Donald Thigpen v. State Court Opinion

    The evidence in this case amply slpqorts

ii. ,.ai.t. worleY v' Statn' 28 AlaaPP'

ffi. iiJtb". ?5 (1981i)' There is no evidence

;"["tf;; ]inaing'or concealment on lhe
tri"b-Leh"If. intleed, the etipulation
'siows that his failure to answer was unln'

il;i;J-;"tl inadvertent' There is abso'

ffi;';; "ria.n." 
whatsoever that the jur'

.t-"i*- p*l"diccd or biased either for or

;;ht ihe aPPettant' [n view of these

JitiJ"t"tions-we hold that there w88 no

ffi;;;ilretion bY the.trial court in

a.iyi"g the appellant's motion for a new

;;i; the basis of the juror's failurc to

;;;;;t. Smithson, suPra' at.Eo. Ala'APP'

ai,na So.2d ?66 and cases cited'

We have carefully coneidered the entire

;;; required bY Title 15' $ 389' Code

;-Afu; iglo, 
"ni 

find no error therein'

il;;Jg..it i. tt"'efore due to be and

the same is herebY

AFFIRMED.

All Judges concur'

Donald THIGPEN

v.

STATE.

3 Dtv. 686.

Court of Criminal Appeals of Alabama'

Aug' 16,19?7'

Rehearing Denied Oct' 4' 19??'

By a judgment of the Circuit Court of

usca-;uia cotinty, Douglas S' Webb' J" the^

a"i"ia"i, was eonvicted of the offense of

.rA.t in first degree while serving a sen'

;;; i"t a life offense, and he ry*'ld t\
I*ti t"nt"ncc and appeeled' The Court of

iilil APPeals, TYson, P' J'' held. that:

tfl 
-t*r"* 

imposing mandatory death sen'

i.'r." f"t the oifensl of firstdegree murder

"iif" 
t"*i"g a life sentence is constitution'

"ft tZl triaicourt properly denied request

for oroduction of Statp's work product; 101^cLffi-;;, oi aefendant's Prior convic'

;il;;;'ruti.tt t'" was serving a life

;;;;;;-;* ProPerlY admitted; (1) d::

i.ia"nt'. claim of error in argument .was

iot prop"rty preserved for rcview where

;;i*t#;; sustained and he did nothin-g

irf,t.t tp invoke a ruling by trial court; (5)

St"t *"t properly allowed to impeach wtt''

il;";;;r'coniradictotY tt"tt:"l-fl
cou* did- not ert in admitting phomgraP-nr.

of deceased, and (?) trial court Properry

refused incorrect requestcd inrtructtons'

Affirmed'

Harris and Bowen, JJ" concuned in the

result.

Judgment affirmed' AIa" 355 So'2d

400.

392 Ala.

Ex Parte DannY Lee PUGH'

sc 2626.

SuPreme Court of Alabama'

JulY 29, 19??'

Certiorari to the Court of Criminal Ap'

pealc, 866 So.2d 886.

FAULKNER, Justice'

WRIT DENIED.

TOBBERT, C. J', and MADDOX'

SHORES and BEATTY, JJ', concur'

355 SOUTHERN REPOBTE& 2d SERIES \p- (2 b^r

1. Crlmlnel I,3w e1042

Notwithstsnding failurt "f llti|fl
for defendent to challenge constitutronrtt'r

"Ia.",ii 
p""altv impoci following PIY

tion for first'degree to'dt'' Court of Crim'

inal APPeale 'r,, "qoi"d 
to address tnc

since defe
murder

fint degre
by electr
rnd jury.

G

im
pnEo:

while s

C(

authori
made I

of witnr
mc

'of crimr
end

Trial court
defenda

; for pr

taken I

La
court
I cop:

nu prol
th8t Sta

St8te tr

he was sr

Tit. 14,

Where ther
conviction

beeor

trial is r
operation.

a
u

leG
indir.Bince

BUOS Wi

ila, T



urt of
I., the
nse ol
a g€n-

ed the
rurt ol
. that:
h sen-

nurder
lution-
equest
ct; (8)

eonvic-
a life

ld) de
nt wal
where

rothing
rrt; (5)

ch wit
nt; (0)

rgraplu
roperlY
,onl.

d in thc

t So.2d

rttorncl
lionalitl
I convl}
of Crir
relt t!'

rince defendant was convicted of first- g. Criminal Law e.73g14;
E murder while serving life sentence Na o,,^. 'rao ^^__.ireIPli uurusr wuuE DErvruB lrle senr,ence No error was committed by trial court

ffSffi:.,,H:ril""*:::"J::-,:{ when it .,,Lin"a auru*" luJ".tio, to pros_by electrocution was imlgse{ by triat 
".ut"r;r;ffi;;, ffiilffiffiJ#rTT;

Id 
jro. Code of Ala., Tit. 14, S s19. porti;s "f , il;;;;t oi original code-ca35l fendant which had been admitiJ in evi-

imposing mandatory death sen- dence by-stipulation and directed parties to
i frisouer committing fir.ta"g-; confine their arguments to matters received
rlile eerving a life sentence is con- ln evldenoe.

