Wilson v. State

• Decision Date: 21 February 1978
• Docket Number: 1 Div. 866
• Parties: Thomas Milton WILSON alias Tommy Wilks v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 932

371 So.2d 932

Thomas Milton WILSON alias Tommy Wilks v. STATE.

1 Div. 866.

Court of Criminal Appeals of Alabama.

Feb. 21, 1978.

Rehearing Denied March 21, 1978.

Al Pennington and Reggie H. Stephens, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State, for appellee.

BOWEN, Judge.

The appellant was indicted and convicted of capital murder under those portions of the Alabama Death Penalty Statute prohibiting any murder committed by a defendant who has been convicted of murder in the first or second degree in the twenty years preceding the crime or any murder committed while the defendant is under a sentence of life imprisonment. Sections 13-11-1 through 9, Code of Alabama 1975. Punishment was fixed at death in the electric chair. Both at trial and on appeal the appellant is represented by court appointed counsel.

The facts reveal that Joe Lee Gilliland, the deceased, rented a room in a house trailer owned by Mrs. Mary Helen Leonard. Mrs. Leonard and her two sons also lived in the trailer. Mrs. Leonard, Gilliland, and the appellant were old acquaintances, and on the day before the shooting, which occurred on November 22, 1976, the appellant and Gilliland had been drinking together in the trailer.

On the evening of the shooting, Mrs. Leonard had been with the appellant at a local "beer joint" and had asked him to drive her home because someone had borrowed her automobile. Mrs. Leonard and the appellant arrived at her trailer in the appellant's car and went inside where Mrs. Leonard's two sons were watching television. Gilliland was in his room lying in bed. No one else was in the trailer. Mrs. Leonard left the appellant in her dining room while she went to her bedroom to use the bathroom and put on her house shoes. While Mrs. Leonard was in the bedroom and her sons were watching television a shot was heard.

Mitchell Leonard, Mrs. Leonard's sixteen year old son, ran to Gilliland's room and discovered that Gilliland had been shot in his bed. Anthony Crooms, Mrs. Leonard's youngest son, ran out the front door of the trailer to get his sister and her husband who lived next door. Anthony saw the appellant run across the yard and leave in his automobile.

No one had seen the appellant enter Gilliland's room, shoot him or exit the trailer. After the shooting, the appellant was not to be found in Mobile, Alabama. Expert testimony attributed the cause of Gilliland's death as being a gunshot wound with massive injury to the brain and massive hemorrhage.

In December of 1976 the appellant was arrested at his mother's home in Decatur, Alabama. Upon his arrest, the appellant identified himself as Joe Gilliland and produced a temporary driver's license and a Red Lounge membership card issued to Joe Gilliland. These were the only items of identification contained in the appellant's wallet.

The Assistant Chief of Police for LaGrange, Georgia, testified that this very same appellant had received a life sentence for murder in Georgia in 1969.

Immediately after the state rested its case, the defense rested without interposing any motion or objection to test the sufficiency of the evidence against the appellant. The attorneys presented their closing arguments to the jury, the trial judge charged the jury, and after due deliberation, the jury found the appellant guilty as charged in the indictment.

The following day a hearing was held on the aggravating and mitigating circumstances as required by statute to determine whether the trial judge would sentence the appellant to death or to life imprisonment without parole. At the conclusion of the hearing the court made formal findings of fact. The trial judge found that there were "absolutely no mitigating circumstances" and that "the aggravated circumstances are overwhelming". Particularly, the court found that on May 14, 1969, the appellant was convicted in the Superior Court of Troop County, Georgia, of murder, with a verdict of guilty recommendation of mercy, with a sentence of life during his natural life; that on March 11, 1977, the appellant was convicted of robbery in the Circuit Court of Morgan County, Alabama, and given a sentence of twenty years in the penitentiary ¹; that on February 24, 1976, the appellant was sentenced to life in the Mississippi State Prison on a charge of armed robbery, the sentence to run consecutively with the appellant's life sentence in Georgia; and that a 1964 charge of second degree murder against the appellant had been nol prossed. The court also found that the appellant had a "long, significant history of prior criminal activity". In its findings of fact the trial judge also stated that

"(t)he circumstantial evidence was rather overwhelming that Mr. Joe Gilliland was killed while he apparently was flat on his back in bed in his underclothes for no apparent reason . . . . The Court felt that the killing was about as senseless an act or uncalled for act as it has tried at anytime."

