Jones v. State, 6 Div. 87

• Decision Date: 10 January 1984
• Docket Number: 6 Div. 87
• Citation: 520 So.2d 543
• Parties: Aaron JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 543

520 So.2d 543

Aaron JONES v. STATE.

6 Div. 87.

Court of Criminal Appeals of Alabama.

Jan. 10, 1984.

On Return to Remand Jan. 22, 1985.

Rehearing Denied Dec. 9, 1986.

George M. Boles of Boles & Davis, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Edward E. Carnes and Martha Gail Ingram, Asst. Attys. Gen., for appellee.

HARRIS, Judge.

The instant appeal is from Aaron Jones's second trial for capital murder, pursuant to § 13-11-2(a)(10), Code of Alabama 1975, for his participation in the double murder of Willene and Carl Nelson, both of whom died from a combination of gunshot wounds and multiple knife wounds inflicted during the early morning hours of November 10, 1978. Jones's first trial resulted in Jones's second trial for the instant offense was conducted in accordance with the bifurcated procedures outlined in Beck v. State, 396 So.2d 645 (Ala.1980). The jury found Aaron Jones, the appellant herein, guilty of the capital murder charged in the indictment and, after a separate sentencing hearing, fixed his punishment at death by electrocution. The trial court held a separate sentencing hearing on aggravating and mitigating circumstances and, after concluding that the aggravating circumstances outweighed the mitigating circumstances, sentenced the appellant to death by electrocution. It is from this second conviction and sentence that the appellant now prosecutes this appeal.

a conviction for capital murder and a sentence of death by electrocution. The judgment of conviction was reversed, however, and the case remanded for a new trial on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Beck v. State, 396 So.2d 645 (Ala.1980), and Ritter v. State, 403 So.2d 154 (Ala.1981), after remand, 403 So.2d 158 (Ala.Cr.App.). See, Jones v. State, 403 So.2d 1 (Ala.Cr.App.1981).

Tony Nelson testified that on the morning of November 10, 1978, he was sleeping with his ten-year-old brother, Charlie, in one of the bedrooms of his parents' home in the Rosa community in rural Blount County, Alabama. His thirteen-year-old sister, Brenda, was sleeping with their parents, Willene and Carl Nelson, in another bedroom. Tony's grandmother was sleeping by herself in a third bedroom of the home.

At 3:27 a.m. Tony was awakened by a disturbance inside the home. When the light in his bedroom was turned on, he saw Arthur Lee Giles, a former employee of his father, standing in the doorway of Tony's bedroom. Tony's father appeared and asked Giles to leave. Tony got out of bed and followed Giles to make sure Giles left as directed. As Tony stepped out the back door of the home Giles shouted "here," and shot him twice, once in the neck and once in the chest. Giles, then, re-entered the Nelsons' home. Tony made an effort to go and get a gun, but was unable to do so due to his injuries. Instead, he crawled to, and hid under, his father's truck. Shortly, thereafter, he heard Giles and another man exit his parents' home. He saw the men only from the waist down. He heard one of them say that they needed to find Tony and that the other man should "get the money." After they left, Tony went back inside. In his parents' bedroom he found his mother, his father, his sister, and his brother. All four had been severely wounded and there was blood all over them. Charlie and Brenda responded when Tony asked if anyone was still alive. His parents were dead. Tony rushed Brenda and Charlie to the hospital where all three, including Tony, were treated for their wounds.

Charlie Nelson testified that he saw Giles when his father, Carl Nelson, asked Giles to leave the home. He saw Tony leave and heard two gunshots. Giles, then, reappeared and shot Charlie's grandmother, who was standing in the doorway to Charlie's bedroom. Giles proceeded to Charlie's parents' bedroom from where Charlie heard more gunshots. Charlie ran to his parents' bedroom, where he saw Giles and another man, whom he positively identified at trial as the appellant. He realized that his mother, his father and his sister had all been shot. He jumped on top of his sister to protect her from further harm. As he lay there, he saw the appellant stab his mother and father with a knife. His mother and father were both moaning as the appellant repeatedly stabbed them. The appellant turned and stabbed Charlie's sister Brenda, who had already been shot above one eye. Charlie was hit in the head several times, after which the appellant stabbed him twice in the back.

On cross-examination Charlie admitted that during appellant's first trial Charlie had stated that Giles and the appellant appeared to be drunk. He also stated that Giles "ordered the appellant around" and directed the appellant to stab his victims.