Code of Ala., Tit. 14, S Blg. 9. Criminal llrv eill7,lU4.f(g)
I.er e527.515;

THIGPEN v. STATE
Clte ar, Al,LCr.App., SltE So.zd 392

AIa. 393

abstract and incorrect statements of appli-

t
I

:

court did not err in denying mo-
lendant, charged with first-degree

5 for pretrial production of photo_
'taken by investigative authorities.

or notations made by inves-
ities of verbal or written rec-

lade by any pemon in connection
$igation of crime as well as state-
ritnesses taken by investigative
I in connection with their investi-

'.crime constituted work products
'and wene privileged from dis-

I.er e527.513;

Iew e,527.515;
@urt, on State's claim that it did

fq I copy of defendant's prior crimi_
properly denied defendant's re_
State furnish such record but

to furaish defendant, charged
ree murder while serving a

nce, with copy of judgment under
was serving a life sentence. Code

14, s 8tg.

end Information e 166
there is an allegation as to for-

ctlon in an indictment, former
becomes an issue and evidence of
l8 necessary for indictment to

e'142(t)
indictment charging defendant

Where defense did nothing more than
object to prosecutor,s refereni to United
States Supreme Court decision by ,;;;
during closing argument and did not ,or"
to exclude such statement, for a mistrial or
for a further ruling by trial court whici
sustained objection, question of error in al-
Iowing reference was not properly before
court; moreover reference to case citation
dealing with- validity of death penalty in
prosecution for firstdegree murder while
serving Iife sentence was not error.

10. Witnesses FB88(10)
Where prosecutor had laid a proper

predicate as to the time, place and circum_
stances of statement and persons properly
involved, witness was propdrly impeached
as to his prior contradictory statement.

ll. Criminal Law e"69171
Photographs of deceased victim were

properly admitted in prosecution for first_
degree murder while serving a life sentencl
over assertion that they were gruesome and
showed blood.

12. Jury e.$(B)
In prosecution for firstdegree murder

while serving a life sentence, which in-
volved a killing after defendant had es-
caped from prison, trial court properly dis_
allowed challenge for cause to prospective
juror who was a retired prison- 

"rnploy"u.C_ode of AIa., Tit. 14, g Bili; Tit. 80,'$S 55,
57.

{,

gree murder alleced that he lB. criminal Law eo613, g2g(l), gg0

",ll:".*:^t "'ji1l|"_g .:0, . r.t"r';;;" did not err in rerusing to;..uader which he *". ,e.rini gir";q;";il;;#irli*L:#H#
rvas admissibte to orove issuel Ier triar which werJ "ffil;li;i; nature,, Tit. 14, S Blg. ' 

ohqrroal a-,r i-^^_^^r _r_^



394 Ala. 355 SOUTHEBN REPORTER 2d SERIES

cable law, were fully and substantially cov-

ered by trial court's unexcepted to oral

charge or which were covered by other
charges given at request of defendant.
Code of Ala., Tit. 7, S 2?8.

On Rehearing

l{. Homicide caS8l
Death sentcnce was properly imposed

upon conviction for murder in the first de-
gree while serving a sentence for a like
offens€, in case in which the trial jury con-

sidered mitigating as well as aggravating
circumstanc€s under the facts in the case

and had benefit of proper instructions.
Code of Ala., Tit. 14, $ 319.

John L. Jernigan, III, of Stokes & Jerni-
gan, Brcwton, for appellant.

tr illiam J. Baxley, Atty. Gen., Larry R.

Newman, Montgomery, and G. Guy Hayes,
Asst. Attys. Gen., for the State.

TYSON, Presiding Judge.

Donald Thigpen was charged by indict-
ment with the first degree murder of one

Henry Lambeth. Such indictment also in-
cluded reference to a prior first degree
murder conviction of the appellant. The
jury found the appellant guilty of first de-
gree murder, as charged, and fixed punish-
ment at death by electrocution pursuant to
the provisions of Title 14, Section 319, Code

of Alabama 1940. The trial court entered
judgment accordingly.

