Nicks v. State

Decision Date27 January 1987
Docket Number6 Div. 556
Citation521 So.2d 1018
PartiesHarry NICKS v. STATE.
CourtAlabama Court of Criminal Appeals

C. Burton Dunn, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram and William D. Little, Asst. Attys. Gen., for the State.

PATTERSON, Judge.

Appellant, Harry Nicks, was indicted on March 25, 1983, in the Bessemer Division of the Jefferson County Circuit Court, for the capital offense of murder committed during a robbery in the first degree, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. Omitting its formal parts, the indictment reads, as follows:

"The Grand Jury of said County, charges that before finding of this indictment Harry Nicks, whose name to the Grand Jury is otherwise unknown, on or about March 5, 1983, did intentionally cause the death of Robert Back, by shooting him with a pistol, and said Harry Nicks caused said death during the time that Harry Nicks was in the course of committing a theft of lawful money of the United States of America, of undetermined denominations, the property of Robert Back and Isadore Back, d/b/a Bessemer Pawn Shop, by the use of force against the person of Robert Back, with intent to overcome his physical resistance or physical power of resistance, while the said Harry Nicks was armed with a deadly weapon, to-wit: a pistol, in violation of § 13A-5-40(a)(2) of the Code of Alabama, 1975...."

At arraignment, Nicks pleaded not guilty and not guilty by reason of mental disease or defect. On May 25, 1984, a jury found him guilty of the capital offense charged in the indictment. A sentencing hearing was held before the jury in accordance with §§ 13A-5-43 through -46, Code of Alabama 1975, and the jury returned an advisory verdict recommending that the penalty be death. Ten jurors recommended the death penalty and two recommended a sentence of life imprisonment without the possibility of parole. Section 13A-5-46(f) requires that an advisory verdict recommending death be based on a vote of at least ten jurors. Thereafter, the trial court held another sentencing hearing, in accordance with §§ 13A-5-47 through -52 Code of Alabama 1975, and, after weighing the aggravating and mitigating circumstances and considering the jury's recommendation, sentenced Nicks to death. 1

This case arises out of an incident which occurred on March 5, 1983, in the Bessemer Pawn Shop at 315 N. 19th Street, Bessemer, Alabama. The pawn shop was owned and operated by Robert and Isadore Back. At approximately 2:30 p.m., a black male entered the shop. He was wearing a red vinyl jacket, blue jeans, and a clear plastic shower cap on his head. He had acne scars on the right side of his face. He was carrying a red canvas tote bag which had a white shoulder strap. Robert Back and an employee, Debra Lynn Love, were in the shop at the time. The man approached Back and said, "Man, I need some money. I got to get out of town quick." He then pulled a pistol from the tote bag, pointed it at Back, and told Love not to move. Back took money from a cash drawer and put it in the tote bag. The robber demanded more money. He demanded "big bucks," and continuously called Back a "god damned old man" and "mother fucking old man." He threatened to kill Back and pulled a second pistol from the bag. Back took money from a second cash drawer and put it in the bag. The robber demanded more money. He wanted "big bucks" and "big bills." He ordered Love to lie on the floor and she complied. Back opened the cash drawer in the safe and handed more money to the robber and told him, "This is all I have." The robber ordered Back to lie next to Love on the floor. As Back and Love lay face down on the floor, the robber fired three shots. One shot entered the back of Love's head; one entered the back of Back's head, penetrating his brain; and one went into a rubber mat on the floor. Back either died instantly or in a matter of minutes from the bullet wound to his head; however, the bullet fired into Love's head lodged in her skull and she survived. As soon as Love heard the robber leave the shop, she telephoned the police, giving them a detailed description of the robber.

Subsequently, Love identified appellant, in two lineups conducted by the police, as the person who robbed the pawn shop and shot Back and her. She also made a positive in-court identification of appellant.

Venita Bishop was working as a cashier in a nearby store on the date of the incident. She observed a black male, fitting the description of the robber, in her store around 12:30 to 12:45 p.m. Subsequently, she identified appellant, in a lineup, as the person she observed in the store where she worked on the day of the incident. She also made a positive in-court identification of appellant.

