Watters v. State

• Decision Date: 30 May 1978
• Docket Number: 6 Div. 730
• Citation: 369 So.2d 1262
• Parties: Timothy WATTERS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1262

369 So.2d 1262

Timothy WATTERS v. STATE.

6 Div. 730.

Court of Criminal Appeals of Alabama.

May 30, 1978.

Rehearing Denied June 30, 1978.

J. Wilson Dinsmore and D. Larry Waites, Dinsmore & Waites, Birmingham, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and James L. O'Kelley, Asst. Atty. Gen., Birmingham, for appellee.

BOWEN, Judge.

The appellant was indicted under the Alabama Death Penalty Act for attempted robbery when the victim is intentionally killed. This Act is now codified as Section 13-11-2, Code of Alabama 1975. Forty-seven minutes after the jury began their deliberations they found the appellant guilty as charged.

The appellant is represented by court appointed counsel both at trial and on appeal. Application for youthful offender treatment was waived.

The state's evidence was not contradicted. On August 11, 1976, at approximately 3:15 that afternoon, Mrs. Chester L. Brown, her husband, Army recruiter Sergeant Larry D. Moss, and another Army recruiter were present in the Office of the Army Recruiter in Ensley, Alabama. Next door to this office is the Nu-Way Shoe Rebuilders which had been operated by Anthony Joseph Campisi for thirty-eight years. These two offices are immediately adjacent to each other and the only two offices to occupy the building which was owned by Mrs. Brown.

At approximately 3:15 that afternoon these individuals heard a "blast", "explosion", or a "loud noise" just as Mrs. Brown was leaving the recruiting office. Immediately they ran next door to the shoe shop. As Sergeant Moss opened the door to the shoe shop, the appellant came out and said either, "That man in there has been shot in the back", or, "He's in the back". "He's been shot."

The appellant shoved Mrs. Brown aside and ran down the street. He was wearing a green Army fatigue jacket bearing the name of "Jones" and a black cap. Sergeant Moss entered the store and found Mr. Campisi holding his chest "beginning to go down saying 'help me' ". The Sergeant then ran to the nearby police station.

The appellant was seen running through traffic within a block of the shoe store. Portia Mahoney identified him and testified that he had a gun hanging under his jacket because she could see the handle protruding from underneath his jacket. She stated that this handle was too large for a pistol. She saw the appellant run up in front of a blue automobile parked in an alley, get "under it in some kind of way" and "fumble around up under there".

Michelle Turner, Ms. Mahoney's cousin, corroborated this testimony to the extent that she saw a male running across the street and noticed the handle of a gun under his jacket. However she could not identify the man as the appellant.

Ms. Mahoney told a police officer what she had seen. Birmingham Police Officer J. L. Sumner proceeded to the alley. Under a parked car he found a sawed-off shotgun and an Army fatigue jacket with the name "Jones" on it. A black leather cap was also discovered.

The appellant's fingerprints were found on the front door of the shoe shop. Investigating officers found the cash register closed. It contained seventeen dollars and eighty cents. Seven dollars and ninety-five cents in loose change and rolls of pennies were found next to and on a shelf underneath the cash register. A total of twenty-five dollars and seventy-five cents was found in the store.

Expert testimony revealed that Mr. Campisi was shot with a shotgun in the back area of the left shoulder. This caused massive hemorrhage which resulted in his death. The "shot piston" and the wadding from the shotgun shell were found in the wound.

The appellant was arrested around 6:15 or 6:30 P.M. on the evening of August 12, 1976, at a residence in Pratt City. He was advised of his constitutional rights and transported to City Hall. At 7:40 P.M. the appellant confessed to the shooting. This concluded the evidence presented by the state.

The thrust of the defense was that the appellant was mentally retarded and, for that reason, incapable of a knowing and intelligent waiver of his constitutional rights and therefore unable to give a voluntary confession.

Dr. Allen Shealy is a clinical psychologist. He was serving as Chief of the Psychology Service of the Veteran's Hospital in Birmingham and Associate Professor in Clinical Psychology at the University of Alabama in Birmingham Medical School. On January 14, 1977, he spent "a little better than two hours" with the appellant. During this time, Dr. Shealy conducted a psychological evaluation of the appellant which consisted of an interview as well as the administration of the Wechsler Adult Intelligence Scale test, the Graham-Kimbrell Memory for Designs test to screen out any kind of gross neurological problems for brain damage and a test to measure emotional stability adjustment called the Rorschach Inkblot test.

