Wright v. State

• Decision Date: 22 October 1985
• Docket Number: 1 Div. 86
• Citation: 494 So.2d 726
• Parties: Freddie Lee WRIGHT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 726

494 So.2d 726

Freddie Lee WRIGHT v. STATE.

1 Div. 86.

Court of Criminal Appeals of Alabama.

Oct. 22, 1985.

Rehearing Denied Nov. 26, 1985.

Daniel L. McCleave and Al Pennington of Pennington, McCleave & Patterson, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

In 1979, Freddie Lee Wright was indicted and convicted for the capital robbery of Warren Green and for the capital murder of both Warren and Lois Green under Alabama's 1975 Death Penalty Law. Alabama Code 1975, § 13-11-2(a)(2) and § 13-11-2(a)(10). Sentence was death by electrocution.

In 1981, this Court, 407 So.2d 565 (Ala.1981), reversed that conviction on appeal and remanded on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1980), and Ritter v. State, 403 So.2d 154 (Ala.1981), vacated and remanded, Alabama v. Ritter, 454 U.S. 885, 102 S.Ct. 376, 70 L.Ed.2d 200 (1981), on remand, Ritter v. State, 414 So.2d 452 (Ala.1981), vacated and remanded, Alabama v. Ritter, 457 U.S. 1114, 102 S.Ct. 2921, 73 L.Ed.2d 1326 (1982), on remand, 429 So.2d 928 (Ala.1983), because the 1975 Alabama Death Penalty Act precluded the jury from finding a defendant guilty of a lesser included offense.

In 1982, the 1981 reversal and remandment was vacated and remanded by the Supreme Court of the United States, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982), for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), which modified Beck by holding that a lesser included offense instruction must be given in a capital case "only when the evidence warrants such an instruction." Evans, 456 U.S. at 611, 102 S.Ct. at 2053, 72 L.Ed.2d at 373 (emphasis in original).

On motion of the Attorney General of Alabama, any further decision by this Court was held in abeyance pending the decision of the Supreme Court of the United States in Baldwin v. Alabama, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). In June of 1985, the United States Supreme Court decided Baldwin and held that Alabama's requirement under its 1975 Death Penalty Statute that a jury convicting a defendant of any one of a number of specified aggravated crimes return a "sentence" of death along with its guilty verdict did not render unconstitutional the death sentence imposed by the trial judge after independently considering the defendant's background and character and the circumstances of his crime. In 1981, Alabama's 1975 Death Penalty Act was repealed. § 13A-5-57(b); Baldwin, 472 U.S. at ----, n. 1, 105 S.Ct. at 2729, n. 1, 86 L.Ed.2d at 304, n. 1.

I

The defendant was tried and convicted under Alabama's 1975 Death Penalty Act prior to its condemnation because of its preclusion clause in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and prior to the clause's severance from the Act in Beck v. State, 396 So.2d 645 (Ala.1980). The arguments that the preclusion clause could not be severed from the remainder of the statute and that the defects in the statute could not be cured by showing a want of prejudice were rejected in Hopper v. Evans, 456 U.S. 605, 613-14, 102 S.Ct. 2049, 2054, 72 L.Ed.2d 367, 374-375 (1982), reversing Evans v. Britton, 628 F.2d 400 (5th Cir.1980), supplemented, rehearing denied, 639 F.2d 221 (5th Cir.1981).

In order to determine what effect the preclusion clause had on the defendant's conviction and sentence, we are guided by the test set out in Cook v. State, 431 So.2d 1322 (Ala.1983):

"The complete test to determine the effect of the preclusion clause on a pre-Beck trial was set out in Cook v. State, 431 So.2d 1322 (Ala.1983):

" '(1) Was there any evidence presented at trial upon which a conviction of a lesser included offense could have been based?

(2) If not, has the defendant suggested any plausible claim which he might conceivably have made, had there been no preclusion clause, that is not contradicted by his own testimony at trial? If the answer to both of these questions is no, then a conviction at trial is due to be affirmed.'

"Cook v. State, 431 So.2d at 1324. The first question is taken from Beck v. Alabama, supra. The second one was posed first in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982)." Ex parte Baldwin, 456 So.2d 129, 133 (Ala.1984).

