Petition for Writ of Certiorari — Jones v. Alabama

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8 089 2

2 SUPREME COURT, U.S.

——

IN THE

SUPREME COURT OF THE UNITED STATES

&

ARTHUR JONES, — 5 *

1 %,

8

PETITIONER

* *

vs. 2 P .

a”

STATE OF ALABAMA, a

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

|

!

ROOSEVELT SIMMON™

VERNON Z. CRAWFORD

1407 Davis Avenue

Mobile, Alabama 146603

(205) 432-169)

ATTORNFYS FOR PETITIONER

4/524

QUESTION PRESENTED FOR REVIEW

1. Whether the Advisory verdict scheme in the Alabama

*

Death Penalty Statute is unconstitutional?

Prefix

SUPREME COURT OF THE UNITED STATES

NO.

ARTHUR JONES,

PETITIONER,

vs.

STATE OF ALABAMA,

RESPONDENT. *

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

The Petitioner, ARTHUR JONES, respectfully prays that s writ of

certiorari isswe to review the judgment of the Alabama Supreme Court

entered on one 8, 1984 which judgment affirmed the tudgment of the

Alabama Court of Criminal Appeals entered on August a 1983.

OPINION BELOW

The Alabema Court of Criminal Apel entered its decision on

August 16, 1983 affirming the trial court's verdict and the Judge's

decision to reject the advisory opinion of the jury which sentenced

petitioner to life imprisonment without parole and in rejecting said

edvisory opinion, the Judge set petitioner's punishment et death. A

copy of the decision is attached as Appendix “A”.

The Supreme Court of Alabama affirmed the decision of the Alabama

Court of Criminal Appeals. <A copy of the decision is attached as

Appendix “B”.

JURISDICTION

On June 8, 1984, the Supreme Court of Alabama effirmed the

decision of the Alabama Court of Criminal Appesls which effirmed tae

trial court's judgment fixing petitioner's punishmengaet death. The

jurisdiction of this Court is invoked under 28 w:¥.c. 2101 aos. Rules

20.1 and 20.4, United States Supreme Court Rules. - + an

ha

®.

—

CONSTITUTIONAL n Se INVOLVED

United States Constitution, Aendsent V:

Nor shall any person...be deprived of life :-

liberty, or property, without due process

of iaw...

STATEMENT OF THE CASE

The Petitioner, ARTHUR JONES, was indicted on October 9, 1981

by the Grand Jury of Baldwin County, Alebene. The indicteent reed

ae follows:

September 4, 1981, Arthur Jones a/k/a Arther

Jones, Jr., whose name is otherwise unknown to

the Grand Jury other then is stated, did teten

tionally cause the death of Veughn Thoapson,

by shooting hie with « pistol end Arther Jones

a/k/a Arthur Jones, Jr., caused said death

@uring the time that Arther Jones a/k/a Arther

Jones, Jr., was in the course of committing,

or attempting to commit, « theft of $400, the

property of Vaughn Thompson. by the use of

force against the person of Vaughn Those,

with intent to overcome his physical resistance

or physical power of resistance, while the said

Arther Jones a/k/a Arther Jones, Jr., wes armed

with a deadly weapon, « pistol in vieletion of

Section 2(a) (2) of Act #81-178, Acts of Ale-

Dass, aeainst the peace and dignity of the State

of Alabewa. (8. 611-612)

Petitioner was determined to be an indigent by the Baldwin County

Circuit Court and eppointed counsel end co-counsel. (RB. 616 and 619).

On November 10, 1981, Petitioner entered a plea of not guilty.

CR. 617).

- «+ —

On January 28, 1982, a struck jury returned a verdict of guilty

of the capital offense as charged in the indictment. (R. 618).

The case was submitted to the jury for recommendation of sentence.

(R. 649). The jury recommended that petitioner be senterced to life

imprisonment without parole. (R. 649).

On February 19, 1982, the trial judge sentenced petitioner to

death, rejecting the recommendation of the jury. (R. 607-608).

Petitioner gave notice of appeal in open court ane counse! was

— e 0

—

iso 9

appointed to represent petitioner on his appeal. ‘ *

On August 16, 1983, the Alabama Court of Criminal Appe@is affirmed

ae.

the verdict and sentence of the trial court. e

On June 8, 1984, the Supreme Court of Alabama affirmed the order

of the Court of Criminal Appeals.

On October 20, 1984, petitioner's present eouncele were contacted

by the Southern Poverty Law Center, 1001 So. Hull Street, Montgomery

Alabama, 36155-5101 to represent petitioner.

On the 16th day of November, 1984, the time for filing a petition

for writ of certiorari to the Supreme Court of the United States was

extended to December 16, 1984.

REASON FOR GRANTING THE WRIT

The Advisory scheme in the Alabama Death Penalty Statute is

unconstitutional.

Petitioner contends that the advisory verdict scheme in Alabama is

unconstitutional on the basis that it lack predictability and consistency.

The Legislature of Alabama passed Title 13A-5-47 of the Code of

Alabama in 1981 which states in subsection (e):

In deciding upon the sentence, the trial court

shall determine whether the aggravating circum-

stances it finds to exist outweigh the mitigating

circumstances it finds to exist, and in doing so

the trial court shall consider the re ommendation

of the jury contained in its advisory verdict. un-

less such a verdict has been waived pursuant to

Section 13A-5-46(a) or 13A-5-46(g). While the

jury's recommendation concerning sentence shall be

given consideration, it is not binding upon the

Court.

The constitutionality of a non-binding advisory verdict system

was noted by the Supreme Court of the United States in the case of

Profitt v. Florida, 428 U.S. 242 (1976). This Court stated that

22

"...would appear that judicial sentencing should

lead, if anything to even greater consistency in

the imposition at the trial court level of capital

punishment, since a trial judge is more experienced

in sentencing than a jury, and therefore, is better

able to impose sentences similar to those imposed

in analogous cases."

428 U.S. at 252.

Petitioner contends that although a trial judge is more experienced

in sentencing than a jury, the non-binding advisory verdict scheme lack

predictability and consistency. In cases of a nature of capital cases

there should be greater predictability so that reasonable jurors can

reach a verdict that allows some prodiecadsivey te * stage

In the present case the evidence against — ese entirely cir-

cumstantial. Should the sentence be death in s case based entirely on

cixcumstantial evidence? This question opens the door for the possibility

of an innocent man being sentenced to death.

In Tedder v. State, 322 So. 2d 908, the Florida Supreme Court made

a jury advisory verdict recommending life binding on the trial judge

unless he determines that the jury acted irrationally.

Judge Colqui.. addressed the issue of rejecting the jury's recom-

mendation in The Death Penalty Laws of Alabama, 33 Ala. L. Rev. 213,

p. 328 29, (Winter 1982):

"The rejection of a jury verdict is a serious matter

traditionally limited by law. Although the 1981 Act

makes the jury's action advisory, the jury's recom-

mendation should not be taken lightlv. Alabama

appellate courts can reasonably be expected to

develop and apply restrictions to a trial judge's

power to reject a sentence recommended by a jury.”