Birmingham City Police Officer O. C. El-
lard identified the appellant, Donald Thig-
p€tr, as being the same person who was
previously convicted in the Circuit Court of
Jefferson County, Alabama for first degree
murder (Jefferson County Circuit Court No.
2n27). See ?h'gpen v. State,5O Ala.App.
L76, n7 So.2d 922. A certified copy of the
prior judgment was then received in evi-
dence.

Mr, Winston Grant, a dog trainer with
the State Board of Corrections, testified
that on the morning of April 1?, 19?6, he

arrived at a deserted barn located on a field
approximately one-half mile from the home
of the deceased, Henry Lambeth. Grant
was aware of an escape involving some

eleven inmates of the Holman Prison the
preceding day. He indicated that the body
of an elderly white male was propped up in
a window of the deserted barn. The body
was later identified as Lambeth. Blood
stains werc obg€rved juet below the window
on the ground and also just below a fence,
approximately twenty feet fiom the barn.
Grant observed some fence poles lying on
the gmund, and one of these had blood
stains on it. Also found near the fencc was
an ax or hatchet, and on the fence was a
patch of "Negmid hair." Mr. Grant also

backtracked footprints which led back into
the woods in the direction of Holman Prir
on, a distance of three miles. Mr. Grant
then notified other law enforcement offi-
cials who secured the area and delivered the
items of physical evidence to the State Tox-
icology Office for examination.

Dr. James L. Small of the State Depart-
ment of Toxicologa testified that he per-

formed an autopsy on the body of Henry
Lambeth. An examination revealed the
skull had been fractured, and Dr. Small

stated that in his opinion death result€d
from hemorrhage, bleeding, and trauma to
the brain and skull asgociat€d with blows to

the head. Dr. Small's tcstimony indicoted
that a blunt instrument *as used to inflict
these blows and also a "V-shaped" lacers'

tion to the skull was consist€nt with a

wound from the ax or hatchet.

Dr. Small also t€stified that he examined

and test€d clothing worn by the appellant,
Donald Thigpen, during hic escape flom
Holman Prison. He stat€d that he found

human blood on appellant's blue jeanr'

shirt, and undershirt. Tests revealed that

this blood was "Group O," the same os the

victim's, Lambeth (Volume II, R. pp. lfi-
10e;.t

Moreover, tegts revealed that the hafur

found on the berbwire fence near the barr'

where the victim's body war found, went

"Negroid human hairr." Subsequent trilr

*
:

l. Tests reveal appetlant's blood tlp€ to be "A" posi0ve (Vol. II, R. p. l0O).



,me

the
ody
rin
ody
ood
low
o@t

Bm.
'on
tood
w8t

eld
me
ant

IEE
aho
into
lri!-
rant
offi-
t the
fox-

lsrt-
p€r'
enrY

the
imall
ulted
ra to
rs to
eat€d

nflict
,CerE'

irh s

nined
rllant'
from

found
jeanl,

t that
u tho

. 101-

hain
,bEnt

gafa

I tl.o

I THIGPEN v. STATE;. clte rr, Al,r.cr rF. lslt so.2d !g:! AIa' 395
bn the ax found near the murder scene ceding day, and had hidden in the woodsded no fingerprints which were regibre, during the night. wilriams testified thatrny traces of blood. he had plead guilty to a second degree

state Trooper Frank Bracken murder charge ariring from the aeath ofbd ryt on April 17, 1975, he was Mr. Lambeth and reiived a 99 year sen-
[l on Intcrstate Highway &5, North of tence.

mluA.t*'* **:".],"r:lT:1_" 
.williams then indicated that it was heruck speeding. He and hiscolgan; ,r,"'tii"ti"t;I';ff #'rll:flnir:

:Ti,T *1,* *1,:" ,^T,ll..l, rj;#; in the head, which caused higEp to 80 and e0 miles per hour. ;;il;;"tJ,il1"i":ll"trffi,*l
{pp,.rg the pickup truck, the appel- *f,'ir,
d--Uis-comp'nion. p"drn wi,ichc t.victim's body and propped it up inhis companion, pedro 

.yll,ir., il';;;;;";;#;r#,:#"f,:f#ffi:,ffiS 
,,*;*;lr"*i: fl:,J: #int'q"."t,g truck, then was subsequentry3 dreEsed in prison 

