Petition — BUSH v. ALABAMA (No. 82-6916)

RECEIVED

JUN 1 4.1983

Orrive ws sme uLcRK

SUPREMS “niet V6

———— —_

IN THE SUPREME COURT OF THE UNITED STATES

TERM 198

wo, 82 6916

WILLIAM BUSH,

PEITIONER

VS.

STATE OF ALABAMA

ATTORNEY OF RECORD:

GEORGE W. CAMERON

246 SO. COURT ST.

MONTGOMERY, AL 36104

PH. 205-2636612

recEiv )

JUN 1 4.1983

Orricg vein L

82 69 1 6 |__ SUPREME ronier m4

a

IN THE SUPREME COURT OF THE UNITED sSTATES

TERM

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS *%

IN THE MATTER OF A PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA AND THE ALABAMA

COURT OF CRIMINAL APPEALS

WILLIAM BUSH, PETITIONER

TO THE SUPREME COURT OF THE UNITED STATES

Comes now, William Bush, by and through his attorney

of record in the cause herein presented by way of Petition for

writ of certiorari to the Supreme Court of Alabama and the

Alabama Court of Criminal Appeals, wherein this Court is

shown errors and Constitutional infirmity in judgment by the

Courts of Alabama, and petitioner shows unto the Court that

his affidavit of inability to pay or give security for such

costs as may be in the proceedings sought, said affidavit

being hereto attached.

In consideration whereof, William Bush, Petitioner,

moves the Court for leave to proceed in forma pauperis, to the

end that the rights guaranteed under the Constitution and law

of the United States may be redressed. Petitioner so moves.

Respectfully Submitted,

y W, Grurstlea

Pe scsi Cameron

Telephone 205-263-661 246 So. Court St.

Moritgomery, Al 36104

Attorney for Petitioner

Sworn to and subscribed bdfore me this ; 3day of June,

1983.

Te Y ig”

Nofary Public

my Cum ci pices

Sept 2, 19%¢

RECEIVED

JUN 14,1983

82 69 L 6 Gissee ov ate CLERK

SUPREMT CANRT 1S.

IN THE SUPREME COURT OF THE UNITED STATES

TERM

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

IN THE MATTER OF A PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA AND THE ALABAMA

COURT OF CRIMINAL APPEALS

WILLIAM BUSH, PETITIONER

AFFIDAVIT CONFORMING TO REQUIREMENTS OF 28 U.S.C. 1915

STATE OF ALABAMA

MONTGOMERY COUNTY

Before me, the undersigned Notary Public in and for

said State and County, personally George W. Cameron, who being

first duly sworn says on oath as follows:

I, George W. Cameron, am a citizen of the United

States of America am over the age of 21 years, and am

petitioning the Court on behalf of William Bush for a writ of

certiorari. This petition involves Case No. 82-131 o¢ the

Supreme Court of Alabama and involves capital murder wherein

William Bush has been given the death penalty in vilation of

the United States Constitution.

I have represented William Bush in the trial through

the Appellate Courts of Alabama. He has at all times been

indigent. He has been incarcerated and is still indigent.

I believe that he is entitled to redress in this

matter and is still unable to pay the costs or security.

I make this affidavit in good faith and ask that

should the Court grant his petition that any competent counsel

be appointed,

Tyeerbe W. Crean

George WW, Cameron

Swe Lo and subscribed before me this / i day of June,

1983. :

My, commission expires: Lheger seit Zasessp—

¢/> [so

RECEIVED

JUN 1 4.1983

a Orrive ur ine ULERK

IN THE SUPREMF faniet. WS.

SUPREME COURT OF THE UNITED STATES

TERM, 1983

82 6916

WILLIAM BUSH,

PETITIONER

VS.

STATE OF ALABAMA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT AND COURT OF

CRIMINAL APPEALS OF ALABAMA

Petitioner William Bush respectfully prays that a writ

of certiorari issue to review the judgments of Alabama Supreme

Court and the Court of Criminal Appeals of Alabama in this

case.

obey

TABLE OF CONTENTS

a page no.s

1. Questions PreSeNnted..sccscccverveseressesvese 1

2. Opinions beElLOWssevesececceccececeeveeveeeeees 1

b.) MIEN lo veicvisbteeenestsnsarensesstds 4

4. Constitutional provisions involved.secseeeees 2

S. eebemink we She GOOG Sivcvasscancsiosiaseses 4

6. How Federal Questions Raised and Decided Below. 3

7, Reasons for granting the writsccccccceceevess 4 and 5

TABLE OF CITATIONS

Mincey Vs. Arizona, 57 L. Ed. 2d 290 (1978)

Clewis Vs. Texas, 18 L. Ed. 2d 423 (1967)

U. S. Vs. Agurs, 49 L. Ed. 2d 342 (1976)

THE OPINIONS OF THE COURTS BELOW ARE APPENDIXED AS FOLLOWS:

(A) OPINION OF ALABAMA COURT OF CRIMINAL APPEALS

(B) OPINION OF ALABAMA SUPREME COURT

JURISDICTION

The jurisdiction of this Court is being invoked under

Title 28 U.S.C. 1257(3).

STATEMENT OF THE ISSUES INVOLVED

l.

Was the confession of Petitioner properly admitted

into evidence?

2.

Was the District Attorney under a duty to disclose to

Petitioner facts within his knowledge which reflected that the

Police Officer who obtained confessions from Petitioner had

physically abused another person and made racial slurs in

order to obtain a confession from that person?

ake

THE FOURTEENTH AMENDMENT PROVIDES:

",.eAll persons....nor shall any State deprive

any person of life, liberty, or property, with-

out due process of law..."

STATEMENT OF THE CASE

1. Your Petitioner was tried in the Circuit Court of

Montgomery County, Alabama, upon an indictment charging him

with capital murder by violating Section 13A-5-31l(a)(2) of the

Code of Alabama, a Code Section that no longer existed to

cover the date on which this offense is said to have been

committed.

2. A pretrial Motion was filed and heard wherein your

Petitioner testified that he has been physically abused in

order to obtain confessions from him. This motion was denied.

