Norris v. State

• Decision Date: 26 March 1999
• Citation: 793 So.2d 847
• Parties: Michael N. NORRIS v. STATE.
• Court: Alabama Court of Criminal Appeals

793 So.2d 847

Michael N. NORRIS v. STATE.

CR-94-0871.

Court of Criminal Appeals of Alabama.

March 26, 1999.

Donald L. Colee, Jr., Birmingham; and William Keith Bradford, Birmingham, for appellant.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee. PATTERSON, Retired Appellate Judge.

This case was originally assigned to another Judge and was reassigned on October 7, 1997.

The appellant, Michael N. Norris, appeals from his conviction and sentence of death for the capital offense of murder for the murders of Sarah Tracy Hooper, Rodney Ray Clark, and Damon Herbert by one act or pursuant to one scheme or course of conduct, of two or more persons. See § 13A-5-40(a)(10), Code of Alabama 1975.

The trial court sentenced Norris to death after considering the jury's recommendation, by an 8-4 vote, that Norris be sentenced to life imprisonment without the possibility of parole.¹ In sentencing Norris, the court found the following aggravating circumstances: (1) that Norris had been convicted in 1974 of murder, a felony involving the use or threat of violence to the person, § 13A-5-49(2); and (2) that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses, § 13A-5-49(8). In finding no statutory (§ 13A-5-51) or nonstatutory (§ 13A-5-52) mitigating circumstance, the court noted:

"Upon consideration of all the evidence brought forth at the trial of this case, the sentence hearing and the presentence report, the Court finds that the only evidence arguably presented in mitigation was the fact that the Jury did recommend life without parole and that the prior murder conviction was during a time that the defendant was a teenager and that offense arose out of a dispute between gang members. Since that time the defendant has only been convicted of a misdemeanor assault and traffic offenses. Other evidence in mitigation was the fact that the defendant's mother and brother testified at the sentencing hearing on the defendant's behalf and supplied the Court with insight into the defendant's family background. Both the defendant's mother and brother believe in the defendant's innocence."²

(C.R.151.)

We must remand this case for resentencing because we find that Norris is correct in his claim that the prosecution failed to establish beyond a reasonable doubt, as required by § 13A-5-45(e), the aggravating circumstance that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses.³

Because a finding that the capital offense was especially heinous, atrocious, or cruel rests on the particular facts of the case, an understanding of the facts is necessary. The three victims died as a result of gunshot wounds to the head. The shootings occurred in the early morning of March 5, 1993, at Rosa's Place, a bar that catered to motorcyclists. All patrons except the three victims and Norris and his codefendant Brian Carrier⁴ had left the bar by 1:45 a.m. The only two witnesses to the capital offense were Carrier and William R. Henson, the bartender. Although there were discrepancies between the testimonies of these two eyewitnesses as to the particulars preceding and following the murders, both agreed that Norris walked up to the three victims, who were sitting in a corner booth, and shot them in rapid succession.

Henson testified that, up to the time of the shootings, there had been no communication between Norris or Carrier and the three victims. He further testified, as follows:

"A. [Norris and Carrier] walked over toward what—to leave from that point to go to the door and also to go over to where the [victims] were at. They walked over to that direction. And I thought they were going over to tell [the victims], `See you later,' or `Good night,' or whatever. And as [Norris] walked up behind [Hooper], I heard a shot, and [Hooper] went forward. And then I immediately turned around and I heard— well, I heard [Norris] say, `What are you going to do now, mother fuckers?' [When he said that, his arm was moving, and I don't recall which direction it was moving. (R. 877.) ] And I turned to get my 9 mm. [gun].

"Q. Where was your 9 mm. at that time?

"A. Beside the cash register under some money bags.

"Q. And how far was that from you?

"A. I was turning in one step, trying to lift up the bags and get to the pistol.

"Q. So, ... you had to turn your back to them ... ?

"A. Yes, ma`am.

"Q.... [W]hat happened then?

"A. As I was getting my 9 mm., I was hearing shots. And when I came back around—it's basically a blur to me. [When I came back around, [Clark] was up against the wall. And I couldn't see [Herbert]. (R. 945.) [Herbert] was in the floor. (R. 974.) ] I recall [Norris] coming back toward me, and I pointed my 9 mm. at him.