Petitioner contends that there must be some reason, limitation or

restriction for the trial judge's rejection of the jury's advisory

sentence. Such would provide safeguards and protection for the Defendant.

Furthermore, such would provide predictability and consistency in capital

cases.

In McCray ». Florida, 102 S. Ct. 583 (1981) (Brennan, J. dissenting

from denial or certiorari) raised the above issue to a constitutional

level, stating that:

*

"If Florida is to use a system of advisory

verdicts, it must administer that system which

scrupulous fairness. Having stated that it will

reject only those recommendations that are un-

reasonable, it must conscientiously adhere to

that standard. The trial judge or the Florida

Supreme Court may not allow a reasonable jury

recommendation to stand in some cases, and

substitute their own judgment in others. Where

matters of life and death are concerned, such a

lack of predictability cannot be tolerated. This

Court has repeatedly emphasized the importance of

consistency in capital cases." a

102 S. Ct. at 584 (citations omitted). ra . °

“

4

In the present case and others since the enactment of Title

13A-5-47, Code of Alabama, 1975, as anended, the trial judge has allowed

a reasonable jury's recommendation to stand in some cases and substitute

their own in others. Petitioner contends that since life and death are

concerned, such a lack of predictability is unconstitutional. Petitioner

contends further that such a lack of consistency in capital case is un-

constitutional and the petition for writ of certiorari should be granted.

CONCLUSION

For the foregoing reasons, petitioner, ARTHUR JONES.

respectfully requests that a writ of certiorari issue to review

the tudgment of the Supreme Court of Alabama.

*

Respectfully stbmitted,

4 .

8

OF COUNSEL:

ATTORNEYS FOR PETITIONER

1407 DAVIS AVENUE

MOBILE, ALABAMA 36003

(205) 432-1691

THE STATE OF ALABAMA ~~ ~ ~ ~ JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1983-84

Ex parte Arthur Jones

83-95

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF CRIMINAL APPEALS

(Re: Arthur Jones

Vv.

State)

BEATTY, JUSTICE.

We granted certiorari pursuant to Code of 1975, § 13K

5-53, and Rule 39(c), A.R.A.P., which provide for review as &4

matter of right in criminal cases in which the death penalty

has been imposed as punishment. The petitioner alleges that

the Court of Criminal Appeals erred in affirming the trial

court's judgment denying him e new trial and in affirming

APPENDIX “B"

83-95

the sentence imposed by the trial court. The facts are

fully set out in the opinion of the Court of Criminal

Appeals. After consideration of the issues raised by the

petitioner, we affirm the decision of that court.

I.

Jones urges this Court to reverse the decision of the

Court of Criminal Appeals, which held that certain,@tatements

of the prosecution at trial did not create revérsible ergot,

and to remand this cause for a new trial. Ee : 8

We agree with the Court of Criminal Appeals thet the

prosecutor's statements did not cause any prejudicial

misapprehension by the jury,in light of the curative

instructions given by the trial court and the statements of

defense counsel during closing arguments. Additionally, due

to the other evidence in the case, the type of glue on the

knife, referred to in closing argument, was not the “fulcrum

of the State's case” as the petitioner argues in brief. We

have carefully considered the petitioner's arguments, but we

can find no error in the exhaustive treatment of this issue

by the Court of Criminal Appeals.

Il.

Jones also alleges error in the sentencing procedure,

because the trial court overrode the jury's advisory verdict

of life imprisonment and imposed a sentence of death. The

Court of Criminal Appeals affirmed the trial court's

decision, based upon Murry v. State, (Ms. March 29, 1983)

— So. 24 (Al Cris App. 1983), which is currently

pending before this Court on a writ of certiorari.

The statute in issue in that case and in the present

one is Code of 1975, § 13A-5-47, which provides in part:

(e) In deciding upon the

sentence, the trial court shall

determine whether the aggravating

circumstances it finds to exist outweigh

the mitigating circumstances it finds to

exist, and in doing so the trial rr

shall sider ndati

2 ees win oe

-2-

83-95

unless such a verdict has been waived

pursuant to section 13A~5~46(a) or 13A-

5-46(g). While the jury's

recommendation concerning sentence sha!1

ven consideration, af 18 not

Binding upon the court.” (Emphasis

This statute clearly reveals the legislative intent that the

jury's recommendation is advisory only and thus is not

binding upon the trial ccurt. Where plein language is used,

the statute must be interpreted to mean exactly what it

says. Ex parte Madison County, 406 So. 2d 398, 400 (Ale. —

1981). |

The petitioner concedes the constitutionality-of

Alabama's statutory scheme of sentencing under Proffit v.

Florida, 428 U. S. 242, 252 (1976), which upheld the

constitutionality of Florida's similar death penalty

procedure with the following language:

“This Court has pointed out rat jury

sentencing in a capital case can perform

an important societal function,

Witherspoon v. Illinois, 391 U.S. 510,

51d a tS a5 S.Ct. 1770, 1775, 20

L.Ed.24 776 (1968), but t has never

suggested that jury sentencing is

constitutionally required. And it would

appear that judicial sentencing should

lead, if anything, to even greater

consistency in the imposition at the

trial court level of capital punishment,

since a trial judge is more experienced

in —— than a jury, aud therefore

is better able to impose sentences

similar to those imposed in enalogous

cases.

Nevertheless, the petitioner urges this Court to adopt specific

limitations on the trial court's power to override the

jury's advisory verdict. In support of his argument that

some limitations must be imposed, the petitioner cites

Dobbert v. Florida, 432 U. S. 282 (1977). Im that decision,

the Supreme Court again reviewed the Florida death penalty

statute and upheld the trial court's imposition of the death

sentence, even though the jury had recommended life

imprisonment, stating:

83-95

“Perhaps most importantly, the Florida

Supreme Court has held that the

following standard must be used to

review a trial court's rejection of «

jury's recommendation of life:

Ia order to sustain a sentence of

death following a jury

recommendation of life, the fects

Suggesting a sentence of death

should be so clear and

3

(emphasis added) (cited with : “4

approbation in v. Florida,

428 U. S., at 289, 7 oe :

2965). 5

“This crucial protection demonstrates

that the new statute affords

cee more safeguards to the

defendant than did the old. Desth is

not automatic, absent a jury

recommendation of ars as it was under

the old procedure.

wander fhe

nce,

a sre not si ieantly

disaetventaged vis-a-vis the

recommendation of life op cae jury; on

the other hand, unlike t old statute,

a jury determination of death is not

binding. ‘Inder the new statute,

defendants have a second chance for life

with the trial judge end a third, if

necessary, vith the Florida Supreme

Court. such protection was afforded

by the old statute. Hence, viewing the

totality of the procedural changes

wrought by the new statute, we conclude

thet the — 2 — ar not work en

onerous sepplication of en pee.

cha in the law. — 5 fecte.

proof of this fact is that this old

statute was held to be violative of the

United States Constitution in

v. 72 * 265 824 499 (Fle. 1

while the new law wes upheld this

Court in esbart 432 U.S. at

295-97. sise ) (Pootnote omitted.)