3. By a Motion for New Trial Petitioner established

that the District Attorney had knowledge that a complaint had

been made against the Police Officer who obtained the

confessions from Petitioner charging said Officer with

physical abuse and racial slurs against another black man in

an attempt to secure a confession from him.

4. In the trial of Petitioner the confessions were

admitted on behalf of the State and the jury found Petitioner

guilty as charged. The jury fixed his punishment at death. The

Court in a separate hearing fixed Petitioner's penalty at

death.

5. Timely appeal was taken to the Court of Criminal

Appeals of Alabama and that Court affirmed by its Case No.3

Div. 494 on the 12 day of October, 1982.

6. After re-hearing was denied by tne Court of

Criminal Appeals of Alabama the Supreme Court of Alabama

granted Petitioner's application for certiorari and affirmed

the case on the llth. of Febrruary, 1983.

7. Motion for rehearing was denied by the Alabama

Supreme Court on the 6th.of May, 1983.

ale

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

The question of the confession was raised in the trial

Court by pretrial motion. It was denied by the trial Court.

It was not specifically raised by brief of appellant

in the appellate Courts.

Under Alabama law the Appellate Courts are duty bound

to search the record for error where the death penalty has

been imposed.

The Court of Criminal Appeals in its decisions held

the confessions to have been properly admitted into evidence.

They further held that Petitioner's credibility was resolved

by the jury.

The issue of non-disclosure was raised by motion for

new trial. After a iearing the trial Court denied the motion.

The matter was raised by appellant Bush in the Court

of Criminal Appeals by brief.

That Court held the rulings by the trial Court to have

been proper in all respects.

The Court of Criminal Appeals noted that at the motion

for new trial hearing only hearsay evidence was forthcoming in

support of the motion.

The Court further said the unndisclosed evidence was

not material in any Constitutional sense.

Further, they held, that the request for disclosure

was general and that Petitioner's guilt was overwhelming.

-3-

ASONS FOR GRANTING IT

l.

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

THE STATE OVERCAME ITS BURDEN OF SHOWING THAT THE

CONFESSIONS BY PETITIONER BUSH WERE FREE AND VOLUNTARY

AFTER HIS TESTIMONY THAT HE HAD BEEN ABUSED.

It is our position that the confessions said to have

been made by Petitioner was what led to his conviction and the

imposition of the death penalty. These confessions were in the

form of sound tapes.

By pre-trial motion Petiti ner raised the issue of the

admissibilty of the confessions he had made to a Police

Investigator.

The first confession blamed the killing for which

Petitioner was tried on a co-defendant.

The second confession contradicted the first and

Petitioner stated it was he who did the killling.

Petitioner testified on the pretrial motion and at

trial that he had been abused by the Police Officer and gave

the confession as a result thereof. That he was not involved

in the killings.

The matter of voluntariness of a confession is a most

complex matter to say the least.

We would ask this Court to review this issue in the

light of its many decisions on the subject. Mincey Vs.

Arizona, 57 L. Ed.2d 290 (1978). Clewis Vs. Texas, 18 L. Ed.

2d 423 (1967).

-4-

THE COURT SHOULD GRANT ceerronase TO CONSIDER

WHETHER THE EVIDENCE WHICH THE STATE FAILED TO

DISCLOSE TO PETITIONER UNDER ALL OF THE CIRCUM-

STANCES VIOLATED THE STANDARDS SET DOWN IN AGURS

VS. U.S. AND BRADY VS. MARYLAND.

Following the jury finding Petitioner guilty, a letter

was hand delivered to counsel for Petitioner. A copy thereof

is made an exhibit to this Petition.

Among other things the letter informed counsel that

complaint had been made against the same Police Officer who

took the confessions from Petitioner accusing said Officer

of racial slurs and brutality in an effort to extort a

confession from another person.

Motion for a new trial was filed by Petitioner wherein

the non-disclosure of this information was raised. Hearing was

had. It was developed at the hearing on the motion for new

trial that the District Attorney's Office knew of this

information. It was admittedly not disclosed to Petitioner.

The information had not been disclosed to the trial

Court by the District Attorney for evaluation.

Unquestionably this information contradicts the

testimony of the Police Officer. There were no finger prints

introduced at the trial and there was no positive

identification of Petitioner by a surviving eye witness.

Petitioner testified at the pretrial hearing and at his trial.

He denied guilt.

CONCLUSION

We respectfully ask that the writ of certiorari be

granted,

Respectfully Submitted,

W Cems

George W ameron

246 So. Court St.

Montgomery, Al 36104

Attorney of Record

For Petitioner.

,

RECEIvi)

JUN 14 1983

Or Wom os tee &

CERTIFICATE oF SERVICE [_SUPREW! omijer“in'

el,

I hereby certify that I have served a copy of the

foregoing Petition on the Attorney General of Alabama by

causing a copy of the same to be hand delivered to his Office

on this [£ day of June, 1983.

yan

GEORGE’ W. CAMERON

STATE OF ALABAMA °

MONTGOMERY COUNTY *

Before me, the undersigned Notary Public in and for

said State and County, personally Appeared George W. Cameron,

appointed counsel at the State level, who being duly sworn,

deposes and says that the matters and things stated in the

petition for writ of certiorari ar. true and correct as stated

to the best of his Knowledge, information and belief.

cpl G4)

George W,/ Cameron

Sworn to and subscribed before me this / Zday of June,

1983.

a7 Comm iS My Of "4s :

Apr 2/476

-6-

eTeTE OF ALABAMA ° In THE CIRCUIT COURT OF

vs. * MONTGOMERY COUNTY, ALABAMA

WiLL TAM BUSH * CASE NO. &1=1335-P

: *

MOTION FOR A NEW TRIAL

Comes the defendant in the above styled case, by anc

through his attorrey of recorc, anc moves the Court to set asice

enc hole tor reucrt the Jury's verdict finding him gullty of

Capital Murcer and the Judgement of the Court besed thereon,

which wes enterec on the 3rco cay of Lecenter, 196), end grent

urto Rim eae new teiel. As grounds for thig moticr *he Getencan?

essicns the tollowing:

‘ A motion wes duly filec Dy The cetercart? ce. ifs

for, among other things, el! matters required to be disclosed

to him under the ruling of Brady v. Moryland, 373 U.S. 63, 10

L. Ea 26 9, 76 $.Ct. 1194 (1963).

2, Thet os @ result of said motion the State undertook

to, and did, disclose many items, such es the criminal record

of the defencent, copies of writter statements, duplicate copies

of tepes cf statements Of The detencar’, reports tror the Deoart=-

mer? ¢¢ Forensic Sciences anc permitting the view'ng c° pictures

by counse! for cetencent.

