Madison v. State, CR-93-1788

• Decision Date: 17 January 1997
• Docket Number: CR-93-1788
• Citation: 718 So.2d 90
• Parties: Vernon MADISON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 90

718 So.2d 90

Vernon MADISON v. STATE.

CR-93-1788.

Court of Criminal Appeals of Alabama.

Jan. 17, 1997.

Rehearing Denied June 20, 1997.

Richard Williams, Mobile (appointed June 9, 1995), for appellant.

Bill Pryor, atty. gen., and Jack Willis, asst. atty. gen., for appellee.

McMILLAN, Judge.

The appellant, Vernon Madison, was convicted of two counts of capital murder in the death of Julius Schulte, see § 13A-5-40(a)(5), Code of Alabama 1975. The first count charged the appellant with killing a police officer who was on duty, and the second charged him with killing a police officer who was performing an official or job-related act. Following the sentencing hearing, the appellant was sentenced to death. His conviction and sentence subsequently were reversed, 545 So.2d 94 (Ala.Crim.App.1987), and the case was retried. A second conviction and sentence of death also were reversed, 620 So.2d 62 (Ala.Crim.App.1992), and the appellant was tried for the third time. The jury again found the appellant guilty of capital murder and recommended that he be sentenced to life imprisonment without the possibility of parole, with eight jurors voting for life imprisonment without parole and four voting for death by electrocution. After a hearing before the trial court, the court sentenced the appellant to death by electrocution.

The facts of this case, as set out by the trial court, are as follows:

"That on April 18, 1985, the residents of 1058 Etta Avenue were Cheryl Green, ¹ the woman with whom the Defendant had lived until days prior to the murder, and Kimberly Hughes, her 11-year-old daughter.

"That night, Cpl. Julius Schulte, a police officer of the City of Mobile, was dispatched and went to 1058 Etta Avenue in Mobile to investigate a missing child complaint.

"When Cpl. Schulte arrived, he learned that the child, Kimberly Hughes, had come home after her mother called the police but before he arrived. He also found himself in the midst of a domestic dispute between Cheryl Green and the Defendant, for April 18, 1985, was also the night that Green had thrown the Defendant's personal effects out of the house they previously shared.

"The Defendant had come and gone from 1058 Etta Avenue before Cpl. Schulte arrived, ostensibly to look for Kimberly. He came back with another woman, Mary McCord, after Cpl. Schulte was on the scene, but he left her and his .32 caliber pistol at the corner before proceeding to the house located in the middle of the block.

"Once inside the 1058 Etta Avenue residence, the Defendant argued with Green, accusing her of calling the police on him. Even though he now knew the child was secure, Cpl. Schulte remained on the scene and called for a backup officer, because he had been asked to stay until Green and her child were safely away from the Defendant.

"The Defendant and Green came out of the house, and both talked to Cpl. Schulte, who never exited his patrol car. After that brief conversation, the defendant appeared to leave. He did not go far; rather, he simply went to the corner where Mary McCord was holding his .32 caliber pistol. He took the gun from her and left her.

"Now armed, the Defendant went back to where Green was still talking with Cpl. Schulte, who still sat innocently and unsuspectingly in his unmarked police car. The Defendant, however, returned a different way. He went over one block, and he sneaked up behind the houses on Etta Avenue. He emerged from the shadows, approached Cpl. Schulte from the left rear, and coldly and methodically fired two shots at near point blank range into the back of Cpl. Schulte's head. He then turned the weapon on Cheryl Green, shooting her in the back. After killing his helpless victim. Cpl. Schulte, and shooting Cheryl Green, the Defendant fled the scene."

I.

The appellant contends that the indictment improperly charged two counts of capital murder for a single offense. He argues that presenting § 13A-5-40(a)(5), Code of Alabama 1975, as two offenses exposed him to double jeopardy, enhanced his punishment, and deprived him of constitutional protections. He further argues that, because the jury verdict form does not reflect the count on which he was convicted, the jury may have found him guilty of what it believed were two offenses or may not unanimously have found him guilty of one offense. In addition, he argues, the jury could have found him more deserving of death because he had been convicted of two offenses rather than one.

