Ritter v. Smith, Civ. A. No. 83-0457-H.

Decision Date11 August 1983
Docket NumberCiv. A. No. 83-0457-H.
PartiesWayne E. RITTER, Petitioner, v. Fred SMITH, Commissioner, Alabama Department of Corrections, and J.D. White, Warden, Holman Unit, Respondents.
CourtU.S. District Court — Southern District of Alabama

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John L. Carroll, Ira A. Burnim, Montgomery, Ala., for petitioner.

Ed Carnes, Asst. Atty. Gen., State of Ala., Montgomery, Ala., for respondents.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAND, Chief Judge.

I. INTRODUCTION

This cause came before the Court pursuant to Wayne Eugene Ritter's petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Petitioner was tried and convicted of capital murder and sentenced to death in 1977 in an Alabama state court.

Petitioner and John Lewis Evans committed an armed robbery of a pawn shop in Mobile, Alabama on January 5, 1977. During the course of the robbery, the pawn shop proprietor, Mr. Edward Nassar, was shot in the back by Evans and died. Petitioner and Evans were indicted under Alabama's capital murder statute. Each expressed a desire to plead guilty and forego a jury trial but that procedure was not permissible under the death penalty statute then in force. See Prothro v. State, 370 So.2d 740 (Ala.Cr.App.1979). Petitioner and Evans gave inculpatory statements to the Grand Jury and each testified at trial admitting the necessary elements of the capital murder indictment and demanded the death penalty. The jury returned a verdict of guilty and, pursuant to the dictates of the death penalty statute, included in its verdict a sentence of death. Following the verdict, additional evidence was presented to the trial judge regarding the aggravating and mitigating factors set out in Code of Alabama, 1975, Section 13-11-6 and 7, following which the trial judge sentenced petitioner and Evans to death. The conviction and death sentence were subject to automatic review under Code of Alabama, 1975, Section 13-11-5, and petitioner's case was in the Alabama appellate courts or before the Supreme Court of the United States for six years. Certiorari was granted by the United States Supreme Court on three occasions, but each resulted in a remand rather than any decision on the merits.

This petition involves the first presentation of petitioner's claims to the Federal Courts under 28 U.S.C. § 2254. The petition was filed on May 5, 1983 alleging ten separate claims for habeas corpus relief. At that time petitioner was scheduled to be executed on May 13, 1983. Following an initial hearing on the petition, the Court determined it had jurisdiction1 and that at least one of the ten alleged constitutional deprivations alleged in Mr. Ritter's petition raised substantial federal questions, and accordingly issued an order staying execution. The second evidentiary hearing was conducted on June 1 and 2, 1983, following discovery. The parties have filed briefs and proposed findings of fact and conclusions of law.

As noted above the petition advances ten separately identified claims. By order dated May 11, 1983, this Court directed petitioner to amend his petition and to present in this action any additional claims which he believed provided a basis for relief from his conviction or sentence. No amendment was filed. The Court therefore considers the ten grounds advanced in petitioner's original petition as the only basis upon which habeas corpus relief is available to the petitioner, and that any additional grounds have been waived. Habeas Rule 9(b). The Court will address each of these ten claims in this opinion.

For the reasons discussed more fully in the body of this decision, the Court concludes that there is no basis for the claimed relief and the petition will be dismissed with prejudice. The Court will also order that the stay entered May 6, 1983 be dissolved.

II. FINDINGS OF FACT

Based upon all of the records, files, exhibits, and testimony herein, this Court finds the following facts:

A. Electrocution as Cruel and Unusual Punishment

1. At the two day habeas hearing the Court took testimony on essentially three of the ten issues. The first dealt with whether capital punishment as practiced by the State of Alabama violated the Eighth Amendment's Cruel and Unusual Punishment Clause. That claim was dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for reasons stated on the record. The second and third issues related to the Alabama "preclusion clause". (See discussion infra). In particular testimony was taken on: 1) whether the "preclusion clause" was a factor in the petitioner's adoption of a trial strategy to intentionally seek the death penalty; and 2) whether despite petitioner's trial strategy he was entitled to a jury instruction on the lesser included offense of felony murder.