3, That subsequent to the trie! of said case anc the

vercie? ef the jury belng renderec, both as to The guilt of the

setencart anc *he recommending that his punisnmen’ be fixed et

seecr, 77676 wes Hand ce! iverec qe the effice of counse tor

one cererce'* the Gocure’*# srcacnec rerere ang rece 6 per?

. v4 ‘ . cP SL we

‘

he , f oir? e bee’ cce ' ec?

R. 7. were, ane his partner at the Time, tor specitic ects c*

prevelir, anc recia!’ Biurt. Theat this intormetion was unanowr

*: oetferceant, or hie counsel, un* etter the trie! of 8010 Cease

enc the vergagic?s of the jury Pac Lee’ reraerec anc wet never

cisciesed toe detendart, or ris * , ef & result? of the Brads

5. That one of The most important tactua! issues in

the case wes the voluntariness of the statements mode by the

defendant to officer R.7T, Ward and officer Ronnie Davis, and

the weight to be given to seid statements by the jury trying

the cease.

Respecttully submitted,

246 South Court SF,

Attorney for Detencart

Detencant cemancs an evicentiary hearing on this

metior,

bred ve | LC pareuy

trorney Aor Lefencant

CERTIFICATE OF SERVICE

| hereby certity thet | have served eo copy of the

foregoing motion on Honorable James Evans, District Attorney,

Montgomery County, Alabama, by causing 8 copy to be hand delivered

To his office on this 7 Gay of December, |98!,

eee iY pan tem

Geo ge ¥. Cameron

Cavu Lawes UNion or Atanana |

e 0 Wowaa Hand mail

MONTOOMEBY ALS RAMA Win

Honorable George W,. Cameron, Jr.

138 Adams Avenue

Montgomery, Alabama 36104

Se

Civ Liperties UNION oF ALABAMA

PO BOs 447

MONTGOMERY A. ABMS 3610!

19 November 1981

Honorabe George W. Cameron, Jr.

13& Acams Avenue

Montcomery, Alabama 36104

Re: William "Chick" Bush

Dear Mr. Cameron:

I have been following the Bush case closely and the name

R.T. Ward was familar to me. Our office has in its files two

Gifferent Police Abuse Report complaints about the same Mont-

gomery Police Officer, R.T. Ward. On one of these we wrote

the city for an investication and explanation. A copy of our

letter to Police Cnief Swindall is enclosed.

According to Steve Ellmann, a member of our lecal screen-

inc committee, if you made a Brady motion and did not receive

in“ormation from the State, you may have grounds for a new

trial.

As you are probably aware, this office is opposed to capital

punishment and has been in the vanguard fighting death penalty

statutes.

If you feel that we can be of further assistance, please

feel free to call upon us.

Since time is of the essence, I am hand delivering this

letter to your office.

Sincerely,

ae hardev?e. KLU~ iW

Theodore R. Gibbs, Jr.

EF WEIDER ERECUTIVE DIRE

.14 August 1981

Police Chief Charles £. Swindeil

City of Montgomery

Pr. O. Drawer 159

Montgomery, AL 36195

Re! wee Move

Dear Chief Swincall:

- We thoucht you would want, to know that Our office has re-

ceived, a complaint of abuse.by Montgomery ptiice officers on

Febraary 3, 1981. The complaint alleges that while being inter-

rogated on, Neal Martin says he was willfully, and inaliciously

purneé with ae cigarette by Detective Rf. 7, Waré. Subsecuent to

the burning he was treatec by the City of Montgomery Police Denart-

ment Nurse.

tie also alleges that while being transporteé to the Public

nffairs Building, he was continously hit anc slapnec. Upon reach-

ine the Public Affairs Buiidine parkine lot, Detective FR. T. Vareé

kicked Mr. Martin ir. the richt sice. Subsequent to being kickec

in the side, uvon falling to the Grouné Mr. Martin's head was

placed near the’rront rear tire of the deeective's car. Detective

Ward's partner started the car ana made it seem to Mr. Martin

that he would roll it over Mr. Martin's head. Mr. Martin believes

the purpose of these actions were to elicit a murder confession.

Ne further alleges that during the initial interrogation, :

petective Ward slapped and hit him. At the interrogation, the

next day he was hit in the head with a telephone book and burned

with a cigarette.

Lastly, he alleges that Guring the whole fiasco he was con~

stantly bombarded with racial slurs and threats acainst his life.

Your full investigation of this incicent will be appreciated.

We hope to have a response from you soon.

. Sincerely,

,Tneodcore R. Gibbs, Jr.

TG/dce

IN THE CIRCUIT COURT OF

MONTGOMERY COUNTY, ALABAMA

STATE OF ALABAMA )

PLAINTIFF 3

v. CASE NO. CC-81-1335-P

WILLIAM BUSH,

DEFENDANT.

ORDER

This case is presented to the Court on the Motion for New

Trial heretofore filed, and upon a duly scheduled hearing the Court

heard testimony, ore tenus, and finds and is of the opinion that

said motion is due to be denied. It is, therefore,

ORDERED, ADJUDGED and DECREED that the Motion for New Trial be

and the same is hereby DENIED and the Court reschedules the date

of Defendant's execution for June 29, 1982.

DONE this the 25th day of May, 1982.

SA Ginn

CIRCUIT JUDGE

oct 42 1982

THE STATE OF ALABAMA --- JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1982-83

3 Div. 494

William Bush

State of Alabama

TYSON, JUDGE

The appellant was indicted for and convicted of the

Capital offense of murdering Larry Dominguez, the cashier of

a convenience store in Montgomery, Alabama, by shooting him

with a pistol during a robbery in the first degree, in violation

Of Alabaina Code § 13A-5-40(a) (2) (1975). After a separate hearing

on aggravating and mitigating circumstances, the jury returned

a verdict unanimously recommending that appellant's punishment

be "fixed at death."

