Defendant was convicted in the Circuit Court, Tuscaloosa County, Claude Harris, Jr., J., of first-degree murder under section of Death Penalty Act authorizing imposition of capital punishment for any murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime, and, following an order directing his execution, he appealed. The Court of Criminal Appeals, Bowen, J., held that: (1) defendant was not denied effective assistance of counsel at trial or on appeal of his 1957 conviction for second-degree murder and therefore that conviction was properly admitted into evidence at his trial in 1977; (2) section of Death Penalty Act under which defendant was prosecuted is not unconstitutional; (3) in light of absence of evidence of deception or coercion exercised by police in obtaining keys to store-residence where fatal shooting had taken place and defendant's apparent cooperation and willingness to aid police, act of defendant in giving keys to police when asked whether he knew where the keys were located constituted a voluntary relinquishment of all expectation of privacy so as to justify subsequent warrantless search on basis of consent, and (4) order directing defendant's execution did not satisfy statutory requirements. Judgment affirmed.

BOWEN, Judge.

The defendant was indicted in a two count indictment under the Alabama Death Penalty Act for "(a)ny murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime". Code of Alabama 1975, s 13-11-2(a)(13). Count one charged first degree murder with the prior conviction. Count two charged second degree murder with the prior conviction

Omitting its formal parts the indictment is as follows: "I. The Grand Jury of said County charge that before the finding of this Indictment J. B. Hubbard, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD, whose name is otherwise unknown to the Grand Jury, unlawfully and with malice aforethought, killed Lillian Montgomery, on to-wit: January 10, 1977, by shooting her with a pistol, and the Grand Jury further charge that at the time said killing was perpetrated, the said J. B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBAND had been convicted of murder in the second degree in the preceding twenty (20) years, on to-wit: October 10, 1957.

"II. The Grand Jury of said County further charge that before the finding of this Indictment J. B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD, whose name is otherwise unknown to the Grand Jury, unlawfully and with malice aforethought killed Lillian Montgomery, on to-wit: January 10, 1977, by shooting her with a pistol, but without premeditation or deliberation, and the Grand Jury further charge that at the time said killing was perpetrated, the said J. B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD had been convicted of murder in the second degree in the preceding twenty (20) years, on to-wit: October 10, 1957."

A jury found the defendant "guilty of murder in the first degree with aggravated circumstances as charged in count one of the indictment and fix his punishment at death". We find the verdict to be responsive to the indictment and consistent with the principles set forth in Ex Parte Clements, 370 So.2d 723 (Ala.1979). At trial and on appeal the defendant is represented by the Public Defender's Office of Tuscaloosa County.

The defendant was convicted in 1957 for second degree murder and sentenced to fifty years' imprisonment. He was released in October of 1976 "on the good time law". Since his release from prison the defendant had been living with Mrs. Lillian Montgomery at her house and store.

Shortly after 8:00 on the morning of January 10, 1977, an ambulance arrived at the Montgomery Store on Highway 82 in Tuscaloosa, Alabama. The defendant, who had telephoned the police department, was standing in a side door and signaled the ambulance attendants to come into the kitchen. There Mrs. Montgomery lay dead on the floor having been shot three times with her own .38 caliber pistol.

At the scene the defendant told the police that "he and Mrs. Montgomery had been in the upstairs bedroom arguing, that she'd went downstairs and he had heard what he thought were two shots" about 7:00 that morning. The pistol and a one-half pint bottle of Cabin Hollow whiskey were found on the defendant after he told a police officer that he had the weapon. Nitrate tests revealed a small amount of powder residue on both of the defendant's hands and on the right hand of the deceased. The presence of the residue indicates that the test subject has recently fired a weapon or has handled a weapon that has recently been fired.

At police headquarters the defendant gave a statement in which he indicated that Mrs. Montgomery committed suicide.

