Prothro v. State

• Decision Date: 16 January 1979
• Docket Number: 5 Div. 419
• Citation: 370 So.2d 740
• Parties: Howard Lee PROTHRO v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 740

370 So.2d 740

Howard Lee PROTHRO v. STATE.

5 Div. 419.

Court of Criminal Appeals of Alabama.

Jan. 16, 1979.

Rehearing Denied Feb. 20, 1979.

Larkin Radney, Alexander City, for appellant.

William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Retired Circuit Judge.

The only issue expressly presented by appellant for review is stated in his brief as follows:

"The Alabama 'Death Penalty and Life Imprisonment Without Parole' statute violates the Constitution of the United States and the Alabama Constitution of 1901."

The instant challenge of the constitutionality of said Death Penalty and Life Imprisonment Without Parole Act (Act 213, 1975 Ala. Acts, p. 701, Et seq. ¹) is based upon grounds in addition to those presented in several cases in which the constitutionality of said law as therein raised and considered has been upheld by the Supreme Court of Alabama and by the Alabama Court of Criminal Appeals. See Jacobs v. State, Ala.Cr.App., 361 So.2d 607 (1977), cert. denied Ala., 361 So.2d 640 (1978); Cook v. State, Ala.Cr.App., 369 So.2d 1243 (1977), aff'd in part and rev'd in part and remanded for a rehearing on mitigating circumstances, Ala., 369 So.2d 1251 (1978); Wilson v. State, Ala.Cr.App., 1978, 371 So.2d 932; Beck v. State, Ala.Cr.App., 1978, 365 So.2d 985; Williamson v. State, Ala.Cr.App., 1978, 378 So.2d 1054; and Clements v. State, Ala.Cr.App., 1978, 370 So.2d 708. See also, Evans and Ritter v. State, Ala.Cr.App., 361 So.2d 654 (1977), aff'd as to Evans and rev'd and rem'd as to Ritter for consideration of the applicability of the "felony-murder doctrine" Ala., (July 6, 1979) on remand, Ala.Cr.App., (August 9, 1978), in which cases each of the defendants-appellants requested and was given the death penalty.

On an indictment charging Zebedee Hayes, Howard Lee Prothro, and Dave Thomas with intentionally killing Luther Shoffeitt during the course of a robbery of Shoffeitt, appellant herein was separately tried. The jury found him guilty as charged and fixed his punishment at death. On a post-conviction hearing, the trial court reduced his punishment by a sentence to imprisonment for life without parole.

Appellant urges that the Alabama Death Penalty Act "violates the Fifth Amendment right to plead not guilty, the Sixth Amendment right to demand a trial by jury, and the Constitution of Alabama, 1901, Article I, Section 11, which provides, "That the right of trial by jury shall remain inviolate."

Appellant centers his aim upon the following parts of the cited Alabama Act:

" § 13-11-2.

(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation . . . .

" § 13-11-3.

If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. . . ."

Appellant relies chiefly upon United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), in which the court had for consideration the Federal Kidnaping Act, 18 U.S.C. § 1201(a) in pertinent part as follows:

"Whoever knowingly transports in interstate . . . commerce, any person who has been unlawfully . . . kidnaped . . . held for ransom . . . shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed."

In Jackson the Court, speaking through Mr. Justice Stewart for a majority of six, held that the death penalty provision of the Federal Kidnaping Act was invalid because it imposed an impermissible burden upon an accused's exercise of his Fifth Amendment right not to plead guilty and his Sixth Amendment right to demand a trial by jury. The Court said at 390 U.S. 581, at 88 S.Ct. 1216:

"Under the Federal Kidnaping Act, therefore, the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilty before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. . . ."

The question presented and determined in Jackson Is not the question to be determined here, as the legal premises for a conclusion reached therein are essentially different from, and in some respects diametrically opposed to, the legal premises in the case now before us.

It is to be kept in mind that, although Jackson Holds that a defendant has the constitutional right not to plead guilty, citing Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126, it does not hold that one has the constitutional right to a trial without a jury. Even before the Bill of Rights, it was provided, "The trial of all crimes, except in cases of impeachment, shall be by jury; . . ." Constitution of the United States, Art. III, Sec. 2, Par. 3.

