Young v. State

• Citation: 428 So.2d 155
• Decision Date: 02 November 1982
• Docket Number: 8 Div. 695
• Parties: Johnny Spencer YOUNG v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 155

428 So.2d 155

Johnny Spencer YOUNG v. STATE.

8 Div. 695.

Court of Criminal Appeals of Alabama.

Nov. 2, 1982.

Rehearing Denied Dec. 28, 1982.

Certiorari Denied March 4, 1983

Alabama Supreme Court 82-359.

John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and Bill North and Ed Carnes, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the capital murder of Ernest McCoy Payne and Jerry Leroy Simmons in violation of Alabama Code 1975, Section 13A-5-31(a)(10) ("murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts."). In accordance with the recommendation of the jury, sentence was fixed at life imprisonment without parole. Three issues are argued on appeal.

I

The defendant contends that the fact that he was tried after Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), under the 1975 capital punishment statute as construed in Beck v. State, 396 So.2d 645 (1980), violated his constitutional rights in two ways. He argues (1) that he had a constitutional right to be tried under the statute as written or not at all, and, (2) that the curative judicial construction performed in Beck v. State, prejudiced his right to prepare his defense for trial.

Beck v. Alabama held that the sentence of death may not be constitutionally imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense and the evidence would have supported such a verdict. The defendant argues that the trial court's constitutionally required action in instructing the jury on lesser included offenses violated his right to be tried under the death penalty statute as it existed at the time of the crime. That statute precluded any consideration of lesser included offenses. This contention that he had a vested right to be tried under an unconstitutional provision because it was a part of the statute in effect at the time the crime was committed was rejected in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

This Court has repeatedly held that the Alabama Supreme Court acted constitutionally in Beck v. State; Edwards v. State, --- So.2d ---- 1 Div. 335 (Ala.Cr.App., June 29, 1982); Clisby v. State, --- So.2d ----, 6 Div. 576 (Ala.Cr.App., March 2, 1982). Interpretation of a state statute by the highest court in a state is "as though written into the (statute) itself." Poulos v. New Hampshire, 345 U.S. 395, 402, 73 S.Ct. 760, 764-765, 97 L.Ed. 1105 (1953). State courts "have the final authority to interpret and, where they see fit, to reinterpret that state's legislation." Garner v. Louisiana, 368 U.S. 157, 168, 82 S.Ct. 248, 254, 7 L.Ed.2d 207 (1961). See also Wainwright v. Stone, 414 U.S. 21, 22-23, 94 S.Ct. 190, 192-193, 38 L.Ed.2d 179 (1973) ("(W)e must take the statute as though it read precisely as the highest court of the state has interpreted it."); Smiley v. Kansas, 196 U.S. 447, 455, 25 S.Ct. 289, 290, 49 L.Ed. 546 (1904).

The defendant was tried in meticulous compliance with the mandates of Beck v. State, and that decision is controlling.

II

The defendant contends that because there was no evidence to show that the murders were committed with premeditation and malice he should not have been convicted of first degree murder.

Ricky L. Miller was the only eyewitness to the shooting to testify. He stated that he went with Jerry Simmons, Ernest McCoy Payne, Anthony Young and his brother, the defendant, to Anthony's trailer to "play some cards." At the trailer, the defendant and Jerry were playing cards. Payne was sitting at the kitchen table. Anthony and Miller were sitting on the sofa.

While they were there, Miller left the trailer to make a telephone call. When he returned, Anthony accused Miller of going to see his girlfriend. They "had a few words" and "ended up in a scuffle."

While they were still fighting, Miller heard a "popping noise" and saw McCoy falling. As Miller headed for the door he saw the defendant standing in the back of the hallway with a pistol in his hand. He heard another "pop" just a fraction of a second after he got out the door. When Miller was "about halfway down the side of the trailer" he heard a third gunshot.

Jerry Simmons and Payne each died in the trailer from a single .22 caliber gunshot to the chest. Both men were legally intoxicated at the time of their deaths. Anthony got shot in the hand.

The defendant was not "in any way taking part in the scuffle" between Miller and Anthony. The defendant was not "having any kind of conflict with anybody else in that trailer." Miller did not hear any threats being made against the defendant. Miller never saw Jerry Simmons or Payne with a weapon although he knew that Payne carried a pocket knife. No weapons were found at the scene.

Premeditation and deliberation in the law of homicide are synonymous terms meaning simply that the accused, before he committed the fatal act, intended that he would commit the act at the time that he did and that death would result. It does not mean that the accused "must have sat down and reflected over it or thought over it for any appreciable length of time." White v. State, 236 Ala. 124, 125, 181 So. 109 (1938).

