Ritter v. State

• Decision Date: 09 August 1978
• Docket Number: 1 Div. 837
• Citation: 375 So.2d 266
• Parties: Wayne Eugene RITTER, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 266

375 So.2d 266

Wayne Eugene RITTER, alias v. STATE.

1 Div. 837.

Court of Criminal Appeals of Alabama.

Aug. 9, 1978.

Rehearing Denied Aug. 29, 1978.

Al Pennington, Mobile, Francis A. Poggi, Jr., Fairhope, for appellant ritter.

William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State, appellee.

John D. Whetstone, Executive Director, Office of Prosecution Services, Montgomery, amicus curiae.

After Remandment by the Supreme Court

TYSON, Judge.

The Supreme Court of Alabama did remand this cause to this Court for consideration of the applicability of the provisions of Title 13-11-2(b), Code of Alabama 1975, to the appeal of Wayne Eugene Ritter, which section reads as follows:

"Evidence of intent under this section shall not be supplied by the felony murder doctrine."

I

In our original consideration of the appeal in this cause, we did not write to this issue as the same was not asserted in the trial court or argued there or asserted or argued on original presentment of this appeal in this Court.

Our present consideration of the evidence in this cause and the foregoing statute lead us to the firm conclusion that Wayne Eugene Ritter was an active participant in the murder of Edward A. Nassar, having planned with John Louis Evans, III, the drive to Mobile from Biloxi, Mississippi, to rob a sporting goods store or pawn shop. Appellant Ritter rode with Evans through the City of Mobile, Alabama, looking at, in his own words, about half a dozen different places before deciding on the pawn shop being operated by the deceased, Nassar. According to Ritter's own statement, "We decided on this place because there was only one man there and it was a small shop . . . I walked past the store several times wearing a blond wig to see what was going on in the store."

The State's evidence further indicated the two men circled the block at least twice, and Appellant Ritter entered the store first and engaged Nassar in conversation. Ritter asked Nassar to let him examine a "Colt Cobra pistol" which Ritter then opened and began placing bullets in the cylinder. At this time Evans had drawn his own .38 caliber Dixon. According to both men, Nassar ran toward the office area to obtain a weapon. At this point, Evans fired his pistol at Nassar. The two men then fled, taking the pistol which Ritter obtained from Nassar with them. ¹

In brief, it was simply a matter of logistics that Ritter did not also fire his weapon, i. e., his companion, Evans, according to his own statement, was in his line of fire.

In our original opinion, and in this extension, this Court has carefully reviewed all of the evidence and did not, and does not now, rely upon the felony-murder doctrine to imply evidence of intent on the part of Ritter in this cause.

To the contrary, Ritter's active participation in the Nassar murder supplies the requisite intent for an intentional killing necessary under Section 13-11-2(a), Code of Alabama 1975, which is the aggravated offense of robbery when the victim is Intentionally killed by the defendant.

II

We are of course aware of the provisions of Section 13-9-1, Code of Alabama 1975 (formerly Title 14, Section 14, Code of Alabama 1940), which deal with principal and accessory. The thrust of these provisions of law is discussed in Lee v. State, 51 Ala.App. 332, 285 So.2d 495, cert. denied, 291 Ala. 787, 285 So.2d 500; and Gray v. State, 52 Ala.App. 481, 294 So.2d 448, and authorities cited therein.

This Court does not rely upon these provisions of law in arriving at its conclusions in this case as we consider both Evans and Ritter to be co-principals, each equally responsible for the death of Edward A. Nassar.

III

We have again reviewed the evidence in this cause carefully and are firmly of the opinion that there is here shown an intelligent and understanding plea of guilty in this cause by Wayne Eugene Ritter, as well as John Louis Evans, III, and that such was done after full explanation of their constitutional rights by Ritter's competent counsel, and additionally a further explanation by an able and distinguished trial judge. Such pleas of guilty were entered following such explanation, and the record reflects that such were freely and voluntarily done without any threat, intimidation, coercion, hope of reward, or other type of inducement whatsoever.

