Ex parte Rieber

• Decision Date: 19 May 1995
• Citation: 663 So.2d 999
• Parties: Ex parte Jeffery Day RIEBER. (In re Jeffery Day Rieber v. State of Alabama). 1940271.
• Court: Alabama Supreme Court

Page 999

663 So.2d 999

Ex parte Jeffery Day RIEBER (In re Jeffery Day Rieber v. State of Alabama).

1940271.

Supreme Court of Alabama.

May 19, 1995.

Rehearing Denied June 23, 1995.

Ellen L. Wiesner, Montgomery, and Richard A. Kempaner, Huntsville, for petitioner.

Jeff Sessions, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for respondent.

HOUSTON, Justice.

Jeffery Day Rieber was indicted and convicted in Madison County for the capital offense stated in Ala.Code 1975, § 13A-5- 40(a)(2), involving the robbery and murder of Glenda Craig. The Court of Criminal Appeals affirmed Rieber's conviction and death sentence, and it later overruled his application for rehearing. See Rieber v. State, 663 So.2d 985 (Ala.Crim.App.1994), for a detailed statement of the facts. We granted certiorari review pursuant to Rule 39(c), Ala.R.App.P.

The Court of Criminal Appeals correctly resolved the issues discussed in its opinion. We find it necessary to comment on only three of those issues--whether Rieber's statement to the police and the evidence that was seized from his automobile and residence should have been excluded as the fruits of an illegal arrest and search; whether the jury override provision, § 13A-5-47, is unconstitutional; and whether there is sufficient evidence to support the trial court's finding of the aggravating circumstance set out in § 13A-5-49(8) (that the offense was especially heinous, atrocious, or cruel).

Rieber contends that his statement to the police, as well as the evidence seized from his automobile and his residence, should have been excluded because the police took him into custody and searched his residence without first obtaining arrest and search warrants. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court held that the Fourth Amendment to the United States Constitution prohibits the police from entering an individual's residence without his consent to make a routine warrantless felony arrest. As the Court of Criminal Appeals noted, however, such an entry may be proper where probable cause to arrest the suspect exists and exigent circumstances make it imprudent for the police to wait for a warrant to be obtained. After carefully reviewing the record, we agree with the majority of the Court of Criminal Appeals that both probable cause to arrest and exigent circumstances existed in the present case.

In United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.1987), cert. denied, 481 U.S. 1072, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987), the Eleventh Circuit Court of Appeals noted:

"Exigent circumstances do not necessarily involve 'hot pursuit' of a fleeing criminal. Factors which indicate exigent circumstances include: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public. See Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970) (en banc); United States v. Campbell, 581 F.2d 22, 25-27 (2d Cir.1978); United States v. Newbern, 731 F.2d 744, 748-49 (11th Cir.1984); United States v. Roper, 681 F.2d 1354, 1357 n. 1 (11th Cir.1982) (dictum), cert. denied sub nom. Newton v. United States, 459 U.S. 1207, 103 S.Ct. 1197, 75 L.Ed.2d 440 (1983)."

See, also, United States v. Kimmons, 965 F.2d 1001 (11th Cir.1992), cert. denied, 506 U.S. 1086, 113 S.Ct. 1065, 122 L.Ed.2d 370 (1993); and Bush v. State, 523 So.2d 538 (Ala.Crim.App.1988), and the authorities cited therein. The record indicates that the decision to arrest Rieber at his residence without a warrant was made by the police during an unfolding investigation that began shortly after 8:00 p.m. on October 9, 1990, and extended through the early morning hours of the next day. Rieber was arrested between 3:00 and 3:30 a.m. The police had probable cause to believe that Rieber had robbed and brutally murdered Ms. Craig; that he was residing in his mother's mobile home; that he was armed and extremely dangerous; and, given the gravity of the offense, that his probable state of mind made it likely that any significant delay could allow Rieber to flee the area or otherwise jeopardize the safety of the general public or that of the other occupants of the mobile home in which Rieber was residing. These circumstances were sufficiently exigent to justify a warrantless arrest.