Brenda Nelson confirmed those parts of Tony's and Charlie's testimony as to things she had witnessed. She identified the appellant Dr. Joseph Embry of the Alabama Department of Forensic Science testified that Willene Nelson died from multiple stab wounds that damaged her heart, lungs, and kidneys. Her body received 29 knife wounds (17 stab wounds and 12 slash wounds), numerous lacerations and abrasions about the head from a blunt instrument, and one gunshot wound to the left shoulder. Dr. Embry testified that Carl Nelson died from a combination of gunshot wounds and stab wounds. He was shot once through the heart and once in the left arm. He was stabbed, approximately, eight times, including a stab wound in the neck which severed his spinal cord. He also received numerous blunt instrument abrasions about the head. Dr. Embry testified that Carl Nelson was alive when he was stabbed in the neck.

at trial as the man she saw repeatedly stabbing her mother. She stated that Giles was the one that shot her, Brenda, in the head.

Billy Irvin, an investigator with the Blount County Sheriff's Department, testified that he interviewed the appellant at 8:15 a.m. on November 11, 1978. During this interrogation the appellant confessed to his participation in the events at the Nelsons' home the previous night. Appellant's confession was tape recorded and transcribed. The appellant reviewed the transcript of his confession and signed it, voluntarily. After the trial court conducted a hearing and determined that appellant's confession was, indeed, voluntary, Irvin was permitted to read it to the jury.

In appellant's statement, he admitted participating in the activities that resulted in the deaths of Willene and Carl Nelson. According to the appellant, although they never found any money, he and Giles went to the Nelsons' home to rob Carl Nelson. Giles had told the appellant that Carl Nelson had not sufficiently paid Giles for work Giles had done for Nelson in the past. Giles and the appellant had been drinking rum and beer prior to their trip to the Nelsons' home. They were both armed with .32 caliber pistols, but appellant's pistol would not fire at the Nelsons' home because he lost the firing pin. The appellant's statement confirmed the gruesome details of the attack on the Nelson family. He stated that by the time he entered the back bedroom, Giles had already shot and stabbed "everyone." In his own words the appellant stated:

"I goes off in the other room where he [Giles] at ... shot and stabbed them all there, you know, the kids and ... he looks at me and tells me, you know, that I had to do something and I told him that I didn't have a knife so he gave me one and I cut the mother and another man and cut the boy and that's all I did."

The appellant further stated that he used a butcher knife that Giles had, apparently, obtained from inside the Nelsons' home. He also said that the "little girl" at one point begged him not to do it, and that the "woman" moved right before he stabbed her. The appellant explained that when he stabbed the "woman" he "really was just so gone, I just closed my eyes" and stabbed wildly.

Although his confession was admitted into evidence, the appellant did not testify in his own behalf at trial, except during the suppression hearing on the issue of the voluntariness of his confession. In defense, he presented excerpts of the transcribed testimony, from his first trial, of several state's witnesses for impeachment purposes. He also presented his alleged accomplice, Arthur Lee Giles, who invoked his Fifth Amendment rights, and refused to testify. Appellant's theory in defense was that his participation in the double murder fell short of capital murder because Giles did all the actual killing and he, the appellant, only did what Giles instructed him to do.

The jury found the appellant "guilty as charged in the indictment" and the trial court, in accordance with the jury's recommendation, sentenced the appellant to death by electrocution.

On June 21, 1982, the appellant filed a motion for a change of venue, claiming that he could not receive a fair trial in Blount County, Alabama, due to the widespread publicity surrounding the murders Contrary to appellant's assertions, however, the trial court did not "summarily" deny his motion without a hearing. Appellant's change of venue motion was initially addressed at a "motions" hearing on November 30, 1982, when a ruling thereon was deferred until after voir dire of the prospective jurors prior to trial. At trial, during the voir dire of prospective jurors, the trial judge permitted extensive and unlimited examinations by both parties to determine, among other things, whether a change of venue was necessary. The voir-dire examinations lasted for almost two days and included specific questions concerning the effects of pre-trial publicity. At the conclusion of this phase of the proceedings the trial court denied appellant's change of venue motion, apparently convinced that any adverse publicity would not prevent the appellant from receiving a fair trial in Blount County. We agree.

and his arrest in November 1978, the publicity of his first trial and...