""ll,r 1yp"." ".*rl'Juv state Trcope* 
", ,lffiUfHasked them about the pickup truck :-:X.:^-_^^_Itu"i*.i. rlat*, "ilr1ffi';ffi 

near Evergreen'

l:u/.l Minnila waraing. The 
-appetl . Donald Thigpen took the stand in his own

Thigpen, stat€d1hat they irad *J:$f and testified as to his escape with
I 8 man who was feeding cows wllllams and nine other inmates frcm Hol-

ttt (Volume II, R. p. bg). Trooper man Prison on April 16, lg?5. He stst€d
then radioed for assistanec, and that he and witliams separated from the
nper Lambert picked up Thigpen others and- spent the night of April 16-l?,
companion, Pedro williams, 

-and 1975, wandering in the *oods, a-few milestlem back to Holman prison.' The from_!!e prison. Early thelollowing morn-
p tntck was taken to the state Troop ing, Thigpen indicated that williams saw an

Dflice in Evergreen where Mrs. Lam- elderly white man working on a fence in a
lprife of the victim, and her son recov- pasture, and they appro?ched him. Hem€. stated they asked Mr. Lambeth if they

f,eary Lambeth, wife of the victim, could help him, and he told them he did noi
led that on the morning or ep"ir ii. need any help. He stated that williams
her husband 

""o." "rrurh 
l:oo f'clock. then took a fence pole and struck Lambeth

id.in overalls, and advised h;; rl*ril in. the head, and ih"t h" helped Williams
rg to repair a fence in 

" p*iri". ta-ke- the body to the barn and place it in a
saw him at 6;00 o'clock as he drove window. He denied striking Mr. Lambeth

n the pickup truck, which f," o*n.a, with either a pole or an ax,iut stated that
_tff!it:: She stated rhat she was Yilliim: had killed Lambeth. Thigpen

foyfi$ that the pickup truck was at stated that he and wiliams d"ove oif i,
!te- Trooper's office 

-in 
ou"r8x""n, Lambeth's pickup truck and were subse-at her son took her there to i"t it. quently arrestcd Ln the Interstate by state

Lembeth's (the deceased's; daugt ter- Troopers.

,Igl!" Lambeth, gave the ,i".tir'.
{n es (vorr;'rr,"ii. i. zul. I
n appellant's motion to exclude the - 

T_he attorneys for the appellant did notllcvldence was overruled. challenge the constitutionaliity of the death
: called pedro Williams, his ac_ ryn1ltV irere imposed porsrant to Title 14,
Williams testified that he and Section 819, Code of Alabama 1940.

EunnE were present on the.moraing tu Nevertheless, this court is compelled

b:r*rJt;:,1:-:.,".T,-r".:,ry. t"'"iar.., this isaue since the appe[anr wasf,r bodv was round (vorume rr, R. ;ilJ##;:;;**ffi:lTlli::#
[* H:r*,*: L"_:ll in'*i;; il;_ft" sentence ror rirst degree murderfipm Holman prison the pre- (See Thispen;;;:#Hlffi ff;,:;;;



396 Ala. 355 SOUTHEBN REPORTEB, 2d SEBIES

I

I

So.2d 922), and a sentcnce of death by el,ec-

ir".rtio"'"'"t imposed by the trial judge

and jury.

In Boberts v. Louisiana,48 U'S' 34'31'
96--3ii. 8001, 8006, 49 L.Ed'zd 974, the

S;p;;;" Court of the United States stated:
;Only th. third catrgory of the Louisiana

fintdegree murder statute' covenng ln-

Litionir killing by a person serving a life

sent€nce or by a person previously con-

victpd of an unrelated murder' defines

the capital crime at least in significant

p"* iri terms of the character or record

ii tf," individual offender' Although

even this narrow category does not per-

mit the jury to consider possible mitigat'

ing factors, a prisoner serving a life sen-

teice presents a unique problem that

may justifY such a law' See Gregg v''Ciirsir, 
ante, 4% U'S' t1531 at 186'-!.6

aii. ifuost p. 2e31 [4e L'Ed'zd 85e]
-Wooaion v' North Carolina, antc' 4%

U.S' t280l at %7 n' 7, NZ-?flB n' ry' j9
i.ct. izsiat p. 298,3 n. ?, 2e85 n' z! [ns
i.ua.ia gu)! 4n u.s., at 334,96 s'ct''
at 3006 (emPhasis added)'

t21 In Roberts v' Louisiana' 431 U'S'

es8, 9z s.ct. 1993, 52 L.Ed.zd 63? (1977)' the

Supreme Court of the United States once

"giin 
.*pt".sed the view that the constitu-

iiloi"fity of a mandatory death sentence for

a prisoner who commits first degree murder

while serving a life sentence was &n open

question. T[is court, therefore, ad]eres to

tie views expressed by us in Harris-.v'

State, Ala.Cr.App., 852 So'2d 460 (1 Div'

Ofri, *i,itt uptroias the constitutionality of

Title 14, Section 319, suPra'

II
Appellant contends that the trial court

"ti"i- 
in denying, in part, his "motion for

p*au"tion 
"na 

i-n.p.tiion" which congieted

iilne tottot"ing items (Volume I, R' p' 41):

"1. Any statement, if written' or nots'

tions by investigative authorities of ver'

bal recitations made by the defendant' if
it. tt.. are to be used in the trial of the

defendant.