Rule 23(a) of the Federal Rules of Criminal Procedure provides:

"Cases to be tried by jury shall be so tried unless a defendant waives a jury trial in writing with the approval of the court and the consent of the government."

Rule 23(a) was attacked as unconstitutional in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, Singer claiming that in a federal criminal case, by virtue of his unconditional right, guaranteed by Art. III, Sec. 2, and the Sixth Amendment, he had "a correlative right to have his case decided by a judge alone if he considered such a trial to be to his advantage." In an extensive consideration of the history of criminal proceedings in England under the common law, in the courts of the American Colonies, in United States courts, and in the courts of the various states before and after their adoption of the Constitution of the United States, the Court in Singer concluded that the Constitution of the United States does not confer upon a defendant in a criminal case a Right to waive a jury trial and that Rule 23(a) FRCrP sets forth a reasonable procedure governing attempts to waive jury trials.

At the time of Singer, at the time of Jackson, and from the time of the adoption of the Constitution to and including the present time, with few possible exceptions, such as was attempted by the Federal Kidnaping Act, the determination of the punishment, within the limits prescribed by law, to be imposed upon a defendant convicted in federal cases, was, has been, and is exclusively a function of the trial judge.

"It is axiomatic that it is the exclusive function of juries to determine whether defendants are guilty or not guilty, and of the court to determine matters of punishment. Sullivan v. United States, 317 F.2d 101, 102, C.A. 5, cert. den. 375 U.S. 854, 84 S.Ct. 114, 11 L.Ed.2d 81; McClanahan v. United States, 292 F.2d 630, 634, C.A. 5, cert. den. 368 U.S. 913, 82 S.Ct. 193, 7 L.Ed.2d 130." United States v. Davidson, 367 F.2d 60, 63 (6 Cir. 1966)

The line of demarcation between the function of the judge and the function of a jury as to the punishment to be imposed upon a defendant found guilty of a crime is distinctly different in federal trial courts from what it is in trial courts of Alabama. In a capital case in the trial courts of Alabama, a jury, and a jury alone, has authority to fix the punishment at death. So assiduously has the integrity of the exclusive function of the jury been guarded throughout the years, that not until September 12, 1969, (the date of the approval of Acts 1969, No. 1061, p. 1981, § 1, which will be hereafter discussed) could the trial judge (the court without the intervention of a jury), fix the punishment for a felony when such "power is expressly conferred on the jury," even though defendant had expressly waived a jury trial and entered a plea of guilty. The proposition is stated in Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858 (1955) as follows:

"The appellate courts of this State have reviewed Many cases in which the trial judge fixed the punishment when he was not authorized by statute to do so. Some have involved capital offenses, others have not. All of these authorities adhere to the rule that the statutory duty of the jury to fix punishment is mandatory and the trial judge cannot relieve the jury of this prerogative. See Houston v. State, 37 Ala.App. 359, 68 So.2d 735; Tanner v. State, 23 Ala.App. 116, 121 So. 693; Washington v. State, 125 Ala. 40, 28 So. 78; Powell v. State, 30 Ala.App. 606, 10 So.2d 867; Smith v. State, 23 Ala.App. 72, 121 So. 692; Smith v. State, 23 Ala. 106, 121 So. 692."

In amending the statutory law by Acts 1969, No. 1061, p. 1981, § 1, the previous stringent requirements that the provisions of statutory law for punishment be fixed by a jury were relaxed to the extent that where a defendant upon arraignment or prior to trial pleads guilty and contemporaneously therewith waives his right to a jury trial, the court, without the intervention of a jury, can fix the punishment The same as a jury might fix or impose it ² if the case were being tried by a jury, But the court cannot impose capital punishment without the intervention of a jury.

"(a) If a defendant upon arraignment or prior to trial pleads guilty, the court, without the intervention of a jury, shall determine the degree of the offense and fix the punishment therefor The same as a jury might...