A-5-40(a)(14). The causal elements of these provisions require that the defendant have knowledge of the specified To determine whether the clause "while such officer or guard is on duty" similarly requires an intent to murder with knowledge that the victim is an officer on duty, or at least a reckless disregard of facts which should inform the offender of the victim's status, we must examine the criminal code for an expression of legislative intent.

status or act and intend to murder the victim because of the status or act.

All of the capital offenses set out in § 13A-5-40(a) are murders. Section 13A-5-40(b) provides in part that "the terms 'murder' and 'murder by the defendant' as used in this section to define capital offenses mean murder as defined in section 13A-6-2(a)(1), but not as defined in section 13A-6-2(a)(2) and (3)." Section 13A-6-2(a)(1) states that a person commits the crime of murder if, "[w]ith intent to cause the death of another person, he causes the death of that person or of another person." Subdivision (2) pertains to recklessly engaging in conduct creating a grave risk of death, and subdivision (3) pertains to felony murder. Moreover, § 13A-6-2(b) provides in part that

"A person does not commit murder under subdivisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself."

A capital murder is therefore an intentional murder without legal provocation and including one of the elements of § 13A-5-40(a). The question before us is whether a mens rea in addition to the intent to murder, i.e., a culpable mental state regarding the status of a police officer on duty, is required in order for an intentional murder of a victim who is such an officer to sustain a capital conviction.

The Supreme Court of the United States, in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.2d 288 (1952), reversed Morissette's conviction for knowing conversion of United States property. The Court held that the trial court erred in refusing to submit the question of felonious intent to the jury. In the course of a thorough discussion of criminal intent and its place in the criminal law, the Court observed:

"Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.⁹ As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.

Id., 342 U.S. at 251-252, 72 S.Ct. at 243-244. We turn to the Alabama Criminal Code to ascertain whether the legislature has created an offense without regard to criminal intent, as the State contends.

Section 13A-2-2 defines four culpable mental states: intent, knowledge, recklessness, and criminal negligence. Section 13A-2-3 reads:

"The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If that conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, the offense is one of 'strict liability.' If a culpable mental state is required with respect to any material element of an offense, the offense is one of 'mental culpability.' "

The second and third sentences of this section contradict each other, ¹ but it is clear that the question before us is whether capital murder of a police officer is a strict liability offense. This is so because the identity of the victim as a police officer is the only element distinguishing the capital offense from non-capital murder.

Section 13A-2-4 provides in part as follows:

"(a) When a statute defining an offense prescribes as an element thereof a specified culpable mental state, such mental state is presumed to apply to every element of the offense unless the context thereof indicates to the contrary.

"(b) Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability."

This statute supports the construction of § 13A-5-40(a)(5) advanced by Murry for three reasons: (1) paragraph (a) suggests that the "intentional" element of the murder applies to the element of the capital offense that the victim was a police officer on duty; (2) the first sentence of paragraph (b) pertains to the extent that the "proscribed conduct," murder punishable as a capital offense, "necessarily involves" a culpable mental state; and (3) the second sentence of paragraph (b) applies because § 13A-5-40(a)(5) says nothing "clearly indicating a legislative intent to impose strict liability," such as "whether or not the defendant knew that the victim was a police officer on duty or intended to kill the victim for that reason."

While the reasons we have listed as (1) and (3) in the previous paragraph are general rules of construction provided by the criminal code itself and tending to require a culpable mental state in addition to an intent to murder for a crime to be a capital offense rather than non-capital murder, reason (2) triggers an analysis more specific and more designed to resolve the issue on its merits. The question may be posed as, "Does a capital offense require a culpable mental state in addition to the intent to murder taken...