"FINDINGS OF FACT FROM THE TRIAL
"On October 15, 1977, during the morning part of the day, the defendant, together with one Marty Deal (an indicted co-defendant) discussed the need for money. Co-defendant Deal, a former employee of a convenience store chain known as Ma-Jik Market, suggested a store located on Stadium Drive in Phenix City, Russell County, Alabama, as being an easy target for robbery. Deal had previously worked in this store and was familiar with its routine, location of stock, and personnel. Deal and Keller then left the Deal residence in Columbus, Georgia, and rode over to the suggested location, looked over the store together, and returned to the Deal residence in Columbus, Georgia. Another discussion was had between the two and plans were made to rob the store sometime before midnight of that date. Keller had stolen a .45 caliber automatic from a friend, and during the afternoon hours, the two defendants test fired the gun in a secluded area to be sure of its firing capability, since this was the weapon to be used during the robbery. In the early evening hours the two were riding around in Deal's car, a 1966 Ford Futura, maroon in color. They ran across a friend of Keller's named Robert A. Boyd, III (an indicted co-defendant). Boyd was informed of the proposed robbery and he said he wanted in on it. The three men then discussed details of how the robbery would be carried out. Essentially plans were to get the manager into the back stockroom and kill him in order to leave no witnesses, then take the money from the register. This would prevent any later identification.
"The three men left Deal's home again, in Deal's car, with Deal driving. They arrived at the store around 11:00 P. M. on October 15, 1977, but had to wait for routine customers entering and leaving the store to clear. To avoid suspicion over their continued presence, they pretended the car was unable to start and pushed it around the parking area until customer traffic cleared. The State called a witness who observed this activity and later identified both Keller and Deal. Customer traffic cleared shortly before midnight and Deal entered the store with the .45 caliber automatic. He was unable to lure the manager into the stockroom, was unable to shoot him, and went outside. Boyd then entered to shoot the manager. He, too, could not do it and also went back outside. In the meantime Deal had gone back inside to the telephone and pretended to call for a wrecker or repair service for his car. Keller then entered the store with the .45 caliber automatic, fired one shot into the manager, which proved to be fatal, and told Deal to get the money. They left and returned to the Deal residence where they split the proceeds of $131.00. They learned later of a description to police of the three, plus a description of Deal's car. They took Deal's car on October 16, 1977, to a remote area in Stewart County, Georgia, and burned it in the futile hope of avoiding discovery that this car matched descriptions given to police by witnesses. On Monday, October 17, 1977, all three, together with Deal's wife, left Columbus, Georgia, to drive to Dallas, Texas. They remained one night in Dallas, discussed going to Canada, but returned instead to Columbus, Georgia. Arrest followed shortly from leads discovered through Deal's burned vehicle.
"Defendant Deal testified for the State and jury was permitted to know of plea agreement entered into by him with the State, whereby in exchange for Deal's testimony, the State would reindict him on a charge of murder first degree under 1975 Code of Alabama, Title 13-1-70.
"FINDINGS OF FACT FROM SENTENCE HEARING
"The defendant is a white male, aged 25 years. He was born with a cystic condition or growth just below his right jaw, which will persist during his entire life. He dropped out of high school during his junior year. Although he has never married, the defect has not hampered his social activities.
"At this hearing co-defendant Boyd as well as Deal testified for the State. Boyd had entered into an agreement with the State identical to the one entered into by Deal. The co-defendants each now testified essentially as Deal testified at trial to a jury. Each confirmed that during discussion of robbery details in the early evening hours, Keller was insistent that the manager would be killed regardless because 'dead men don't talk,' and it was necessary 'to kill the man.' At the time of the robbery, neither Deal nor Boyd could shoot the manager and each came out of the store without firing. Keller took the gun from Boyd, entered the store with it, fired one shot into the manager, which proved fatal, while he was not even looking at Keller, nor was he given opportunity to back off and give the money to Keller in return for his life. In fact, the man died without even knowing he was being robbed.