Premeditation and deliberation may be formed while the killer is "pressing the trigger that fired the fatal shot." Caldwell v. State, 203 Ala. 412, 417, 84 So. 272 (1919); Daughdrill v. State, 113 Ala. 7, 32, 21 So. 378 (1897). There need be no "appreciable space of time between the formation of the intention to kill and the act of killing." Miller v. State, 54 Ala. 155 (1875). Such space of time is "immaterial". "It was possible for the defendant to have framed a premeditated as well as a malicious design to kill after taking up the gun and before it was fired." Dixon v. State, 128 Ala. 54, 58, 29 So. 623 (1901).

The existence of premeditation and deliberation must be determined from the particular facts and individual circumstances of each case.

"There is no possible state of facts from which the law presumes their concurrence and coexistence is not a fact to which a witness, or any number of witnesses, can testify. It is a matter of inference from all the facts and circumstances of the particular case." Coats v. State, 253 Ala. 290, 294, 45 So.2d 35 (1950).

The formation of an intent to kill involved in premeditation and deliberation may be inferred from the character and extent of the wounds to the deceased, Wright v. State, 148 Ala. 596, 42 So. 745 (1907), or those sustained by a surviving witness to the slaying. Gallant v. State, 167 Ala. 60, 52 So. 739 (1910). "Distance (is) a factor in determining whether or not the pistol was fired with the intent to kill." Washington v. State, 269 Ala. 146, 156, 112 So.2d 179 (1959). "(T)he facts to be looked to as important in determining this intent to take life, ... are the character of the assault, the use of lack of a deadly weapon, and the presence or absence of excusing or palliating circumstances." Bowen v. State, 32 Ala.App. 357, 359, 26 So.2d 205 (1946).

The defendant also argues that the State failed to prove malice as an element of first degree murder despite the fact that a pistol was used and there was no excuse or justification for the two slayings. Where the fact of the killing is shown, unaccompanied by circumstances of legal justification, excuse or mitigation, the law presumes that the homicide was committed with malice, unless the contrary is shown. Clarke v. State, 117 Ala. 1, 23 So. 671 (1898); Kent v. State, 367 So.2d 508 (Ala.Cr.App.), cert. denied, Ex parte State ex rel. Att.Gen., 367 So.2d 518 (Ala.1978). Proof of the use of a deadly weapon raises the presumption of malice, and throws upon the defendant the burden of repelling that presumption unless the evidence which proves the killing shows also that it was done without malice. Warren v. State, 197 Ala. 313, 72 So. 624 (1916); Hadley v. State, 55 Ala. 31 (1876). However, even "if the evidence which proves the offense would permit an inference that the defendant acted without the requisite intent or malice, then the rebuttable nature of these presumptions must be submitted to the jury." Ex parte Bayne, 375 So.2d 1239, 1244 (Ala.1979). When one kills another by the intentional (not accidental) use of a deadly weapon, malice, design, motive and intent to kill may be inferred "without more" and are presumed, unless the evidence proving the killing rebuts that presumption. Thompson v. State, 376 So.2d 761, 764 (Ala.Cr.App.), reversed on other grounds, Ex parte Thompson, 376 So.2d 766 (Ala.1979); Hardin v. State, 344 So.2d 234, 238 (Ala.Cr.App.1977).

Malice and intent may be inferred from the use of a pistol. Taylor v. State, 405 So.2d 946 (Ala.Cr.App.), cert. quashed, Ex parte Taylor, 405 So.2d 951 (Ala.1981) ("a loaded gun"); Smith v. State, 53 Ala.App. 141, 298 So.2d 71 (1974); Duck v. State, 38 Ala.App. 652, 92 So.2d 55 (1957) (.22 caliber revolver).

Here, the killing is unexplained and the facts do not afford any reasonable inference of excuse, justification or mitigation. The circumstances do not rebut or disprove the presumptions of intent and malice. Compare Bayne, supra; Hamby v. State, 254 Ala. 139, 47 So.2d 218 (1950); Simpson v. State, 31 Ala.App. 150, 13 So.2d 437 (1943). The existence of intent, premeditation, deliberation and malice can be properly inferred from the fact that the defendant fired three shots from a pistol which killed two men and injured a third. Harjo v. State, 395 So.2d 1104 (Ala.Cr.App.), cert. denied, Ex parte Harjo, 395 So.2d 1105 (Ala.1981).

The presumptions of intent and malice springing from the use of a deadly weapon were not rebutted or contradicted by the evidence. The character of the assault, the extent and location of the wounds, the close...