"2, Any statement, if written' or nota'

tiona by investigative authorities of ver'

bal recitations and/or written rccitations

made by sny p€rEon in connection with

the investigation of the alleged crime of

which the defendant has been accused'

"8. Any medical, scientific, chemical or

toxicologist reports received by the inves-

ticative authorities in connection with

thi crime of which the defendant has

been accused.

"4. Inspection of clothing' weapons' or

anv other rcal evidence becoming a part

of ihe investigation of the crime of which

the defendant is accuaed, including' but

not limited to, photographs taken by the

investigative authorities'

"5. Statements of any and all witnessel

taken by the investigative authorities in

"onr""tio, 
with their investigation of the

.J." of which the defendant is accused'"

t3l At the pretrial hearing on said mo-

ti*, tf," Statelnformed appellant's counsel

it "i 
tt.t" was no statement made by the

a"iendant in the State's possession [Item

N;. ii The trial court denied appellancs

*"ti"', for the production of items listed in

paragraphs two and five as these requests

;k; il" the State's "work product'" The

"fiitttn 
did not err in denying appellant'c

,"or".t for the items listed in paragraphr

;il;;J fi"e as such itcms are the work

oroduct of the StatB and are privileged

ir", ait"*"ty. Thigpen v' Stztn' 4lAti
App. 283, 2?0 So.fi 666; l\I^ess ''-Y:'
OZ eta.^tpp. 481, 829 So'2d 120' cert' den"

zgiAi"' ;ir, g29 so'za 126; cooks 
1,' 

sq3
50 Ala.App' 49,216 So'fi 684' cert' den" 'v,
Ala, 363, 2?6 So.2d 640'

tll The State arranged for the 
-appel'

#;L i;;.; all of theltems in the Stst€s

possession listed in paraonaDh three' ano rt'

ih" it.rn, listed in p"t"f'"it' four with the

:ff "llf is,l'::""s:'J:,,3ff #";1;t;
for the production of photo-grapht *iLii.
investigetive authorities' Sanden u' o::
;ilil 458, l?e so.2d 86; ltccantt t'

S,t t*,A9 Ala. 89?, 211 So'2d 8?7'

xk{l#fiTffirk*i'*:

t}o;rt}ry dt
in thdr p
appellrntt

h furabh tl
afu

t lllc u
r8l p?oge

699,lyl
7tt, tyl t

conte
by admitttnl

appellrnt
appellant r

v. 8r

appellant u
murder and s

ito Title 14, B
1940, Recon

wh
convict x

life, who con
while

againrt
death."

When thr
convictio

, conviction
ofitatt

to havr

w).

&
hi

[ 66 Ala.App.
D{ Ala. ?b?,

' 
,Williams v. S

,.fates v. Stat,

40 Ala.A
such an allel
e certified r

and adr

cloei
that

the prost
made by
original c

u.The recorr



THIGPEN v. STATE
CltG.+ AhCiltDD. t!0 Sc2d tr,!

Ala. 397
tlrat they did not have a copy of such
in their possession. The trial court
sppellant's request, but did order the

to furnish the appellant a copy of the
under which the appellant was

a life sentence. The trial court,s
,w8! proper. Sbange v. State, 4B
r.690, 19? So.2d 437, cert. dismissed,
718, 19? So.2d 447.

contends that the trial court
admitting into evidence a certified
appellant's prior conviction under

was serving a life sentence
v. Statn,50 Ala.App. 176,n7

was convicted of first de-

ment had been received into evidence (Vol-
ume fI, pp. tg8-189, Statc's Exhibit fi) UV
stipulation of the partiee. The trial court
sustained appellant's objection to reading
portions of the statement and directcd thl
parties to confine their arguments to mat-
ters received in evidenec. Thus, no error is
shown.

v
t9] Appellant contends that ermr oc-

9I..d during closing argrrment, as follows
(volume II, R. pp. lE4-168):

"MR. STEPHENS: ,. If you re-
call he testified fnom the stand [e waE
lTurd of killing his wife fiom Jeffemon
County and that is whst he was *;;;
under. This is the second day of Mafr
1972. (At which time Mr. Steitrens re#
STATE'S EXHIBIT l, a judgment 

"ri.from Jefferson Couniv.i . . ".

