Jacobs v. State

This case concerns the constitutionality of Act 213, 1975 Ala. Acts, p. 701, et seq., which provides penalties for certain aggravated homicides. The Court of Criminal Appeals affirmed the conviction of murder in the first degree, including the sentence of death, and held the Act constitutional. We affirm.

A full statement of the facts is contained in the opinion of the Court of Criminal Appeals, 361 So.2d 607, but briefly stated, the facts are, that on July 17, 1976, Jerry Wayne Jacobs, his brother, John Jacobs, and his nephew, Thomas Eugene Brown, went to the Star Pool Hall in Cullman with the intent to rob Walter Robert Knight. When Knight left the pool hall, the three offered him a ride, which he took. A short while later, while Jacobs pointed a sawed-off .22 caliber rifle at him, Knight was robbed of several hundred dollars.

The three men then drove Knight to a secluded section of Highway U.S. 31. Knight’s shoes were removed and Jacobs took him approximately one hundred yards into the woods. Brown testified that while he was waiting at the ear, he heard Knight plead for his life. Immediately thereafter, he heard a shot. Jacobs, in a statement entered into evidence, admitted shooting Knight. He contends, however, that Brown shot him two additional times after the Jacobses had returned to the car.

The State Toxicologist testified that Knight died from two gunshot wounds delivered to the back of the head. No further wounds were found.

Following the incident, the three divided the money and fled the state. Brown surrendered when he returned home to Cull-man. The Jacobses were apprehended shortly thereafter in North Carolina.

Pursuant to § 2, 1975 Ala. Acts, p. 701, the jury was not charged as to any lesser offenses. Furthermore, when they returned the guilty verdict, they fixed punishment at death. At the post-trial sentence hearing, the trial judge, after listing the aggravating circumstances, sentenced Jacobs to death.

Jacobs states the issues, as follows:

“I. WHETHER THE ALABAMA CAPITAL-SENTENCING PROCEDURES ARE VIOLATIVE OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BECAUSE THEY FAIL TO ASSURE THAT THE DEATH PENALTY WILL NOT BE IMPOSED IN AN ARBITRARY OR CAPRICIOUS MANNER AND DO NOT COMPORT WITH DUE PROCESS.

“II. WHETHER THE ALABAMA CAPITAL-SENTENCING PROCEDURES, AS APPLIED IN THIS CASE, VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS BECAUSE THEY RESULTED IN A STANDARD-LESS IMPOSITION OF THE DEATH SENTENCE.

“HI. WHETHER THE COURT’S CHARGE ON THE PRESUMPTION OF MALICE ARISING FROM THE USE OF A DEADLY WEAPON VIOLATED THE DEFENDANT’S RIGHT TO DUE PROCESS OF LAW.

“IV. WHETHER THE TRIAL COURT ERRED IN EXCUSING JUROR MARY RUTH MARTIN FOR HER OPPOSITION TO CAPITAL PUNISHMENT.”

The primary contention raised by Jacobs is that Alabama’s Death Penalty Act is unconstitutional because it violates the “cruel and unusual punishment” clause of the Eighth Amendment to the United States Constitution.

Initially, it should be noted that this case is not controlled by our recent decision in Harris v. State, 352 So.2d 479 (Ala.1977). That case dealt with Tit. 14, § 319, Code, and involved the narrow constitutional question concerning imposition of the death penalty for one convicted of first degree murder while already serving a life sentence. A plurality of this Court upheld the statute because of the narrow category of the offense on which it was based — a category not expressly addressed, and thus not proscribed, by the United States Supreme Court. See Harris, at 483, 484.