Petitioner argues that this language in Dobbert demonstrates

that the United States Supreme Court found the Tedder rule

to be a constitutional requirement when a trial court's

override of « jury's advisory verdict of life imprisonment

is reviewed.

It appears to this Court, however, that the United

States Supreme Court, in Proffit and Dobbert, did not find

the Tedder .ule to be e general constitutional requirement

— 4

— —

83-95

under a statutory scheme simiiar to that of Florida.

Instead, the United States Supreme Court merely approved the

standard which the Florida courts have adopted providing for

additional protection to the defendant. Indeed, to hold

otherwise would undermine the benefits of judicial

sentencing praised by the United States Supreme Court in

Proffitt, supra, and adopted therefrom by the Alabama

legislature. Therefore, we are not required by the United 's

States Constitution to adopt che Tedder ryle.

Alabama's statute likewise affords more eignificant

safeguards and more protection for the defendant than

formerly. Death is no more automatic under Alabama's

statute than under Florida's statute. The whole catalog of

aggravating circumstances must outweigh mitigating

circumstances before a trial court may opt to impose the

death penalty by overriding the jury's recommendation.

Because Alabama's statute is a clear expression of public

policy as discerned by the legislature, and conforming to

the statutory purpose of Florida's statute as approved by

the United States Supreme Court, the petitioner's argument

for the adoption of additional standards of review of «

trial court's sentence was one properly addressed to the

legislature.

The petitioner argues further the trial court

“made several obvious errors in its order of final

sentencing.” First, the trial court mentioned «

description given by two witnesses of an individual leaving

the store carrying a bag. The court described the bag as «

brown paper one containing Tupperware which the victim's

mother identified at trial as the bag in which she packed

his lunch. The petitioner contends that the bag was marked

for identification as State's Exhibit No. 6, but that it was

never admitted into evidence. Therefore, he asserts that

the trial court used «a piece of evidence which was never

— 5 —

83-95

admitted at trial as a partial basis for the sentence

overriding the jury's advisory verdict. The record does not

demonstrate that the Tupperware and brown paper bag were

formally introduced into evidence. However, the record does

disclose that the items were marked for identification,

identified by the victim's mother, who was @ witness for the

State, displayed before the jury, and commented uptn by

several witnesses. Therefore, the inescapablé conclusion. is

that these articles were evidence in the case. Hope v. ,

State, 378 So. 24 745, 746 (ale.Crim.App. 1%.

Second, the trial court stated in its findings of fact

at the sentencing hearing that the state toxicologist

identified e residue (glue) on the knife found in the

defendant's possession as being « substence similar to that

used by the victim in building « miniature log cabin. The

petitioner calls this “se total misstatement of the

evidence,” because, he says, there was no testimony that the

substance on the knife was similer to the substance used by

the victim. While the State's laboratory expert did not say

the glue on the knife was the same as the glue on the hobby

samples which he examined, he did testify that the glues

“were of the same chemical group.” Therefore, the triel

court did not err in its finding thet the glues were “similar.”

Accordingly, we find no error in either the trial

proper or in the subsequent sentencing procedure “adversely

affecting the rights of the defendant.” Code of 1975,

§ 13A-5-S3(a). Similerly, we agree with the Court of Criminal

Appeals that the triel court's findings concerning the

aggravating and mitigating circumstances were supported by

the evidence, and that death was s proper sentence in this

case. Therefore, the judgment of that court affirming the

trial court's judgment and sentence is due to be affirmed.

It is so ordered.

AFFIRMED.

All the Justices concur, except Jones, J., who concurs

in the result.

83-95 - Ex parte Arthur Jones

JONES, JUSTICE (concurring in the result).

I concur in the result. I would adopt the Tedder

rule (Tedder v. State, 322 So. 2¢ 908 (Fla. 1975); but,

applying that standard, I would affirm the conviction and

the sentence.

AUG 1 6 1868

THE STATE OF ALABAMA --- JUDICIAL DEPARTMENT “~

*

THE ALABAMA COURT OF CRIMINAL APPEALS .

*

OCTOBER TERM, 1982-83 e*

1 Div. 377

Arthur Jones

Vv.

State

Appeal from Baldwin Circuit Court

Appellant was indicted and convicted under § 13A-5-

40(a) (2), Code of Alabama 1975, for murder by the defendant during

a robbery in the first degree or an attempt thereof committed

by the defendant. After a separate hearing on aggravating and

mitigating circumstances, the jury fixed appellant's punishment

at life imprisonment without parole. Subsequently the trial

judge weighed the aggravating and mitigating circumstances

pursuant to § 134-5-47, Code of Alabama 1975, and finding no

APPENDIX A

mitigating circumstances, rejected the jury's advisory verdict

and fixed appellant's punishment at death. The court entered

specific findings of fact which set forth the eggraevating

circumstances which the court found sufficient to indicate

that death was the appropriate punishment.

Because this is a conviction of a capital offense

resulting in e sentence of death, we will detail the crucial

—

—

1

facts presented at trial. *

Mr. Robert D. Mitchell testified that in September

of 1961, he lived in a mobile home next door to The Outdoorsman

store. His trailer was located approximately forty-five yards

north of the store. The residence of Mr. Bobby Thompson was

situated on the same side of the road, about eighty yards

north of Mr. Mitchell's mobile home. Both his trailer and

The Outdoorsman faced Highway 225, with the front of Mr. Mitchell's

trailer sitting approximately one hundred feet closer to the

highway than the front of the store. There are no woods

between his treiler and The Outdoorsman.

Mr. Mitchell testified he was at his trailer pre-

paring for bed around 8:30 p.m. on September 14, 1981, when he

heard five gunshots. At that moment he was in his bedroom

on the south end of his trailer. He was able to look directly

out that window and see The Outdoo: wan store, where he saw a

man crouched down by the north side of the store. He watched

as the man ran out front into the light, returned and crouched

down again, and then moved slowly toward the end of the buildiny

and ran south.

The man Mr. Mitchell observed wore a white tee-shirt

and dark pants. He was « black male, approximately five feet

six inches in height and 140 pounds in weight.

As the man came out into the light the second time,

he was carrying # brown paper sack in his left hand. In his

e3-

right hand he held a plastic garbage bag. Mr. Mitchell grabbed

his gun and drove to the store, arriving just efter Mr. Bobby

Thompson. When he arrived, he saw the victim, Vaughn Thompson,

lying face down on the ground with a gunshot wound to the head.

Mr. Bobby Thompson instructed mr. Mitchell to remain

with Mrs. Elma Thompson, and then took Mr. Mitchell's gun and

left in his automobile in the direction Mitchell cow the man

4 „

leave. *

Mr. Bobby Thompson testified he lived on Highwdy 225.

@pproximately 300 yards north of a store he owned called The

Outdoorsman. He stated he was the father of the victim, Vaughn

Thompson.

On September 14, 19 „ around 8:30 p.a. he wae in

his living room when his wifes m to the door and told him she

thought she heard shots from the direction of the store. As

they ran to their automobile, they heard three sore shots from

the direction of the store. They Grove to the store and while

still a hundred and fifty yards from the store they saw « short

bleck man wearing * tee-shirt run owt of the store. Mr. Thompson

estimated the man's weight at 135 to 140 pounds.

