Lewis v. State
| Decision Date | 04 September 1979 |
| Docket Number | 4 Div. 611 |
| Citation | 380 So.2d 970 |
| Parties | Tommy LEWIS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Warren Rowe of Rowe, Rowe & Sawyer, John C. Dowling, Enterprise, for appellant.
William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
The capital felony conviction of the appellant is affirmed but the cause is hereby remanded for resentencing.
The facts of this case are hereinafter set out in a separate opinion by Judge LEIGH CLARK, retired circuit judge serving as a judge of this court under the provisions of the Judicial Article, Amendment No. 328, to the Constitution of Alabama 1901. This court adopts Judge Clark's opinion as the opinion of the majority with the exception of that portion which holds that this court may reduce the death penalty and, on its own, sentence the appellant to life imprisonment without parole. (Opinion attached as Appendix)
This court must independently weigh the aggravating and mitigating circumstances in a capital case. Neal v. State, Ala.Cr.App., 372 So.2d 1331 (1979), cert. den. Ala. 372 So.2d 1348 (1979); Rule 45, A.R.A.P. In doing so, we do not substitute our judgment for that of the trial judge any more than we do that of a jury in reviewing the sufficiency of the evidence. Kent v. State, Ala.Cr.App., 367 So.2d 508 (1978).
As pointed out in Judge Clark's opinion, the death penalty is not sustained by the evidence presented at the hearing on aggravating and mitigating circumstances. However, this court does not have statutory authority to reduce the penalty and resentence the appellant itself. That duty is vested in the trial court, § 13-11-4, Code of Alabama 1975, subject to our review on appeal. "The judgment of conviction and sentence of death shall be subject to automatic review as now required by law." § 13-11-5, Code of Alabama 1975. (Emphasis supplied).
We additionally point out, as in the companion case of Colley v. State, Ala.Cr.App., --- So.2d ----; (Ms. Sept. 4, 1979), the findings of fact that the robbery was committed (1) for "pecuniary gain" and (2) that the killing was "unnecessary," are inappropriate. The first for the reason that it was held to be so by our Supreme Court in Cook v. State, Ala., 369 So.2d 1251 (1978), and the second, because it is not listed as an aggravating circumstance in § 13-11-6. Another sentencing hearing is therefore mandated.
Affirmed in part; Remanded with Directions.
I agree with my distinguished brothers that this court must weigh independently the aggravating and mitigating circumstances under the Alabama Death Penalty Statute.
I would vote, however, to uphold in full the opinion prepared for this court by Judge LEIGH CLARK, as I believe this court, in an appropriate case, can modify a sentence in a death case only on authority of Hubbard v. State, 290 Ala. 118, 274 So.2d 298 (1973); Hubbard v. State, 290 Ala. 120, 274 So.2d 301 (1973); Lokos v. State, 290 Ala. 122, 274 So.2d 303; Swain v. State, 290 Ala. 123, 274 So.2d 305 (1973).
APPENDIX
LEIGH CLARK, Retired Circuit Judge.
Appellant-defendant was indicted, tried and convicted under the Death Penalty and Life Imprisonment Without Parole Act (Acts of Alabama 1975, No. 213), now contained in Ala. Code 1975, § 13-11-1, et seq. He was charged with intentionally killing James O. Counts, Jr., also known as Junior Counts, by shooting him with a pistol, while robbing him. In compliance with § 13-11-2 of the Act, the jury fixed his punishment at death.
Pursuant to § 13-11-3 and § 13-11-4 of the Act, the trial court conducted a hearing "to aid the court to determine whether or not the court will (would) sentence the defendant to death or to life imprisonment without parole" and thereupon, after weighing the aggravating and mitigating circumstances, the court determined that defendant's punishment should be death, and sentenced him accordingly.
Our review of the record convinces us that the death sentence should be reduced to a sentence to life imprisonment without parole. By reason of such determination, we limit our discussion in the main to considerations bearing materially upon the question of the appropriate alternative punishment, under all the circumstances, for the conviction of defendant for the crime committed.
On the afternoon of July 8, 1977, about 3:20 P.M. James O. Counts, Jr., was robbed and killed at his service station on Highway 84, commonly called the Dothan to Enterprise Highway. He was found soon thereafter lying with his face down behind the counter, in a pool of blood. An autopsy showed that two bullets had entered his back and a third wound from the bullet of a pistol was found in his upper left chest. The cause of his death was determined to have been acute internal hemorrhage subsequent to and originating from multiple gunshot wounds to the body.
There was ample evidence to support the conclusion of the jury that defendant was a participant in the robbery and the intentional killing of Mr. Counts. His fingerprints were found in the store; the pistol that was used in the killing was one that defendant delivered to defendant's sister, who in turn delivered it to the authorities, after the crime; many other circumstances such as defendant's presence at significant times at the particular service station, and at places in outlying areas, pointed to him and one Kelly Colley as the persons who had robbed and killed Mr. Counts. In addition, defendant confessed to his participation in the crime but denied actually firing the pistol. He first stated that a third person by the name of Franklin participated in the crime and actually fired the pistol, but the evidence as a whole shows that only two, in addition to the victim, were present at the time of the commission, and that they were defendant and Colley.
Defendant pleaded both not guilty and not guilty by reason of insanity. The record shows that the special defense of not guilty by reason of insanity was chiefly relied upon by defendant. Furthermore, the record shows that from the beginning of the proceedings until the sentence imposed upon defendant, the question of the mental condition of defendant was a matter of ceaseless serious concern, so much so that the trial court, acting pursuant to Ala.Code 1975 § 15-16-21 suspended the trial of defendant until a jury had determined whether he was competent to stand trial. It is to be noted that such a determination is required by said § 15-16-21 if "the trial court shall have reasonable ground to doubt his sanity." The jury determined that defendant was competent to stand trial.
The evidence as to defendant's mentality was approximately the same on the hearing as to his mental competency to stand trial as it was on the trial on the issue of his guilt or innocence as raised by his special plea of not guilty by reason of insanity. The testimony from law enforcement personnel on the point, chiefly from those who had participated in the investigation, apprehension or detention of defendant, was to the effect that in their contact with and their observations of, defendant he had appeared to them mentally alert and capable, and with no apparent mental handicap.
On the hearing, attended by all concerned, as to the sentence to be imposed by the court after the verdict of the jury, the State offered the testimony of law enforcement personnel, including some who had not previously testified, who had observed defendant at times between the date of the crime and the pre-sentence hearing. They testified that defendant appeared to them to be alert and responsive. In addition, a detective of the Montgomery Police Department testified that he had known defendant since 1975, a short time prior to the detention and conviction of defendant for the crime of assault with intent to murder, and that defendant "appeared to be very alert." Upon being asked whether defendant appeared to have any physical or mental incapacity, he replied, "Not to me." Some of the witnesses testified that defendant was allowed to make, and did make without assistance, phone calls from the jail, including a long distance call after he was convicted in the case now under consideration.
At the conclusion of the testimony offered by the State on the pre-sentence hearing, the following occurred:
The material omitted from the last quoted portion of the record consists of three pages of a statement by the court to the defendant, a commendable and appropriate statement, directing defendant's attention to the seriousness and importance of the hearing and of defendant's being afforded every opportunity to present his side of the pending issue, which ended as follows:
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