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BUSH v. STATE12/1/1995
lusionary rule: part of the res gestae or continuing transaction, relevant to motive, and relevant to identity. The trial court admitted the evidence of the collateral crime over the appellant's objection without giving a reason for its ruling.
We hold that the evidence of the collateral capital offense was admissible as part of the res gestae of the charged capital offense. The two crimes are intertwined and connected to such an extent that they form one continuous transaction. McElroy's, § 70.01(24)(b), in regard to the res gestae exception, states "Prior and subsequent criminal acts of the defendant are admissible in a robbery prosecution if such crimes fall within the res gestae of the now charged crime. This is sometimes referred to as the 'one continuous transaction' exception to the general exclusionary rule." (Citations omitted.) The record discloses that the appellant and Edward Pringle entered the Majik Market store with the intent to rob its cashier in order to get money to buy drugs and that the appellant, after shooting Dominguez and Holmes, was unable to get into the cash register. Failing in their effort to get money at the Majik Market convenience store, they immediately drove to a nearby Seven-Eleven convenience store and, within an hour, entered that store with the same purpose in mind, i.e., to obtain money to buy drugs. After killing the cashier, they took approximately $30 from the cash register, along with a bank bag and checks. The second crime was obviously committed because the appellant and Pringle had failed in their efforts to get money in the commission of the first capital murder crime.
Upon this evidence, we also hold that the evidence of the collateral capital crime was admissible under the intent and motive exceptions to the general exclusionary rule. The appellant's motive and intent in committing the charged capital offense at the Majik Market were brought into question by the appellant's claim that the state's evidence was insufficient to prove that the murder was committed during the course of a robbery. He argues that because his theft of the zodiac sign tags was allegedly an afterthought and occurred after the shootings and while the appellant was fleeing the scene, the murder was not committed in the course of the commission of a robbery. Because the appellant's motive and intent when he entered the store and shot Dominguez and Holmes were called into question, his subsequent actions in the Seven-Eleven store were relevant in proving his intent and motive in committing the charged offense.
Because the evidence of the collateral capital crime was admissible against the appellant as part of the whole criminal scheme, and as relevant to prove identity and motive, the trial court did not err in considering the evidence of the collateral crime in finding that the charged crime was especially heinous, atrocious, or cruel when compared to other capital offenses.
II.
The appellant contends that because he allegedly was not given notice of the state's intention to rely on the aggravating circumstances that the crime was especially heinous, atrocious, or cruel, § 13A-5-49(8), and that the defendant had previously been convicted of another capital offense or a felony involving the use or threat of violence to the person, § 13A-5-49(2), the trial court erred in instructing the jury to consider them and also in considering those aggravating circumstances. He contends that this failure of the state to give him notice denied him due process.
Before trial, the appellant moved to prohibit the state from relying on the aggravating circumstance that the crime was especially heinous, atrocious, or cruel, and the prosecutor
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