When the Thompsons arrived et the store, Mr. Thompson

saw his son, Vaughn, ly.og face down in the driveway. He jumped

from the automobile and held and called to his son, but received

no response. He then took Mr. Mitchell's shotgun, got into his

automobile and drove in the direction Mr. Mitchell saw the man

run towards. He traveled only approximately fifty yards south

when he saw an automobile on a dirt side-road traveling very

slowly. Mr. Thompson increased his speed, Sut the other vehicle

eluded him after three or four miles.

Although Mr. Thompson could not identify appellant

es the man he observed et the store, he @id recall the appellant

coming into the store approximately four or five days before

his son was murdered.

Mr. Thompson testified that shortly before the time

of his son's death, Vaughn had been building a log cabin from

match stems which he glued together onto a beverage flat.

He had observed his son using a knife to rake up the matches

with the glue on them in building the cabin. The knife, which

Thompson stated he had geen his son use approximately forty times,

was positively identified by Thompson as State's exhibit, number

four. He last remembered seeing the knife egpreuinetely two's

es before his son's death. *

The victim's mother, Mrs. Elma Thompson, testified

and verified her husband's testimony. She also testified

that she had prepared her son's lunch earlier that day and

stored it in Tupperware bowls. She had given the bowls

to him that morning. Mrs. Thompson stated she was walking

along Highway 225 on the side on which the store was located

with several people on the morning of September 15, 1961, when

her son-in-law discovered the bowls and gave them to her.

She in turn gave the items to law enforcement officer Woodrow

Overbey. She identified the bowls as state's exhibit six.

Robert Stewart testified he was the chief criminal

investigator for Baldwin County on September 14, 1981, and that

he was called upon to investigate the death of Vaughn Thompson

on that date. Upon arriving at the scene he observed the victim's

ody lying in front of The Outdoorsman. Officer Stewart stated

a bloodhound used in the investigation ran a trail from the body,

around the building, over to a dirt road, and then down the dirt

road to a location where a vehicle had been parked. In this

area a garbage bag was observed by a Lieutenant McDowell.

Officer Stewart took the bag into his possession, delivering

some of its contents to the lab, and retaining other parts

for use by the department in the investigation.

Officer Stewart testified he retrieved from the bag

several check stubs and an envelope with the address 311

Montgomery Street. The appellant's name appeared on the

check stubs, although one was printed as Arthur Jones Junior,

\

and the others only as Arthur Jones. Officer Stewart also

retained a bandage which had strands of hair attached to it

and a receipt from a Delchamps market dated September 10.

On September 16, 1981, Officer Stewart went to the

311 Montgomery Street address in Mobile, Alabama. When he

arrived at that address he found the appellant sitting at a

kitchen table with Detective Pickett. He ident if fed himself

to the appellant, and told him he was there to 1 5

a robbery-homicide. He advised appellant of his Miranda .

rights, and appellant agreed to talk with him. officer Stewart

recalled that at some point during this initial phase of his

interrogation of appellant that appellant was cleaning his

fingernails with a pocketknife.

Appellant stated that he had been at home, alone,

on the evening of September 14 watching a ballgame on television.

During the halftime of the ballgame, he left his apartment to

get some ice cream. He did not recall having been in Baldwin

County for several months prior to — ͤ—- by Officer

Stewart.

Appellant was asked how long it had been since

he had thrown garbage away and he stated it had been two

weeks. When he was told that a bag of garbage containing

some of his effects had been found, he recalled having dropped

a bag of garbage in a trash drop at a Hess gas station during

the ballgame halftime.

Appellant stated he had loaned his vehicle, described

by Officer Stewart as a blue and white 1976 or 1977 Grand Prix

Pontiac, to only one man. That occurred only once, three

weeks prior to the interrogation,

Prior to the time frame of the crime ever having been

mentioned to appellant, he volunteered the following etatement

to Officer Stewart:

“Prior. to his arrest, while we were still

in the kitchen at his apartment talking

\ to Mr. Jones, he just, out of the open

air, says, ‘Well, y'all are trying to

put me over there at 9 o'clock when

that murder happened and I wasn't there.

I was here in this apartment.'*

Following the interrogation of appellant at his residence,

Officer Stewart placed appellant under arrest. During a search

of appellant's person pursuant to the arrest, Officer Stewart

removed a small pocketknife which he later Cuore to the

crime lab. Stewart identified state's exhibit.four as being

‘

the same knife he had removed from appellant during the search.

On cross-examination, Officer Stewart stated that a

knit pullover cap that had holes for eyes cut “out in it, so

as to resemble a ski mask, was also found on the dirt road

approximately twenty feet from where the vehicle had been

parked.

Roland Howell, an investigator for the Baldwin County

Sheriff's Department, stated he was present when the bag of

garbage was found. He observed the name on the return address

of an envelope found therein and stated the return was addressed

to Abdul Sabir Bakee at 311 Montgomery Street.

Terry J. Malone testified he was the president of

Industrial Services. He identified the check pay-stubs found

in the garbage bag as having been issued by his company, and

identified appellant as the recipient of those checks.

James L. Small, a laboratory administrator for the

Department of Forensic Sciences, examined photographs of

appellant's tires and of impressions made of the tracks found

on the dirt road. He stated the tracks were of the same design,

and that the tire in the photograph could have made the tracks

in the impression. His examination of a bandage obtained from

the garbage bag found on the dirt road indicated the presence

of hairs from someone of the Negro race. He also examined

State's exhibit Sour, the pocketknife, and found adhered to

it the substance cyanoacrylate, commonly known as super glue.

Mark ‘Evans testified he was employed on the three

to eleven p.m. shift at the Hess Oil Company service station

on the corner of Springhill and Broad in Mobile, Alabama, on

September 14, 1981. He recalled seeing the appellant come

in and get gas sometime after 9 p.m. that evening. He

did not see appellant place any trash in the station's dumpster.

It would have been possible for someone to place trash in the

dur without his knowledge, however, because he did not have

a full view of it from where he worked. _ &

Larry Shakir, a friend of appellant, testified'ne_

received a pistol from appellant on the morning of September

15. He had previously requested that appellant find him a

weapon for his personal use and protection, Upon learning

of the murder and of appellant's possible involvement from

a news report the following morning, Mr. Shakir "panicked"

and threw the gun into Mobile Bay, He did not recall the make

or caliber of the gun.

Mr. Shakir also testified that at one point in time, ;

appellant had changed his name to the Muslim name of Baagee.

Because the name was Arabic, he was not sure of its pronunciation.

On examination by defense counsel, Mr. Shakir

identified State's exhibit four as a knife which belonged to

appellant. However, upon further examination by the State,

he admitted having earlier identified another knife as the

one which appellant owned. ke could not say which, if either,

of the knives ever belonged to appellant, but only that they

were similar to appellant's knife.

