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BUSH v. STATE12/1/1995
punishment and was not misleading. The appellant's suggestion that the venirepersons, when being questioned about their views on capital punishment, should have been informed that the ultimate responsibility for imposing the death penalty did not lie with them but with the trial court is without merit. Any such instruction would have violated the holding in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere."
XIV.
The appellant contends that reversible error occurred when he was put to trial under an indictment charging him with violating a capital murder statute that had been repealed. We note that this is the first time during the history of this case that the appellant has raised this issue. The Alabama Supreme Court, however, addressed this issue in its first Ala.R.App.P. 39(k) plain error review in Ex parte Bush, 431 So.2d at 563. The court noted that each count of the indictment in that case contained a miscitation of the statute under which the appellant was indicted. Each count alleged a violation of § 13A-5-31(a)(2), which was repealed effective July 1, 1981, and was replaced effective that same date by § 13A-5-40(a)(2). The Court found that the citation to § 13A-5-31(a)(2) was error because the charged crime occurred on July 26, 1981, 25 days after the effective date of the 1981 statute, and that § 13A-5-40(a)(2) was the applicable Code section. However, the Court held that the error was not of such legal significance as to require reversal; the appellant was not prejudiced by the miscitation, and the indictment adequately described the offense under the 1981 statute. The Court further found that the record affirmatively showed that the trial court and counsel for the respective parties, well before the trial date, acknowledged that the trial and the subsequent sentencing procedure would be governed by the 1981 statute.
XV.
The appellant contends that his third trial was barred by the Double Jeopardy Clause because his first retrial was necessitated by the prosecuting attorney's concealment of a police report containing information that shortly after the shooting Holmes identified a person other than the appellant as his assailant. This issue was not raised at trial and must be reviewed under the plain error rule. As we have previously noted, the appellant's first conviction was set aside and a new trial ordered as a result of the conditional granting of a habeas corpus petition by the federal district court. The petition was granted because there had been a dispute as to whether the prosecution had given to the defense a police memorandum showing that the only eyewitness to the murder, in a lineup, had identified a person other than the appellant as the assailant. The record does not support the appellant's contention that the prosecutor intentionally concealed the memorandum. Rather, it shows only that the prosecution either failed, through oversight, to divulge the information or that the prosecution turned it over to defense counsel, who then failed to use it at trial. It is interesting to note that the appellant had the information and used it in his second and third trials, to no avail.
The Double Jeopardy Clause does not bar retrial of a defendant who succeeds on appeal in getting his conviction set aside for trial error, except when the conviction is reversed on failure of sufficiency of evidence to sustain the verdict. Terrell v. State, 429 So.2d 656 (Ala. Cr. App. 1982). "That a
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