Thigpen v. State

• Decision Date: 16 August 1977
• Docket Number: 3 Div. 656
• Parties: Donald THIGPEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 392

355 So.2d 392

Donald THIGPEN v. STATE.

3 Div. 656.

Court of Criminal Appeals of Alabama.

Aug. 16, 1977.

Rehearing Denied Oct. 4, 1977.

John L. Jernigan, III, of Stokes & Jernigan, Brewton, for appellant.

William J. Baxley, Atty. Gen., Larry R. Newman, Montgomery, and G. Guy Hayes, Asst. Attys. Gen., for the State.

TYSON, Presiding Judge.

Donald Thigpen was charged by indictment with the first degree murder of one Henry Lambeth. Such indictment also included reference to a prior first degree murder conviction of the appellant. The jury found the appellant guilty of first degree murder, as charged, and fixed punishment at death by electrocution pursuant to the provisions of Title 14, Section 319, Code of Alabama 1940. The trial court entered judgment accordingly.

Birmingham City Police Officer O. C. Ellard identified the appellant, Donald Thigpen, as being the same person who was previously convicted in the Circuit Court of Jefferson County, Alabama for first degree murder (Jefferson County Circuit Court No. 22727). See Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922. A certified copy of the prior judgment was then received in evidence.

Mr. Winston Grant, a dog trainer with the State Board of Corrections, testified that on the morning of April 17, 1975, he arrived at a deserted barn located on a field approximately one-half mile from the home of the deceased, Henry Lambeth. Grant was aware of an escape involving some eleven inmates of the Holman Prison the preceding day. He indicated that the body of an elderly white male was propped up in a window of the deserted barn. The body was later identified as Lambeth. Blood stains were observed just below the window on the ground and also just below a fence, approximately twenty feet from the barn. Grant observed some fence poles lying on the ground, and one of these had blood stains on it. Also found near the fence was an ax or hatchet, and on the fence was a patch of "Negroid hair." Mr. Grant also backtracked footprints which led back into the woods in the direction of Holman Prison, a distance of three miles. Mr. Grant then notified other law enforcement officials who secured the area and delivered the items of physical evidence to the State Toxicology Office for examination.

Dr. James L. Small of the State Department of Toxicology testified that he performed an autopsy on the body of Henry Lambeth. An examination revealed the skull had been fractured, and Dr. Small stated that in his opinion death resulted from hemorrhage, bleeding, and trauma to the brain and skull associated with blows to the head. Dr. Small's testimony indicated that a blunt instrument was used to inflict these blows and also a "V-shaped" laceration to the skull was consistent with a wound from the ax or hatchet.

Dr. Small also testified that he examined and tested clothing worn by the appellant, Donald Thigpen, during his escape from Holman Prison. He stated that he found human blood on appellant's blue jeans, shirt, and undershirt. Tests revealed that this blood was "Group O," the same as the victim's, Lambeth (Volume II, R. pp. 104-108). ¹

Moreover, tests revealed that the hairs found on the barbwire fence near the barn, where the victim's body was found, were "Negroid human hairs." Subsequent tests Alabama State Trooper Frank Bracken testified that on April 17, 1975, he was driving on Interstate Highway 65, North of Evergreen, Alabama, when he observed a pickup truck speeding. He and his companion, an auxiliary deputy, gave pursuit at speeds up to 80 and 90 miles per hour. Upon stopping the pickup truck, the appellant and his companion, Pedro Williams, were apprehended. Noticing that the two men were dressed in prison garb, Trooper Bracken asked them about the pickup truck in which they were riding, after first giving them a full Miranda warning. The appellant, Donald Thigpen, stated that they had stolen it from a man who was feeding cows in a pasture (Volume II, R. p. 59). Trooper Bracken then radioed for assistance, and State Trooper Lambert picked up Thigpen and his companion, Pedro Williams, and took them back to Holman Prison. The pickup truck was taken to the State Troopers' Office in Evergreen where Mrs. Lambeth, wife of the victim, and her son recovered same.

run on the ax found near the murder scene revealed no fingerprints which were legible, nor any traces of blood.

Mrs. Henry Lambeth, wife of the victim, testified that on the morning of April 17, 1975, her husband arose around 4:00 o'clock, dressed in overalls, and advised her that he was going to repair a fence in a pasture. She last saw him at 6:00 o'clock as he drove away in the pickup truck, which he owned, to the pasture. She stated that she was later notified that the pickup truck was at the State Trooper's Office in Evergreen, and that her son took her there to get it.