Curtis Lassiter, the victim's brother-in-law,

testified he found a brown grocery bag containing Tupperware

on the morning after the victim was murdered. He located the

bag approximately one hundred and twenty-five yards south of

The Outdoorsman on the right hand side of the road. The bag

was about half way between the store and the nearby dirt road.

When ze saw the sack it was sitting flat on the ground and

the top was open. He took the bay to the store and gave it to

Mrs. Thompson.

Dr. Leroy Riddick, a State forensic pathologist,

testified he determined the victim's death was caused by

injuries to the brain resulting from three gunshot wounds

to the head and neck. The body also evidenced blunt force

trauma, which indicated the victim had been struck with an

object.

Bobby Stewart was recalled by the State and testified

appellant toki him during the conversation it appellant's nous

that he had recently cut his finger while changing a tire.’

Mr. Bobby Thompson took the stand again and testified

that after the robbery a bac containing four hundred dollars

was found, as well as two hundred dollars in the cash register.

Because it was time to buy gasoline and beer for the store, which

were purchased in cash, there should have been approximately

a thousand dollars in cash at the store. He had not seen

the money, but had been told by his son that it was available

in the store for those purchases.

Roland Howell retook the stand and testified The

Outdoorsman was located in Baldwin County, Alabama. The State

rested at the close of his testimony.

Appellant moved to dismiss the State's case for

failure to establish a prima facie case in that the State

failed to prove a robbery occurred, The trial court denied

appellant's motion.

Arenzo Thigpen, called by appellant to testify,

stated he was a friend of appellant. He recalled having

twice borrowed appellant's automobile, once on a Sunday and

once on a Tuesday. He denied any connection with the shooting

in Baldwin County, and stated he had not been in Baldwin County

within the last year. .

Appellant rested at the close of Thigpen's testimony.

The state presented no rebuttal, and appellant's motion to

exclude the State's evidence and for a directed verdict was

denied.

I

Appellant contends that reversible error occurred

when the prosecutor commented on evidence which had not been

formally admitted at trial while making his closing argument

to the jury. The items in question, State's exhibit number

six, are the Tupperware bowls and the brown paper grocery bag

which contained them, which were found near the bag of garbage

i. *,

et the crime scene. The record reflects the following identi®

fication was made during the testimony of the victim's mother:

"Q Mrs. Thompson, I will ask you t6 ,

look into the bag that's been marked

for identification as State's Exhibit

Number Six. I will ask you if you can

recognize the items inside the

which have been marked for identification

"QQ I asked you to look at what's been markcd

for identification as State's Exhibit

Six. Do you recognize that item?

"A Yes, I do.

» Could you tell the ladies and gentlemen

of the Jury what that item is?

“A It's the bowls, Tupperware bowls that I

gave my son his lunch and breakfast in that

morning, September 14th.

"Q after September 14th, when was the next

time you saw that item?

“A The next morning, September the 15th.

"Q And where did that item come from?

“A It was found.

"Q Where?

“A On the road below the store.

„% And was that item found -- on what side of

the road, what side of 225?

"A On the same side as the store.

12 wore you with the people that found the

tem

"A Yes, I was. We were all walking.

"Q Who was tnat?

“A My son-in-law.

-9-

"Q Who was it given to?

“A Me.

"Q And after you had it, who did you

give it to?

“A I think Mr. Woodrow Overbey, one of the

law enforcement officers. I'm almost certain

it was Woodrow Overbey."

Later in the trial, Curtis Lassiter, gy veetin’s

brother-in-law, testified he found a brown grocery bag tontaining

Tupperware on the morning following the murder. He took 2

which he found on the ground between The Outdoorsman and ‘the

dirt road,and gave it to Mrs. Thompson. .

During the presentation of the appellant's case,

appellant conducted the following examination of appellant's

witness Arenzo Thigpen:

“Q I'm going to show @ beg marked as

State's Exhibit Six ask you to look

inside of there.

“A Okay.

“MR. WILKINS: Go ahead, you can look.

E WITNESS: (Witness reviewing instruments

and documents.) What are we looking for?

“BY MR. ENFINGER:

"Q Did you look at the items in the bag?

“A Wot really. Let me check it out again.

I really don t know what I am supposed to

be Tooking for.

"Q Have you ever seen those items before?

“A Not as I know of. I seen a lot of items

that look like that. It's Tupperware. Most

housewives have them. I don't know whether

I seen them before or not.”

Although the record does not indicate that the Tupperware

and grocery bag were formally introduced into evidence, they were

marked for identification, identified by a State's witness,

Gisplayed before the jury, ar. commented upon by several

witnesses. The articles were, therefore, evidence in the case.

Hope v. State, 378 So. 2d 745 (Ala. Crim. App.), cert. denied,

378 So. 2d 747 (Ala. 1979); Simpson v. State, 51 Ala. App. 279,

-10-

284 So. 24 734 (1973). As such, the articles were proper

subjects for the prosecutor to comment upon and draw reasonable

inferences from during his closing argument. Hope, supre.

The articles were repeatedly referred to by the

prosecutor and appellant's counsel during their examinations

of various witnesses. As indicated above, appellant's counsel

questioned his own witness on direct examination céhLerning |

che articles. Seth partics heaving trested the articles . *;

evidence in the presence of the jury, there is no error. +

Golston v. State, 371 So, 2¢ 471 (Ala. Crim. App. 1979).

Moreover, our review of the record indicates that

it was appellant's own counsel who first commented upon the

articles during closing arguments, as follows: -

“Noretheless, he ee = SS.

there, the short

though the vision was so good to say yy

"Bet let's clear eway the smoke ecreen thet

the DA has tried to put in here about the

and the glue on the knife. The

garbage

— Ppdeecnemeen: and all of this other

We fail to see, therefore, how appellant could heave

been harmed by the prosecutor's similar reference to the articles

@uring ais subsequent closing argument. :

11

Appellant contends the wording of the warning he

received prior to making © statement to police was insufficient

to advise him of his constitutional rights under Mirands v.

-li-

Arizona, 384 U.S. 436 (1966). Hence, he argueshis statements

were inadmissible at trial.

Officer Robert Stewart testified he advised appellant

of his constitutional rights in the following manner prior to

interrogating him at his home on September 16, 1961;

"Q Now, what is that card, if you will?

"A tt’ ot consti

ana Stivers „

Wade did you wee that card to assist

you? . as

"A 1 used it in reading the betengens his

constitutional rights.

"OQ And would you read to this Jury the

rights that you read to the Defendant at

that time? 5

“A Yes, sir. ‘You have the r to talk to

„ lawyer, dave him with you while you are

heing questioned, if you want « lawyer but

2 CS QU Gs

or you.

**You have the right to remain silent, anything

I Gye Ses Ge Gas Cyrene ote SC

t 0

"Q All right, sir. Where were you when this

was done?

“A Seated at the kitchen table.

"Q Who else was seated at the table?