Dr. Shealy determined the appellant to have an I.Q. of 69 and a mental age of twelve years and five months. He found the appellant to be within the diagnostic range of mentally retarded within that level of mental retardation described as borderline.

The tests administered by Dr. Shealy revealed that the appellant did very poorly on his ability to think abstractly. The appellant was below normal in comprehensive ability.

Dr. Shealy stated that a person with an I.Q. of 69 would have difficulty understanding abstract terms in general. He testified that he did not believe that the appellant would understand the word "waiver", the phrase "you have the right to remain silent", doubted that he understood the concept of lawyer being appointed and the concept of legal rights. A person with an I.Q. of 69 would be susceptible to coercion and persuasion.

The doctor testified that the appellant would not understand the Miranda warning but would understand the questions asked him in his confession.

According to Dr. Shealy the appellant is not psychotic. He did not determine the emotional age of the appellant. He felt that the appellant did the best he could on the tests and did not "fake".

The father of the appellant testified that the appellant was born on December 28, 1959. No certificate of birth was ever obtained. With this evidence, the defense rested.

I

Initially the appellant contends that the imposition of the death penalty in this particular action constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution.

The Supreme Court of the United States has held that the death penalty does not per se violate the Eighth Amendment and is not in and of itself cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). This court initially upheld the constitutionality of the death penalty as imposed by statute in Alabama in Jacobs v. State, 6 Div. 389, 361 So.2d 607 (Ala.Cr.App.1977). Subsequent decisions have affirmed this position.

By Section 13-11-5, Code of Alabama 1975, the judgment of conviction and sentence of death are subject to automatic review. Exercising this right we are convinced that the imposition of the death penalty in this particular case does not constitute cruel and unusual punishment nor was it imposed in an unconstitutional manner.

At a hearing held to determine whether the court would sentence the appellant to death or to life imprisonment without parole the trial court heard evidence on the aggravating and mitigating circumstances surrounding the crime.

The state and the defense stipulated that on April 27, 1976, the appellant robbed a U-Totem store in Ensley, Alabama, and shot James B. Hutchinson during the process. Mr. Hutchinson survived. The appellant was convicted and sentenced to life imprisonment.

It was also stipulated that on August 10, 1976, the appellant shot, with a shotgun, and killed a taxicab driver, Raymond Lewis Bard, in the city of Birmingham; that the confession given on August 13, 1976, by the appellant was a true statement and an admission by the appellant that he shot and killed Mr. Bard.

It was further stipulated that Dr. Allen Shealy, if called, would give the same testimony he did during the trial.

At the hearing the state called Braxton Eugene Baker, Principal of Vincent High School, Shelby County, Alabama, who produced the elementary and high school records of the appellant. These records reveal that the appellant was a very poor student whose attendance was also very poor. The highest grade level attended by the appellant was one semester in grade nine.

The father of the appellant, Lorenzo Watters, stated that, when the appellant was young, he had to take him to the hospital for some kind of "spell" or "fit" which he characterized as "epilepsy fits". Although his son "had them fits a lots" he only took him to the hospital twice because he was poor. The appellant had a "hard one" (fit) in 1972.

After hearing this testimony and receiving the stipulations, the trial judge stated his finding of facts.

"If this were the only time this Defendant had committed this offense, I can't say for sure, but I would say that I would carefully consider commuting this sentence to life without parole. But the Defendant, for whatever reason, and I can't look into his mind, has demonstrated that he is you may sympathize and I do with him and his family and his station in life totally devoid of human emotion. Reading this statement that I have just read in the Bard case ¹ totally convinces me of that. He shot Mr. Bard one time with the sawed-off shotgun, and then he reloaded it and shot him again. Totally devoid of human compassion or understanding. I think that the mitigating factors in this case, I don't think, and I had read these closely, that the Legislature put in there Intelligence Quota.

". . . (T)he Defendant at the time of the commission of this offense was 17 years old and his he is now 18 at this date, and I consider that as a mitigating circumstance. I consider 17 a mitigating...