Subsequently, the trial court weighed the aggravating

and mitigating circumstances, pursuant to Alabama Code § 13A-5-47

(1975) and sentenced appellant to death. The trial court entered

specific written findings in support of the death sentence

concerning the existence or nonexistence of each aggravating

circumstance enumerated in § 13A-5-49, Code of Alabama, and

also each mitigating circumstance enumerated in § 13A-5-51,

and certain other mitigating circumstances which were offered

1/

pursuant to § 13A-5-52.”

Also pursuant to Alabama Code § 13A-5-47(d) (1975), the

trial court made and entered of record the following findings

of fact regarding this capital offense which we hereby adopt as

correct for the purposes of this opinion:

"On July 26, 1981 at approximately 3:05 a.m.

the Defendant, William Bush, and Edward Pringle

entered a convenience store--Majik Mart--on Carter

Hill Road in Montgomery, Alabama. Edward Pringle

has capital cases pending against him in this

Circuit.

"William Bush pointed a pistol at the witness,

Tony Holmes, and forced him to the rear of the

store where the cashier, Larry Dominguez, was

using the restroom. When Dominguez opened the

bathroom door, William Bush shot both Tony Holmes

and Dominguez with the pistol. Bush shot Holmes

in the face and Dominguez in the chest area.

Bush then walked to the front of the store and

tried to get inte the cash register. When Larry

Dominguez stumbled out of the bathroom, William

Bush shot him acain, this time in the face. Larry

Dominguez died fromthe wounds he received. Bush

shot Holmes and Dominguez so that there would be

no witnesses to the robbery of the convenience store.

Bush took two bags of Zodiac sign tags out of the

Majik Market.

"After the shootings at the Carter Hill Road

convenience store, Bush and Pringle drove to

another convenience store. The second convenience

store was a Seven-Eleven store on Narrow Lane Road

1/ the trial court's determination of sentence, dated

November 30, 1981, is hereto made a part hereof and

attached as Appendix A. (Volume 4, R. 683-687).

in Montgomery, Alabama. Bush bought some

cigarettes from the cashier, Thomas Adams, to get

him to open the cash register. Then Bush forced

Adams to go to a small room--an office area behind

the counter. Bush shot Adams in the head with the

same pistol he had previously used to shoot Tony

Holmes and Larry Dominguez. Thomas Adams died

from the wound he received. Bush and Pringle

took the money from the cash register at the Seven-

Eleven Store." (R. 682-683).

I

The appellant asserts that his demurrer to the indict-

ment should have been granted because the indictmer failed to

mo

“+

rr

aver the "time" of the offense. Appellant argues on this appeal,

as he did by way of demurrer, that in the time period between

the respective dates of the United States Supreme Court decision

in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2a 392

(1980) and the Alabama Supreme Court decision in Beck v. State,

396 So.2d 645 (Ala. 1980), June 20, 1980 and December 19, 1980,

there was no statute or other law providing for the death penalty

in Alabama. The appellant contends that since the time of the

offense is not averred in the indictment the offense could

have "happened at a time between June 20, 1980 and December 19,

1980," a time period when in appellant's estimation there was

no death penalty provision in this state. (R. 667). We disagree.

The essential premise of appellant's argument, that

Alabama had no law providing for capital punishment for offenses

road

(2)

1)

c

"

oo

committed in the interval between the United States Supreme

Gecision in Beck v. Alabama, supra, and the subsequent decision

by the Alabama Supreme Court in Beck v. State, Supra, is faulty.

Tnis is so for two reasons:

First, the United States Supreme Court opinion in Beck v.

Alabama, supra, did not invalidate Alabama's capital

Statute in its entirety, but simply struck down as unconstitutional

that part of the statute which did not permit the jury to consider

a verdict of guilt of "a lesser included offense" when the

evidence would have supported such a verdict. The Alabama Supreme

Court in Beck v. State, supra, judicially severed the preclusion

Clause which contained this, from the statute in order that the’

statute might comport with constitutional requirements. Thus,

the changes in the statutes which were wrought by Beck v. Alabama,

Supra, and Beck v. State, supra, were procedural in nature

and not substantive, such that Alabama was left without a death

penalty provision for capital offenses committed in the interim

period referred to by appellant.

Secondly, in the recent case of Percy Leo Dobard v. State,

(Ms. 2 Div. 305, June 29, 1982) = So.2d __(Ala.Crim.App. 1982),

this court affirmed the death sentence of a defendant convicted

of committing a capital offense which occurred on June 21, 1980,

one day after the United States Supreme Court decision in Beck v.

Alabama, supra. Thus, it was recognized in Dobard, supra,

albeit tacitly, that Alabama did have a death penalty law in full

force and effect for capital felonies committed during the

period in question. Therefore, appellant's contention that the

capital offense in the present case could have been committed

during a time when there was no law providing for the death penalty

in Alabama is unfounded, and without legal merit.

Moreover, the general rule, and the rule that is controlling

in the instant case, is that it is not necessary to state in an

indictment the precise time at which the offense was committed.

Kelley v. State, 409 So.2d 909, 912 (Ala.Crim.App. 1981); Shiflett

State, 37 Ala.App. 300, 67 So.2d 284 (1953); Alabama Code § 15-8-30

(1975). We find none of the exceptions to the ceneral rule

applicable to appellant's argument.

In Deep v. State, 414 So.2d 141, 147 (Ala.Crim.App. 1982),

this court reiterated what Judge Harris so definitively stated

in Summers v. State, 348 So.2d 1126 (Ala.Crim.App.), cert. denied,

348 So.2d 1136 (Ala. 1977), cert denied, 434 U.S. 1070, 98 S.Ct.

1253, 55 L.Ed.2d 773 (1978) as follows:

"The constitutional right of an accused

to demand the nature and cause of the

accusation against him is not a technical

right, but is fundamental and essential to

the guaranty that no person shall be deprived

of his liberty except by due process of law,

nor be twice put in jeopardy for the same

offense.