“A Mr. Jones and Detective Pickett end Roland

Howell; but I also went one farther and

advised him that should he dec to talk to

ws and any time dur thet conversation thet

he wished to, he stop talking and request

an attorney et any time.*

Officer Wayne Ivie testified that he also read appellant

his constitutional rights, shortly before Officer Stewart

arrived at appellant's home on September 16, 1981. Officer Ivie

testified he instructed appellant as follows: :

“A Yes, sic. I ed@vised him that he had

the right to remain silent and anything

—

sgainst in e Court of lew, that he

hed the cight to heve an attorney present,

and if he couldn't efford an attorney, one

N HN

rights and he replied that he did.

"Q Wes anyone elee present at the time?

"A Sergeant Pickett.*

Officer Walter Pickett testified he was present and

heard both Officer Stewart and Officer Ivie advise appellant

of his constitutional rights. it

Appellant, citing an annotation whith follows the.

Miranda decision at 16 T. Ed. 24 1294, contends the warnings

appellant received were insufficient in particular because

they failed to use the precise language as formulated in the

annotation, which states that a suspect “has the right to con-

sult with, and have present prior to and during interrogation,

an attorney either retained or appointed... 186 . Bd.

d 1300. (Bmphasis added.) Appellant's argument has specific

reference to the officer's failure to use the term “prior to*

in warning appellant of his right to counsel.

The Miranda decision requires no talismanic formula-

tion of the warnings to be given to « criminal defendant as to

the constitutional rights protected by that decision. Cali-

fornia v. Prysock, 453 U.S. 355 (1981). Reviewing the language

used to inform the appellant herein of his right to appointed

counsel, we find, as did the court in Prysock, supra, that

tinte is not « case in which the defendant was not informed

of his right to the presence of an attorney during questioning

+ « « @© in which the offer of an appointed attorney was associated

with « future time in court. . . ." Prysock, supra, at 361.

(Citations omitted.) There was no error in this regard.

111

Appellant asserts t ctrtel court's action in re-

jecting the advisory sentence of life without parole recom-

mended by the jury, in order to elevete his sentence to death,

-13-

was error. Appellant's arguments have been precluded, how-

ever, by our recent decision in Murray v. State, (Ms. 3 Div.

604, March 29, 1983) ___ Bo. 24 Ae. Crim. App. 1983).

There was no impropriety in the trial judge's decision to

sentence appellant to death.

* —

During the states closing argument,’ the following

appears in reference to the knife found on appellant's ee

at the time of his arrest: i ee

Thompson's father identified thet

pocket. This item of evidence had the...

give on it that that young boy

was making his little model with.

And this item, this item came out of Vaughn

Appellant argues that the prosecutor's remark mis-

stated the testimony and stated e fact which was not supported

by the evidence, thus creating reversible error. Th. State

on appeal does not deny thet there wes never any evidence

14

presented that the laboratory expert stated the glue used on

the cabin model, nor any glue samples taken from the victin's

possession at the scene of the crime, were of the same glue

type as that found on the knife.

In the State's closing argument in rebuttal,

erroneous reference was again made to the laboratory expert's

testimony, as appears below: a

* *

“and I want you to look et thet kalte when —

— it beck there in that Room |

et that knife very closely. You 5

look up under this thing end you look at

it and see what thet substence ie that's

on the knife. Mr. Small told you Prom the

lab that it was a kind of whatever

Small, indicated his tests revealed that the material on the

knife was « glue of the cyancerylete group. He 100 stated

that four samples of glue he received from Officer Roland

Howell were of the same cyanoacrylate group es the glue on the

knife. However, there was no testimony by Mr. Small, Officer

Howell, oF anyone elee as to the origin of the glue samples

obtained by the officer which were compared with the glue on

the knife.

Mr. Small aleo testified thet he received « “*model,*

„ bottle lebeled as Elmer's give, and « jer lid containing

Give from Officer Stewart. There wes no testimony, however,

that any of those items contained glue of the cyanoacrylate

group.

While counsel should have wide latitude in arguing

reasonable inferences from the evidence, counsel should not be

sllowed to argue as « fact that which is not supported by

the evidence presented during trial. Brown v. State, 374 So.

24 % (Ala. Crim. App.), affirmed, 374 So. 24 395 Ale. 1979).

It is without question thet the prosecutorial erguments quoted

above were factual misstatements of Mr. Small's testimony

which fall within this prohibition. When the prosecutor

-15-

sert « fact not in evidence, which is prejudicial to the

accused, error cccurs. Diamond vy. State, 363 So. 24 109

(Ale. Crim. App. 1978). However, not every argument of «

fect not in evidence is so prejudicial as to necessarily

affect the substantial rights of the defendant. See, Brown,

bre ot 396; Flint vy. State, 370 So. 24 332 (Ale. Crim. App.

1979). 3% ore

In oréer for unsupported prosecutorial steteméAty

of fact to require reversal, the objectionable statements

must be (1) made os of fact, (2) without support by eny evidence,

(3) pertinent to the issues, and (4) have « naturel tendency

to influence the finding of the jury. Tilimen v. State, 374

So. 24 922 (Ale. Crim. App. 1976), cert. queshed, 374 So. 24

927 (Ale. 1979); iet eupre.

The prosecutorial statements in question clearly

vieleted factors (1) end (3) above. The prosecutor's ergument

was phrased as e statement of fact, end not es an inference

from the fects. The knife's connection to *he victia by the

presence of the same type of glue es used in the victin's

cabin model wes clearly pertinent in proving the State's

entirely circumstantial case.

Ae to fector (2), we cannot sey thet the prosecutor's

argument wes entirely unsupported by any evidence et trie.

The scientific expert 414 testify thet the give on the knife

and certain glue samples from the officers investigating the

case were of the same chemical group. The prosecutor say heve

argued as „ legitimate inference from the testimony thet «

knife which wes both identified by the victin’s feather end

which bore evidence of give must heve been the victia's knife.

Yet, there still wes no berie for hie stetement thet the expert

ectuslly identified the give samples from the crime scene os

the same type as the glue on the knife.

16

We look finally, ané crucially, then et fector

(4) to Getermine whether the nseturel tendency of this sisstetement

of the expert's testimony wes to infleence the finding of the

jury egeinst ppl lente interests.

The State's case egeinst eppellent, while entirely

circumstantial, wes in no wise Gependent upon the gupert’s

—— 28 of the Glue type eo-Cieanised ay x

overwhelming case egainst seppeliant. Bye witnesses described

the sssailant’s race, height and weight, dlthough they were

enable to identify him bosssss of the ictence fren which

they viewed him. One witness could see thet the essailent

cercied « brown peper seck and « plestic gerbege beg The

victia’s feather obeerved on sutomobile on @ nearby Girt roed

which wes loceted in the direction he had seen the essailaent

flee. He gave cheese, bet eventually lost the sutomobile.

The victim's feather elec positively identified the knife

found in eppellent’s possession eo the one his son hed owned.

Bloodnmounds brought to the suréer scene trected

@ treil directly to the dirt roed where en sutomobile hed

been parked. In this ares, « beg of garbage containing check

stubs with eppellent's name, an envelope with appellant's return

e@écvess, end « bendege with etrends of heir of Hegre origin were

foun¢. Setween the store end the Girt roed, « brown paper seck

containing Tupperwere from tne victia'’s lunch wes found.

