Waldrop v. State

• Decision Date: 30 June 2000
• Parties: Bobby Wayne WALDROP v. State.
• Court: Alabama Court of Criminal Appeals

859 So.2d 1138

Bobby Wayne WALDROP v. State.

CR-98-2316.

Court of Criminal Appeals of Alabama.

June 30, 2000.

Opinion on Return to Remand December 1, 2000.

Rehearing Denied March 23, 2001.

Kathleen B. Morris, Montgomery, for appellant.

William H. Pryor, Jr., atty. gen., and James R. Houts, asst. atty. gen., for appellee.

FRY, Judge.

The appellant, Bobby Wayne Waldrop, was convicted of three counts of capital murder: two counts of murder committed during a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; and one count of murder wherein two or more persons are murdered pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10). The jury, by a vote of 10-2, recommended that Waldrop be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury's recommendation and imposed the death sentence.

We note at the outset that the sentencing order contains several errors that may affect the trial court's imposition of the death sentence; therefore, we will provide only a brief recitation of the evidence presented at trial, address only the issues relating to the sentencing order, and pretermit discussion of the remaining issues raised by Waldrop on appeal until we have received a new sentencing order. Cf. Coral v. State, 628 So.2d 954, 973 (Ala.Cr.App. 1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994).

Testimony presented at trial indicated that Waldrop and his wife Clara Waldrop resided with Waldrop's grandparents, Sherrell and Irene Prestridge. Sherrell had heart and hip problems and had difficulty walking. Irene was bedridden and blind and suffered from diabetes. Because of Sherrell's and Irene's infirmities, the living room of their house had been converted into a bedroom with two hospital beds where they slept. Testimony indicated that Waldrop knew that Sherrell and Irene received their Social Security checks on the first and the third of each month.

At some time between 10:30 a.m. and 2:00 p.m. on April 5, 1998, Waldrop and Clara left the Prestridge's house and checked into a hotel in Anniston. At 1:00 p.m. that same day, Clara and Waldrop pawned Sherrell's lawn mower. That afternoon Waldrop smoked an undetermined amount of crack cocaine.

During the evening of April 5, Clara and Waldrop returned to the Prestridge's house. Testimony indicated that Waldrop was not high when he returned to the house. While in his grandparents' bedroom, Waldrop and Sherrell began arguing about money. Waldrop stabbed Sherrell with a knife, and a scuffle ensued. Waldrop cut Sherrell's throat and attempted to choke him. Because Sherrell appeared to be breathing, Waldrop continued to stab Sherrell several times. In a statement Waldrop made to the police, which was introduced at trial, Waldrop stated that "[i]t looked like [Sherrell] was suffering." (C. 182-84.) After Waldrop stabbed Sherrell in the back, he appeared to stop breathing. Testimony indicated that Irene was screaming loudly throughout the incident.

After killing Sherrell, Waldrop went outside and removed gloves from the trunk of his car. Waldrop returned to the house and instructed Clara to kill Irene. Both Waldrop and Clara then put on gloves.

Clara cut and stabbed Irene approximately two times. Waldrop grabbed the knife Clara had in her hand, put a pillow over Irene's face, and stabbed Irene in the chest and the throat. During a videotaped statement, Waldrop stated that, before he stabbed Irene, she told him that she loved him. Additionally, a statement Christy Waldrop, Waldrop's sister, made to the police revealed that Waldrop had told her that, during the incident, Irene told Sherrell that she loved him and that she would see him in heaven. (R. 862-63.)

After the killings, Waldrop went into the bathroom and cleaned off the blood. Waldrop instructed Clara to take Sherrell's wallet. Clara took the wallet out of Sherrell's back pocket and put it in her purse. Waldrop put the clothing he was wearing during the killing and the knives in a plastic bag, and he and Clara left the house. Waldrop threw the bag into the river.

Gregory Wanger, a forensic pathologist, testified that he performed autopsies on the bodies of Sherrell and Irene Prestridge. Wanger stated that Sherrell sustained 43 stab and cut wounds to the head, neck, back, and chest, and that Irene sustained 38 stab and cut wounds, including wounds to the heart and lungs.

