Stewart v. State

• Decision Date: 01 May 1992
• Docket Number: CR-90-415
• Parties: Charles Randall STEWART v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 491

601 So.2d 491

Charles Randall STEWART v. STATE.

CR-90-415.

Court of Criminal Appeals of Alabama.

May 1, 1992.

Michael P. O'Connor, Montgomery, Stephen D. Giddens, Talladega, and George R. Giddens, Anniston, for appellant.

James H. Evans, Atty. Gen., and Gail Ingram Hampton and Sandra D. Stewart, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Charles Randall Stewart, was convicted of murder, made capital because it was committed during the course of a burglary and a kidnapping. In a vote of 10 to 2, the jury recommended death. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

Several issues raised by the appellant on appeal were not objected to at trial. While this will not bar our review in a case involving the death penalty, it will weigh against any claim of prejudice. See Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). Rule 45A, A.R.App.P., states:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review ... whenever such error has or probably has adversely affected the substantial right of the appellant."

"[This] plain-error exception to the contemporaneous-objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982).

I

The appellant initially argues that his constitutional protection against double jeopardy was violated when he was tried and convicted of six counts of capital murder. The appellant was indicted for four counts of murder during the course of a burglary (§ 13A-5-40(a)(1)) and two counts of murder during the course of a kidnapping (§ 13A-5-40(a)(4)). He was convicted on all six counts.

It appears from the court's conversation with counsel prior to trial that the court expected the state to elect which counts to present to the jury. The trial court stated:

"I've read the indictment, and I believe it's going to be a question at the close of the evidence of the State having to elect, rather than to quash it at this time. I think the counts are good, but I think they are duplicitous. I don't think they could travel both ways. I think they would have to elect at the close of this--well, the State's evidence or the Defendant's.

"Mr. Giddens [Defense Counsel]: Would they have to, Judge, elect on one of the six?

"The Court: I think that they have to elect on two out of the first four counts of the indictment as I read the indictment."

After this occurred, nothing further was said about the state's electing between counts. The six indictments show that the appellant was charged with four counts of intentional murder during the course of a burglary and with two counts of murder during the course of a kidnapping. In fact, the prosecutor alluded to the fact that the indictments were alternative ways of charging the appellant after the court's dialogue above. The four indictments charging murder during the course of a burglary merely detailed alternative ways of proving the elements of burglary. The two indictments charging murder during the course of a kidnapping alleged alternative methods of establishing the crime of kidnapping. We realize that "the purpose of the [alternative] counts was not to charge two or more separate offenses, but to vary the description of one and the same offense based upon one and the same transaction." Floyd v. State, 486 So.2d 1309, 1313 (Ala.Cr.App.1984), aff'd, 486 So.2d 1321 (Ala.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987). However, we do not have here a case like Floyd. In Floyd, the appellant was not convicted of all eight counts of capital murder but was convicted of only one count of capital murder. In the present case, the appellant was convicted on all six counts of capital murder. We do agree with the court in Floyd that the state would not have been required to elect which alternative counts under § 13A-5-40(a)(1) and § 13A-5-40(a)(4) would be presented to the jury. Alternative methods of proving the same crime "[do] not constitute separate offenses." Ex parte State [v. Sisson], 528 So.2d 1159, 1162 (Ala.1988). However, the appellant's conviction on all six alternative counts cannot stand. Thus, according to Sisson, the convictions on three counts of murder during the course of a burglary and on one count of murder during the course of kidnapping must be vacated. A person cannot be convicted for the same crime twice because to do so would violate the principles of double jeopardy. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed 306 (1932). (For an in depth discussion applying the principles of Sisson and Blockburger to facts similar to those in this case, see Judge Bowen's special concurrence opinion in King v. State, 574 So.2d 921 (Ala.Cr.App., 1990).)

