George v. State

• Decision Date: 19 April 1996
• Docket Number: CR-94-387
• Citation: 717 So.2d 827
• Parties: Larry Donald GEORGE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 827

717 So.2d 827

Larry Donald GEORGE v. STATE.

CR-94-387.

Court of Criminal Appeals of Alabama.

April 19, 1996.

Steve Giddens, Talladega; and Jeb Fannin, Talladega, for appellant.

Jeff Sessions and Bill Pryor, attys. gen.; Beth Hughes, asst. atty. gen.; and Tracy Daniel, deputy atty. gen., for appellee.

ON REHEARING EX MERO MOTU

TAYLOR, Presiding Judge.

This court's opinion dated January 19, 1996, is hereby withdrawn and the following opinion is substituted therefor. The appellant, Larry Donald George, was convicted of two counts of murder made capital because two people were killed as the result of one course of conduct, see § 13A-5-40(a)(10), Code of Alabama 1975, and because the murders occurred during the course of a burglary, see § 13A-5-40(a)(4), Code of Alabama 1975. The appellant was also convicted of attempted murder, see § 13A-4-2 and § 13A-6-2, Code of Alabama 1975. The jury, by a vote of 10 to 2, recommended that the appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution. The appellant was also sentenced to life imprisonment on the attempted murder conviction.

The state's evidence tended to show that on the evening of February 12, 1988, the appellant shot his wife Geraldine George. The injuries she sustained as a result of the shooting rendered her a paraplegic. He also shot and killed Janice Morris and her boyfriend, Ralph Swain. Dr. Joseph Embry, a medical examiner for the State of Alabama, testified that Morris died as a result of a gunshot wound to the right side of her chest. Swain died as a result of a gunshot wound to the left side of his head. The lower half of the appellant's wife's body was paralyzed as a result of the damage caused by a bullet that entered her arm and passed through the mid-portion of her body.

Geraldine George testified that on the evening of February 12, 1988, she finished her shift at the Wal-Mart discount department store and went to her apartment complex. George had left her two children with her neighbor, Janice Morris, so she went to Morris's apartment to pick up her children. As she was leaving the apartment she saw the appellant talking to her son. The appellant approached her and pulled a pistol from his jacket pocket. She ran into Morris's apartment, yelling for Morris to telephone the police. She heard gunshots, turned, and saw the appellant pointing a gun at her before he fired. Janice Morris was shot while she was at the telephone, and Ralph Swain was shot as he ran up the stairs to the second floor.

Andrew Watkins was visiting a friend at the apartment complex on the night of the shootings. He testified that he heard gunshots and that he watched the appellant leave an apartment and drive away in his automobile. Watkins followed the appellant's automobile and wrote down his license tag number. He then went to police Captain Willard Hurst's house, where he reported the incident. The appellant was apprehended in Delaware six years after the murders as a result of an episode of the television show America's Most Wanted on which the case was featured.

The appellant raises many issues on appeal. Many of the issues were not brought to the trial court's attention. However, because this case involves the death penalty, this court is obliged under Rule 45A, Ala.R.App.P., to apply the plain error doctrine.

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings 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 right of the appellant."

Rule 45A, Ala.R.App.P.

"The Alabama Supreme Court has adopted federal case law defining plain error, holding that ' "[p]lain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings,' Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981))."

Haney v. State, 603 So.2d 368, 392 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). "[T]he plain-error exception to the contemporaneous-objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1, 14 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). To find plain error, an appellate court must find that "the claimed error not only seriously affected 'substantial rights,' but that it had an unfair prejudicial impact on the jury's deliberations." Young, 470 U.S. at 18 n. 14, 105 S.Ct. at 1047, n. 14, 84 L.Ed.2d at 14.

GUILT PHASE

I

The appellant contends that the consolidation of the capital murder cases and the attempted murder case was inherently prejudicial and that therefore that consolidation violated his constitutional right to a fair trial.

Consolidation of similar offenses is specifically provided for in Rule 13.3(c), Ala.R.Crim.P. This rule states:

"If offenses or defendants are charged in separate indictments, informations, or complaints, the court on its own initiative or on motion of either party may order that the charges be tried together or that the defendants be joined for the purposes of trial if the offenses or the defendants, as the case may be, could have been joined in a single indictment, information, or complaint. Proceedings thereafter shall be the same as if the prosecution initially were under a single indictment, information, or complaint. However, the court shall not order that the offenses or the defendants, as the case may be, be tried together without first providing the defendant or defendants and the prosecutor an opportunity to be heard."

This rule does not exclude the consolidation of a capital offense and another offense.

In Ex parte Hinton, 548 So.2d 562 (Ala.), cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989), the Alabama Supreme Court first addressed the issue of the consolidation of two capital cases against one defendant. The Court in Hinton stated:

"No capital cases have ever before been consolidated for trial in Alabama, and while Rule [13.3], A.R.Crim.P., provides for consolidation of similar offenses, Hinton argues that the consolidation of these two capital cases created such prejudice as to deny him a fair trial. Although different procedures apply in capital cases, we are not convinced that the defendant has shown prejudicial error sufficient to require reversal. Of course, if a defendant can demonstrate actual and compelling prejudice that outweighs the benefits of judicial economy resulting from joinder, the refusal to sever the cases constitutes reversible error. United States v. Payne, 750 F.2d 844, 859 (11th Cir.1985)."

548 So.2d at 565 (emphasis in original).

Thus, the question is whether the appellant can demonstrate "actual and compelling" prejudice. None was shown here. The appellant was tried for two counts of capital murder and for one count of attempted murder. The charges arose from one course of conduct. There is no indication that the jury could not separate the evidence relating to each crime. The trial court did not err in consolidating the offenses for trial.

II

The appellant next contends that the indictment that charged him with capital murder was multiplicitous and, that it, therefore, should have been dismissed. Specifically, the appellant contends that counts two and three of the indictment charged him with the same offense and thereby violated the constitutional prohibition against double jeopardy. No objection to the indictment was raised at trial. Thus, this issue must be reviewed under the plain error doctrine.

The appellant was indicted on three counts of capital murder. Count one charged the appellant with the capital offense of the murder of two or more persons during one course of conduct, see § 13A-5-40(a)(10). Counts two and three of the indictment charged the appellant with the capital offense of murder committed during a burglary, see § 13A-5-40(a)(4). Counts two and three differed in the language used to describe the crime of first degree burglary. Count two relied on the "armed with a deadly weapon" definition in § 13A-7-5(a)(1), while count three tracked the language of § 13A-7-5(a)(2), which requires physical injury to a person not a participant in the crime.

At the close of the evidence and before the case was submitted to the jury, the state moved to dismiss count two of the indictment and elected to proceed under counts one and three.

A single transaction may give rise to the charging of multiple counts in an indictment when the purpose of charging multiple counts is to vary the description of the same offense in order to meet "every probable contingency of evidence" and not to convict the accused on all alternative counts contained in the indictment. Floyd v. State, 486 So.2d 1309 (Ala.Cr.App.1984), aff'd, 486 So.2d 1321 (Ala.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987). The indictment did not violate principles of double jeopardy.

The Alabama Supreme Court recently in Ex parte McWilliams, 640 So.2d 1015 (Ala.1993), faced the question of whether McWilliams's constitutional protection against double jeopardy was violated when he was charged with and convicted of three counts of capital murder. The Court, in upholding the convictions, stated the following:

"In the present case, it is clear that the jury knew that it was convicting McWilliams of murdering Patricia Reynolds only once. It is also clear that the jury knew that...