Ex parte Ritter
| Decision Date | 06 July 1979 |
| Citation | 375 So.2d 270 |
| Parties | Ex parte Wayne Eugene RITTER. (In re Wayne Eugene Ritter v. State of Alabama) 77-798. |
| Court | Alabama Supreme Court |
John L. Carroll, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State, respondent.
This appeal comes to this Court on certiorari for the second time. Previously we remanded to the Court of Criminal Appeals for that court to consider whether or not the felony-murder doctrine was used to supply the requisite intent under our capital felony statute. Evans and Ritter v. State, 361 So.2d 666 (Ala.1978). On remand that court determined that the felony-murder doctrine was not so used and affirmed Ritter's conviction. Ritter v. State, (MS. Aug. 9, 1978) 375 So.2d 266 (Ala.Crim.App.1978). For the reasons set out below, we also conclude that the conviction must be affirmed.
Briefly, the facts of this case are as follows: Ritter, along with a companion, John Louis Evans, was charged under the capital felony statute, § 13-11-2(a)(2), Code 1975, with the intentional killing and robbery of Edward Nassar, a Mobile pawn shop owner. Contrary to the repeated advice of his attorney, Ritter entered a plea of guilty to the charge. At arraignment and prior to the entry of his guilty plea Ritter was thoroughly advised of his constitutional rights both by the trial judge and by his attorney in open court. Ritter was continuously asked if he understood what was being said, to which he replied that he did. He was given the opportunity to ask questions about his rights and the trial procedure, but he affirmatively declined to do so. After Ritter entered his guilty plea the trial judge ordered the matter presented to a jury since only a jury may sentence a defendant to death under our capital felony statute. § 13-11-1, Et seq., Code 1975. At trial the State presented a prima facie case against Ritter which included his confession. (The testimony of each witness is outlined in the original opinion of the Court of Criminal Appeals, Evans and Ritter v. State, 361 So.2d 654 (Ala.Crim.App.1977). After the State rested, Ritter himself took the stand and detailed the robbery and killing. Although Ritter initially refused to say who fired the shot that killed Nassar, it was apparent at trial from both the State's evidence and the testimony of Evans that it was Evans, not Ritter, who actually fired the fatal shot. In this regard Ritter testified that his gun was loaded and that he would have killed Nassar if he had had an opportunity, but "John (Evans) was in my line of fire . . . I was there in case he missed." Ritter further stated,
Following closing arguments the trial judge charged the jury. No objections were made to the charge. The jury found Ritter "guilty as charged in the indictment" and fixed his punishment at death by electrocution. The trial judge subsequently conducted a sentencing hearing as required by §§ 13-11-3 and 13-11-4, Code 1975, and entered findings of fact regarding the aggravating and mitigating circumstances listed in §§ 13-11-6 and 13-11-7, Code 1975. In his findings of fact the trial judge noted that, ". . . while Mr. Wayne Eugene Ritter was an accomplice in the Capital Felony committed by another person, his participation was not relatively minor, and by Mr. Ritter's own statement, he was prepared to shoot Edward A. Nassar, deceased, but could not fire because his accomplice, John L. Evans, III, was in his line of fire." The trial judge then "accepted" the death penalty as fixed by the jury.