The Act presently before us involves imposition of the death penalty for one convicted of any one of several enumerated aggravated homicides. It was passed in response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Hubbard v. State, 290 Ala. 118, 274 So.2d 298 (1973). Without going into the well-known intricacies of the nine separate opinions in Furman, suffice it to say that Alabama’s old death statute was rendered unconstitutional, at least, insofar as it gave the jury, as the sentencing authority, a standardless discretion, in fixing the death penalty. See Hubbard, supra. Thereafter, but before several illuminating United States Supreme Court decisions were rendered, the legislature enacted the present Act which takes all discretion in sentencing away from the jury. Furthermore, a bifurcated system was established so that the trial judge, at a subsequent post-trial sentence hearing, could reduce the death sentence to life imprisonment without possibility of parole. § 3, 1975 Ala. Acts, p. 703.

The pertinent provisions of Alabama’s sentencing scheme are as follows:

“AGGRAVATED OFFENSES FOR WHICH DEATH PENALTY TO BE IMPOSED; FELONY-MURDER DOCTRINE NOT TO BE USED TO SUPPLY INTENT; DISCHARGE OF DEFENDANT UPON FINDING OF NOT GUILTY; MISTRIALS; REINDICTMENT AFTER MISTRIAL.

“If the jury finds the defendant guilty it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses: .

******

“In such cases, if the jury finds the defendant not guilty, the defendant must be discharged. The court may enter a judgment of mistrial upon failure of the jury to agree on a verdict of guilty or not guilty or on the fixing of the penalty of death. After entry of a judgment of mistrial, the defendant may be tried again for the aggravated offense, or he may be reindicted for an offense wherein the indictment does not allege an aggravated circumstance. If the defendant is reindicted for an offense wherein the indictment does not allege an aggravated circumstance, the punishment upon conviction shall be as heretofore or hereafter provided by law; however, the punishment shall not be death or life imprisonment without parole. (Acts 1975, No. 213, § 2.)

“HEARING AS TO IMPOSITION OF DEATH PENALTY OR LIFE SENTENCE WITHOUT PAROLE AFTER CONVICTION; ADMISSIBILITY OF EVIDENCE; RIGHT OF STATE AND DEFENDANTS TO PRESENT ARGUMENTS.

“If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements; provided further, that this section shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama. The state and the defendant, or his counsel, shall be permitted to present argument for or against the sentence of death. (Acts 1975, No. 213, § 3.)

“DETERMINATION OF SENTENCE BY COURT; COURT NOT BOUND BY PUNISHMENT FIXED BY JURY.

“Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death. If the court imposes a sentence of death, it shall set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentence hearing, which shall at least include the following:

“(1) One or more of the aggravating circumstances enumerated in section 13-11-6, which it finds exists in the case and which it finds sufficient to support the sentence of death; and

“(2) Any of the mitigating circumstances enumerated in section 13-11-7 which it finds insufficient to outweigh the aggravating circumstances. (Acts 1975, No. 213, § 4.)

“CONVICTION AND SENTENCE OF DEATH SUBJECT TO AUTOMATIC REVIEW.

“The judgment of conviction and sentence of death shall be subject to automatic review as now required by law. (Acts 1975, No. 213, § 5.)” [Emphasis added.]

Under this statutory scheme, the jury, if it finds a defendant guilty, is mandatorily required to fix the punishment at death. If the jury fails “to agree ... on the fixing of the penalty of death,” the defendant is not discharged; the court may enter a judgment of mistrial.

As we interpret Alabama’s sentencing statute in death cases, the jury is powerless to fix any punishment other than death, if they find the accused guilty. Alabama, therefore, does not permit the jury to exercise any discretion in fixing punishment. We find no fault with this. Under this scheme, it is only reasonable to assume that juries will consider the grave consequences of a conviction in reaching their verdict. Cf. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), wherein the court noted:

“ . . .In view of the historic record, it is only reasonable to assume that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching a verdict.”

Under Alabama’s scheme, if the jury refuses to follow the legislative mandate, and does not fix the penalty at death, the statutory scheme acts as a form of safety valve, favorable to the accused, because if one single juror refuses to follow the legislative mandate, and refuses to fix the penalty at death, then the trial court may grant a mistrial.