Mr. Lambeth's (the deceased's) daughter-in-law, Melba Lambeth, gave the victim's age as 68 (Volume II, R. p. 25).

The appellant's motion to exclude the State's evidence was overruled.

Appellant called Pedro Williams, his accomplice. Williams testified that he and the appellant were present on the morning of April 17, 1975, at the scene where Mr. Lambeth's body was found (Volume II, R. p. 118). He testified that he and Thigpen had escaped from Holman Prison the preceding day, and had hidden in the woods during the night. Williams testified that he had plead guilty to a second degree murder charge arising from the death of Mr. Lambeth and received a 99 year sentence.

Williams then indicated that it was he who took the fence pole and struck Mr. Lambeth in the head, which caused his death. He stated that he and Thigpen then took the victim's body and propped it up in the window of the barn and fled in Lambeth's pickup truck, then was subsequently arrested by State Troopers on Interstate 65 near Evergreen.

Donald Thigpen took the stand in his own behalf and testified as to his escape with Williams and nine other inmates from Holman Prison on April 16, 1975. He stated that he and Williams separated from the others and spent the night of April 16-17, 1975, wandering in the woods, a few miles from the prison. Early the following morning, Thigpen indicated that Williams saw an elderly white man working on a fence in a pasture, and they approached him. He stated they asked Mr. Lambeth if they could help him, and he told them he did not need any help. He stated that Williams then took a fence pole and struck Lambeth in the head, and that he helped Williams take the body to the barn and place it in a window. He denied striking Mr. Lambeth with either a pole or an ax, but stated that Williams had killed Lambeth. Thigpen stated that he and Williams drove off in Lambeth's pickup truck and were subsequently arrested on the Interstate by State Troopers.

I

The attorneys for the appellant did not challenge the constitutionality of the death penalty here imposed pursuant to Title 14, Section 319, Code of Alabama 1940.

Nevertheless, this Court is compelled to address this issue since the appellant was convicted of first degree murder while serving a life sentence for first degree murder (See Thigpen v. State, 50 Ala.App. 176, 277 In Roberts v. Louisiana, 428 U.S. 325, 334, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974, the Supreme Court of the United States stated:

So.2d 922), and a sentence of death by electrocution was imposed by the trial judge and jury.

"Only the third category of the Louisiana first-degree murder statute, covering intentional killing by a person serving a life sentence or by a person previously convicted of an unrelated murder, defines the capital crime at least in significant part in terms of the character or record of the individual offender. Although even this narrow category does not permit the jury to consider possible mitigating factors, a prisoner serving a life sentence presents a unique problem that may justify such a law. See Gregg v. Georgia, ante, 428 U.S. (153) at 186, 96 S.Ct. (2909) p. 2931 (49 L.Ed.2d 859); Woodson v. North Carolina, ante, 428 U.S. (280) at 287 n. 7, 292-293 n. 25, 96 S.Ct. (2978) p. 2983 n. 7, 2985 n. 25 (49 L.Ed.2d 944)." 428 U.S., at 334, 96 S.Ct., at 3006 (emphasis added).

In Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977), the Supreme Court of the United States once again expressed the view that the constitutionality of a mandatory death sentence for a prisoner who commits first degree murder while serving a life sentence was an open question. This court, therefore, adheres to the views expressed by us in Harris v. State, Ala.Cr.App., 352 So.2d 460 (1 Div. 623), which upholds the constitutionality of Title 14, Section 319, supra.

II

Appellant contends that the trial court erred in denying, in part, his "motion for production and inspection" which consisted of the following items (Volume I, R. p. 41):

"1. Any statement, if written, or notations by investigative authorities of verbal recitations made by the defendant, if the same are to be used in the trial of the defendant.

"2. Any statement, if written, or notations by investigative authorities of verbal recitations and/or written recitations made by any person in connection with the investigation of the alleged crime of which the defendant has been accused.

"3. Any medical, scientific, chemical or toxicologist reports received by the investigative authorities in connection with the crime of which the defendant has been accused.

"4. Inspection of clothing, weapons, or any other real evidence becoming a part of the investigation of the crime of which the defendant is accused, including, but not limited to, photographs taken by the investigative authorities.

"5. Statements of any and all witnesses taken by the investigative authorities in connection with their investigation of the crime of which the defendant is accused."

At the pretrial hearing on said motion, the State informed appellant's counsel that there was...