# Petition for Writ of Certiorari — Jones v. Alabama

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1283%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1062

## Text

| 46 1 x.
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1283%3A2. Public record. Not legal advice.