Ritter v. State

• Decision Date: 11 February 1983
• Citation: 429 So.2d 928
• Parties: In the Matter of Wayne Eugene RITTER v. STATE of Alabama. 77-798.
• Court: Alabama Supreme Court

Page 928

429 So.2d 928

In the Matter of Wayne Eugene RITTER v. STATE of Alabama.

77-798.

Supreme Court of Alabama.

Feb. 11, 1983.

Rehearing Denied April 8, 1983.

John L. Carroll, Montgomery, for petitioner.

Charles A. Graddick, Atty. Gen., and Ed Carnes and Nancy Perry, Asst. Attys. Gen., for respondent.

EMBRY, Justice.

The United States Supreme Court, 457 U.S. 1114, 102 S.Ct. 2921, 73 L.Ed.2d 1326, has remanded this case to this court for our further consideration in light of its decision in Hopper v. Evans, 456 U.S. ----, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), holding that due process requires that a lesser included offense instruction in a case punishable by execution be given only when the evidence warrants such an instruction. Further, the evidence in that case not only supported the claim that the accused, Evans, intended to kill the victim but affirmatively negated any claim that he did not intend to do so. Accordingly, the Supreme Court concluded an instruction on the offense of unintentional killing was not warranted.

This case of Evans' co-participant in same offense is now before us for the sixth time ¹ in order that we may determine whether the conviction and sentence of death, of Wayne Eugene Ritter, is due to be affirmed.

Although a full statement of the facts is contained in previous opinions of this court, see Ex parte Ritter, 375 So.2d 270 (Ala.1979), and the Court of Criminal Appeals, see, Evans v. State, 361 So.2d 654 (Ala.Cr.App.1977), they are, briefly, as follows:

Wayne Eugene Ritter and a companion, John Louis Evans, were released from an Indiana penitentiary on parole during the early part of December 1976.

On 25 December 1976, Ritter and Evans violated their parole and left Indianapolis, Indiana, on a planned crime spree. According to their testimony, they committed approximately 30 armed robberies, nine kidnappings, and two extortion schemes in seven different states during a two month period. During this spree, on 5 January 1977, they arrived in Mobile looking for a place to rob where they could obtain money and a pistol for Ritter. They eventually picked Nassar's Pawn Shop because "it was a nice, small place" and "looked very easy." Ritter and Evans entered the pawn shop and Ritter asked the shop owner, Edward Nassar, to show him a gun. When Nassar handed the gun to Ritter, Evans pulled a pistol and announced his intention to rob Nassar. Thereupon, Nassar dropped down behind a counter and began crawling away, at which point Evans shot him in the back, killing him. Nassar's two daughters, ages seven and nine, were present and watching in terror from the corner of the shop. Ritter and Evans fled the shop and in the two ensuing months committed numerous crimes as they travelled from state to state. They were finally apprehended by the Federal Bureau of Investigation on 7 March 1977 in Little Rock, Arkansas.

On 8 April 1977, Ritter was indicted by the Mobile Grand Jury under § 13-11-2(a)(2), Code 1975. That code section makes "robbery or attempts thereof when the victim is intentionally killed by the defendant" a capital offense. Contrary to the repeated advice of his attorney, Ritter entered a plea of guilty to the charge. At all times prior to, during, and after the proceedings which led to his conviction, Ritter was thoroughly advised of his constitutional rights by his attorney, the trial judge or both. Ritter repeatedly stated that he understood those rights and on each occasion, consciously waived the same. His case was submitted to a jury for determination of guilt or innocence and sentence because he could only be sentenced to death under Alabama's capital felony statute, § 13-11-1, et seq., Code 1975.

During trial, Ritter took the stand and detailed the robbery and killing. Although he did not fire the shot that killed Nassar, he testified to both the grand jury, and the trial jury, that he possessed the intent to kill; he stood ready and willing to assist in the killing; and he would have been the actual triggerman had Evans not been in his line of fire. During his testimony, Ritter threatened to kill the jury if they did not convict him of the capital offense and demanded that he be sentenced to death. On 26 April 1977, the case was submitted to a jury which within fifteen minutes returned a verdict of guilty and fixed the punishment at death. ² On 27 April 1977, the trial court held a sentence hearing pursuant to § 13-11-3 and § 13-11-4, Code 1975, after which it entered written findings of fact concerning the aggravating and mitigating circumstances as provided in § 13-11-6 and § 13-11-7, Code 1975. The trial court determined that although Ritter was an accomplice in the capital felony committed by Evans, his participation was not relatively minor and it further found that the aggravating circumstances "far outweigh[ed]" the mitigating circumstances:

