BUSH v. STATE12/1/1995
The appellant, William Bush, was indicted on September 11, 1981, in a four-count indictment for the capital offense of murder of Larry Dominguez during a robbery in the first degree or an attempted robbery in the first degree, see Ala. Code 1975, § 13A-5-40(a)(2). Each count of the indictment alleges the same offense based on the same facts, but each is worded slightly differently, and two counts include alternative allegations of attempted robbery. The appellant was convicted on November 18, 1981, after a jury trial, of the capital offense charged and, following a unanimous recommendation by the jury that the sentence be death, the trial court sentenced the appellant to death. On appeal, this court and the Supreme Court of Alabama affirmed the conviction and sentence. Bush v. State, 431 So.2d 555 (Ala. Cr. App. 1982) (Bush I), aff'd, 431 So.2d 563 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983).
Subsequently, the appellant filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Alabama and, on March 19, 1984, pursuant to a stipulation between the state and the appellant, the federal court ordered that the writ be granted unless the state granted the appellant a new trial within 180 days. Bush v. Smith, Civil Action No. 83V-1438-N, U.S.Dist.Ct., Middle Dist. of Ala., Northern Division.
A new trial was held on the same four-count indictment. It began on May 14, 1984, and culminated with a jury verdict on May 16, 1984, finding the appellant guilty of the capital offense as charged in the indictment. After the jury returned an advisory verdict of death, by a vote of 11 to 1, the trial court sentenced the appellant to death. On appeal, we reversed the judgment and remanded the case for a new trial on the ground that the trial court's jury instruction in the guilt phase indicating that the trial court had made a preliminary finding that the appellant's confession was voluntary and that the jury could not disregard that finding constituted plain error. Bush v. State, 523 So.2d 538 (Ala. Cr. App. 1988) (Bush II), cert. denied, 523 So.2d 538 (Ala. 1988).
A third trial was ordered on the same four-count indictment; it began on January 28, 1991, and culminated in a jury verdict of guilty of the capital offense charged in the indictment on February 1, 1991. On the same date, the jury, after a separate sentencing hearing, unanimously recommended that the appellant be sentenced to life imprisonment without the possibility of parole. The trial court then held a second sentencing hearing and sentenced the appellant to death. The appellant appeals from this third conviction and his sentence of death, raising 24 issues. We will address the issues in the order that they appear in the appellant's brief. A rendition of the facts is necessary to an understanding of these issues.
The state presented evidence showing that around 3:00 a.m., on July 26, 1981, the appellant and a companion, Edward Lewis Pringle, entered the Majik Market convenience store on Carter Hill Road in Montgomery, Alabama, with the intent to rob the cashier of money to buy drugs. When they entered, two people were in the store: Larry Dominguez, the store clerk, and his friend Tony Holmes. Dominguez was in the restroom. The appellant pointed a pistol at Holmes and forced him toward the restroom at the rear of the store. When Dominguez opened the restroom door, the appellant shot both Dominguez and Holmes. The appellant then returned to the front of the store and attempted unsuccessfully to open the cash register. Dominguez stumbled out of the restroom
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