[IV]hich was later changed aftcr the rul-ing of FURMAN against GEORGIA
came in.'
"MR. LOVELACE: I object to that.
Nothing is here that they changed it by
the ruling except they changed It.
"MR. STEPHENS: ,. . I would
address your attention to ..,
"THE COURT: The objection is sus_
tsined to the rcmark about FURMAN
VERSUS GEORGIA.
"MR. STEPHENS: All right.,'

. 
A. certified copy of appellant's prior con-

viction under which he was serving a life
sentence had been received in evidence and
therefore was already before the jury. As
to the prosecutor,s reference to i,Furman
against Georgia," the appellant did nothing
further than to object, and such objectioi
was sustained. The appellant did noi move
to exclude such statement, or move for a
mistrial, or invoke a further ruling by the
trial court, therefore this questioi ii not
properly presented for review. Veith v.

Itate,48 Ala.App. 688, 26? So.Zl 4g0; tram-
bert v. Sta/r-,m8 Ala. A,9B So. ?0g; EIro,
v...Statn, tg Ala.App. 269, 9? So. ld; Boy-
ett v. Statc, 18 Ala.App. B&8, 92 So. 5f.
Moreover, the reference to such case cita-
tion (Furma n v. Georgia) is not erroi.

III

JOd0, Recompiled 1988. It reads as

urder and sentenced to death pursu-
Title 14, Section Bt9, Code oi .e,1"_

hment when committed by convict.
convict sentenced to imprisonment

life, who commits murder in the first
while such sentence remains in

18 iry! him, shall, on conviction,
death."

When there is an allegation as to
conviction in an indictment, this

conviction becomes an issue, and
of it at trial is necessary for the

loat to have operation. Finches v.
,66 Ala.App. n, Btg So.2d ?62, cert.

!tb.757,318 So.2d ?ffi; Amenon
40 Ala.App. S40, lt? So.2d 406.

luch an allegation was in the indict-lr certified copy of the judgment is
ttent and admissible to prove this is_
Wiltiams v. State,lB0 AIa. 81, B0 So.
Yates v. State, 245 Ala. 490, l? So.2d

,- IV

Pldp closing argument, the appel_
Nlands that the trial court erred in

1ttre prosecutor to read from a
by Pedro Williams, a crcs-

rongrnal codefendant (Vo!ume II,
rhe record shows that this state_



398 Ala. 355 SOUTHERN RBPORTER' 2d SERIES

i

I

i;

VI

Dering the :1:::xT'::i:",t#:il
Williams concemlng

which he had given to rnvestigating-officen

I#;*ii:"*"::",'*'[:ii$**
that he did not rem

l',ii.""r.'- In this prior statement' Wil-

mxiln::r*1,1"-ln:;'lit.?#':
Mr. Henry Lambeth'

During his direct examination' Williams

J#T";he, himself' was the Person who

lJ r.iu"a Mr' Lambeth'

During his redirect examination: 'Yit-
u""r, i"iritta that his lawyer had to-ld him

ffiH;;;origrnat statement and that he

["ifr"t, ,;t-a 99 year sentence instead

oia""il, or iite imPtlsonment'

VIII

t12l Appellant epntends the trial court

.h;;ld have sustsined his challenge for

;;;*; Mr' Griesett' who w-as a-retired

I"J"L, "r'" 
formerly worked-at |olma1

;rffi;; some sixteen years' Mr' Grissett

ststBd that he had been rctueo ror more

ffi;; v"* * the time of trial'

We are of the opinion thst the trial court

#*r,'*,xr#:"T?1:'#;:;"m:
bama 1940.

IX

t131 The appellant contends that the tri'

"rt""itt'"J 
in refusing E st"". several

l*iii" *or"tted charges' The trial court

;;;;;;G" or such requqq chls1

ild fiJ iitt'"n others' Such refueed

;;;-;;* either affirmative in natun'

il;;, incorrect stst€ments of the appli'

ffi["i;;;';; were fullv and substantiallv

;ilil;; ltre triat "ou'tt 
oral charge (to

which no exception was taken)' or covered

;fi;;;;;rges gi'en at the rcquest or the

;ilffi;-iiit"'i, sotiot zt}' code of

Alabama 1940'

Having carefully examined this record'

*r"^ iirJ"no ""tor 
therein' The judgment ot

*tr** ft therefore affirmed'

We will defer setting " 
dl}.f:t th:-"1:

.uiion of this sentence until this ease nar

il"i rrlv reviewed in the eourts'

AFFIRMED.