The first issue presented for our consideration is whether or not the jury was allowed to supply the requisite intent under the capital felony statute through the use of the felony-murder doctrine. § 13-11-2(b), Code 1975, specifically states: "Evidence of intent under this section shall not be supplied by the felony-murder doctrine." The felony-murder doctrine provides that when a homicide is committed in the course of or during an attempt to commit certain felonies which are inherently dangerous to life, the intent which must be shown to support a conviction for murder (variously described as malice aforethought, the specific intent to take life, or a willful, deliberate, malicious, and premeditated killing) is supplied by the criminal intent involved in the underlying felony. Under the doctrine it is not necessary that the individual accused of murder should have contemplated, intended, or willed the death of the victim. Hardley v. State, 202 Ala. 24, 79 So. 362 (1918); Kilgore v. State, 74 Ala. 1 (1883); Mitchell v. State, 60 Ala. 26 (1877); Fields v. State, 52 Ala. 348 (1875). Culpability stems instead from the accused's participation in an inherently dangerous felony one in which he should have known that there The felony-murder doctrine has been severely criticized, primarily because in a variety of fact situations it often operates to charge an individual with first degree murder when the accused did not have the required intent for murder or when the homicide was the result of the actions of a third party over whom the accused had little or no control. See e. g. W. LaFave & A. Scott, Criminal Law 545-561 (1972); Comment, The Constitutionality of Imposing the Death Penalty for Felony Murder, 15 Hous.L.Rev. 356, 365-371 (1978); Comment, Constitutional Limitations Upon the Use of Statutory Criminal Presumptions and the Felony-Murder Rule, 46 Miss.L.J. 1921 (1975). The doctrine has been eliminated from the Model Penal Code, which instead provides for a rebuttable presumption of extreme recklessness when a homicide occurs in the course of certain felonies. Model Penal Code § 210.2 (Proposed Official Draft, 1962). See also Model Penal Code § 201.2, Comments, para. 4 at 33 (Tent. Draft No. 9, 1959). The use of the felony-murder doctrine is considered particularly harsh in the capital punishment context, where constitutional safeguards and public attitudes demand that the extreme penalty be meted out only for the most reprehensible crimes. As one commentator has observed, "(T)he death penalty is an untenable sanction for negligent or accidental homicide." 15 Hous.L.Rev. Supra at 381. It was, no doubt, this dissatisfaction with the doctrine which led our legislature to prohibit its use in the trial of capital felonies in § 13-11-2(b).
was a substantial possibility that someone would be killed. In this state felony-murder is statutorily classified as murder in the first degree, § 13-1-70, Code 1975, a crime punishable by life imprisonment. § 13-1-74, Code 1975.
The legislature did, however, indicate that an accomplice in a capital felony could be sentenced to death under our statute, for it included accomplice liability as a factor to be considered during the sentencing hearing under both aggravating circumstances, § 13-11-6(4), and mitigating circumstances, § 13-11-7(4). The significant distinction between use of the felony-murder doctrine and use of accomplice liability in this context is that accomplice liability requires a greater showing of the defendant's individual intent. Under Alabama law, in order to hold an individual as an accomplice the State must prove that he aided and abetted in the crime, terms which " 'comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary.' " Jones v. State, 174 Ala. 53, 57 So. 31 (1911). As we noted in Jones, key elements of accomplice liability are Encouragement or presence "with a view to render aid should it become necessary." When liability is predicated on the latter it is essential that the principal be aware of the accomplice's support and willingness to lend assistance. Jones, supra. Thus an accomplice, while he may not have actually committed the crime by delivering the blow or firing the shot, has sanctioned and facilitated the crime so that his culpability is comparable to that of the principal. In Alabama, as in many states, this premise is statutorily recognized in § 13-9-1 which abolished the old common law distinctions among accessories before the fact, principals in the second degree, and principals in the first degree and provides that ". . . all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals . . . ."
From the foregoing it is clear that the felony-murder doctrine was not used in this trial. (Indeed, it was never even mentioned.) Instead Ritter could be convicted and sentenced to death under our capital felony statute as an accomplice in the intentional killing of Nassar. (There was also evidence from which the jury could have found that Ritter, aside from his status as an accomplice, had the particularized intent to kill. Of course, it is not contended that Ritter is not fully liable as a principal for The further point is raised in this appeal that the trial judge did not properly charge the jury on the law of accomplices. Apparently at the State's request the trial judge charged, "The law is that anyone who aids or abets in the commission of an offense must be indicted, tried, and punished as if he were the principal." The defendant did not offer...
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