Hays v. State, 1 Div. 822

• Decision Date: 20 August 1985
• Docket Number: 1 Div. 822
• Citation: 518 So.2d 749
• Parties: Henry F. HAYS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 749

518 So.2d 749

Henry F. HAYS v. STATE.

1 Div. 822.

Court of Criminal Appeals of Alabama.

Aug. 20, 1985.

Rehearing Denied Oct. 22, 1985.

M.A. Marsal, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Henry F. Hays, was indicted by the Mobile County grand jury on December 5, 1983, for the capital murder of Michael Donald in the course of a robbery, a violation of § 13A-5-31(a)(2), Code of Alabama 1975. He was arraigned that afternoon, and the following day trial commenced. At the conclusion of said trial, the jury found appellant guilty as charged, and after a sentencing proceeding, the jury recommended life without parole. Thereafter, on February 2, 1984, and after having received a presentence report, the trial judge sentenced the appellant to death. The appellant's motion for new trial was thereafter overruled, and this appeal follows.

The trial court's order sentencing the appellant to death contains a fair recitation of the facts as follows:

"The Court finds the facts to be that from the evidence and beyond a reasonable doubt that the defendant and James "Tiger" Knowles, both members of the Ku Klux Klan, on the day of March 20, 1981, went to the home of Hays' brother-in-law, Frank Cox, and secured a rope. Knowles tied the rope into a hangman's noose. Later on in the evening of the same day, the defendant, Knowles and others were playing cards and watching "After the news, the defendant and Knowles left the apartment and drove around looking for a black man to hang. Neither the defendant nor Knowles knew the victim, Michael Donald, and he was abducted by the defendant and Knowles simply because he was a black man who was alone.

television at the defendant's apartment. During the 10 p.m. news, the defendant and Knowles learned that a Mobile County Circuit Court jury, having heard the case involving the slaying of a white Birmingham police officer by a black man, could not reach a verdict and a mistrial had been declared. The events of this trial and previous trials of this particular case had been discussed by the defendant, Knowles and others at a Klan meeting.

"The defendant and Knowles took Michael Donald to a location off Highway 225 in Baldwin County, Alabama, tied a rope around his neck, robbed him and proceeded to choke and beat him until he was unconscious. The defendant, stating that he wanted to make sure the victim was dead, cut Donald's throat three times with a knife. The two then placed Donald's body back into the vehicle and returned to Herndon Avenue in Mobile County, Alabama. Later, the defendant and Knowles took the body across the street on Herndon Avenue and hung it from a tree. The Court finds from the evidence beyond a reasonable doubt that these activities of the defendant and Knowles were performed in conjunction with the burning of a cross on the grounds of the Mobile County Courthouse on the night of March 20, 1981, by other Klan members. The defendant is a leader in the Klan, known as the Exalted Cyclops."

We do, however, think it is necessary to add the following facts. After having obtained the rope that was eventually used to hang the victim, and prior to returning to the apartment, the appellant and Knowles obtained a .22-caliber pistol from another Ku Klux Klansman. After hearing the news of the mistrial, the appellant and Knowles left the apartment "for the purpose to go hang someone." After driving around for approximately 45 minutes, they found what they were looking for, a lone black man walking along the street; Knowles testified "He was by himself so he seemed like a good victim at that time because he was by himself and in a secluded area". The appellant pulled his car over to the curb, and Mr. Knowles leaned out the window and asked Mr. Donald for directions to a certain nightclub. As Mr. Donald approached the car in order to aid the apparently lost drivers, Mr. Knowles pulled out the .22-caliber pistol and forced Mr. Donald into the back seat of the car. Mr. Knowles got into the back seat of the car with Mr. Donald and forced the latter to empty his pockets, including his wallet, which was laid on the floor of the appellant's car. While driving to Baldwin County, the victim stated, according to Knowles, " 'Oh, God, I can't believe this is happening. Do anything you want to just ... just let me go.' " Knowles continued: "And the defendant asked him if he had heard about the Atlanta killings at that time.... And Donald said, 'Yes.' And he [appellant] said, 'You know you could wind up like that.' And then he [Donald] said 'Oh, God,' he said, 'Please you can do anything you want to to me. Beat me or anything, just don't kill me.' "

I

Initially, the appellant contends that the trial court committed reversible error when it denied his motion for a continuance filed the morning of trial, December 6, 1983. The asserted basis for the need of a continuance was due to the lack of time to prepare for the new indictment--the one under which the appellant was convicted--returned by the grand jury the day before.