However, we note, as Judges Bowen and Taylor pointed out in their opinion concurring in the judgment, that even if there had been no exigent circumstances surrounding Rieber's arrest, his statement, as well as the evidence discovered as a result of his statement (the gun, ammunition, and money), would have been admissible under the rule stated in New York v. Harris, 495 U.S. 14, 21, 110 S.Ct. 1640, 1644-45, 109 L.Ed.2d 13 (1990) ("where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton "). The record indicates that the money and Rieber's clothes were seized pursuant to a consensual search of Rieber's residence (both Rieber's mother, who owned the mobile home, and his sister, who also resided there, consented to the search) and that the gun and ammunition were seized from his automobile pursuant to a valid search warrant.

As to the constitutionality of § 13A-5-47, which makes the jury's sentencing recommendation nonbinding on the trial court, see, in addition to those authorities cited by the Court of Criminal Appeals, Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995) (decided after the Court of Criminal Appeals had issued its opinion in the present case).

Rieber further contends that Ms. Craig's murder was not especially heinous, atrocious, or cruel, an aggravating circumstance on which the jury was instructed and which the trial court found to exist. See § 13A-5-49(8). Rieber argues that the evidence did not support the trial court's finding that the killing was conscienceless or pitiless and unnecessarily torturous to Ms. Craig, within the meaning of Ex parte Kyzer, 399 So.2d 330 (Ala.1981).

The Court of Criminal Appeals set out in its opinion the trial court's findings with respect to this issue. Suffice it to say that the evidence supports those findings. The evidence indicates that Rieber had "cased" the store and had stalked Ms. Craig for several days before the murder. Testimony and the videotape from the surveillance camera at the store clearly indicate that Ms. Craig was aware of Rieber's presence and was apprehensive and afraid of him. ¹ As the Court of Criminal Appeals pointed out, evidence as to the fear experienced by the victim before death is a significant factor in determining the existence of the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. Ex parte Whisenhant, 555 So.2d 235, 243-44 (Ala.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990); White v. State, 587 So.2d 1218, 1234 (Ala.Crim.App.1990), aff'd, 587 So.2d 1236 (Ala.1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992); Lawhorn v. State, 581 So.2d 1159, 1175, n. 7 (Ala.Crim.App.1990), aff'd, 581 So.2d 1179 (Ala.1991), cert. denied, 502 U.S. 970, 112 S.Ct. 445, 116 L.Ed.2d 463 (1991). Furthermore, the evidence clearly shows that Ms. Craig was the victim of a brutal execution-style murder. In this regard, this case is materially indistinguishable from Bush v. State, 431 So.2d 555, 560-61 (Ala.Crim.App.1982), aff'd, 431 So.2d 563 (Ala.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983), wherein the Court of Criminal Appeals aptly noted:

"And thirdly, for the reasons set out by the trial court, this capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses. Execution-type slayings evincing a cold, calculated design to kill, fall into the category of heinous, atrocious or cruel. Vaught v. State, 410 So.2d 147 (Fla.1982); Combs v. State, 403 So.2d 418 (Fla.1981); Armstrong v. State, 399 So.2d 953 (Fla.1981); Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). We recognize that an instantaneous death caused by gunfire is not ordinarily a heinous killing. Odom v. State, 403 So.2d 936 (Fla.1981). However, when a defendant deliberately shoots a victim in the head in a calculated fashion to avoid later identification, after the victim has already been rendered helpless by gunshots to the chest, such 'extremely wicked or shockingly evil' actions may be characterized as especially heinous, atrocious or cruel. Hargrave v. State, 366 So.2d 1, 5 (Fla.1978)."

See, also, Morrison v. State, 500 So.2d 36 (Ala.Crim.App.1985), aff'd, 500 So.2d 57 (Ala.1986), cert. denied, 481 U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987).

We further note that Ms. Craig was alive when she was found by a customer, Connie Balch. Ms. Balch testified as follows:

"Q. What did you do when you went into the store?

"A. When I first went in, I walked up and down the candy line, which is the very first aisle when you walk in the store, and I was looking for candy for my two-year-old; and after I got the candy, I went up, and I just laid it on the counter, and then I proceeded to go over and get a Coke, which is on the opposite side of the store.

"Q. All right. Now, what kind of Coke did you get, small bottle, can, or what?

"A. Three-liter.

"....

"Q. All right. And what did you do with it?

"A. I--well, that's when Mr. [Ronnie] Ashby came in the store.

"Q. All...