DeCABLO antl BOOKOUT' JJ'' concur'

HARRIS and BOWEN' JJ'' concur in te

sult.

ON REHEARING

TYSON, Presiding Judge' 
e:r^r

rrll Af rer. th: j:'1rljff t; 
J,ffi ,liilin this Court bY the at1

Hd#tJ$#mru

The matter now comPlained of it " l:::
J;';id;;", remark uv tlg.. Prosecutor

ffi;;; ;* interrogating Williams'

t10l Under the. circumstances outlined

"Uou.-. 
the prosecution' having laid-a proper

ffiffi; t, th" ti*'' Placl' *1,6',11:"
Io".*' "ra 

p€nlons involved' the wttness

ffi"ii ;;,, imPeached as to his Prior con-

ffiil; statement' SParks v' St"ste'26r

ffi;A So'2d 103, and authoritie-s c]tea

;hdt 
-rd* 

worth v' Stata' il Ala'APP'

93, 304 So.2d 911'

Moreover, there was no further objection

"t^',i;il;';n 
aPPellant's Part invoking a

irtiir"t 
-t"r* 

oi tt'" trial court on thts

a"tt"t. Thus, no error is shown'

VII

{I rI . Appel"i:., :::'1":i'ijlli,,i' rfll,,ll
admission into evtden<

ffiffi; ii,e'ictim, conf 
x1::t, 

tli:',i'I
8re gruesome and Sno

tt 
"y"tu"t" 

thus inadmissible'

SIe are of the opinion that such were

'#H\ U*:l*, l'"I'"ry, -d$lh i,
iiirir^ 

"r.- 
ioi,26? Ala' 21?' 1oo so'zd

ziii'"iJr; '' 3t^to,53 Ala'APP' r?a'ng

So.2d 55.

June

aa u.s.
Pursuar

sppel
o0r

chal
Secti

8f(

r0l p
uphel

I
AI

do nt
thet

oitig
to im1

81

utthor
'lh r

the
degree

$ryed
the s(

not
and

aoq
riding ar

Additiona
of

8pl
v8lre

h Cour'l
''o rel

Ep
R.

Eer



d
u
D
{
a
I
o
rt

:dJune 6, 1977, and Eoberts v. Louisi-
ll8 U.S. 825, 96 S.Ct. 3001, 49 L.Ed.2d

,Punuant to this order, the attorneys
oppellant, as well as the Stet€ of

complied, and appellant's attor-
challenge the constitutionality of

Section 819, Code of Alabama 1940,

aforesaid opinions.

ex meno motu placed this
rchearing on August 30, 1g??.

Court of Alabamr, while this
u pending on rehearing, has ex-

the constitutionality of Title
819, Code of Alabema 1g40, in

Ntbma, Ala.Cr.App., 852 So.2d
ed September 9, 1977.

Embry, speaking for the ma-
noted:

not deem it constitutionally re-
fthat the sentencing authority con-

itigating circumstance as a condi-
imposing the death penalty under
819. However, in this case such
werc before the jury, the sentenc-
L ^J^-- ,t

Huris, supra, the rial judge
jury, not only on murder in the
and the requisite elements, but
the indictment included mur-

tlte recond degree, pointing out that
aot rcquire premeditation or delib-
rud that the punishment therefor
r period of from ten _rears to life
8. pp. 159, 169-164).

Lhe in its oral charge, the trial court
on the distinction betrreen princi-
looessory, dealt with the definition

and abetting, as well as conspir-

THIGPEN v. STATE
Clt u, Ar,LCr.App, t5! So.2d tn

Ala. 399

"The Court charges the jury that the
burden of proof is never on the Defend-
ant to establish a crime of which he is
charged. If, upon consideration of all the
evidence iB thb ease, the jury finde that
there is a rcasonable doubt as to the guilt
of the Defendeat, they should acquit him.
"The Court charges the jury that each
and every one of you is entitled to have
his own conception of what eonstitutes a
rcasonable doubt of the guilt of the De-
fendanl Before you can convict this De-
fendant, tle evidence must be so strong
that it courinces each jury of Defendant,s
guilt beyod a reasonable doubt. If, af-
ter a consideration of all the evidence, a
single juror has a reasonable doubt of the
Defendantb guilt, then you cannot find
the Defendent gnilty.

"Murder in the Second Degree is the un-
lawful killing of another with malice
aforethougtt, without the premeditation
and deliberation of Murder in the First
Degree.

