Jefferson v. State, 5 Div. 808
| Citation | 473 So.2d 1100 |
| Decision Date | 20 March 1984 |
| Docket Number | 5 Div. 808 |
| Parties | Albert Lee JEFFERSON v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
F. Drexel Meadors and J. Donny Bolton, West Point, Ga., for appellant.
Charles A. Graddick, Atty. Gen., and William D. Little and Helen P. Nelson, Asst. Attys. Gen., for appellee.
Albert Lee Jefferson was indicted for robbery, when the victim is intentionally killed in violation of § 13A-5-31(a)(2), Code of Alabama 1975. The jury found the appellant guilty "as charged in the indictment" and recommended the death penalty by a vote of eleven to one. After a sentencing hearing, the trial judge independently weighed the aggravating and mitigating circumstances, and sentenced the appellant to death. 1
On the night of April 16, 1981, the appellant and his accomplice, Eddie Lee Tucker, spent the night at the home of the appellant's girlfriend, Dianne Tucker, who was also Eddie Lee Tucker's sister-in-law. That night, the appellant told Eddie Lee Tucker he knew of a house which they could burglarize.
The next morning, April 17, 1981, before dawn, the appellant and Eddie Lee Tucker went to a house owned by Mildred Baldwin but which was unoccupied at the time. The appellant opened a window and crawled into the house and unlocked one of the While they were upstairs in one of the bedrooms, the victim, Marion Morris Stone, drove up to the house in a pickup truck. Mrs. Baldwin hired the victim to do some painting and repair work at her house and had given him a key to the place. He would arrive at the house early each morning so he could open the door for the other workers who had been hired by Mrs. Baldwin.
doors so that Eddie Lee Tucker could enter. The two then began to search the house for valuables.
As the victim entered the house, the appellant told Eddie Lee Tucker, "I'm going to kill the son-of-a-bitch" and then ran downstairs with his razor knife. The appellant viciously attacked the victim while he begged for his life. The victim died from an excessive loss of blood due to the fact that both of the jugular veins and the right carotid artery had been severed during the attack by Jefferson.
The appellant then took the victim's watch and billfold. He cut the telephone line and instructed Eddie Lee Tucker to paint a wall on which blood had splattered. The appellant tried to set the house on fire by placing an electric heater next to a lamp which was placed next to an electric blanket on a bed. Both the blanket and heater were turned on high.
The two then left the house with a CB radio, some clothes, jewelry and coins and went to Dianne Tucker's house. There, they burned their bloody clothes in the heater.
The appellant and Eddie Lee Tucker then fled to Atlanta. The appellant then went to Louisiana where he lived under an assumed name until he was arrested and returned to Alabama for trial.
Section 15-16-21, Code of Alabama 1975, provides, in part:
"If any person charged with any felony is held in confinement under indictment and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity ..."
Such a sanity inquiry was held in this case.
The appellant contends that the burden of proof as to the issue of insanity shifted from the defense to the State once the trial judge had reasonable ground to doubt his sanity.
This contention is wholly without merit. Every person over the age of fourteen is presumed sane. Ala.Code, § 15-16-2 (1975). The defense of insanity is an affirmative one and the burden of proof always rests with the accused and never shifts to the prosectuion. Cunningham v. State, 426 So.2d 484 (Ala.Cr.App.1982); Minniefield v. State, 47 Ala.App. 699, 260 So.2d 607 (1972); Christian v. State, 351 So.2d 623 (Ala.1977).
Merely because a reasonable doubt as to the accused's sanity must exist in the trial judge's mind in order to hold a sanity inquiry, the burden of proof does not shift.
Therefore, the trial judge properly charged the jury that the burden of proof as to insanity rested with the appellant.
The appellant alleges a reversal is required in this case due to the existence of a factual variance between the indictment and the verdict.
The indictment in this case charged that: "... Albert Lee Jefferson ... did feloniously take the said property of the aggregate value of one hundred dollars ($100.00), from Marion Morris Stone, from his person or his presence, 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 committing said robbery, the said Albert Lee Jefferson and Eddie Lee Tucker did intentionally cause the death of another person, the said Marion Morris Stone, by cutting and stabbing him with a knife or knife like object ..." (R. 467).
