Owen v. State

• Decision Date: 08 June 1982
• Docket Number: 1 Div. 311
• Citation: 418 So.2d 214
• Parties: Donald Lewis OWEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 214

418 So.2d 214

Donald Lewis OWEN v. STATE.

1 Div. 311.

Court of Criminal Appeals of Alabama.

June 8, 1982.

Rehearing Denied June 29, 1982.

Certiorari Denied, Aug. 20, 1982

Alabama Supreme Court 81-873.

Thomas M. Haas and James M. Byrd, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Ed Carnes, and J. Thomas Leverette, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

In the early morning of April 8, 1980, two shotgun blasts took the life of Chickasaw Police Officer John Dotson, who was issuing a traffic citation to the defendant.

The defendant was indicted and convicted for the capital offense of murdering a police officer while the officer was on duty. Alabama Code, Section 13A-5-31(a)(5) (Amended 1977). Sentence was fixed at life imprisonment without parole.

I

The statute under which the defendant was indicted and convicted, as construed by our Supreme Court in Beck v. State, 396 So.2d 645 (Ala.1981), is constitutional. Willie Clisby, Jr. v. State, --- So.2d ---- (Ala.Cr.App., 6 Div. 576, Ms. March 2, 1982); Jody Lynn Potts v. State, --- So.2d ---- (Ala.Cr.App., 4 Div. 948, Ms. March 2, 1982). We find no error in the defendant's prosecution under Section 13A-5-31(a)(5) as modified by Beck, supra. The trial and sentencing procedures outlined in Beck were followed by the trial court and no error in this regard is apparent from the record.

II

Contrary to the defendant's contention that he was only charged with the common law crime of second degree murder, the indictment clearly tracks the statutory language of the offense codified in Section 13A-5-31(a)(5). The gravamen of this capital offense, as well as the thirteen other capital offenses found in Section 13A-5-31(a), is an "intentional killing." "Without an 'intentional killing' there could be no death penalty." Kyzer v. State, 399 So.2d 330, 335 (Ala.1981).

"Without question, the legislature has spelled out specifically what offenses it considers to be capital offenses. The Alabama legislature has substantially followed the Model Penal Code in describing with specificity those offenses which are deemed capital offenses. Code 1975, Section 13A-5-31. Each of the fourteen crimes specified requires an intentional killing with aggravation, and not some crime other than homicide under aggravated circumstances."

Beck, 396 So.2d, at 661-662.

The indictment in this case clearly charges that the defendant committed an intentional killing by alleging that the defendant "unlawfully, intentionally, and with malice aforethought, but without premeditation or deliberation, killed John Dotson."

The defendant's sentence of life imprisonment without parole does not constitute cruel and unusual punishment in violation of the Eighth Amendment. Certainly, for the capital offense that was committed in this case the defendant's punishment could have been fixed at death. See George Daniel v. State, --- So.2d ---- (Ala.Cr.App., 4 Div. 987, Ms. April 20, 1982). Life imprisonment without parole is a constitutionally permissible sentence even for offenses which do not involve homicide. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Britton v. Rogers, 631 F.2d 572, 578 (8th Cir. 1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981).

III

The defendant argues that his warrantless arrest and the warrantless search of his home were unconstitutional. He also contends that his confession should not have been admitted into evidence because it was adduced in violation of his Sixth Amendment right to counsel.

At approximately 2:14 on the morning of April 8, 1980, Officer Marvin T. Booker of the Chickasaw Police Department testified that he received a radio dispatch to "backup" Officer Dotson at the intersection of Highway 43 and Saw Mill Road. Officer Booker heard Officer Dotson radio that he was stopping a traffic violator "for speeding and possibly DWI." Approximately three minutes later and before Officer Booker arrived at the intersection, Officer Dotson radioed that no backup was needed. Officer Booker resumed patrolling and a few minutes later received a third radio dispatch that Officer Dotson was "in trouble". Officer Booker arrived at the scene at approximately 2:27 A.M. and found Officer Dotson lying "in a pool of blood" at the rear of his patrol car. Officer Booker radioed for help and within two minutes other police officers began to arrive. Officer Dotson had sustained two shotgun blasts, one to the head and the other to the abdomen. An autopsy revealed that either of the two shotgun wounds would have been fatal.