However, the appellant could correctly be convicted for one count of capital murder as defined in § 13A-5-40(a)(1) (murder committed during the course of a kidnapping) and one count of capital murder as defined in § 13A-5-40(a)(4) (murder committed during the course of a burglary), Code of Alabama 1975, because convictions for these two offenses do not violate the principles of double jeopardy. As the United States Supreme Court stated in Grady v. Corbin, supra, "To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause, a court must first apply the traditional Blockburger test." Grady, 110 S.Ct. at 2090. Does one offense "requir[e] proof of a fact which the other does not?" Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. (Emphasis added.) Section 13A-5-40(a)(1) requires proof of a burglary and § 13A-5-40(a)(4) requires proof of a kidnapping.

The inquiry, however, does not cease there. If the Blockburger test is satisfied, "The critical inquiry [then] is what conduct the State will prove, not the evidence the State will use to prove that conduct." Grady, 110 S.Ct. at 2093. The two counts, one for intentional murder committed during a burglary and one for intentional murder committed during a kidnapping, pass the Blockburger test.

This court in Jackson v. State, 516 So.2d 726 (Ala.Cr.App.1985), remanded on other grounds, 516 So.2d 768 (Ala.1986), appeal dismissed on return to remand, 516 So.2d 774 (Ala.Cr.App.1987), faced a similar issue. The defendant in Jackson was convicted for two counts of capital murder, one count of murder during the course of a rape, and one count of murder made capital because two persons were murdered. Judge Patterson, in holding that the two convictions did not violate the double jeopardy principles announced in Blockburger, stated:

"The murder of [victim 1] was an element of both offenses, but each offense also required proof of an element that the other did not. Proof of the rape-intentional killing count did not require proof of the killing of [victim 2.] Proof of the double-murder count did not require proof of the rape of [victim 1]. We therefore conclude that under the test established in Blockburger, appellant was properly indicted and convicted for two separate and distinct capital offenses 'notwithstanding a substantial overlap in the proof offered to establish the crimes,' Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293, n. 17, 43 L.Ed.2d 616 (1975)."

516 So.2d at 763. Therefore, the appellant's convictions on one count of violating § 13A-5-40(a)(1) and on one count of violating § 13A-5-40(a)(4), are constitutional.

Regardless of what we do with this issue, it is clear that, technicalities aside, the jury intended that the appellant be found guilty of capital murder. We are reluctant to dismiss the decision of the court as to either aspect of capital murder. In any event, if error has occurred, the appellant can die but once.

For the reasons stated above, we remand this case to the Circuit Court for Talladega County so that that court may vacate three of the appellant's convictions for murder during the course of a burglary and one conviction for murder during the course of a kidnapping. One conviction under § 13A-5-40(a)(1) and one conviction under § 13A-5-40(a)(4) have been proven and will stand. The counts that are to be vacated are to be determined by the trial court. Our remand of this case for the court to vacate four of the appellant's convictions does not affect the appellant's sentence of death, because the two capital offenses--ss 13A-5-40(a)(1) and 13A-5-40(a)(4)--support a sentence of death.

II

We also find it necessary to remand the appellant's case on one additional ground. The appellant maintains that he was denied a fair and impartial trial because the spouse of a member of his jury sat on the grand jury that indicted him. The record is very sketchy in this regard. The juror pointed out to counsel during voir dire that his wife had been on the grand jury since September of that year. The appellant was tried in October, after he was indicted in September.

The fact that a juror's wife sat on the grand jury that indicted the appellant is not a statutory ground for striking that juror for cause. See § 12-16-150, Code of Alabama 1975. A juror may correctly be excused when he has an opinion or bias so fixed that it prevents him from trying the case fairly and impartially. Knop v. McCain, 561 So.2d 229 (Ala.1989); Ex parte Rutledge, 523 So.2d 1118 (Ala.1988). The dialogue in the instant case between counsel and the juror is very limited. Because this is a case involving the death penalty and because we find it necessary to remand this case on other grounds, we further remand this case to ...