Dr. Tackett, a professor of pharmacology and toxicology, testified concerning the addictive nature of crack cocaine. Dr. Tackett stated that, in his opinion, Waldrop was addicted to cocaine. According to Dr. Tackett, he believed that Waldrop was craving crack cocaine at the time of the killings, and that Waldrop killed his grandparents in an effort to obtain money to acquire more crack cocaine. Dr. Tackett stated that, in his opinion, using crack cocaine creates a strong craving for more crack cocaine, and the acquisition of more cocaine can become the dominant goal in an addicted person's life.

I.

Waldrop contends that, in sentencing him to death, the trial court improperly considered criminal activities that had not resulted in a conviction. (Issue II(B)(i) in Waldrop's brief to this Court at p. 60.) Waldrop argues that, after the jury voted 10-2 to recommend a sentence of life imprisonment without parole, the trial court improperly relied on Waldrop's history of drug activity before and immediately following the commission of the murders, and on his theft of his grandfather's lawn mower earlier on the day of the murders to sentence him to death.

In support of his argument that the trial court improperly considered this prior criminal activity, Waldrop points to the following statement in the trial court's sentencing order:

"Insofar as this Court is concerned, the defendant has no significant history of prior criminal activity; and the Court finds this to be a mitigating circumstance, albeit a weak one. The defendant testified to commission of criminal activity in the form of purchasing, possessing, smoking, and distributing crack cocaine during the time prior to and immediately following commission of the capital offenses. The evidence shows that he stole a lawn mower and pawned it on the day of the killings. The clear evidence of significant criminal activity for which the defendant was not convicted undermines any real weight for this mitigating circumstance."

(C. 166.) (Emphasis added.)

In Cook v. State, 369 So.2d 1251 (Ala. 1978), the Alabama Supreme Court addressed a similar issue. In Cook, the Court stated:

"We also find error in the trial court's application of one of the enumerated mitigating circumstances, `(1)—The defendant has no significant history of prior criminal activity.' The key word in this provision is significant. Thus the trial judge erred when he determined that Cook had no significant history `but he does have a history' and proceeded to detail Cook's criminal background in his findings of fact. The legislature has indicated that lack of a significant criminal history should operate in a convicted individual's favor. A court cannot qualify this provision by relying on prior criminal activity which does not rise to the level established by the legislature."

369 So.2d at 1257. (Emphasis in original.) In Cook, the Court further stated, "This fundamental tenet of our system of justice prohibits use against an individual of unproven charges in this life or death situation." 369 So.2d at 1257.

"Only convictions can negate the statutory mitigating circumstance of no significant history of prior criminal activity. § 13A-5-51(1), Ala.Code 1975; Freeman v. State, 651 So.2d 576, 597-98 (Ala. Crim.App.1994)." Ex parte Burgess, 811 So.2d 617, 623 (Ala.2000). See Parker v. State, 587 So.2d 1072, 1098 (Ala.Cr.App. 1991) (rejecting the mitigating circumstance of no prior criminal activity on the ground that the defendant had used illegal drugs was improper); Hallford v. State, 548 So.2d 526, 544 (Ala.Cr.App.1988) (testimony that the defendant had had an incestuous relationship does not rebut the mitigating circumstance of no prior criminal activity); Freeman v. State, 651 So.2d 576, 598 (Ala.Cr.App.1994) (where a defendant had a juvenile record, but did not have a significant adult criminal record, rejecting the mitigating circumstance of no prior criminal activity was error).

The statements in the trial court's order reflect that the trial court improperly relied upon Waldrop's alleged criminal activity which did not result in convictions to provide a basis for sentencing him to death. Although the trial court determined that Waldrop did not have a significant criminal history, it concluded that this mitigating circumstance would carry little weight when Waldrop's criminal activities that had not resulted in convictions were considered. Because the trial court accorded less weight to the mitigating circumstance by considering Waldrop's activities which did not result in convictions, this cause must be remanded for the trial court to reweigh the mitigating and aggravating circumstances and to give this mitigating circumstance the appropriate weight.

In Davis v. State, 718 So.2d 1148 (Ala. Cr.App.1995), aff'd, 718 So.2d 1166 (Ala. 1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999), the trial court, in finding that the statutory mitigating circumstance of no significant history of prior criminal activity did not exist, improperly considered juvenile adjudications. However, this Court determined that in light of the fact that Davis had several misdemeanor convictions and one felony conviction, the mitigating circumstance was sufficiently negated. This Court concluded that in light of Davis's criminal record and the trial court's consideration of that record, any error in the trial court's considering Davis's juvenile record as part of his history of criminal activity was...