Officer R. G. Jones of the Chickasaw Police Department arrived at the scene shortly after Officer Booker and found two spent shotgun shells near the victim's body. Officer Jones discovered a "ticket book" used by the Chickasaw Police Department lying on the victim. A ticket for a speeding violation made out to the defendant had been "all but completed" by the victim. The ticket contained the defendant's name, address, date of birth and tag number of his automobile. The defendant's driver's license was also located at the scene. The driver's license was current and had the defendant's photograph, address and "everything on it." Officer Jones also saw the victim's service revolver lying on the ground near the victim. The weapon was cocked but had not been fired.

Lieutenant G. E. Robinson of the Criminal Investigation Detective Division of the Prichard Police Department was dispatched to the murder scene around 2:30 A.M. With the defendant's driver's license in hand and tag number written on a slip of paper, Lieutenant Robinson dispatched four of his units along with Sergeant Bradford of the Saraland Police Department and Chief Barlowe of the Satsuma Police Department to the intersection of Highway 45 and McLeod Road where they were joined by two deputy sheriffs. From there the law enforcement officers proceeded to the defendant's home on Ulysses Drive where they arrived at approximately 3:00 A.M. Lieutenant Robinson parked his patrol car approximately twenty feet from the defendant's home, leaving the headlights on the front of the house. Robinson positioned two men at the rear of the defendant's home, one man on each side and "three or four of us in the front."

At this point in the proceedings the trial court conducted two hearings, out of the presence of the jury, to determine the legality of the warrantless search of the defendant's house and the admissibility of his confession. The substance of these hearings reveals the following.

Lieutenant Robinson verified that the tag number of the defendant's automobile, which had been backed in the carport, matched the tag number Officer Dotson had written on the defendant's traffic citation. One of the officers stationed to the rear of the defendant's house radioed Lieutenant Robinson that "he saw movement in the rear of the house." Approximately thirty seconds later, Lieutenant Robinson also observed a curtain in the front of the house open and close.

Lieutenant Robinson used a bull horn and called for the defendant to "come out". After three to five minutes the defendant came out the front door, waving and calling for the officers to "come on in." Robinson told the defendant, "No, I would rather you come on out." According to Lieutenant Robinson, as the defendant began walking towards the officers:

"I let him get approximately ten to fifteen feet from the front of the house, and I walked up to him and I advised him 'Mr. Owens, you are under arrest for investigation of murder. You have the right to remain silent and not make any statements at all. You have the right to an attorney. If you can't afford one, one will be afforded for you.' At that point, he says 'I know my damn rights. Put me in the car.' And I obliged him."

The defendant was placed in the custody of two officers. Lieutenant Robinson, Sergeant Bradford and Chief Barlowe next proceeded to go inside the house because they had "no idea or no knowledge of how many people were involved in the shooting." As the officers approached the front door a white male named Mahan appeared in the doorway. Mahan rented a room from the defendant. When Mahan was asked if the officers could go in and look around, he gestured that it made no difference to him. Lieutenant Robinson testified that "We were looking for anybody else that may have been in the house" in order to secure "the premises for the safety of my people."

Inside a closet in a rear bedroom a .12 gauge pump shotgun was discovered. The closet did not have a door but "had a curtain on a string across the front." The curtain was "pulled back" so that Robinson was "able to look into that closet and see what was there." Lieutenant Robinson determined that the weapon had been recently fired. Robinson also saw a box of green, .12 gauge shotgun shells in plain view on a bedroom dresser. These shells were the same type as those found at the scene. Ballistics tests later demonstrated that the shells found at the scene had been fired from the shotgun found in the closet.

Sergeant Jack Creekmore of the Saraland Police Department first saw the defendant at the Saraland Police Station around 4:30 A.M. on the morning of the shooting. Through Sergeant Creekmore's testimony the proper voluntariness predicate for the defendant's confession was established. Prior to questioning the defendant, Sergeant Creekmore advised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sergeant Creekmore stated that when he was giving the defendant his Miranda warnings and had gotten to the point "If you cannot afford a lawyer, one will be appointed for you before any questioning", the defendant told him, "I think I'll let ya'll appoint me one." Sergeant Creekmore then continued reading the remainder of the Miranda warnings to the defendant and ascertained that the defendant understood his constitutional rights....