"An indictment should be specific in its

averments in four prime aspects to insure

this guaranty: (a) to identify the accusa-

tion lest the accused should be tried for

an offense different from that intended

by the grand jury; (b) to enable the defendant

to prepare fcr his defense; (c) that the

judgment may inure to his subsequent pro-

tection and foreclose the possibility of

being twice put in jeopardy for the same

offense, and (d) to enable the Court, after

conviction, tO pronounce judgment on the

record.

“The indictment in this case is couched

in language so clear that any person of

common understanding would know that the

crime of robbery was charced acainst

appellant.”

Despite appellant's allegation that the time of the

offense should have been averred, a plain reading of the

indictment demonstrates that it is "couched in lancuace

so clear that any person of common understanding would know"

that the appellant was charged with committing the capital

felony of murder during a robbery in the first degree or attempt

thereof.

Having reviewed all the circumstances involved, we have

Getermined that the trial court properly overruled the demurrer

on the grounds alleged therein.

II

There is no requirement under Alabama's new capital felony

Nasal” sik the jury make specific findings as to the existence

of aggravating circumstances during the sentencing phase of

the proceedings. The jury's verdict whether to sentence a defendant

to death or to life without parole is advisory only. Alabama Code

§ 13A-5-46 (1975).

Any such contention that the jury should make specific

. ‘

enumerating the aggravating circumstances it found to exist was

foreclosed by Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960,

49 L.Ed.2d 913 (1976) which upheld the Florida statute and its

2/alabama Code §§ 13A-5-39 through 13A-5-59 (1975).

————

advisory verdict .provisions, which also do not require the verdict

to specify the aggravating circumstances relied upon by the jury.

It is sufficient that the trial court, which is in no way bound

by the jury's recommendation concerning stile is required

to enter specific written findings concerning the existence or

non-existence of each aggravating pieenie”

III

Appellant's final allegation of error is that under

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963) the State was required to disclose that one of the

police officers who took his confession had had a complaint

lodged against him alleging umtias in an unrelated case

by one Neal Martin, a nine-time convicted felon. This issue

was raised by appellant for the first time in his motion for

new trial. The trial court, after conducting a full evidentiary

hearing and considering the totality of the circumstances in

light of United States v. Agurs, 427 U.S.97, 96 S.Ct. 2392,

49 L.Ed.2d 342 (1976), denied appellant's motion. It should be

noted that only hearsay allegations were forthcoming at the hearing

in support of the motion. There was no demonstrabie evidence

presented that Martin had actually been mistreated in the

earlier, unrelated case. In our opinion, the trial court's

ruling on appellant's motion for new trial was in all respects

correct.

3/ Alabama Code § 13A-5-47(e) (1975).

4/ Alabama Code § 13A-5-47(d) (1975)

5/ Prior to trial and during trial, appellant

attempted to have his confession suppressed, allecin

that he had been coerced into confessing by the police

officers who he claimed had beaten and intimidated him.

The overwhelming weight of the evidence, however,

refutes appellant's allegations. Testimony by the police

officers who questioned appellant demonstrates that appellant

intelligently and voluntarily made his confessions free from

any coercion or intimidation. Both the Miranda and voluntariness

predicates were fully determined and established before appellant's

confessions were admitted into evidence.

Thus, in line with Burks v. State, 353 So.2d 539

(Ala.Crim.App. 1977) and authority cited therein, appellant's

confessions were in fact properly admitted. The issue of

appellant's credibility in this matter was resolved by the jury.

- 6-

— eee — o-- ee ee ee ee ee

We do not believe that the information scught, even if

it had been brought to appellant's attention prior to trial,

would have been "material" to appellant's case in any

constitutional sense. "The mere possibility that an item of

undisclosed information might have helped the defense, or might

have affected the outcome of the trial does not establish

‘materiality’ in the constitutional sense." Agurs, 427 U.S.,

at 109-110. The prosecutor does not have a constitutional duty

to deliver his entire file to defense counsel. "If everything

that might infiuence a jury must be Gisclosed, the only way a

prosecutor could discharce his constitutional duty would be to

allow complete discovery of his files as a matter of routine

practice." Agurs, 427 U.S., at 109.

Furthermore, assuming arcuendo that the information

sought by appellant was otherwise admissible, appellant's pretrial

general request for "all matters called for and required by

Brady" is not significantly different from those cases where

no request at all has been made. A general request for “all

Brady material" gives the prosecutor no better notice than if

no request is made. "If there is a duty to respond to a

general request of that kind, it must derive from the obviously

exculpatory character of certain evidence in the hands of the

prosecutor.” Agurs, 427 U.S., at 107.

Where only a general request is made under Brady, the

nondisclosure of material evidence does not result in automatic

error requiring the trial court to order a new trial every time

he is unable to characterize a nondisclosure as harmless under

the harmless-error standard. Ags ‘1

427 U.S., at 112-113:

"The proper standard of materiality must

reflect our overriding concern with the justice

£ finding of guilt. Such a finding is per-

missible only if supported by evidence establishing

guilt beyond a reasonable doubt. It necessarily

follows that if the omitted evidence creates a

reasonable doubt that did not otherwise exist,

constitutional error has been committed. This

means that the omission must be evaluated in

the context of the entire record. If there is

no reasonable doubt about guilt whether or not

Y=» eee pe rrw wee a —_ = Bs oe T = or #

the additional evidence is considered, there is

no justification for a new trial. On the other

hand, if the verdict is already of questionable

validity, additional evidence of relatively minor

Pa

—_—<—-

importance might be sufficient to create

a reasonable doubt." (Emphasis added).

Thus, even if the naked allegations that were made

against the police officer in Martin's unrelated case were

somehow considered to be material to this case, which we do

not believe them to be, evaluating that omission in the

context of the entire record, we find that the evidence of

appellant's guilt is overwhelming. Considering the totality

of the circumstances here involved, there is no reasonable

doubt concerning appellant's guilt. The jury's verdict is

well supported. The trial cour. was, therefore, correct in

determining there was no justification for a new trial in this

cause.

