BUSH v. STATE12/1/1995
ially heinous, atrocious, or cruel. See, e.g., Ex parte Rieber, 663 So.2d 999 (Ala. 1995); Wright v. State, 494 So.2d 726, 743-44 (Ala. Cr. App. 1985), aff'd, 494 So.2d 745 (Ala. 1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1331, 94 L.Ed.2d 183 (1987).
In fact, the precise issue raised by the appellant here was raised in the first trial, and in Bush I, where in affirming that sentence, we specifically held:
" or the reasons set out by the trial court, this capital offense was especially heinous, atrocious or cruel when compared to other capital offenses. Execution-type slayings evincing a cold, calculated design to kill, fall into the category of heinous, atrocious or cruel. Vaught v. State, 410 So.2d 147 (Fla. 1982); Combs v. State, 403 So.2d 418 (Fla. 1981); Armstrong v. State, 399 So.2d 953 (Fla. 1981); Alvord v. State, 322 So.2d 533 (Fla. 1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). We recognize that an instantaneous death caused by gunfire is not ordinarily a heinous killing. Odom v. State, 403 So.2d 936 (Fla. 1981). However, when a defendant deliberately shoots a victim in the head in a calculated fashion to avoid later identification, after the victim has already been rendered helpless by gunshots to the chest, such 'extremely wicked or shockingly evil' actions may be characterized as especially heinous, atrocious or cruel. Hargrave v. State, 366 So.2d 1, 5 (Fla. 1978)."
431 So.2d at 560-61. In reviewing our opinion in Bush I, a portion of which is quoted above, the Alabama Supreme Court stated, "We concur with the appellate court's conclusion that Bush's death sentence was properly arrived at and is appropriate." Ex parte Bush, 431 So.2d at 565. See also Ex parte Rieber (quoting Bush I with approval in upholding the trial court's finding that the execution-type killing of the victim was especially heinous, atrocious, or cruel).
In this case, the trial court in its sentencing order made the following findings in reference to this aggravating circumstance:
"The Court does find from the evidence presented during the 1991 trial, which this Court has carefully considered, that the capital offense was especially heinous, atrocious or cruel compared to other capital offenses. This finding is based upon the evidence at trial that Larry Dominguez had already been shot and was stumbling or staggering out of the restroom when the Defendant shot him again. The evidence at trial was that the murder was committed so that the Defendant could eliminate an eyewitness to the robbery.
"The Court finds from the evidence presented that William Bush deliberately shot Larry Dominguez in the head in a calculated fashion to avoid later identification after the victim had already been critically wounded. As previously noted, the killing of Larry Dominguez was an execution-type killing and was followed within approximately
one hour by another murder of the same nature.
"The Court is constrained to find from the evidence that this act was extremely wicked and shockingly evil."
The evidence surrounding the charged capital offense supports the trial court's findings that the killing of Dominguez was an execution-type killing where the appellant "deliberately shot Larry Dominguez in the head in a calculated fashion to avoid later identification after the victim had already been critically wounded." Moreover, the appellant admitted to Patricia Pringle, the wife of the accomplice Edward Pringle, that the killing was an execution-type killing. She testified that when she asked the appellant why he had shot the three victims, he said, " ecause couldn't have anybody looking." We concur in the findi
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