Nolen v. State

• Decision Date: 04 September 1979
• Docket Number: 6 Div. 757
• Citation: 376 So.2d 1145
• Parties: Tony Randolph NOLEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1145

376 So.2d 1145

Tony Randolph NOLEN v. STATE.

6 Div. 757.

Court of Criminal Appeals of Alabama.

Sept. 4, 1979.

Rehearing Denied Oct. 16, 1979.

Russell T. McDonald, Jr. and Roger A. Brown, of McDonald, Brown & Tipler, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The defendant was indicted and found guilty for the robbery and intentional killing of Nigel Harlan under Alabama's Death Penalty Act. Code of Alabama, Section 13-11-2(a)(2) (1975). After a hearing on the aggravating and mitigating circumstances, the trial judge refused to accept the death penalty as fixed by the jury and sentenced the defendant to life imprisonment without parole. Only two issues are presented on appeal.

On August 17, 1977, Nigel Harlan, a steel executive from Chicago, and two associates were in Birmingham on a business trip. They visited a local night club where they met Debra Andrus. About 1:00 o'clock the next morning Harlan left the club with Ms. Andrus. His decomposed body was found in a pasture in Shelby County approximately one month later.

Ms. Andrus entered a plea of guilty to a charge of second degree murder and was sentenced to twenty years' imprisonment on the recommendation of the District Attorney of Jefferson County in return for her promise to testify. According to Ms. Andrus, she and the defendant went to the night club with the intention of "rolling" someone. She lured Harlan outside the club and into the defendant's automobile where the defendant was waiting. Under the pretext of taking the defendant to his motel room, the trio left the club's parking lot. Once underway the defendant pointed a .22 caliber rifle at Harlan and demanded his wallet. Ms. Andrus drove to a pasture in Shelby County where she waited at a fence while the defendant forced Harlan to walk into the pasture and remove his clothes. The defendant then hit Harlan in the back of the head and shot him in both legs.

The defendant and Ms. Andrus left the area but returned later that same morning. Again only the defendant entered the pasture. As Harlan pleaded for his life the defendant executed him by shooting him in the head. The defendant and Ms. Andrus left and went to their motel room. However, once more they returned to the scene of the murder so that the defendant could "cover the body up some more".

The defendant and Ms. Andrus were captured in Gulf Breeze, Florida, after attempting to purchase some clothing with the American Express Card which they had stolen from Harlan.

The defendant testified in his own behalf. His defense was alibi. After an argument he left Ms. Andrus at the club and returned to their motel room. Later he was awakened when Ms. Andrus returned and requested his help in covering up the robbery and murder of Nigel Harlan which she had committed on her own.

I

Initially the defendant argues that it was error for the trial judge to refuse the written requested charge on alibi. That charge is:

"I charge you, Ladies and Gentlemen of the Jury, that the defendant sets up an alibi in this case, and the burden of proof is not changed when he undertakes to prove it, and if by reason of the evidence in relation to such alibi, when considered with all other evidence, the jury entertain a reasonable doubt as to Defendant's guilt, he should be acquitted, although you may not be able to find that the alibi has been fully proven."

The trial judge instructed the jury on the defense of alibi.

"Now, the Defendant has offered evidence in this case that he could not have committed the crime because he was someplace else at the time the crime was committed. That is known as alibi testimony. Alibi is a legal term. That is, the Defendant could not have committed the crime because at the very moment the crime was committed the Defendant was someplace else. Alibi means another place. Now, in order to acquit the Defendant based on alibi evidence, if that alibi evidence when considered with all the other evidence in this case raises a reasonable doubt in your mind of the Defendant's guilt, or causes you to have a reasonable doubt of his guilt, or when based upon all the testimony and the alibi evidence you are not convinced beyond a reasonable doubt of his guilt, then you should acquit the Defendant. On the other hand, if the alibi evidence when considered with all the other evidence in this case does not create in your mind a reasonable doubt of the Defendant's guilt, that is, when considered with all the other evidence in the case you are not convinced beyond a reasonable doubt of the Defendant's guilt, that is, the alibi evidence is part of the evidence, and then you put that part of the evidence and consider it with all the other evidence, if it does not create in your mind a reasonable doubt of the Defendant's guilt, and you are otherwise convinced beyond a reasonable doubt of the Defendant's guilt, then you should convict the Defendant."

The charge requested by the defendant is proper. Hatch v. State,144 Ala. 50, 40 So. 113 (1906); Pickens v. State, 115 Ala. 42, 52, 22 So. 551 (1897); Carlisle v. State, 356 So.2d 702 (Ala.Cr.App.), cert. denied,356 So.2d 703 (Ala.1978).

The thrust and substance of the requested charge, that is, that the alibi evidence when considered with all the other evidence may supply a reasonable doubt of the guilt of ...