Nelson v. State

Decision Date12 November 1986
Docket Number6 Div. 892
Citation511 So.2d 225
PartiesDavid Larry NELSON v. STATE.
CourtAlabama Court of Criminal Appeals

William M. Dawson, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson and William D. Little, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

David Larry Nelson, appellant, was initially indicted for the capital offense of murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts. Ala.Code § 13-11-2(a)(10) (1975). Appellant filed a motion to quash the indictment, which was overruled by the trial court after the parties agreed by stipulation that the initial indictment be nol prossed and that Nelson be indicted instead for two separate capital murder offenses, one for robbery or attempts thereof when the victim is intentionally killed by the defendant, § 13-11-2(a)(2), and one for any murder committed by a defendant who has been convicted of murder in the first or second degree in the twenty years preceding the crime. § 13-11-2(a)(13). Subsequently, Nelson was indicted in two separate indictments: One for the intentional killing of James Dewey Cash, 1 while in the course of "The grand jury of said county charge that, before the finding of this indictment, David Larry Nelson, ... subsequent to March 7, 1976, unlawfully and with malice aforethought, killed Wilson W. Thompson, by shooting him with a pistol, after the said defendant having been convicted of murder in the second degree on to-wit: August 28, 1974 in the Circuit Court of Jefferson County, Alabama, Birmingham Division, in violation of Section 13-11-2(13) Code of Alabama, 1975 against the peace and dignity of the State of Alabama."

robbing him, and one for the murder of Wilson W. Thompson after having been convicted of murder in the second degree within twenty years preceding the murder of Thompson. The case now before us arises out of the indictment of Nelson for the murder of Thompson after having been convicted of another murder within the preceding twenty years. Omitting its formal parts, the indictment upon which Nelson was tried reads, as follows:

Nelson was first tried for this offense in October 1978, found guilty as charged in the indictment, by jury verdict, and sentenced to death by the trial court. On appeal, this court reversed and remanded the case for a new trial on the mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392, on remand, 396 So.2d 645 (Ala.1980), and Ritter v. State, 403 So.2d 154 (Ala.1981). Nelson v. State, 405 So.2d 50 (Ala.Cr.App.1981).

The instant appeal is from Nelson's second trial on the same indictment wherein he was convicted again for the same capital offense. § 13-11-2(a)(13). 2 The second trial was conducted in accordance with the bifurcated procedures outlined in Beck v. State, 396 So.2d 645 (Ala.1980). As in the first trial, the jury found Nelson guilty of "the capital offense of murder in the first degree, after having been previously convicted of murder in the second degree within 20 years of said crime, as charged in the indictment." After a separate sentencing hearing, and by unanimous decision, the jury fixed his punishment at death. The trial court then held a second sentencing hearing on aggravating and mitigating circumstances, and found the existence of two aggravating circumstances and no mitigating circumstances. The trial court weighed the aggravating circumstances, while noting the absence of mitigating circumstances, and on April 2, 1982, sentenced Nelson to death, thereby accepting the death penalty as recommended by the jury. As noted above, it is from this second conviction and sentence of death that Nelson now prosecutes this appeal.

As alleged in the capital indictment, Nelson was previously convicted of murder in the second degree in the Circuit Court of Jefferson County on August 28, 1974, and sentenced to twelve years in the penitentiary. Nelson pled guilty to this prior offense and was represented at the time by court-appointed counsel. This prior conviction was proven by the State. The truth of this allegation is not contested by Nelson, but is admitted.