The appellant was originally indicted nearly six months earlier by the Mobile County grand jury, on June 22, 1983. The operative language in that indictment stated that the appellant

"Did intentionally cause the death of Michael Donald by strangling him with a rope. The said HENRY F. HAYS intentionally caused the death of Michael Donald The operative language in count two of the same indictment was identical, except that it charged the appellant with the abduction and murder of Michael Donald "with the intent to terrorize Michael Donald."

while the said HENRY F. HAYS was abducting or attempting to abduct Michael Donald with the intent to inflict physical injury upon the person of Michael Donald in violation [of] § 13A-5-40(a)(1), Code of Alabama, and against the peace and dignity of the State of Alabama."

Trial was scheduled to commence on Monday, December 5, 1983; however, according to the record, on the Friday morning prior to the scheduled trial date, the prosecutor was advised that he "definitely ... would be the person trying the case." After obtaining the file, "I took one look at the indictment at that time. That's the first time I had ever read the indictment and I realized the problem." ¹ The State also had some evidentiary problems. There were some physical items of evidence out of state in a laboratory still being tested at the request of the State, items which the defense wished to examine prior to trial. Therefore, the State requested a one-day continuance, to which the defense consented.

On the following Monday, December 5, 1983, without the appellant's knowledge, the district attorney convened a grand jury, during which the appellant was re-indicted. The operative language of this new indictment was as follows:

"Did, in the course of committing a theft of one dollar in lawful currency of the United States and a wallet, the property of Michael Donald, use force against the person of Michael Donald, with intent to overcome his physical resistance or physical power of resistance, while the said HENRY F. HAYS or another participant in this theft was armed with a deadly weapon, to-wit: a gun, and did feloniously take said currency and wallet of the approximate aggregate value of two dollars ($2.00), from Michael Donald's person or in his presence, and against his will by violence to his person, or by putting him in such fear as unwillingly to part with the same, and in the course of said robbery, the said HENRY F. HAYS did intentionally cause the death of another person, the said Michael Donald, by strangling him with a rope, in violation of § 13A-5-31(a)(2), of the Code of Alabama, against the peace and dignity of the State of Alabama."

The operative language in count two of this new indictment was identical, except, instead of alleging that the theft occurred with the use of a gun, this second count alleged that the appellant did "at the time cause serious physical injury to the said Michael Donald, to-wit: death." The appellant was arraigned at about four o'clock that afternoon for the new indictment, and the earlier indictment was nol-prossed. The plea was entered under protest:

"THE COURT: To the charge ...

"MR. MARSAL: Your Honor, I do not agree, I do not consent to any arraignment under the charge in this indictment.

"THE COURT: All right. The Court's not asking you to consent to it Mr. Marsal. The Defendant would plead to the charge.

"MR. MARSAL: All right. We will object to the Court ...

"THE COURT: All right. The objection is overruled. The Defendant will plead to the charge or the Court will enter a plea for him; which will it be?

"MR. MARSAL: He enters a plea of not guilty under protest.

"THE COURT: All right. The case is set for trial in the morning.

"MR. MARSAL: Judge, let me please be heard relative to you setting this case for in the morning. The Defendant is not ...

"THE COURT: I'm already setting it for tomorrow and then I will hear you on a motion for continuance. I am going to allow you until the trial date which is presently scheduled for tomorrow to file any demurrers or special pleas to the indictment.

"It is ordered by the Court that all motions filed in the case which was nol-prossed be transferred and become a part of the record of this case.

"Now, you wish a continuance of the case, Mr. Marsal?

"MR. MARSAL: Very diligently, your Honor.

"THE COURT: All right. For what reasons?

"MR. MARSAL: Well, I would like the opportunity to be able to at least have some time at my desk with this indictment in order to frame the vast change of allegations in this indictment compared to the indictment that has been in this Court for the past four months.

"There is no mention of any theft in the original, in the indictment that we have labored with during this time and prepared for trial. Not one word of theft....