"The law does not countenance the con-
viction of aay p€nnn for an offense not
contemplated, intended, or committed by
him, and of which he had no knowledge
that the offense was about to be commit-
ted.

"It is for you the jury to decide, however,
from all of the evidence, first, whether
Donald Thigpen participated in the al-
leged killing, and, if so, whether he did so
knowingly and with knowledge of its pur-
pose.

"You are charged that you should not
give more credence to the testimony of a
witness merell' because of that witness'
position as a State's witness.',

It is clear therefore that as in Harris,
supra, the trial jury here considered the
mitigating as well as the aggravating cir-
cumstances under the facts in this case, and
had the benefit of the foregoing charges.

Mindful of our obligation to consider this
record most carefully, we have again re-
viewed same aod determined that it is free
of eror. The sua sponte application for
rehearing is herewith overuled.

nally, the able trial judge gave
oI the written charges requested

ffiH|"lit "ti"""^; and among

ll81 Vou that you are to judge the
ol lnnocence of the Defendant on

.of the evidence presented in this
l.ttrt the prior eonvictions of the
I E* no bearing on the De-
$uilt-or innocence of the charge

.a,

I

him.



400 Ala. 355 SOUTHERN REPORTER'

OPINION EXTENDED, APPLICATION

OVERRULED.

All the Judges concur.

In re Donald THIGPEN

Y.

STATE of Alabama

Ex parte Donald ThigPen.

Div.7712.

Supreme Court of Alabama.

7742.

Rehearing Denied March 10, 1978.

John L. Jernigan, III, for Stokes & Jerni-

gan, Brewton, for Petitioner.

William J. Baxley, Atty. Gen., and Larry
R. Newman, Asst. Atty. Gen., for the State,

opposed.

PETITION FOR WRIT OF CERTIORA-

BI TO THE COURT OF CRIMINAL AP.

PEALS,355 So.2d 392.

PER CURIAM.

Affirmed on the authority of Ex parte

Harris,11 ABR 2510 (A1a.1977).

AFFIRMED.

BLOODWORTH, FAULKNER, ALMON

and EMBRY, JJ., concur.

MADDOX, J., concurs sPeciallY.

TORBERT, C. J., and JONES, SHORES

and BEATTY, JJ., dissent.

For the special concurrence and dissent-

ing opinions of the respective Justices, see

trlarrts, supra.

2d SERIES

Macke CLABK

v.

STATE.

{ Div. 559.

Court of Criminal Appeals of Alrtlf.
Jan. 24, 1978.

Rehearing Denied Feb. 21, lg?8

Defendant was convicted befon L
Circuit Court, Houston County, Forrd L
Adams, J., of robbery, and he appal{
The Court of Criminal Appeals held tlrl
(1) trial court did not err in refurirg b
grant defendant's motion for a continun
on ground that jurors had heard defendrt
try to plead guilty, in view of factr tlrt
defendant and his counsel knew of preiu
of jurors in courtroom, defendant did d
object to proceeding to strike jury rfir
attempted change of his plea, and no pnjo
dice to defendant was shown, and (2) trid
court's statement in response to defendrnt'r

objection to prosecutor's closing argumcllr

to the effecl that a statement that ir br
rassed or brought about by threats or pnoD

ises is not admissible, did not take the ctcd}

bility of the confession from the jury'

Affirmed.

l. Criminal 1,ss' @586

Granting or denying a continuancc I
within sounJ discretion of trial court; cl'

."ff fo, abuse of discretion, trial couir

have absolute control of continuances'

2. Criminal 16s e589(l)
In prosecution for robberY,."]"1,*

did not err in refusing to grant defend$w

motion for a continuance on gTouno Ix'
jurors had heard defendant trY ? n
guitty, in view of facts that defendant r!
his counsel knew of f.","n'" of juronS

:::;l':f ? 
j",l".lfj' 

;,lf x1#' :;:fr

;llli

his Plea' an

was shown'

Llr c=656

for t

in rtsponse t
closi

a statBmenl
rut bY threa

dirl not tsl
i*'

Carter, D

Baxley' ,

Arst. Att:

was rrl

a grand jut
on a charg

tl February
tibe Prtsence t

d aot guiltY

the March 9

Gal€ cSme

at the re

lt 191?, thd t

l,time the deft
his at1

hir attorne
to withtlt
a plea ot

tls defenda
b plee t

ilhet
Ee answt

the plea

explained
rnd the ef

ddendant ac

llrl rights a

rnd nc

ounrel for
Iinhiso
.voluntaril

hs wt

'ya
'rorl

tlc court
and

the de