IV

In addition to reviewing this case for any error involving

the conviction, this court is also statutorily required to

review the propriety of the death sentence. Alabama Code

§ 13A-5-53 (1975). Upon review of the sentencing proceedings,

we have found no error adversely affecting appellant's

constitutional rights. The trial court's findings concerning

the aggravating and mitigating circumstances are fully

Supported by the evidence. We also determine that the "sentence

of death" is proper punishment in this case.

Referring to Appendix A, which is attached to this opinion,

the trial court found aggravating circumstances codified at

Alabama Code § 13A-5-49 (2),(4) and (8) (1975). As stated above,

these findings were proper.

Robbery, for which appellant was previously convicted

in 1970, is by definition a felony involving the use or threat

of violence to the person. Peagler v. State, 353 So.2d 59,

60 (Ala.Crim.App. 1977).

Secondly, the aggravating circumstances specified in

§ 13A-5-49(4) “shall be found and considered in determining

sentence in every case in which a defendant is convicted of the

capital offenses defined in subdivisions (1) through (4) of

ee ee -

subsection (a) of § 13A-5-40." Alabama Code § 13A-5-50 (1975).

And thirdly, for the reasons set out by the trial court,

this capital offense was especially heinous, atrocious or cruel

when compared to other capital offenses. Execution-type slayings

evincing a cold, calculated design to kill, fall into the

category of heinous, atrocious or cruel. Vaught v. State,

410 So.2d 147 (Fla. 1982); Combs v. State, 403 So.2d 418

(Fla. 1961); Armstrong v. State, 399 So.2d 953 (Fla. 1981);

Alvord v. State, 322 So.2d 533 (Fla. 1975), cert. denied, 428 U.S.

923, 9€ S.Ct. 3234, 49 L.Ed.2d 1226 (1976). We recognize that

an instantaneous death caused by gunfire is not ordinarily a

heinous killing. Odom v. State, 403 So.2d 936 (Fla. 1981).

However, when a defendant deliberately shoots a victim in the

head in a calculated fashion to avoid Jater identification,

after the victim has already been rendered helpless by gunshots

to the chest, such “extremely wicked or shockingly evil"

actions may be characterized as especially heinous, atrocious, or

,

cruel. Hargrave v. State, 366 So.2d 1, 5 (Fla. 1978).

Comporting with the mandates outlined in Alabama Code

§ 13A-5-53(b) and (c) (1975) we have determined:

(1) That the sentence of death was not imposed under the

influence of passion, prejudice or any other arbitrary factor;

(2) That after an independent weighing of the aggravating

and mitigating circumstances at this appellate level, death is

the proper sentence; and

(3) That the sentence of death is not excessive or

disproportionate to the penalty imposed in similar cases,

considering both the nature of the rime ar the defendant.

In conclusion, we have answered each issue raised by

appellant on this appeal. In addition, we have searched the

entire record for plain error, as required by state law ARAP,

Rule 45A. We find no error that has adversely affected aj; vellant's

substantial rights. The trial court's judgment of conviction

sentencing appellant to death is due to be and is, hereby, affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

SPECIF IC} FING INGS CONCERNING THE

EXISTENCE OR No INEXTSTENCE OF BACH

AGGRAVATING ( CIRCUMSTANCE _ENUMERATED

InN SECTION Ri ACT NO, 8)-j?8; AND

oe -

SPECIFIC FINDINGS A AS § To 1 THE EXIS-_

TENCE OR NONEXISTENCE OF EACH MITI-

GATING CIRCUMSTANCE WHETHER ENUMER-

ATED IN SECTION 13, ACT NO. 61-178

OR OTHERWISE PRESENTED PURSUANT TO

SECTION 14, ACT. NO. 81-178, SUPRA.

ENUMERAT FED ) AGGRAVA ‘TING CIRCUMSTANCES

The Capital offense was not committed by a person under

sentence of imprisonment.

Tne befendant was previously convicted of the offense of

robbery in March, 1970. The presentence report also shows that in

1976 Defendant was convicted of violating the Federal Firearms Act.

While the Defendant was on the stand during the instant trial, it

Was shown that the Federal Firearms Act violation invelved a sawed-

off shotaun.

The anstant capital offense anvolved three vactims. This

offense 18 not considered by the Court to invoke the aggravating

circumstance set forth in Section ll(c), Act No. 81-178, involving

“a great risk of death to many persons."

bats

Re actaer K: NR React lnerat at a Seda RR tenet on dnestesein

ad ”“ “ \

4+) an.

The capital offense was committed while the Defendant was

engaged in or was an accomplice in the commission of a robbery.

Under the evidence presented the Court does not find or

consider that the capital offense was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape from

custody within the purview of Section llie), Act No. 81=-]78.

Under the evidence presented, the Court does not find or

consider that the capital offense was committed fer pecuniary gain

within the purview of Section ll(!)}, Act No. #®1-178, supra.

The Court does not find or consider under the evidence

presented that the capital offense was committed to disrupt or hinder the

. lawful exercise of any governmental function or the enforcement of

laws within the purview of Section llig), Act No. 61-178, supra,

The Court does find from the evidence presented at trial

that the capital offense was especially heinous, atrocious or cruel

compared to other capital offenses. This finding is based upon the

evidence of the execution type slaying here involved, coupled with

the shooting of Larry Dominguez after this victim had already been

shot and was stumbling or staggering in the store area. The evidence

shows that the murder was committed so that the befendant could

eliminate an eyewitness to the robbery. The shooting of Tony Holmes

in the face as part of the robbery and the shooting of Thomas Adams

in the head, as part of the same criminal episode, emphasize and under-

score the heinous, atrocious and cruel nature of the capital offense.

The conclusion of the Court as to the heinous, atrocious or cruel

nature of the offense is made after a careful review of all of the

evidence and after considering the totality of all of the circumstances

of this case.

———— ee

MITIGATING CIRCUMSTANCES ENUMERATED

AND OTHERWISE PRESENTED

The evidence before the Court establishes that the Defendant

Goes have a significant history of prior criminal activity, including

a robbery conviction and a conviction for violation of the Federal

Firearms Act involving a sawed-off shotgun. There is also evidence

of a conviction for Grand larceny. The capital offense now before

the Court is the Defendant's fourth felony conviction.