"Keller has a history of violence. During the summer and fall of 1977 he dated a woman who was separated from her husband, but who has now returned to him. Keller has tried to have the husband killed by trying to hire one man and persuade another to shoot him.
"In July 1974, Keller and a companion tried to pick up two girls in Columbus, Georgia. The girls got in their car and locked it. The defendant tried to kick out the windows and doors. When others tried to come to the girls' aid, Keller and his friend beat them, got back in their car and tried to 'run down' those who tried to offer assistance. Keller's father, in the bonding business, talked to the Muscogee County, Georgia, district attorney, and charges were reduced from aggravated
assault to simple assault with punishment at one year probation.
"Three months earlier, in April 1974, a Columbus police officer at a Columbus night club had to call for assistance to arrest Keller and a friend. Keller was in the outside parking lot of the club swinging a six-foot logging chain at two cars and also at the owners who were trying to stop him. There was an attempt to take the arresting officer's gun. Fines were paid on disorderly charges and again the father intervened and the criminal damage charges were nolle prossed.
"The Court, therefore finds that defendant Keller intentionally killed Arley C. Davis during a robbery and that such killing was willful, deliberate, premeditated, and malicious. He personally fired the fatal shot after his two accomplices were unable to do so. His was the part of the plan to kill the store manager, regardless of whether resistance to the robbery developed or not because 'dead men don't talk.' This was as conscienceless and pitiless a crime as can be conceived. A cold-blooded killing was perpetrated solely to prevent possible identification by the victim of the three participants in the robbery.
"The following aggravating circumstances are therefore found by the Court to support imposition of the death sentence:
"1. That the capital felony of first degree murder was intentionally committed by Woodrow Wilson Keller, Jr., while he engaged in the robbery of his victim.
"2. That the capital felony was especially heinous or hateful.
"The following mitigating circumstances are found:
"1. None.
"IT IS, THEREFORE, ORDERED AND ADJUDGED BY THE COURT that no reason can be found to refuse to accept the death penalty and that such death sentence shall, therefore, be imposed upon jury verdict rendered."
Appellant contends that the trial court committed reversible error in overruling his demurrer to Count II of the indictment in that such count failed to charge him with robbery as required in § 13-11-2(a)(2), Code of Ala.1975. The offense is described in that section as:
"Robbery or attempts thereof when the victim is intentionally killed by the defendant;"
Count II of the indictment reads as follows:
"The Grand Jury further charge that before the finding of this indictment, Woodrow Wilson Keller, Jr., did unlawfully, intentionally, and with malice aforethought kill Arley C. Davis by shooting him with a pistol while the said Woodrow Wilson Keller, Jr., was engaged in the commission of or in an attempt to commit a robbery of the said Arley C. Davis, to-wit: on October 15, 1977, during the nighttime, at a location known as Ma-Jik Market, Stadium Drive, Phenix City, Russell County, Alabama, the said Arley C. Davis, an unarmed attendant at said Ma-Jik Market, was shot with a pistol, in violation of Act Number 213, Section 2, Sub-section b; and Section 6, Sub-sections d and h (Act No. 213, Sections 2(b), 6(d) and 6(h)) Acts of Alabama 1975 Regular Session, in that the said killing was committed while the said Woodrow Wilson Keller, Jr., was engaged or was an accomplice in the commission or (sic), or an attempt to commit robbery, and in that the said killing was especially heinous, atrocious or cruel."
Count II of the instant indictment is almost identical in its essential averments to Count III of the indictment in Evans v. State, Ala.Cr.App., 361 So.2d 654 (1977), affirmed, Ala., 361 So.2d 666 (1978). Justice Beatty's learned dissent to the contrary notwithstanding, the Alabama Supreme Court held the indictment in Evans to be valid, stating:
". . . We cannot agree that the indictments are insufficient or defective. Specifically, we cannot agree with the dissent that the State must allege in the...
