Rowell v. State, 6 Div. 951

• Decision Date: 21 September 1990
• Docket Number: 6 Div. 951
• Citation: 570 So.2d 848
• Parties: George ROWELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 848

570 So.2d 848

George ROWELL v. STATE.

6 Div. 951.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

Harold E. Walden, Alabaster, for appellant.

Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for State.

McMILLAN, Judge.

The appellant was convicted of the capital murder offense of intentional killing during a robbery, in violation of § 13A-5-40(a)(2), Code of Alabama (1975). The jury recommended that the appellant be sentenced to life without parole. Thereafter, following a separate sentencing hearing, the trial court sentenced the appellant to life without parole, as recommended by the jury.

I

The appellant argues that the trial court erred in failing to grant his motion for judgment of acquittal made at the close of the State's case. The appellant admitted that he was guilty of robbery, but denied that he was guilty of the intentional killing of the victim, because he did nothing to aid or abet the trigger man, nor did he have any intention of killing the victim.

The record indicates that the appellant and three accomplices met on the Sunday morning in question and one of the accomplices stated, "Let's go stick something up. Let's go rob something." The four of them left in a Buick Regal to get another automobile, a white Grand Am Pontiac. The appellant and one of the accomplices got into the Pontiac; the accomplice riding with the appellant originally had the gun. The two automobiles stopped at a church, where the gun was swapped from the accomplice in the car with appellant to another accomplice who was driving in the Buick. The appellant and accomplice driving in the Grand Am followed the Buick onto Interstate 65. The Buick passed another car, getting onto the 6th Avenue "off ramp", so that the passed automobile was located in between the Buick and the Grand Am. The accomplice driving the Buick testified that he saw "a lady and her two daughters" in the car. One of the accomplices, who was driving the Buick, testified that he looked in his rear-view mirror and saw that the Grand Am had positioned itself so that it was blocking off the other car. The accomplice who was passenger in the Buick grabbed the pistol. The appellant jumped out of the Grand Am and the passenger-accomplice from the Buick ran back to the car, which they had blocked off, carrying the pistol. The appellant attempted to open the back door of the car, while a passenger in the back seat tried to stop him from opening the door. Eventually, the appellant got into the car and began "tugging" at a purse. The appellant got the purse, while the accomplice with the gun tried to get into the front door of the driver's side of the automobile, where the victim was sitting and attempting to keep him out. The accomplice who was driving the Buick testified that he began to drive around the corner when he heard a gunshot. He testified that he immediately looked back and saw the accomplice with the gun and the appellant running back toward the Grand Am. He testified that he saw a screwdriver in the appellant's hand and a pistol in the other accomplice's hand. He further testified that the appellant was carrying the purse. The accomplice, driving the Buick, testified that when he went around the corner, something went wrong with the steering column of the Buick and the car cut off. He testified that he believed that, when he and another individual had stolen the Buick on the previous night, they must have damaged the car. That accomplice left the Buick and got into the Grand Am with the others. Thereafter, they drove to a church and stole a station wagon; all of them getting into the station wagon and driving off. They found a purse in the station wagon which they rummaged through. They then left the station wagon and purses in some bushes down by a junk yard. The four men got a ride to another friend's house. Another of the accomplices had the gun at that time. The men decided to sell the gun, so one of the accomplices and a friend left to sell the gun and returned with money, which was divided so that each person got $30 to $35. All four men were charged with capital felony, but the accomplice, who had driven the Buick, agreed to testify for the State and, in return, the charge of capital felony against him was dismissed, as well as some other cases.

The appellant argues that because the State failed to prove that he had any particularized intent to kill or supported the triggerman in the killing of the victim, his conviction for capital murder should be reversed and remanded with instructions to the trial court to enter a judgment of felony murder. However, the State presented sufficient evidence from which the jury could have reasonably inferred that the appellant had the requisite intent to commit the murder.

"To sustain a conviction under § 13A-5-40(a)(2) for capital murder-robbery, the State must prove beyond a reasonable doubt: (1) a 'robbery in the first degree or an attempt thereof,' as defined by § 13A-8-41, (2) a 'murder' as defined by § 13A-6-2(a)(1), and (3) that the murder was committed 'during' the robbery or attempted robbery, i.e. that the murder was committed 'in the course of or in connection with the commission of, or in immediate flight from the commission of' the robbery or attempted robbery in the first degree. § 13A-5-39(2)."