When police errived to investigate eppellent. they

found in hie possession « knife leter identified by the victin’s

feather es belonging to the victia. When questioned shout

discarding garbege, appellant changed his story about not

éisposing of any refuse. upon learning gerbege hed been found

which wes connected to him. Appellant edmitted heaving recently

cet hie finger, but Genied being in Baldwin County. Sis story

17

about discarding the garbage at the Hess station was refuted

by police investigation of the station attendant. Finally,

without having been told of the time frame of the crime,

appellant volunteered a denial of having been at the crime

scene at the very time the crime was committed.

Laboratory expert Small testified a tire goa taken

from the dirt road was of the same design as the | uf the

tires on appellant's automobile. And while the expert neve?

connected the glue on the knife with the ‘glue from the erine

scene, he did find that glue was present on my knife. The

.wiectim's father had earlier testified that his son wood his

knife in gluing match sticks on a model of a cabin. Thus the

identification of the glue would only be cumulative evidence

of the identification of the knife previously made by the victim's

father.

A friend of appellant's testified to having received

a gun from appellant on the morning following the murder, which

he later disposed of because he feared it was connected to

the murder.

In light of the entirety of the circumstantial

evidence against appellant, we do not view the prosecutor's

misstatement in question as having a natural tendency to influence

the jury against appellant so as to have denied appellant of a

fair trial. Flint, supra. We find this to be a case where

the evidence as to the identity of appellant was so overwhelmingly

in favor of the state that it is inconceivable that a reasonable

jury would have returned a verdict of not guilty. See Brown, supra.

The argument of a fact not in evidence was not so prejudicial as to

have necessarily affected the substantial rights of appellant.

- See, Brown, supra, at 396.

We are influenced too by the fact that the trial court

did not overrule appellant's objection, but rather immediately

proceeded to instruct the jury as quoted supra. Appellant did

not further pursue his objection, which may be taken to indicate

he found the judge's instruction sufficient at that time to

cure any misapprehension by the jury. As well, appellant's

counsel stated the following to the jury in closing argument

which followed the prosecutor's initial statement:

"Now, a pocketknife, I ss a ict of

gentlemen have pocketknives; but using

pocketknives, they use them on all kinds |

of things. So many things, you can use

them for so many things but you r

when I kept asking that man about the *

different qualit‘es of that glue and **

it have been any other type of glue and ,

don't all these types of other glues have

*

fellow used working with his model and

used working with his knife. Now, did

you run tests on that specific glue?

Did they? That was never mentioned." oo’

Finally, the trial court instructed the jury during

its oral charge as appears below:

“The statements or assertions of counsel

are not evidence in the case. You take

the testimony of the witnesses together

with all proper and reasonable inferences

therefrom, apply yourcommon sense, and in

an honest and impartial way, you determine

what you believe to be the truth.”

In light of these actions, we do not believe the

prosecutor's statement created reversible error. See, Weaver v.

State, 402 So. 2d 1099 (Ala, Crim. App. 1981); Meridith v. State,

370 So. 24 1075 (Ala. Crim. App.), cert. denied, 370 So. 24

1079 (1979).

*

Reviewing this case in light of § 2

of Alabama 1975, we find that:

(1) there was no error adversely affecting the

rights of the acpellant made in the sentencing

hearing;

(2) the trial court's findings concerning the

aggravating and — — circumstances were

supported by the evidence” ;

(3) that death was the proper sentence in this case.

I7 The trial court’s findings of fact, setting forth tts Findings

as to aggravating and mitigating circumstances, are attached

as Appendix A.

-19-

In determining the propriety of the sentence of death,

we have determined in accordance with § 13A-5-53(b), Code of

Alabama 1975, that the record indicates no evidence that the

trial judge imposed the sentence of death under the influence

of passion, prejudice, or any other arbitrary factor. Our inde-

pendent s.eighing of the aggravating and mitigating circumstances

evidenced by the record places us in accord rum

decision to fix appellant's punishment at death. We find, .

did the trial judge, no evidence that any mitigating ‘circumstances

existed, statutory or otherwise, in appellant's, bevor: We

agree with the trial court's finding of the eaves aggravating

circumstances.

The record indicates the crime was committed while

eppellant was under sentence of imprisonment, although he was

serving the latter part of this sentence while on parole. Also

sustained by the record is the trial court's finding that appel-

lant was previously convicted of another felony involving the

use or threat of violence to the person. Finally, the evidence

presented at trial supports the trial judge's finding that the

capital offense was committed while the appellant was engaged

in the commission of a robbery.

Weighing the gravity of the aggravating circumstances

against the total lack of mitigating circumstances, we are

of the opinion that the death penalty is the proper sentence

in this case.

Our review assures us that the death penalty is being

imposed in similar cases, and therefore the sentence of death is

not excessive or disproportionate as applied to the appellant

in this case. See Watkins v. State, (Ms. 6 Div.

925, July 5, 1983) So. 24 (Ala. Crim. App. 1983);

Crowe vy. State, (Ms. 6 Div. 9, July 5, 1983) So. 24

(Ala. Crim. App. 1983).

No error prejudicial to the substantial rights of

appellant having been found, this case is affirmed,

AFFIRMED.

All the J: “ges concur.

*

1

} APPENDIX A

'

;

1

{ STATE OF ALABAMA I IN THE CIRCUIT COURT OF

: BALDWIN COUNTY, ALABAMA

‘ Plaintiff, I

: vs. 1 CRIMINAL DIVISION

ARTHUR JONES I

a/k/a ARTHUR JONES, JR.

I 1 2 8

ö Defendant. CASE BO. CC 61-610

I „ *&

227

J

* *

Wr

on September 14, 1961, several ‘witnesses heard gun

* q :

shots being fired at the Outdoorsman Store located on Alabama j

Highway 225 where Baldwin County Road 40 interaacts said

3

highway in Baldwin County, Alabama. Two of the witnesses gave

@ general description of the individual leaving the said store

carrying in each hand a bag. One of the bags war identified as

a brown paper bag. The description met the general description |

of the Defendant. This person proceeded from the store and ;

went in a southerly direction to an infrequently used dirt road. 8

Fr ̃ ü ae

A short time after this a car sped out of the said dirt road

on Highway 225 and went in a southerly direction at a high rate

of speed towards the Mobile Bay Causeway. Approximately

one-half the distance between the Outdoorsman Store and from the

point nich the said vehicle left, was found d brenn

paper bag containing tupperware which the victin's mother

identified his noon lunch had been in. At a point where the

car sped away, was found a garbage bag which contained check

stubs and envelopes on which was written the Defendant's name

, and address. The Defendant stated he had not been in Baldwin

County in six or seven weeks. Bloodhounds traced a path which

matched the movements of the person described by the witnesses

to a point where the garbage was found and the car sped away.

There was also found there in the garbage a bandage.

2

— — — —— f ee Sane, 1 are pe

= : -

—

5 12

Photographs were made of the tire tracks on this road

— — ——

— eceus @&

which was testified to by a State Toxicologist as being similar

to those tires found on the Defendant's vehicle. The State

Toxicologist also testified that there were hairs on the bandage

which could be positively identified as those of a black person,

Defendant being of the black race.