Initially the defendant contends that his prior conviction for murder in the second degree is void because at that trial he was represented by incompetent counsel. To support this allegation the defendant states (1) that his trial counsel was laboring under a conflict of interests and (2) that counsel was incompetent in the handling of his appeal.

Competency of 1957 Trial Counsel

The defendant was convicted for murder in the second degree in 1957. The essence of the claim of incompetent counsel is that trial counsel, Hon. James Marshall, represented both the defendant and his father-in-law, Divid Hubbard, who also had been indicted for the same murder. Although Divid was an eyewitness to the shooting in which the defendant claimed self-defense, he was not called to testify in the defendant's behalf.

In 1962 the defendant filed a petition for writ of error coram nobis in the Circuit Court of Tuscaloosa County. A hearing was held on this matter and the defendant was represented by court appointed counsel. On February 15, 1963, in denying the petition, the trial court entered a lengthy order and finding of facts. After summarizing the testimony of each witness the court stated its findings, portions of which we now set forth.

"Following the lengthy hearing in this case or cause, held on January 28, 1963, the Court makes the following findings of facts, and conclusions of law, based on the allegations of the petitioner, and the testimony and evidence offered at the coram nobis hearing, said findings and conclusions being as follows:

"In the first instance, the petitioner and his family for a very substantial sum of money, to-wit, One Thousand ($1,000.00) Dollars, retained the services of Hon. James Marshall, a member of the Tuscaloosa County Bar Association, who the Court finds to have been a very well experienced in handling all aspects of the practice of law, and particularly criminal defense, including defense of defendants charged with the offense of murder in the first degree, that said attorney was diligent, resourceful and able, both in investigation and preparation of the petitioner's original case and in the trial thereof."

"The Court finds Divit Hubbard was an eye witness and that he testified in this coram nobis hearing to the effect that at the time of the fatal shooting of the victim by the petitioner, the victim was unarmed, that he heard no threat from the victim to the petitioner uttered, and that he saw no sign of any provocation for the shooting. Thus, the Court finds that Mr. Marshall was wise in not using Mr. Divit Hubbard's testimony in the original case, since it would have been very hurtful to the defense of the petitioner.

"The Court finds further that since at the time of the trial of the petitioner in the original case the said, Divit Hubbard, was also charged with the murder of this same victim, he could not have been required to testify in petitioner's trial, and that the said Divit Hubbard could not reasonably have been expected to testify in petitioner's case due to the possibility of self incrimination. "The Court finds further that when the petitioner signed his name to a dismissal of his appeal, he clearly and well understood what he was doing. "The Court further finds that the petitioner through his witnesses and evidence presented in this coram nobis hearing showed nothing which was new or which had been unknown at the time of the original trial, but that, conversely, his own witnesses at this said coram nobis hearing made the case against him even stronger on the date of said hearing than at the original trial. "The Court finds in conclusion that at all times after commission of the said crime the petitioner has received both fair and equitable treatment and has in no instance been deprived of any right accorded and afforded to him either by common law, legislative act, the Constitution of Alabama, the Constitution of the United States of America, or of any other right of which this Court knows or has been informed or had brought to its attention. "This Court further finds that petitioner's court appointed counsel at the coram nobis hearing, rendered a thorough and complete service to the petitioner, and that petitioner was most adequately represented at the coram nobis hearing, and the Court hereby commends the Honorable Walter Flowers for his services, these services being rendered without any remuneration from any source whatsoever."

On December 19, 1968, the defendant filed a second petition for writ of error coram nobis before the Circuit Court of Tuscaloosa County wherein he alleged that "he was not properly represented by counsel and that his attorney stated to the court that he had never tried a murder case and that he did not know much about criminal cases". Counsel was again appointed to represent the appellant. On March 25, 1969, the District Attorney filed a motion to dismiss alleging that this second petition did not disclose any different grounds from those stated in the first petition and that all the matters alleged in the second petition were covered in the first.

