Harris v. State

Decision Date09 September 1977
Citation352 So.2d 479
PartiesIn re Johnny HARRIS v. STATE of Alabama. Ex parte Johnny Harris. SC 1768.
CourtAlabama Supreme Court

William H. Allison, Jr., Louisville, Ky., and W. Clinton Brown of Crawford, Blacksher, Figures & Brown, Mobile, for petitioner.

William J. Baxley, Atty. Gen., Eric A. Bowen, G. Daniel Evans and James S. Ward, Asst. Attys. Gen., for the State.

EMBRY, Justice.

Johnny Harris was convicted of first degree murder for killing Wheeler Barrow, a prison guard. At the time the offense was committed, Harris was an inmate at the Atmore prison serving five life-term sentences. He appeals the judgment of the trial court imposing the death penalty, fixed by jury verdict and made mandatory by statute. Tit. 14, § 319, Code. On appeal to the Court of Criminal Appeals, the judgment was affirmed. Harris v. State of Alabama, Ala.Cr.App., 352 So.2d 460 (1976). We granted certiorari, as a matter of right, to review that decision. Rule 39(c), ARAP.

The issue which we address in this opinion is whether mandatory imposition of the death penalty upon a life-termer who commits first degree murder constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States and in violation of Section Fifteen of the Alabama Constitution of 1901.

Title 14, § 319, brought forward in our Code since 1886, provides:

"Any convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, shall, on conviction, suffer death."

Petitioner challenges the constitutionality of the mandatory death penalty provision of this statute.

We hold it constitutional, constitutionally applied in this case, and affirm the Court of Criminal Appeals.

I

On January 18, 1974, a riot erupted in the maximum security unit of Atmore prison at a time evening meals were being distributed. The warden, when informed of the riot, gave instructions on measures to be taken to subdue the rioting prisoners. Meanwhile, prison guards Barrow and Arthur Dreadin, distributing meals, were taken hostages by Harris and another prisoner, Oscar Johnson. Harris and Johnson took the guards' keys, money, and watches, and proceeded with them to cell number one. There they released all of the inmates from their cells. During the course of these events, Harris said, "We are going to kill some pigs today."

After the inmates were released by Harris and Johnson, they along with the released inmates, took Barrow and Dreadin to the unit's lobby, and tied their hands behind them. The guards were then taken back to cell one by Harris and Johnson where guard Dreadin was hit with a knife by an inmate named Moore. Another inmate struck Barrow, who gave an awful groan. Harris said to Dreadin, "I'm going to kill you; I'm going to roll your head down the hall with the rest of these pigs." Another inmate yelled to get the revolution on, while another said, "Bring me one of those ______ ______ pigs." At this time Dreadin called to the warden to come in.

The warden ordered his men to go into the unit, and upon entering saw two inmates stab Dreadin. Shotguns were fired into the floor; inmates scattered and Barrow was found dead in Harris' and Johnson's cell, with his feet bound and hands tied behind him. He had been stabbed 27 times and had his head bashed in. An autopsy revealed the cause of death to be a deep 14-inch penetrating wound that passed through the liver, left lung, and diaphragm, and the heart had been severed. Harris, testifying in his own behalf, said he was serving a life sentence for rape, and 4 life sentences for armed robbery. He said he participated in the revolt and riot because he feared for his life. He denied stabbing the guard.

II

The defendant says that death sentences imposed under Tit. 14, § 319, Code, must be invalidated because they violate the Eighth and Fourteenth Amendments to the Constitution of the United States and Section Fifteen of the Constitution of Alabama. He argues six reasons for this being true:

1. Contemporary society has repudiated the death penalty because of its peculiar harshness.

2. No matter how narrow the category of capital homicide may be, invalid mandatory death-sentencing procedures are not validated.

3. The Alabama statute affords no opportunity for the constitutionally required particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.

4. The Eighth Amendment requires that both aggravating and mitigating factors be considered by the sentencing authority in determining whether a death sentence is appropriate.

5. Alabama's statute will permit the mechanical imposition of death sentences in a number of cases where contemporary community standards would not otherwise allow condemning the particular defendant.

6. Section 319 does not provide a constitutionally permissible alternative to the unconstitutionally arbitrary and capricious jury discretion to choose a verdict for a lesser offense when it feels the death penalty is inappropriate.

We disagree.

III
A.

The punishment of death does not invariably violate the Constitution of the United States. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). We here hold that neither does the death punishment nor the imposition of it under Section 319 violate the Constitution of Alabama. Bailey v. State, 211 Ala. 667, 101 So. 546 (1924).

B.

It is argued that Section 319 does not provide for individualized sentencing after review of the character and record of the particular defendant and after examination of the circumstances of the particular case. This is premised on the alleged similarity, in all significant respects, of Section 319 to the laws of North Carolina, Louisiana, and Oklahoma, struck down by the Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Stanislaus Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Harry Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977), and Williams v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976).

The North Carolina statute provided:

"A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree, and shall be punished by imprisonment for a term of not less than two years nor more than life imprisonment in the State's prison." N.C.Gen.Stat. § 14-17 (Cum.Supp.1975).

The Louisiana statute provided:

"First degree murder.

"First degree murder is the killing of a human being:

"(1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; or

"(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties * * * "

and

"Whoever commits the crime of first degree murder shall be punished by death." LSA-R.S. 14:30

The Oklahoma law provided that every person convicted of murder in the first degree should suffer death and defined first degree murder as a homicide designed to effect the death of the person killed or any other human being:

"2. When perpetrated by one committing or attempting to commit rape, kidnapping for the purpose of extortion, arson in the first degree, armed robbery or when the death occurs following the sexual molestation of a child under the age of sixteen (16) years;" 21 O.S.Supp.1974 § 701.1

Note that each of the offending statutes provides the mandatory death penalty for commission of first degree murder which each statute proceeds to define in terms of the manner by which it is perpetrated, related circumstances when it is committed or, to a limited extent, the character of the offender. We further note that neither in Woodson, Stanislaus Roberts, Harry Roberts, nor Williams was the defendant a life-termer convicted of first degree murder, otherwise defined, while under such a sentence. It is significant that in Woodson, Stanislaus Roberts, Harry Roberts and Gregg, supra, the court made these comments:

"This case does not involve a mandatory death penalty statute limited to an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence, defined in large part in terms of the character or record of the offender. We thus express no opinion regarding the constitutionality of such a statute. * * * " Woodson, supra, footnote 7.

"* * * We have no occasion in this case to examine the constitutionality of mandatory death sentence statutes applicable to prisoners serving life sentences." Woodson, supra, footnote 25.

"Only the third category of the Louisiana first-degree murder statute, covering intentional killing by a person serving a life sentence or by a person previously convicted of an unrelated murder, defines the capital crime at least in significant part in terms of the character or record of the individual offender. Although even this narrow category does not permit the jury to consider possible mitigating factors, a prisoner serving a life sentence presents a unique problem that may justify such a law * * * " Stanislaus Roberts, supra, footnote 9.

"* * * there are some categories of murder, such as murder by a life prisoner, where other sanctions (than death) may not be adequate." Gregg, supra.

"We reserve again the question whether or in what...

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