The verdict of the jury reads as follows:
First of all, in Watters and Cook, the indictments charged that the defendant in the course of committing robbery or an attempt to commit robbery, did intentionally kill the victim. The juries in the two cases found the defendants guilty of murder but failed to state that the murder occurred during the course of a robbery. A fatal variance was found to exist between the indictments and the jury verdicts in these cases because the indictments charged a capital offense while the jury verdicts did not reflect the same charge. The appellant in the case at bar was charged with a capital offense in this indictment and was found guilty of a capital offense. Therefore, no fatal variance exists.
Secondly, as the State points out in its brief, the Watters, supra, and Cook, supra, cases were decided prior to January 1, 1980. The definition of murder at that time was "the unlawful killing of a human being with malice aforethought." Napier v. State, 357 So.2d 1001 (Ala.Cr.App.1977), reversed on other grounds, 357 So.2d 1011 (Ala.1978). The case at bar arose after January 1, 1980 and murder is defined by § 13A-6-2(a)(1), Code of Alabama 1975 which states:
Therefore, the present definition of "murder" is the intentional killing of another person. Thus, a fatal variance does not exist merely because "murder" was used in the jury verdict rather than "intentional killing" as was used in the indictment.
Lastly, the Alabama Supreme Court in Beck v. State, 396 So.2d 645 (Ala.1981) specifically overruled the Watters, supra, case and stated that each of the capital offenses required an intentional killing with aggravating circumstances.
Therefore, a fatal variance is not found to exist between the indictment and the jury verdict in this case, authorities cited.
We have thoroughly searched the record for error and find that none occurred during the guilt phase of the trial. Therefore, this appellant's conviction is hereby affirmed.
There are two issues involving the sentencing phase of the appellant's trial which require us to remand this cause with directions that a new sentencing hearing be held in this case.
First, the trial judge, following § 13A-5-46(f), Code of Alabama 1975, instructed the jury that a sentence of death must be based on a vote of at least ten jurors. However, § 13A-5-39 through § 13A-5-59, Code of Alabama 1975 only applied to conduct which occurred after 12:01 a.m., July 1, 1981. The act for which the appellant was tried occurred before these statutes went into effect and thus, § 13A-5-39 through § 13A-5-59, Code of Alabama 1975, were inapplicable to this appellant's case and should not have been used as a basis for instructions to the jury.
Secondly, the trial judge failed to instruct the jury "to avoid any influence of passion, prejudice, or other arbitrary factor while deliberating and fixing sentence" as required by Beck v. State, 396 So.2d 645 (Ala.1980). The case at bar was a post Beck case and the sentencing procedures outlined in Beck should have been followed, including the giving of the above-cited instruction.
These two errors require us to remand this cause for a new sentencing hearing. However, the appellant contends that upon remand, he can only be sentenced to life without parole.
The appellant's contention is founded upon the Alabama Supreme Court's statement in Beck, that "[i]f the jury cannot agree on a sentence of death, the defendant shall be sentenced to life imprisonment While a unanimous verdict may have been required under Beck, the jury in the case at bar were instructed that a sentence of death verdict could be returned upon a vote of only ten jurors. The jury's verdict may have been different if they had been instructed that a unanimous verdict was required for a sentence of death.
without parole." The appellant urges that the pronouncement in Beck required a unanimous verdict for a sentence of death and since one of the jurors in his case disagreed with the death sentence, he should be sentenced to life without parole
The State points out in its brief, citing Dobbert v. Florida, 432 U.S. 282 at 294 n. 7, 97 S.Ct. 2290 at 2299 n. 7, 53 L.Ed.2d 344, that it cannot be assumed where the jury in a capital case votes with one understanding as to the effect of its vote, that the vote would remain the same had they had a different understanding of the effect of its vote on the sentence.
The jury in this case returned its verdict based...
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