I

The appellant initially argued that the Alabama Death Penalty Statute is unconstitutional because a mandatory death penalty upon a finding of guilt without any consideration of aggravating or mitigating circumstances (by the jury) violates the Eighth and Fourteenth Amendments to the Constitution of the United States; because the post-jury verdict process violates due process by requiring the defendant, who is sentenced to die, to prove to the court why he should not die; and because the appellate review provided in the death penalty statute is inadequate to comply with constitutional demands.

Each of these arguments has been previously disposed of by this court and the constitutionality of the Alabama Death Penalty Statute upheld initially in Jacobs v. State, 361 So.2d 607 (Ala.Cr.App., 1977) and subsequently affirmed in Jacobs v. State, 371 So.2d 429 (Ala.Cr.App., remanded for further proceedings, 1977) and Ritter and Evans, III v. State, 361 So.2d 654 (Ala.Cr.App., 1977); and Cook v. State, 369 So.2d 1243 (Ala.Cr.App., 1977). Since the appellant has raised no new or additional reason for invalidating the death penalty which we have not previously considered, we hereby reaffirm the constitutional soundness of that statute.

II

The appellant contends that the trial court erred to a reversal in excusing a juror for cause contrary to the admonition of the Alabama Supreme Court in Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971), that, in a capital case, a juror cannot properly be excused for cause solely upon his answer that he has a fixed opinion ("conscientious scruples", "opposition") to capital punishment. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Howard v. State, 287 Ala. 435, 252 So.2d 304 (1971); Jackson v. State, 285 Ala. 564, 234 So.2d 579 (1970). A prospective juror may be excused for cause where he has been examined by the trial judge and a determination made that the juror's feelings as to capital punishment are sufficiently strong so that he would automatically refuse to impose a death sentence regardless of the evidence produced at trial and despite of the instructions of the trial court. Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777. In accordance with the general law that allows a juror who is not impartial to be challenged for cause, a prospective juror may properly be excused for cause where his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt. Witherspoon, 391 U.S. 522, n. 21, 88 S.Ct. 1770. ²

A person who has a "fixed opinion against" or who does not "believe in" capital punishment might nevertheless be perfectly able as a juror to abide by the existing law and follow conscientiously the instructions of a trial judge and consider fairly the imposition of the death sentence in a particular case. Boulden, supra; Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221. Thus when a juror indicates his beliefs against, scruples, or aversions to the death penalty, it becomes incumbent upon the trial court to ascertain whether the juror, notwithstanding his beliefs or scruples, would be able to impartially consider the issues with respect to the defendant's guilt, and, after having determined the defendant's guilt, be able to consider all the penalties provided by law, including the death penalty.

In determining whether a prospective juror should have been disqualified from a capital case because of his opposition to capital punishment, the critical question for the reviewing court is not how the phrases employed in this area have been construed by the courts and commentators, but how they might be understood or misunderstood by prospective jurors. Boulden, supra. Whether a juror evidences absolute opposition to the death penalty so as to be excludable for cause under Witherspoon is a difficult question subject to seemingly inconsistent results on similar facts. Annotation: Beliefs regarding capital punishment as disqualifying juror in capital case post-Witherspoon cases, 39 A.L.R.3d 550.

Five jurors were challenged for cause by the state and excused because of their opinions on capital punishment. The trial court began its qualification of the veniremen on capital punishment with the following question:

"Is there any juror who has a fixed and an abiding conviction against a legal punishment of death by electrocution? Those of you in Panel 1 who have such a fixed and abiding against a legal punishment of death by electrocution, please stand."

Defense counsel objected to this question and after overruling the objection the court continued to question the veniremen.

"Did anyone in Panel 1 state that you had a fixed and abiding conviction against a legal punishment of death by electrocution that would prevent you from imposing a guilty verdict in this case which is the only verdict you can...