See also Bryars v. State, 456 So.2d 1122, 1127 (Ala.Cr.App.1983), reversed on other grounds, Ex parte Bryars, 456 So.2d 1136 (Ala.1984) ("[A] case tried when the preclusion clause was in effect did not, necessarily, have to be re-tried."); Julius v. State, 455 So.2d 975 (Ala.Cr.App.1983), affirmed, Ex parte Julius, 455 So.2d 984 (Ala.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 817, 83 L.Ed.2d 809 (1985); Hill v. State, 455 So.2d 930, 933-34 (Ala.Cr.App.), affirmed, Ex parte Hill, 455 So.2d 938 (Ala.), cert. denied, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984); Tomlin v. State, 443 So.2d 47 (Ala.Cr.App.1979), affirmed, Ex parte Tomlin, 443 So.2d 59 (Ala.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2160, 80 L.Ed.2d 545 (1984). "A defendant convicted under § 13-11-2 of the 1975 statute is entitled to a new trial because of the preclusion clause in the statute if there was evidence introduced at trial which would have warranted a jury instruction on a lesser included offense or if the defendant suggests any plausible claim not contradicted by his own testimony which he might conceivably have made which would have entitled him to a jury instruction on a lesser included offense." Ex parte Tomlin, 443 So.2d at 62. See also Ritter v. Smith, 726 F.2d 1505, 1509-10 (11th Cir.1984); Ritter v. State, 429 So.2d 928, 935 (Ala.1983); Richardson v. State, 419 So.2d 289, 292-93 (Ala.Cr.App.1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983); Lane v. State, 412 So.2d 292 (Ala.1982).

The State's evidence proved that, during the course of a robbery in which the defendant was joined by Percy Craig, Roger McQueen, and Reginal Tinsley, the defendant executed Mr. and Mrs. Green at their Western Auto Store in Mount Vernon, Alabama. The defense was alibi. Although the defendant did not testify, defense witness Carl Harrington testified that the defendant was with him at the Ebony Club in Mobile at the time of the robbery-murders.

In applying the "complete test to determine the effect of the preclusion clause" on the defendant's conviction and sentence, Ex parte Baldwin, 456 So.2d at 133, we find no evidence presented at trial upon which a conviction of a lesser included offense could have been based.

" 'A court may properly refuse to charge on lesser included offenses when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense.' Wesley v. State, 424 So.2d 648, 652 (Ala.Crim.App.1982), Chavers v. State, 361 So.2d 1106 (Ala.1978). 'A defendant is likewise not entitled to charges on lesser included offenses when he denied committing the crime itself.' Williams v. State, 377 So.2d 634, 637 (Ala.Crim.App.), cert. denied, Ex parte Williams, 377 So.2d 639 (Ala.1979).

"In Cook v. State, 431 So.2d 1322 at 1325 (Ala.1983), this Court noted:

" '[W]hen a defendant takes the witness stand and testifies that, because he was in a distant location when the crime took place, he could not possibly have committed it, he has directly contradicted any evidence which he might later produce to show that he was guilty of a lesser included offense.'

"When, as in this instance, the only defense is one of alibi, a defendant is not entitled to instructions on lesser included offenses. Alldredge v. State, 431 So.2d 1358 (Ala.Crim.App.1983)." Ex parte Curry, 471 So.2d 476, 478 (Ala.1984).

Here, neither the evidence presented by the State nor that presented by the defense suggested a reasonable theory supporting a charge on a lesser offense. Ex parte Pruitt, 457 So.2d 456, 457 (Ala.1984). "A defendant is not entitled to charges on lesser included offenses where the only reasonable conclusion from the testimony is that he is guilty of the crime charged or no crime at all." Ex parte Kennedy, 472 So.2d 1106, 1114 (Ala.1985).

The defendant has failed to satisfy the second part of the preclusion-clause-effect test by failing to suggest "any plausible claim which he might conceivably have made, had there been no preclusion clause, that is not contradicted by his own testimony at trial." Cook, 431 So.2d at 1324.

The defendant argues that "(t)he main defense in the case at bar was that the State's witnesses who tied Freddie Wright to the offense were completely unworthy of belief." Appellant's Brief filed August 12, 1983, pp. 30-31. Based upon an overly restrictive interpretation of the preclusion clause effect test, it is argued that, since the defendant did not personally testify at trial, his "own testimony" could not contradict anything.

Although the defendant did not personally take the witness stand and testify, his defense was alibi and he presented a witness who testified that he was in Mobile at the time of offense in Mount Vernon. Contrary to the defendant's argument, this alibi defense negates any "plausible claim" that the defendant "could have been with Craig, McQueen, and Tinsley, but not known about nor participated in the murders ... [and] be guilty of robbery and not murder, or merely felony murder." Appellant's Second Supplemental Brief filed August 14, 1985, p. 11. We cannot accept the argument that, since the defendant did not testify at trial, his "own testimony" does not contradict this claim. To allow such would be to sanction the knowing use of perjured testimony and reduce any attempt at the truth finding process involved in the trial of a criminal defendant to a farce, mockery, and sham. We must view the testimony of the defendant's witnesses at trial as the defendant's "own testimony" for...