When the Defendant was being interrogated by a

Baldwin County Investigator, the Defendant sft} that they

coundn't put him in Baldwin County at the Outdooremdh More at

9:00 p.m. of the night of the shooting. When asked ‘how he knew

_what time the shooting occurred, he pose — and upset 7

and had no explanation. The Defendant also told the officers

) that he had @ cut and had thrown the bandage which he had placed

on it in his garbage. When first questioned by the investigators

concerning garbage, the Defendant said that he had had no garbage

for approximately ten days to two weeks. On being informed N

| that a sack of garbage with the items as mentioned above was

| found near the scene of the crime, the Defendant changed his

story and he told them that he had a few days prior to that

time taken his garbage to a Hess Service Station and was directed

by the attendant where to deposit it. The Defendant identified

the attendant at the station to the investigators end the

attendant at trial denied having directed the Defendant where

to deposit his garbage. The Defendant denied to the investi-

gators that he had a pistol, but a witness testified chat the

Gay following the robbery that the Defendant gave him a pistol.

A day or so later when the witness heard that the Defendant

had been charged with the murder of . Thompson, he became

frightened and drove to the Mobile Bay Highway and threw the

pistol in the bay.

* the time that the Defendant was arrested, a knife

was found on the Defendant which the victim's father identified

as belonging to the victim. There was residue on the knife which

the ste - <«icologist identified as being a similar substance.

TR Sgt ae ee

— — ——

*

„„ =ro.

8

dne tury concluded beyond a reasonable doubt from this

and other evidence that the Defendant was guilty of the Capit)

oftense of Robbery Murder as charged in the indictment, The

court concurred in their verdict.

title 13A-5-47 of the Code of Alabama, 1975; 6 — &

éovernine whether or not the Court willl sentence Arthur Jones

a/k/a Arthur Jones, Ir. to death or to 1155 imprisonment with-

t parole and the Court having considered the evidence presented

at the trial and at the sentencing hearing — the jury and

the hearing conducted before the Court slong with the pre-sentence

investigation report which has — made part of this record,

the Court makes the following „

AGGRAVATING CIRCUMSTANCES

The Court first considers the aggravating circumstances

as outlined and described in Title 13A-5-49; cc of Alabama:

(1) The Court finds that the capitel offense was

committed by Arthur Jones a/k/a Arthur Jones, 48 while he was

under sentence of imprisonment, sithough he wee serving the

latter part of his sentence on parole at the time;

(2) The Court finds that the Geferdant was previously

convicted of another capital felony oF = felony involving the use

or threat of violence to the person?

(3) the Court finds that there is no evidence that ene

Defendant 414 knowingly create @ great risk of death to many

persons;

aa) The Court finds the capitel offense was committed

vnile thé Defendant was was engaged in the commission of a robbery:

(5) ‘The Court finds the capital offense was not

committed for the purpose of avoiding or preventing 4 lawful

ae Ah

arrest effecting an escape from custody;

— — *

(6) The Court finds that the capital offense was not

committed for pecuniary gain;

(7) The Court finds the capital offense was not

committed to disrupt or hinder the lawful exercise of eny govern”

The Court now — the mitigating circumstances

as described and set out in Title 13A-5-51, Code of Alabama:

(1) The Court finds that the Defendant has a signifi-

cant history of prior criminal activity:

(2) The Court finds that the capital offense was not

committed while the Defendant was under the influence of extrene

mental or emotional disturbance;

(3) The Court finds thet the victim was not + partici-

pant in the Defendants conduct or consented to 4t/

(4) The Court finds thet the Defendant was not 4

accomplice in the capital offense committe’, but was in fact the

principal who robbed ard intentionally killed the victia

Vaugnr Thompson; ,

_ (5) The Court finds that the Defendant did not act

under extreme duress or under the substantial Gomination of

another person;

(6) the Court Goes not find that the capacity of the

* *

7

Defendant to appreciate the criminality of Me conduct or to

conform his conduct to the requirements of lew was substantially

impaired; and

(7) The Court finds that the % of the Defendant

is not @ mitigating circumstance.

— 28

—

„ *

The Court heaving considered the aggravating c iteum-

*

stances and the mitigating circumstan@es and efter weighing then,

~

the Court is convinced beyond « reasonable Goubt and to « sorel

certainty and it is the judgment of the Court that the eggrevet-

ing circumstances far outweigh the mitigating ef{tcumstances and |

that the death penalty showld be imposed.

The Court is fully eware of the great responsibility

that is pleced on the trial judge in cases of this sagnitude.

The Court struggled long and hard with the Gecision that it

; mest make in thie case, and in making the determination to ,

' owerride the decision of the jury's edvisory sentence of life

imprisonment without perole. The Court gust follow the dictates

of its own conscience.

The Court is not chastising or inferring that the jury

wes lex in their responsibility. The Court feels thet it is its

responsibility te follow the lew es written, end thet society

must be protected and thet an example suet be set forth and

made apparent so thet our citisens aay be secure in their homes an

Dusinesses.

The Court therefore, rejects the e@visory sentence of

the jury in this case.

It ie therefore, considered and adjudged by the Court

thet asteus Jones a/k/a Arthur Jones, Jr. is guilty of the

capital offense charged in the indictment and that he intention-

eliy killed Veughn Thompson in the course of « robbery in the

2 — — ä — SIE

— —— — 2 =e + i oe 2 eer K

Arthur Jones, Go you have anything to say

before the sentence of law is passed on

you? The Defendant has nothing to say.

It is ORDERED, ADJUDGED and DECREED thet you,

Arther Jones 0/k/a Arthur Jones, Jr. suffer death by slectro-

cution et any time before the hour of sunrise on the twentieth

(20th) Gay of May, 1982 inside the walle of * C. Holman

Unit of the Prison System at Atmore, Alabama in «a réos. ,errenged

for the purpose of electrocuting con icts sentenced to death

by electrocution. .

It is therefore, further ORDERED, ADJUDGED and DECREED

by the Court thet the Warden of William C. Holgan Unit of the

Prison System at Atmore, or in case of his Geath, disability or

abeence, his gGeputy or in the event of the death, disability or

absence of both the Warden and his deputy, then the person

Gesignated Administrator by lew for such purpose at any time

before the hour of sunrise shell on the twentieth day of

May, 19682 inside the wells of Willies CC. Holman Unit of the

Prison Syetem et Atmore, in & rooe arranged for the purpose

ef electrocuting convicts sentenced to death by electrocution,

cause to pass throwgh the body of the said Arthur Jones, a/k/e

Arthur Jones, Jr. „ & current of electricity of sufficient

intensity to cause his death and the continual application of

such current throwgh the body of the said Arthur Jones a/k/s

Arthur Jones, Jr. until the said Arthur Jones a/k/s

Arthur Jones, Jr. be Gead, and may Almighty God have mercy on

your sovl.

ORDERED this SZ Gay of Febrvery, 1982.

UOGE

ighth Judiciel Circuit