The Defendant contends in his written Statement that he

was under the influence of narcotics at the time of the capital

offense. The Defendant denied such influence at trial,

The preponderance of the evidence does not show that Defen-

dant was under the influence of extreme mental or emotional distur-

bance at the time of the capital offense.

The preponderance of the evidence establishes that the

victim, Larry Dominguez, was not a participant in the Defendant's

conduct, and the preponderance of the evidence further establishes

that the victim did not consent to the Defendant's conduct.

The evidence establishes that the Defendant was a major

participant in the capital offense and that the shootings were done

by him. The evidence e&Stablishes that he shot the Victims, DominugueZ,

Adams and Holmes.

The preponderance of the evidence establistes that the

Defendant was not- under extreme duress at “the time of the capital

offense.

The preponderance of, the evidence further establishes

that the befendant was not under the. substantia) domination of

another person.

The Defendant. himself shot the three victims involved.

Bush hamself took the property from the Majik Market.

Tite

In addition, the Defendant, William Bush, carefully saw

to it that Thomas Adams, the victim at the Seven-Eleven Store, opened

the cash register before shooting him.

The preponderance of the evidence establishes that the

Defendant did have the capacity to appreciate the criminality of

his conduct and to conform his conduct to the requirements of law.

The preponderanc~ of the evidence establishes that this

Capacity was not impaired.

In the Court's judgment, from the preponderance of the

evidence presented, the Defendant, William Bush, knew full well what

he was doing and that what he was doing was wrong. He stated to a

witness that he shot the victims so that there would be no eyewitnesses

to his criminality.

The evidence establishes that the Defendant was thirty one

years of age at the time of the capital offense.

In addition to the above enumerated mitigating circumstances

the Defendant, at the sentence hearing conducted by the Court, was

given the opportunity to present any other evidence of mitigating

circumstances and to make any statement of mitigating circumstances.

The Defendant, through counsel, asked the Court to consider as a

mitigating circumstance the fact that William Bush has been involved

with the law since 1965 or since he was some fifteen years of age.

Defendant, William Bush, was incarcerated in the Mt. Meias Juvenile

Facility in 1965. Counsel for the Defendant states in substance

that the system has contributed to the present pt blems of the

Defendant, William Bush. The Defendant was given a ten year penitenti-

ary sentence in 1969 for robbery and received three years in the

Federal penitentiary in 1976 for violation of the Federal Firearms

Act. Defendant received another three year sentence in 1978 for

grand larceny.

The Defendant himself stated to the Court when given an

LLL Ce a —_— ee

Opportunity to make any statement that he so desired, that he is not

guilty and that there was an error in the trial.

CONCLUSION

All of the proper evidence having been received, the argu-

ments given and statements made, the Court proceeds with its task of

weighing the aggravating and mitigating circumstances and balancing

these circumstances against each other.

The Court has not merely or mechanically tallied the items

for or against the Defendant. The Court has weighed each individual

aggravating circumstance as it applies to William Bush individually,

and the Court has weighed such aggravating circumstances collectively.

The Court has weighed each individual mitigating circumstance as it

applies to William Bush individually, and has weighed the mitigating

circumstances collectively. The consideration given by the Court has

been specifically directed to William Bush as an individual and to

the instant charge against him.

It is the conclusion of this Court that the aggravating

circumstances overwhelmingly outweigh the mitigating circumstances.

Accordingly, the Court accepts the recommendation of the jury that

the penalty of death be imposed upon William Bush.

Formal sentencing be and is hereby set for 10:00 a.m.,

December 3, 1981.

COURT @F CRIMINAL APPEALS

STATE OF ALABAMA

PO WORN 35!

MONTGOMERY 36101

JOHN O HARRIS MOLLIE JORDAN

Prevding Juegos November ay 1982 —

JOHN C TYSON II!

JOHN P DeCaRiO

Wiliam mM BOWEN JR

BISHOP BARRON

Jueger

RE: William Bush v. State

3 Div. 494, Montgomery Circuit Court No. CC 81-1335

The Court of Criminal Appeals today announced the following

decision in the above-styled cause:

"November 2, 1982. Stipulation as to penalty in

co-defendant Pringle case filed and considered.

Request for facts denied. Application for rehearing

overruled. No Opinion. All the Judges concur."

CR NS ee ee ee ee

FEB 1 1 1983

THE STATE OF ALABAMA - =- = = = = JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1982-83

Ex parte William Bush

82-131 PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

(Re: William Bush

My

State of Alabama)

JONES, JUSTICE.

We granted Defendant's petition for review of the Court

of Criminal Appeals' affirmance of his capital offense

conviction and death sentence. The posture of the trial

court proceedings and the facts of the case are fully set

82-131

out in the appellate court's opinion, and need not be

repeated here. Our careful review of that opinion reveals

that each of the issues addressed is resolved in accordance

with well-established legal principles relating to Alabama's

death penalty statute as pronounced by the Supreme Court of

the United States and the appellate courts of this State.

Pursuant to the "plain error" mandate of the last

paragraph of ARAP 39(k), however, our search of the record

discloses one additional issue not raised by petitioner nor

addressed by the Court of Criminal Appeals: Is misciting

the code section in the indictment reversible error?

The problem arises because each count of the indictment

cites § 13A-5-3l(a)(2) as the code section violated. That

code section is part of the 1975 capital punishment statute

and is a proper citation for crimes occurring before July l,

1981, the effective date of the 1981 capital punishment

statute (now codified as §§ 13A-5-39 through 13A-5-59). The

1981 statute applies to crimes occurring after July 1, 1981.

§ 13A-5-57.

The indictment citation of § 13A-5-3l(a)(2) is in error,

because the crime involved in this case occurred on July 26,

1981, twenty-five days after the effective date of the 198)

Capital punishment statute. Therefore, the applicable code

section is § 13A-5-40(a)(2). Nonetheless, we hold that the

technical error in citation is not of such legal

Significance as to require reversal.