On March 25, 1969, a hearing was held on this petition. The appellant was present, was represented by appointed counsel and had witnesses testify in his behalf. After having heard the testimony, Presiding Circuit Judge Aubrey Dominick entered an order and judgment of the court. After reciting the evidence presented Judge Dominick found: "Petitioner did not show and could not show any new ground or grounds which had not been given in support of the Petition for Writ of Error Coram Nobis than given on said trial on January 28, 1963.

"The Court is of the further opinion that no new or different grounds in this Petition have been shown or indicated by Petitioner or his attorney which would in any material respect be new evidence or different from that evidence presented in the hearing before Judge W. C. Warren on January 28, 1963, being Case No. 7891-A in the Circuit Court of Tuscaloosa County, Alabama, and in which case a written Order and Judgment of the Court was made and entered and is in the court file and signed by Judge W. C. Warren on February 15, 1963, since the Court had taken the matter under advisement after the trial on January 28, 1963."

Thereupon the court denied the petition and granted the State's motion to dismiss under Supreme Court Rule 50, Code of Alabama 1940, Volume 3, 1967 Cumulative Supplement This judgment of the Circuit Court was affirmed by this Court without opinion on June 16, 1970, on authority of Supreme Court Rule 50 and Nolan v. State, 43 Ala.App. 711, 199 So.2d 178 (1967).

In the case now under review a pretrial hearing was held on the issue of attorney Marshall's alleged incompetence. The facts there presented fully support, and do not contradict, the findings of Judge Warren. At the conclusion of the hearing the trial judge ruled that the defendant's 1957 conviction was admissible.

"I find from the evidence presented here and based on the findings not only of Judge Warren but also Judge Dominick that defendant was rendered assistant and competent counsel within the meaning of the case I don't have the case, it's a very recent case where they go into this in Alabama, where the Court of Appeals talked about it, and I get it from that that the standard still gone under is the farce or mockery test. And I find that this trial was not rendered into a farce or mockery or assuming that Mr. Hubbard rendered assistance and effective counsel as ruled by Judge Warren who had a full blown hearing with all the facts involved and also by Judge Dominick. So, I will rule that the conviction will be admissible."

During the post-trial hearing on the aggravating and mitigating circumstances, the State elicited testimony from Officer Dempsey Marcum that when the defendant was "booked" following his arrest a watch and a number of checks belonging to the deceased were found in his possession. Officer Marcum stated that at the time the watch was taken from the defendant, the defendant stated that Mrs. Montgomery told him after she shot herself that she wanted him to have the watch.

The defendant contends that the failure of the State to reveal the existence of this statement prior to the time it was elicited was violative of his Fifth and Fourteenth Amendment rights. The relevant portion of the defendant's pretrial discovery motion which was granted by the trial court concerned "written or recorded statements or a summary of any statement made by Defendant or copies of such statements or any oral statement made by Defendant to any person, whether reduced in writing or not, which the State may introduce at trial". Neither the oral statement nor the fact that the watch was found in the possession of the defendant following Mrs. Montgomery's death was introduced into evidence at trial.

From the record it is clear that the prosecutor first learned of the statement made by the defendant to Officer Marcum while Marcum was testifying on the witness stand at the sentencing hearing. Marcum testified that he did not reduce this statement to writing. On cross examination he was asked if he considered the statement unimportant to the case at the time it was made. He replied: "As far as the money and the watch, it was not introduced as evidence, and robbery was not a motive for anything, so I didn't." Inasmuch as the oral statement was not introduced at trial it was outside the scope of the discovery motion which was limited to statements "which the State may introduce at trial". Therefore the State's failure to produce it was not error. United States v. Wells, 525 F.2d 974 (5th Cir. 1976).