Under Alabama’s scheme for imposition of the death penalty, the jury obviously is not provided with guidelines to aid it in fixing the punishment; in fact, the statute directs the jury, if it finds the accused guilty, to fix the punishment at death. The jury has no discretion to fix any other penalty. If that was the end of the matter, Alabama’s statutory scheme would be unconstitutional under Woodson v. North Car olina, supra. If there was no way under Alabama law for the judiciary to check any arbitrary and capricious exercise of the power of the jury to fix the penalty of death through a review of that penalty, we would agree that Woodson controls. But, in Woodson, the Supreme Court said:

“ . . North Carolina’s mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die. And there is no way under the North Carolina law for the judiciary to check arbitrary and capricious exercise of that power through a review of death sentences. Instead of rationalizing the sentencing process, a mandatory scheme may well exacerbate the problem identified in Furman by resting the penalty determination on the particular jury’s willingness to act lawlessly. While a mandatory death penalty statute may reasonably be expected to increase the number of persons sentenced to death, it does not fulfill Furman’s basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.” (Emphasis added.)

Alabama, unlike North Carolina, in Woodson, provides a method to check any capricious and arbitrary exercise of the power by the jury to fix the punishment at death. In Alabama, the jury is not the body which finally determines which murderers must die and which must not. In fact, Alabama’s statute mandatorily requires the court to “hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole,” and specifically provides that the court may refuse to accept the death penalty as fixed by the jury and may “sentence” the defendant to death or life without parole. Code of Ala.1975, § 13-11-4. That section provides that if the court imposes a “sentence of death” it must set forth, in writing, the basis for the sentence. Furthermore, any conviction and sentence of death is subject to automatic appellate review, a procedure commended by the Supreme Court of the United States in Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964).

The State contends that under Alabama’s statutory scheme, the fixing of the penalty of death by the jury is merely advisory. The Court of Criminal Appeals agreed with the State and held that the jury verdict was advisory in its opinion in this case. In the sense that the verdict is not final, it may have advisory characteristics; in any event, it is certainly unlike the jury verdict in Woodson, which could not be reviewed or revised by the trial court, and is more like the verdict in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In fact, Dobbert is authority to uphold the constitutionality of Alabama’s statutory scheme, because although Florida gave its jury the power to recommend a sentence, and Alabama gives the jury no discretion or power to fix a sentence other than death if the accused is found guilty in specified cases, the Florida statute did not give the jury final sentencing authority; neither does Alabama.

Alabama’s sentencing scheme is similar to that in Florida, in that a jury verdict is a necessary step in the scheme but the jury is not the sentencing authority in either Florida or Alabama.

The Court of Criminal Appeals has spelled out specifically how death sentences, reviewed under Alabama’s automatic appeal statute, have been reversed and the causes remanded for new trials. This Court has carefully reviewed each point raised by the accused in his petition, which was granted as a matter of right because of the sentence of death. We are familiar with other cases reviewed by this Court in the last decade involving death sentences and we are convinced that the sentence here was not arbitrarily or capriciously entered. We are further convinced that trial juries will consider the serious consequences of a guilty verdict, and will either refuse to fix the penalty at death, or will acquit the defendant. In any event, the trial judge must hold a hearing to consider aggravating and mitigating circumstances and may sentence the defendant to life without parole.

We have reviewed each issue argued by the accused and we are of the opinion that Jacobs’ conviction and sentence are due to be affirmed.

AFFIRMED.

BL00DW0RTH, MADDOX, FAULKNER, ALMON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., concurs in part, and dissents in part.

JONES and SHORES, JJ., dissent.

. §§ 13-11-1, et seq., Ala.Code 1975.

. § 13-11-2, Ala.Code 1975.

. § 13-11-3, Ala.Code 1975.

. It is interesting to note that in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the appellant argued that giving the jury discretion would allow juries to decide which defendants should and should not die. Gregg claimed, unsuccessfully, that this vesting of discretion in the jury was unconstitutional.

. Code of Ala., 1975, § 13-11-3.