Miscitation of a code section does not void an

indictment which otherwise states an offense; and, in the

absence of a showing of actual prejudice to the defendant,

reference to the erroneous code section will be treated as

mere surplusage. Mays v. City of Prattville, 402 So. 2d

1114, 1116 (Ala.Cr.App. 1981); Coker v. State, 396 So. 24

1094, 1096 (Ala.Cr.App. 1981); Fitzgerald v. State, 53

Ala.App. 663, 665, 303 So. 2d 162 (1974); Allen v. State, 33

Sa ami Ra aaa

Ala. App. 70, 73, 30 So. 2d 479, petition struck, 249 Ala.

201, 30 So. 2d 483 (1947); accord, United States v.

Kennington, 650 F. 2d 544 (Sth Cir. 1981); Theriault v.

United States, 434 F. 2d 212, 213 n. 2 (5th Cir. 1970),

cert. denied, 404 U. S. 869 (1971).

The record not only fails to show that Defendant was

prejudiced by the misciting of the statute, but it affirma-

tively shows that he was not prejudiced by it. When applied

to the facts of this case, §§ 13A-5-3l(a)(2) and 13A-5-

40(a)(2) are materially identical; and the indictment ade-

quately avers a violation under both sections, the

punishment under both being the same.

To be sure, § 13A-5-40(a)(2) is broader than § 13A-5-

31(a)(2) in that it encompasses a robbery-murder in which

the person murdered is not the same as the victim of the

robbery. That difference, however, is irrelevant here,

because the indictment averred (consistent with the

undisputed facts) that the murder victim in this case was

the convenience store clerk who was robbed.

The only difference is that §13A-5-3l(a)(2) is part of

the 1975 statute (with its procedure as specified in that

statute and in Beck v. State, 396 So. 2d 645 (Ala. 1980)),

while § 13A-5-40(a)(2) is part of the 1981 statute (with its

procedure spelled out in §§ 13A-5-43 through 13A-5-53), which

is different in some respects, not here material.

Because the indictment, though citing the 1975 statute,

aGequately describes the offense under the applicable 1981

Statute, and because the punishment is identical under both,

the only conceivable claim of prejudice lies in this: That

the misciting of the statute somehow led Defendant to

believe he was to be tried under the procedure prescribed by

the 1975 act, as supplemented in Beck, when in fact he was

tried under the 198] act procedure. The record, conclu-

Sively refuting any such claim, affirmatively shows that the

82-131

trial judge and counsel for the respective parties, well

before the trial date, all acknowledged that the trial, and

the subsequent sentencing procedure, would be governed by the

1981 capital punishment statute. It is important that

Defendant and his counsel knew that the capital offense of

which he, the Defendant, was charged, and the procedure by

which he was tried and sentenced, were the capital offense

and procedure prescribed by the 1961 statute, notwithstanding the

technical citation error in the indictment.

In conclusion, we emphasize that Defendant's failure to

raise the error of citation issue, while weighing against

Defendant as to any possible claim of prejudice, serves as

no impediment to our scope of review pursuant to the "plain

error” mandate in death penalty cases. Accordingly, we find

no irregularity nor impropriety in either the trial proper

or in the sentencing procedure “adversely affecting the

right of the defendant." § 13A-5-53. Likewise, extending

Our inguiry into "whether death was the appropriate sentence

in the case," as mandated by § 13A-5-53(a), including the

Beck mandate to “examine the penalty ... in relation to

that imposed upon his accomplices, if any," we concur with

the appellate court's conclusion that Bush's death sentence

was properly arrived at and is appropriate, being neither

excessive nor disproportionate under the circumstances.

AFFIRMED.

All the Justices concur.

MAY 24, 19393 _—

THE STATE OF ALABAMA = 9 - = = = = = = = JUDICIAL DOPARMENT

IN THE SUPREME QOURT OF ALABAMA

OCTOSER TERM, 1982-33

82-131

Ex Parte: William Bush

(Re: Willian Bush vs. State of Alabana)

3

JINGIENT AND ORDER FOR EXRCUTION

Tne judgnent of the Circuit Court of Montgomery County imoosing the senten

of death upon the apoellant, William Bush, having been affirmed by the Court o

Criminal Apzeals; and the sentence of death imposed by the circuit court ani

the judgment of the Court of Criminal Anveals thereon having been nthe 1, on

writ of certiorari, by this Court on February 11, 1983; and the application for

_

‘

rehearing filed in this cause on February 25, 1983, having been overruled dy

this Court on May 6, 1993;

IT IS NOW ORDERED that Friday, June 24, 1983, be fixed as te date for th

execution of the convict, Willian Busn, and the convict, Willia” sh, being

now confined in the William C. Holman Unit of the Prison System at Atmre,

Alabama,

IT 1S, THEREFORE, ORDERED that the Warden of the William C. Holman Unit of

the Prison System at Atmore in Escambia County, Alabama, execute the order,

judgment and sentence of law on Friday, June 24, 1983, in the William C. Holman

Unit of the Prison Systen, by cepts a current of electricity of sufficient

intensity to cause death to pass through the holy of the convict, William

Bush, until he is dead; and in so doing, will follow the rules prescribed by

law.

% ie:

deliver, within

IT IS FURTHER ORDERED that the Marshal of this Court shall

five (5) days from this date, a certified cooy of this order to the Warden of

the William C. Holman Unit of the Prison System at Atmre, in Escamola County,

Alabama, and maxe due return thereon to this Court.

IT IS FURTHER ORDERED that the Acting Clerk of this Court shall transmit

forthwith a certified copy of this order to the following: the Govermor

Alabama, the Clerk of the Court of Criminal Appeals, the Attorney General "ot

of

Alabama, the State Commissioner of Corrections, the attorney of recori for

William Bush, and the Clerk of the Circuit Court of Montgomery County, Alabama,

by United States mail, nostage ore aid,

I, Dor y F, Norwood, Act } t yE t Suoren rt of Ala 1a, ad

hereov certify the for ing is a fall, true and co t ft j t

and order of th 1 : £ Alabama ccting ¢t t ee it

SE ncvence € Willian 3 i ; xs & ¢ renis MITTS «

Give ? It : t t 24

lay, 1953.

oe « la thy i feu ons

Dorot ly Fe ee

ting Clérk

Sonveus Court of Alabana