A firearms expert determined that two of the bullets fired by the robber were .22 caliber and fired from the same gun. The two pistols displayed by the robber were never found. The autopsy performed on Back's body disclosed stippling, or powder burns, around the wound to the back of his head, indicating that the pistol from which the shot was fired was very close to his head, probably within two inches.

Appellant did not testify in his own behalf during the guilt phase of the trial. He called only two witnesses: Dr. Clifford B. Hardin, a psychiatrist, and Gordon Burkhead, his landlord, in support of his insanity plea.

Two issues are raised by appellant on appeal.

I

First, appellant contends that the prosecuting attorney's reference to him, in closing argument, as a "bad guy" or a "bad person" constituted reversible error.

During closing arguments the prosecuting attorney stated, as follows:

"Now, going on to the Seymour case a little bit, I think the judge is going to instruct you that the Seymour case doesn't have anything to do with the issue of his innocence or guilt as to the capital murder case at the pawn shop. They are two distinct crimes. The reason we introduced that was not to inflame the jury that he was a bad guy, even though that he is a bad person, I think the evidence proved he is guilty of that, too. There's no question about it."

Appellant claims in brief that "the prosecutor's reference to him as a 'bad person' was reversible error because this was an attempt by the State to prove bad character and the defendant had not attempted to show his good character." He relies on Cox v. State, 465 So.2d 1215 (Ala.Cr.App.1985), and Jones v. State, 53 Ala.App. 690, 304 So.2d 34, cert. denied, 293 Ala. 761, 304 So.2d 38 (1974).

In considering this issue, as well as the following issue, it is necessary to discuss in some detail the Seymour case, referred to above by the prosecuting attorney, and particularly the part it played in the trial of this case.

The evidence introduced by the State in its case-in-chief showed that at about 12:30 p.m., on March 15, 1983, ten days after the robbery and shooting at the pawn shop, two black males entered a business known as W.B. Seymour Jewelry Company, which is one block from the pawn shop and on the same side of the street. The business was owned and operated by W.B. Seymour, who was ninety-five years of age. His daughter, Nell Russell, worked for him. She was sixty-nine. Both were present in the store on the occasion. One of the men entering the store was wearing a blue suit and the other was wearing a long-billed cap, sun goggles, and a brown or tan coat or sweater. Both of the men were carrying pistols, and the one in the blue suit was carrying a beige tote bag. One of the men stated, "This is a robbery." The robber in the brown coat took the rings from Russell's hand, after striking her on the hand with a pistol. The robber in the blue suit "threw" the tote bag on the counter, and the other man put Russell's rings into it. The robber in the blue suit approached Seymour and took Seymour's money from his pockets and the money from the cash register. While this was going on, a customer came in the store, and the customer, Russell, and Seymour were herded to the back of the store by the robber in the blue suit. This robber ordered Russell to open the safe, but she told him it could not be opened The police received a report and description of a possible getaway car used by the robbers, and a search commenced. An automobile fitting the description was located in Birmingham and, as a result of this discovery, Guicy Horn was arrested. Ultimately, Horn admitted to participating in the Seymour Jewelry Company robbery and identified appellant as the other participant. Horn testified for the State at trial. His testimony generally coincided with the testimony given by Russell concerning the details of the robbery. He stated that appellant wore the blue suit and was the one that forced the victims to the back of the store and ordered them to lie down. He further testified that during the robbery, appellant told Seymour, "Well, don't make me kill you like I did the other one."

                until 6:00 p.m.  He then ordered Russell, Seymour, and the customer to lie on the floor.  They complied;  however, Seymour had difficulty getting down because of his age, and the robber hit him in the head twice with the butt of his pistol.  Seymour grabbed the doorknob of the door to the beauty shop next-door, and the robber struck him on the hand with the pistol.  Russell testified that, as the robber in the blue suit was doing this, he told Seymour that "if he didn't lay down he was going to kill him like he did that man up the street."   She also stated that the robber warned Seymour, "old man, I'm going to kill you, get down."   The people in the beauty shop next-door began yelling, "Nell and Mr. Seymour is being robbed," and the robber in the blue suit, followed by the robber in the brown coat, ran out of the store.  Russell also testified that the robber in the brown coat told her that "if I didn't do what he said, they would do me like the man up the street."
                

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