We do not consider the defendant's statements exculpatory. Testimony presented at the sentencing hearing revealed that the deceased always wore the watch, that the watch band was broken, and that the watch was appraised between $400 and $500. The testimony also revealed that found on the defendant's person were a number of checks made out to the deceased. The defendant made no statement as to how he came into possession of the checks. Expert testimony at trial revealed that one bullet shattered Mrs. Montgomery's jaw and made enunciation "very, very difficult if not impossible". Another bullet pierced her brain and caused "instant death". Under these circumstances the State's failure to produce the oral statement of the defendant was not error.

Sentencing Hearing

At the hearing on the aggravating and mitigating circumstances defense counsel attempted to introduce the testimony of several of the trial jurors that they would have voted to sentence the defendant to life without parole had that verdict been available to them. The trial judge ruled that such evidence was immaterial and irrelevant.

"It's the ruling of the Court that the feeling of the jury, of course, in that regard is not relevant to the testimony in the proceeding, and that their verdict was only advisory. As I told them, the final decision would have to be made by me after the evidence was produced at this hearing, so it's my ruling that that evidence would be immaterial and irrelevant to this proceeding, and that is my ruling, but I did want to allow you to make an offer showing the proof, so that you could raise it on the record on appeal."

The judgment of the trial court is correct. The rule in this regard is clearly stated in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) "(T)he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 98 S.Ct. at 2965 .

In a footnote to this last quoted sentence the court stated: "Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record or the circumstances of his offense." Lockett, 98 S.Ct. at 2965, fn. 12. The application of the principles enunciated in Lockett, supra, to Alabama's sentencing scheme in death cases is found in Jacobs v. State, 361 So.2d at 652-654 (Ala.1978).

Alabama's Death Penalty Act does not permit the jury to exercise any discretion in fixing punishment. Jacobs v. State, 361 So.2d 640, 641 (Ala.1978). The opinion of a trial juror after having convicted the defendant and fixed his punishment at death has no bearing on the defendant's "character, prior record or the circumstances of his offense". The jury "is not provided with guidelines to aid it in fixing the punishment" and "is not the body which finally determines which murderers must die and which must not". Jacobs, 361 So.2d at 643-644.

That function is exclusively vested in the trial judge after a hearing has been held to consider the aggravating and mitigating circumstances. Since the jury does not consider such circumstances in reaching its decision we do not consider a juror's opinion to be relevant or material to the decision which the sentencing judge must reach. The difficult task of sentencing a defendant to death or life imprisonment without parole must be made by the trial judge. What someone else would do should have no effect upon his decision. Therefore the trial judge was without error in refusing to consider the opinions of the trial jurors.

The trial judge indicated that he did not know anything about the facts involved in the defendant's first conviction and sustained the State's objection to "that argument". This was proper. We recognize the principle that "(w)here sentencing discretion is granted, it generally has been agreed that the sentencing judge's 'possession of the fullest information possible concerning the defendant's life and characteristics' is '(h)ighly relevant if not essential (to the), selection of an appropriate sentence . . .'." Williams v. New York, supra, 337 U.S. (241,) at 247, 69 S.Ct. (1079,) at 1083 (, 93 L.Ed. 1337).

However to permit a defendant, as a matter of right, to argue the facts of his prior conviction, except in the most exceptional cases, would result in a retrial of the original and prior conviction. Such would exceed and overextend the purposes of the sentencing hearing and result in a proliferation and ensnarlment of issues immaterial to the original sentencing hearing. Moreover from the record it appears that defense counsel wanted to once again present evidence on "the legal aspects of the attorney involved and things like that". This matter was fully explored at a pretrial hearing. The defendant's allegations of incompetent counsel at his original trial were found to be without merit. Such allegations were used by defense counsel to attack the validity and ultimately the admissibility of the defendant's 1957 conviction.

We do not think that the sentencing hearing should serve the function of a hearing on a petition for writ of error coram nobis. Once having litigated this very issue before the same judge who conducted the sentencing hearing, and a determination having been made that the allegations were without merit, the defendant had no right to relitigate the same issue and argue contentions which had already been determined to be without factual support. In conclusion, the argument that the court failed "to consider the validity of the prior murder conviction in 1957" is without merit since the court had already considered the issue and found the conviction to be valid.