The first count of the appellant's indictment charged him with the intentional shooting of Julius Schulte while Schulte was "on duty as a police officer"; the second count charged that the shooting occurred while Schulte was "performing an official or job related act." Both counts are alternative methods of proving a single offense. See § 13A-5-40(a)(5), Code of Alabama 1975. The trial court instructed the jury that there were "two counts contained in the indictment, each charging the Defendant with a capital offense," and stated that, if the jurors were not convinced that the State had proven "each of the essential elements of either of the capital offenses beyond a reasonable doubt," they should find the appellant not guilty of "the capital offense as charged in the indictment" and consider the lesser included offense of murder. The court further instructed the jury that, if it found the appellant guilty of "the capital felony as charged in the indictment," it would not be necessary to state the count or counts of the indictment on which they found him guilty. The jury subsequently returned a verdict form that stated, "We, the Jury, find the Defendant guilty of the capital felony as charged in the indictment." The trial court thereafter sentenced the appellant to death by electrocution.

In Floyd v. State, 486 So.2d 1309 (Ala.Cr.App.1984), aff'd, 486 So.2d 1321 (Ala.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987), the appellant was charged with eight counts of murder during robbery, § 13A-5-40(a)(2), Code of Alabama 1975, four of which related to the taking of a taxi and four of which related to the taking of currency. In that case, this Court stated that, because the purpose and effect of the joinder of offenses was to meet every possible contingency that the evidence might show, rather than to convict the appellant of multiple offenses, the State was not required to elect the count on which the case would be submitted to the jury. In the present case, the appellant was indicted on two, rather than eight, counts of capital murder, and the trial court likewise did not require him to elect the count on which he was to be tried. However, the appellant was convicted of only one offense, and the indictment was proper.

In Meyer v. State, 575 So.2d 1212 (Ala.Cr.App.1990), the appellant was indicted on three counts of capital murder for one killing. He was found guilty of three counts of intentional murder, and the trial court imposed a single sentence of 50 years' imprisonment. This Court, citing Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), remanded the case for the circuit court to vacate two of the convictions. In Ball, the United States Supreme Court explained that a second conviction is an impermissible punishment, even if it results in no greater sentence, ² because it may have potential adverse collateral consequences such as delayed parole eligibility or an increased punishment for recidivism. In the present case, however, unlike Ball, there was no second conviction. The double jeopardy concerns, therefore, are inapplicable.

In Tucker v. State, 537 So.2d 59, 61 (Ala.Cr.App.1988), the appellant was charged in a single indictment with the murder of a peace officer while the officer was on duty or in the act of arresting or attempting to arrest the appellant or his stepmother. The appellant moved to dismiss the indictment, on the grounds that it charged two crimes and that it was so ambiguous that he could not determine what acts constituted the crime. This Court found that the indictment was properly framed to conform to the proof, in that it charged only one offense--capital murder of a peace officer--which was committed for one of two reasons: either because the officer was trying to arrest the appellant's stepmother or the appellant himself.

In the present case, although the instructions of the trial court were confusing, the Court sufficiently informed the jury with regard to the burden of proof and the necessity for unanimity in its verdict. The jurors were aware that the appellant was guilty of only one offense, as evidenced by their verdict form, which stated the single offense of "the capital felony as charged in the indictment." Their death penalty decision therefore was not improperly affected by the framing of the indictment.

II.

The appellant contends that the trial court erred in failing to find statutory and nonstatutory mitigating circumstances. He argues with regard to the statutory circumstances that the trial court had before it evidence that the capital offense was committed while he was "under the influence of extreme mental or emotional disturbance" and that his "capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired," § 13A-5-51(2) and (6), Code of Alabama 1975. Specifically, he refers to defense expert Dr. Barry Amyx's testimony that he suffered from a delusional disorder, a psychotic illness similar to schizophrenia, and that he also suffered from persecutory delusions and a "thought disorder." Dr. Amyx expressed the opinion that the appellant could not fully appreciate the criminality of his conduct. In addition, the appellant argues that State's witness Ollie Doss testified that he looked "crazy" when she saw him on the night of the offense. He also contends that the trial court misunderstood the burden of proof with regard to mitigating...