Connolly v. State, 500 So.2d 57, 62 (Ala.Cr.App.1985). The appellant concedes that he committed the robbery element of this offense and there is no question that the murder was committed during the commission of, or immediate flight from the commission of the robbery; however, the appellant contends that he did not intentionally kill the victim. The question of a defendant's intent at the time of the commission of the crime is usually an issue for the jury to resolve. Crowe v. State, 435 So.2d 1371, 1379 (Ala.Cr.App.1983).

" '[N]o defendant is guilty of a capital offense unless he had an intent to kill, and that intent to kill cannot be supplied by the felony murder doctrine. Beck v. State, 396 So.2d 645, 662 (Ala. March 6, 1981)'; Carnes, Alabama's 1981 Capital Punishment Statute, 42 Ala.Law. 456, 468 (1981). See also Emmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), but see Godbolt v. State, 429 So.2d 1131, 1134 (Ala.Cr.App.1982), holding that Emmund is inapplicable to a defendant who does not receive the death penalty. However, a non trigger man can be convicted of a capital offense if he was a knowing accomplice to the intentional killing itself. Ritter v. State, 375 So.2d 270 (Ala.1979). '[T]he accomplice liability doctrine may be used to convict a non-trigger man accomplice, if, but only if, the defendant was an accomplice in the intentional killing as opposed to being an accomplice merely in the underlying felony.' Ex parte Raines, 429 So.2d 1111, 1112 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983).

"Alabama's 1981 capital punishment statute under which [the defendant] was convicted 'provides that a defendant who does not personally commit the intentional killing which is part of the capital offense is nonetheless guilty of it and can be convicted of the capital offense, if that defendant intentionally promotes or assists in the commission of the intentional killing which is actually done by another.' Carnes, 42 Ala.Law at 471.

"Our duty on appeal was stated in Raines, 429 So.2d at 1113. 'To affirm a finding of a "particularized intent to kill", the jury must be properly charged on the intent to kill issue, and there must be sufficient evidence from which a rational jury could conclude that the defendant possessed the intent to kill.' "

Lewis v. State, 456 So.2d 413, 416-17 (Ala.Cr.App.1984).

In the present case, there was sufficient evidence from which a rational jury could conclude that the appellant possessed the intent to kill. All of the men had begun this series of events with the intention of committing robberies and in possession of a gun. The gun had been passed between the two cars and, after blocking off the victim, the appellant and the armed accomplice attempted to enter the vehicle from the driver's side. After the shooting, they ran together back to the waiting Grand Am. Moreover, the trial judge charged the jury that the doctrine of felony murder could not be included as a component part of the capital charge. He explained that the jury must find an intentional killing and, at length, explained to the jury what is required in order to find the element of intent. " 'Whether a non-trigger man aided and abetted the actual killing itself, such as by being present to render assistance in the killing itself if it becomes necessary, will almost always be a jury question.' 42 Ala.Law at 469. See also Tomlin v. State, 443 So.2d 47, 53 (Ala.Cr.App.1979), affirmed, Ex parte Tomlin, 443 So.2d 59, 64 (Ala.1983)." Lewis v. State, supra, at 418. The trial court did not err in denying the appellant's motion for judgment of acquittal at the close of the State's evidence.

II

The appellant argues that the trial court erred by allowing the prosecution to use the appellant's statement which reflected other purse snatchings and the theft of automobiles, as well as allowing the State, during its cross-examination of the appellant, to ask about two robberies committed prior to the shooting and one robbery in which the appellant used the same pistol to rob a lady of a necklace.

The record indicates that a motion to suppress was held concerning the appellant's statement. The trial court excluded any statements made concerning the robberies on the night prior to the day of the offense. Thereafter, the trial court asked the State's witness, the officer who took the appellant's statement, to find the mention, in the appellant's statement, of the other crimes. The following transpired on voir dire:

"THE WITNESS: Rowell stated that Mike, last name unknown, took several ladies' purses at different...