Inasmuch as Wayne Eugene Ritter and John Louis Evans, III, each, having entered a voluntary, intelligent, and understanding guilty plea, the sole issue reserved for appeal in this cause was the constitutionality of the Alabama statute.

Inasmuch as this issue has been determined adversely to both appellants, not only by this Court, but by the Supreme Court of Alabama, In re Jerry Wayne Jacobs, Ala., 361 So.2d 640 (1978), and Ex parte John Louis Evans, III, Ala., 361 So.2d 672 (1978), we are of the opinion that other issues were intelligently and understandingly waived by Appellant Ritter, as well as by Appellant Evans.

IV

Further, because of the seriousness of this cause, and the death penalty as imposed by the trial judge in this cause, we have considered the applicability of Lockett v. Ohio, --- U.S. ----, 98 S.Ct. 2954, 57 L.Ed.2d 973; and Bell v. Ohio, --- U.S. ----, 98 S.Ct. 2977, 57 L.Ed.2d 1010, both decided July 3, 1978, and are of the opinion that the trial judge here gave full consideration to all possible mitigating circumstances before imposing the sentence of death by electrocution.

This Court has also again weighed the particular circumstances of this heinous crime, and is of the opinion that the sentence as set by the trial judge should be left in full force and effect.

Having therefore answered the remand of the Supreme Court of Alabama, we do hereby affirm the sentence of death by electrocution as to Wayne Eugene Ritter, as set by the trial judge in this cause.

The judgment is affirmed.

AFFIRMED.

DeCARLO, J., concurs.

BOOKOUT, J., concurs specially and files opinion in which HARRIS, P. J., joins.

BOWEN, J., concurs specially and files opinion.

BOOKOUT, Judge, concurring specially:

I concur in the result of the opinion, but I do not concur in the statement that the accomplice statute has no application to the instant case. I likewise would make further comment on the reason why the felony-murder doctrine cannot be used to supply intent in the instant charge.

The sole and simple reason why the code does not allow the felony-murder doctrine to supply intent is because intent is not an element of the felony-murder doctrine. At early common law, any homicide occurring during the commission of any felony made all participants guilty of murder whether the killing was intentional or not. 4 Blackstone Commentaries 200-201. However, later English cases came to apply the doctrine only to acts known to be dangerous to life and likely to cause death. Regina v. Serne, 16 Cox Crim.Cas. 311 (1887). In 1957 England abolished the felony-murder rule by the Homicide Act, 5 & 6 Eliz II, c. 11. Prior to 1957, the English courts held that only acts of violence committed in the course of a violent felony could raise an unintentional killing to murder. R. v. Betts and Ridley (violent blow during robbery) 22 Crim.App.R. 148 (1930); R. v. Stone (attempt to rape) 53 T.L.R. 1046 (1937); R. v. Jarmain (accidental discharge of pistol during robbery) 31 Crim.App.R. 39 (1946).

In this country, the felony-murder doctrine varies from state to state. In its most basic form, the doctrine provides "that a homicide is murder if death results from the perpetration or attempted perpetration of a felony." 50 A.L.R.3d 399. A primary function of the doctrine is to relieve the prosecution from proving actual malice or intent to kill on the part of a defendant in the commission of a felony which results in a homicide. The malice involved in the perpetration of the felony is transferred to the commission of the homicide under such a doctrine even though the killing was accidental or unintentional. Alabama has modified the common law in this regard.

Alabama's first degree murder statute, § 13-1-70, Code of Ala.1975, applies only to homicides "committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery or burglary." Intent to kill is not an element of that doctrine. Thus, that doctrine could hardly supply intent for the instant charge of "robbery or attempts thereof when the victim is Intentionally killed by the defendant." Therefore, if the new capital felony statute is to be applied to accomplices, it must be by some other doctrine of the law.

Section 13-9-1, Code of Ala.1975 (formerly Title 14, § 14) states:

"The distinction between an accessory before the fact and a principal, between principals in the first and second degrees, in cases of felony, is abolished; and All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals, as in the case of misdemeanors." (Emphasis supplied.)

The accomplice statute has been applied to all felonies, both capital and non-capital, in the past. It has been applied to charge an accomplice...