"THE COURT Will you please rise? The Court having conducted a Hearing pursuant to Section 3 of Act No. 213 of the Legislature of Alabama, Regular Session 1975 to determine whether or not the Court will sentence Mr. Wayne Eugene Ritter to death or to life imprisonment without parole; and the Court having considered the evidence presented at the trial and at said sentence hearing, the Court makes the following findings of fact:

"The Court first considers the aggravating circumstances as described in Section 6 of said Act 213:

"(a) The Court finds that the Capital Felony was committed by Mr. Ritter while he was under sentence of imprisonment although he was serving the remainder of his sentence on parole at the time;

"(b) The Court finds that Mr. Ritter has been previously convicted of another felony involving the use or threat of violence to the person, to wit: the offense of robbery;

"(c) The Court finds that Mr. Ritter knowingly on approximately thirty-nine previous occasions created a great risk of death to many persons;

"(d) The Court finds that the Capital Felony was committed while Mr. Ritter was an accomplice in the commission of a robbery;

"(e) The Court finds that the Capital Felony was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;

"(f) The Court finds the Capital Felony was not committed for pecuniary gain, within the meaning of Section 6(f) of said Act 213;

"(g) The Court finds the Capital Felony was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws;

"(h) The Court finds that the Capital Felony was committed in the immediate presence of the two young daughters of Edward A. Nassar, deceased, aged approximately nine years and seven years respectively. The Court finds that Edward A. Nassar, deceased, was shot through the back while he was unarmed and crawling along the aisle behind the counter. The Court finds no evidence that he was ordered to halt or given any warning before being shot. While in the personal opinion of the Court the Capital Felony was especially heinous or attrocious, the Court has no precedent or authority which would allow it to hold as a matter of law that this Capital Felony meets the test of being especially heinous or attrocious or cruel, as set out in Section (h) of Section 6 of Act 213, and so the Court makes no finding on this point.

"The Court now considers mitigating circumstances as described in Section 7 of said Act 213:

"(a) The Court finds that Mr. Wayne Eugene Ritter has a significant history of prior criminal activity;

"(b) The Court finds that the Capital Felony was not committed while Mr. Wayne Eugene Ritter was under the influence of extreme mental or emotional disturbance;

"(c) The Court finds that the victim was not a participant in Mr. Wayne Eugene Ritter's conduct and did not consent to the act;

"(d) The Court finds that while Mr. Wayne Eugene Ritter was an accomplice in the Capital Felony committed by another person, his participation was not relatively minor, and by Mr. Ritter's own statement, he was prepared to shoot Edward A. Nassar, deceased, but could not fire because his accomplice, John L. Evans, III was in his line of fire;

"(e) The Court finds that Mr. Wayne Eugene Ritter did not act under extreme duress or under the substantial domination of another person;

"(f) The Court finds that the capacity of Mr. Ritter to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired in any degree;

"(g) The Court finds that Mr. Wayne Eugene Ritter's age at the time of the crime to be a mitigating circumstance;

"(h) The Court finds further another mitigating circumstance, although not set out as such in Section 7 of said Act 213, to be the fact that Mr. Ritter made no effort or attempt to harm the two young daughters of Edward A. Nassar, deceased, who were in his immediate presence at the time of the commission of the Capital Felony or any of the other witnesses in the vicinity.

"The Court, having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances; it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the Jury should be and is hereby accepted."

The trial court then sentenced Ritter to death by electrocution.

Following the automatic appeal required by § 13-11-5, the Alabama Court of Criminal Appeals, on 25 October 1977, affirmed Ritter's conviction and sentence in Evans and Ritter v. State, 361 So.2d 654 (Ala.Cr.App.1977).

Certiorari was granted by this court as a matter of right as required by Alabama Rule of Appellate Procedure 39(c). On 19 May 1978, after careful review of the entire record this court issued its decision affirming in part Ritter's conviction and sentence, but remanding the case to the Court of Criminal Appeals for consideration of the non-triggerman issues....