"Q. What was [Norris] doing as he walked back toward you?

"A. He had his pistol in his hand, and I figured I was going to be shot next."

(R. 862-64.)

"Q. How many shots did you hear from over in that bar area?

"A. I think it was four."

(R. 865.)

Henson also testified to the following events that he said occurred after Norris fired the four shots: Norris pointed his gun at Henson, and Henson pointed his gun at Norris. Norris then told Henson, "Tell them that you've been robbed. My life is in your hands. And we'll see if you've got the balls not to squeal." (R. 879.) He also warned that if Henson did report Norris, Henson "was history." Then Norris ordered Henson to fire his weapon. Henson jerked his pistol to the left to fire one shot into the wall, but he "evidently jerked off three rounds" and then pointed his weapon at Norris again. Then Norris and Carrier left. Henson telephoned the police and paramedics. Sometime between the time Norris and Carrier left and the time the police and paramedics arrived, Henson heard moaning and raspy breathing from one of the victims, and he determined that Herbert was still breathing.

Carrier testified that he was still sitting at the bar when he heard the first shot and that when he heard this shot, he turned around and saw Hooper falling from a chair at the corner booth. He further explained that after this first shot, Herbert looked as if he were reaching for a gun in his jacket, and Norris stepped up in the booth area, grabbed Herbert's arm, said to Herbert, "Oh, no, don't do that, take it like a man." (R.1922), and then shot him. Carrier also testified that he then saw Norris reach across the table and shoot Clark. Carrier further testified, as follows:

"Q. How much time had elapsed?

"A. It happened so quick....

". . . .

"Q. And after the third shot what happened?

"A. [Norris] started walking back up toward the bar. And he said, `It's all on you, [Henson].' And there was one of them still breathing. And he said, `Wait a minute, I've got to go finish the job.' And he walked back over and shot another one."

(R. 1922.)

Evidence, independent of that provided by the testimonies of the two eyewitnesses, established that when the police arrived at the scene at 2:10 a.m., one victim was breathing with difficulty; Hooper had no pulse (she was pronounced dead by paramedics at 2:13 a.m.); and the other male did not appear to be breathing. The coroner who performed the autopsy on Hooper's body testified that there was a gunshot wound on the left side of her forehead that had been inflicted by a weapon held less than an inch away; and that, in his opinion, he "would expect that [wound] to be a very rapidly fatal gunshot wound and to cause immediate incapacitation or almost immediate incapacitation" (R. 1337). The coroner further testified that he also performed an autopsy on Clark's body; that Clark had been shot in the head near the midline from the front; that the weapon was fired with its muzzle more than a distance of approximately 12 to 20 inches from the victim's head; and that, in his opinion, "a wound such as that [would] be a very rapidly incapacitating gunshot wound and ... a [very] rapidly fatal gunshot wound" (R. 1325, 1356). The coroner who performed the autopsy on Herbert's body testified that there were two gunshot wounds to the head: one in the right forehead, which travelled from front to back and slightly downward, and the other behind the right ear, which travelled from back to front, slightly downward, and toward the center. He testified that "both are potentially lethal, and both would result in rapid incapacitation" (R. 1398); that they caused "considerable destruction" of the right hemisphere of the brain; that the right cerebral hemisphere was "pretty well destroyed by the bullet [travelling from front to back] and the fragments of bone" (R. 1415); that there was no evidence that they were near contact wounds; and that Herbert died at 1:15 p.m. on March 5, 11 hours after the shootings. The coroner also noted that Herbert had received medical treatment.

In finding that the evidence established that the multiple-murder capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses, the trial court simply concluded so; it did not identify the specific facts upon which it based this conclusion. Thus, we cannot discern from the trial court's order upon what facts or basis the court relied in deciding that the killings were especially heinous, atrocious, or cruel. However, we note that the prosecution's closing argument to the jury pertaining to the aggravating circumstances it considered to be applicable was, in its entirety, as follows:

"And as aggravating circumstances, I'd ask you to reflect back on the facts of this case, a totally senseless act by this man, wherein three people lost their lives for absolutely no reason. Three human beings cut down, minding their own business, that plus the fact that this man once before has been convicted of taking the life of another person. And because of that, ladies and gentleman, we ask that you sentence him to the appropriate punishment, which is death."

(R....