B. Preclusion Clause — Trial Strategy

2. Petitioner was tried and convicted under the 1975 Alabama capital punishment law which defined some fourteen crimes for which the death penalty might be imposed and which also provided that an indictment and trial for one of those fourteen offenses "shall not include any lesser offenses ...." Code of Alabama, 1975, Section 13-11-3. The clause was later found to be unconstitutional in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). That decision was later modified in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) which provides that the entitlement of the lesser included offense instruction is warranted only in those cases in which the evidence reasonably could support a verdict on the lesser included offense.

3. Petitioner claims that the "preclusion clause" has prejudiced him in two ways. First, he claims that his trial and pretrial tactics of confessing to the crime, cooperating with the prosecution, and attempting to coerce the jury into a guilty verdict were all motivated in part by his knowledge of the preclusion clause. Second, petitioner contends that without regard to the impact of the preclusion clause on petitioner's trial tactics, he was entitled under Beck, supra, and other applicable state and federal law to a charge on the lesser included non-capital felony murder offense.

4. At the habeas hearing on June 2, 1983, petitioner testified that he and his co-defendant, John Lewis Evans, entered a pawn shop in Mobile, Alabama on January 5, 1977, for the purpose of robbing the proprietor and obtaining a different handgun for the petitioner. During the course of the robbery, the proprietor, Mr. Edward Nassar, was shot and fatally wounded by Evans. This was one of a series of crimes committed by Evans and the petitioner between December 25, 1976 and March 7, 1977. In all, the pair committed some three dozen violent crimes during this crime spree including armed robbery, kidnapping, extortion and murder.

5. Petitioner testified at his trial that during the two-and-a-half month long multi-state crime spree, petitioner knew that sooner or later law enforcement officers would catch up with him and Evans. (Exhibit 1, 343) In his own words, "we didn't intend to be taken alive when it did happen ... mainly because we didn't want to spend all that time in prison." Id. Accordingly, petitioner and his co-defendant Evans entered into a pact in which they agreed to shoot it out with law enforcement officers and be killed rather than be captured alive. (Exhibit 1, 330-331, 343-344) On cross-examination at the habeas hearing, petitioner admitted that his above-described testimony in his state court trial was true.

6. On March 7, 1977, petitioner and Evans were captured separately in Little Rock, Arkansas by FBI agents. (Testimony of Agents Bill Hardin and Jack Juel at the evidentiary hearing; Exhibit 1, 344).

7. The only reason petitioner was captured alive was the circumstances under which the FBI agents surprised and captured him. (Exhibit 1, 344) Upon being captured, petitioner expressed disappointment that he had been captured alive, and, indeed, made a statement to one of the FBI agents which was to the effect of: Why hadn't they shot him, because it would have saved everyone a lot of trouble. (Testimony at the evidentiary hearing)

8. On March 8, 1977, in Little Rock, Arkansas, after being repeatedly advised of his Miranda rights and freely waiving them, petitioner freely and voluntarily confessed to FBI agents his guilt for the many violent felonies he and Evans had committed in the above-described crime spree. (Exhibit 1, 293-312; testimony of agents Hardin and Juel at the evidentiary hearing).

9. On March 8, 1977, in Little Rock, Arkansas, petitioner stated to FBI agents who were interviewing him that he preferred execution to spending the rest of his life in prison, and he indicated at that time that he intended to seek execution when he returned to Alabama. Agent Hardin testified that Mr. Ritter told him that he (Ritter) had led a good life and had done more in a short period of time than most people do in their entire lives. Agent Hardin also stated that he personally had at that time no knowledge of the preclusion clause. Agent Juel testified that both Ritter and Evans indicated a preference for death over life imprisonment. Agent Juel further testified that this statement had not been included in their reports because the arrestees' philosophy was not relevant to a report on crimes committed. Nevertheless, he was certain they made the "death preference" statement because he had never heard such a statement in his then previous thirteen years of service. (Testimony of Agents Hardin and Juel at the evidentiary hearing). The Court finds that at the time petitioner made those statements and expressed that intent, he had no knowledge of the procedural aspects of Alabama's capital punishment statute, the preclusion clause, or the sentence alternatives available under the statute. (Testimony of Agents Hardin and Juel at the evidentiary hearing; testimony of Ritter at the evidentiary...

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