The evidence presented by the State shows that Nelson and his girlfriend of a month, Linda Vice, traveled from Anniston to Birmingham a few days prior to January 1, 1978. They traveled by automobile. It is not clear from the record whether the automobile was borrowed and not returned or was stolen. Apparently, the automobile "tore up" in Birmingham and was abandoned. It was ultimately found in the parking lot of the Red Dog Saloon in Birmingham. On this visit, Nelson was armed with a .38 caliber pistol, which belonged to On the evening of December 31, 1977, Nelson and Vice were at Theo's Lounge in Birmingham, having arrived there around 10:00 p.m. While there, they met the victim, Wilson W. Thompson, and Nelson introduced Vice to Thompson as his sister. They told Thompson that they did not have a way home. Thompson and Nelson discussed going to Thompson's mobile home in Kimberly, which was twenty to thirty miles from Birmingham, and having an "orgy." Each stated that he had engaged in orgies with his sister. Thompson, Nelson, and Vice left the lounge around 1:30 a.m., January 1, 1978, and arrived at Thompson's mobile home about thirty minutes later. They traveled in Thompson's automobile. After entering the mobile home, Thompson fixed everyone a drink. After some further discussion of orgies, Nelson ordered Vice to remove her clothes. When she expressed some reluctance, Nelson took her into the bedroom and told her to take something off. She removed her blouse, at which time Thompson, who was nude, entered the bedroom and told her to remove the rest of her clothing. She did. Nelson ordered her to lie on the bed and she complied. Nelson then told Thompson he could have oral sex with Vice. Just as Thompson commenced performing oral sex on Vice, Nelson shot him in the back of the neck at close range with the .38 caliber pistol. The bullet apparently passed through Thompson's neck and wounded Vice in the upper part of her leg. Thompson fell forward on the bed, and Vice raised up and started screaming. Nelson then shot twice at Vice, one bullet wounding her in the wrist and the other grazing the back of her head. She fell to the floor and remained there. She observed Nelson hit Thompson in the back of the head with the pistol. She could hear Nelson "ransacking" the mobile home. Nelson returned to the bedroom and, upon finding Vice alive, displayed his penis and tried to get Vice to perform oral sex upon him. She refused, telling him that she was dying and that he was not going to make her do anything else. Nelson threw a blanket over her and walked out.

Linda Vice's uncle. Apparently, they spent one night at the Siesta Motel in Irondale, one night at the Birmingham bus station, and one night at a Salvation Army installation. It also appears that they spent some time visiting lounges and nightclubs in the Birmingham area.

Shortly thereafter, Vice wrapped a blanket about herself and fled from the mobile home. She observed Nelson sitting on the living room couch as she ran out. She ran about two hundred yards to a nearby house where Lorrine Hayes resided. She knocked on the door and Mrs. Hayes let her in. It was approximately 4:00 a.m., Vice was nude, drenched in blood, and bleeding from three wounds. As Vice lay on the floor, Mrs. Hayes wrapped her in towels. The police and ambulance were called. There was considerable delay in the arrival of the police and ambulance due to the heavy activity of New Year's Eve. During this time, someone knocked on Mrs. Hayes's door for an hour and forty-five minutes or longer. She would not admit the person and did not know who it was. When approaching the Hayes residence, two officers responding to the call observed Nelson in a 1968 Chevrolet automobile pull into the driveway of a residence some distance away from the Hayes residence. Nelson got out of the automobile and began knocking on the door of a residence. The officers inquired as to what he was doing, and he stated that he had had a fight with his wife and wanted to use the telephone. The officers observed a small amount of blood on his shirt. He was advised to get back into his vehicle and move on, which he did. The officers continued on to the Hayes residence, where they found Vice, who was covered with a sheet, lying on the floor and bleeding severely.

After the ambulance arrived and Vice was dispatched to the hospital, the officers went to Thompson's mobile home where they found its contents in disarray and discovered Thompson's nude body lying face down on the bed. The investigation of the scene disclosed blood and a lady's earring on the floor beside the bed in the bedroom of the mobile home; the nude body of the victim, Thompson, lying facedown While on patrol on Highway 41 in Marion County, Tennessee, early in the morning hours of January 2, 1978, Dewey Randall Gamble, a deputy sheriff with the Marion County Sheriff's Department, observed an automobile with an Alabama license plate being driven in an erratic manner. There were two people in the automobile. He stopped the vehicle and arrested the driver for driving under the influence of alcohol. After placing the driver in his patrol car, he approached the vehicle again and learned that Nelson was the passenger. Nelson told the deputy that the vehicle belonged to him, and produced his driver's license at Gamble's request. Gamble asked Nelson to get out of the vehicle, and Nelson refused. Nelson was sitting on the passenger side of the vehicle, and the deputy observed that he was sitting with his left leg over his right knee and his right hand was under his left leg. Gamble had noticed that Nelson had used his left hand to remove his billfold and driver's license and had kept his right hand continuously...

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