Alabama Code 1975, Section 13-11-4, requires that: "If the court imposes a sentence of death, it shall set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentencing hearing, which shall at least include the following: (1) One or more of the aggravating circumstances enumerated in section 13- 11-6, which it finds exists in the case and which it finds sufficient to support the sentence of death; and (2) Any of the mitigating circumstances enumerated in section 13-11-7 which it finds insufficient to outweigh the aggravating circumstances." For the sake of clarity we set forth the entire order of the court sentencing the defendant to death.

"ORDER OF THE COURT"

"In accordance with law, the Court held a hearing on October 28, 1977, to determine whether or not the Defendant would be sentenced to death in accordance with the verdict of the jury or be sentenced to life imprisonment without parole. "The Defendant was present with his attorneys, Honorable Ralph C. Burroughs, the Public Defender for Tuscaloosa County, and Honorable Joel Sogol and Honorable Joel Chandler, Assistant Public Defenders for Tuscaloosa County. The State of Alabama was represented by Honorable Tommy Smith and Honorable Bruce Maddox, both Deputy District Attorneys. "Evidence was offered by the State and Defendant, and both sides were permitted to present argument as to whether the Jury's verdict should be accepted by the Court.

"The Court finds from all of the evidence and the Jury's verdict that the Defendant was guilty and is guilty; and as stated at the presentation of the Jury Verdict, the Court adjudged the Defendant guilty of Murder in the First Degree with aggravating circumstances as charged in Count I of the Indictment. "The Court finds that the capital felony of Murder in the First Degree with aggravating circumstances was committed by this Defendant in that the State proved beyond a reasonable doubt and to a moral certainty that the Defendant committed Murder in the First Degree with the aggravating circumstance that the Defendant had been convicted of Murder in the Second Degree within twenty years of the time that he committed the Murder in the First Degree made the basis of this prosecution. "The Court further finds in aggravation that the Defendant had been convicted of Murder in the Second Degree, a felony involving the use of violence to the person. The Court notes that this conviction for Murder in the Second Degree was the aggravating circumstance alleged in Count I of the Indictment for which Defendant was convicted.

"The Court further finds that this capital felony of Murder in the First Degree with aggravating circumstances was committed for pecuniary gain, in that the evidence showed that Defendant was without money on the night before the crime and that the Defendant when arrested had some Five Hundred ($500.00) Dollars on his person, some of which was in checks made payable to the victim, Lillian Montgomery. The evidence also showed that the victim's son, Jimmy Montgomery, on the day of the crime, checked the cash register till in victim's store and found it to be empty. The evidence further revealed that Defendant had the victim's diamond watch on his person at the time of his arrest; said watch being identified by victim's son as being hers and valued at some Four Hundred ($400.00) Dollars. This watch was evidently forcibly taken from the victim's body as the catch was broken on the watch when it was recovered by the police.

"The Court further finds this capital felony of Murder in the First Degree with aggravating circumstances was especially heinous, atrocious and cruel. The evidence revealed that the victim was shot three different times, with some period of time elapsing between the last two shots. The evidence disclosed a large pool of blood surrounding the victim's head which was the result of a bullet wound to the mouth which shattered one of the victim's dentures. The victim then lay on the floor while her heart pumped the large pool of blood on the floor, then the third and final shot was fired which the testimony showed produced instantaneous death. The act and the means by which the Defendant accomplished it were indeed atrocious, heinous and cruel. "This Court finds all of those aggravating circumstances to be present in this case and finds them sufficient to support the sentence of death imposed by the Jury.

"THEREFORE, after listening to the evidence presented and the arguments of the able attorneys, and after weighing the aggravating circumstances presented by the State and noting the absence of any mitigating circumstances which would justify the Court's refusal to accept the death penalty as fixed by the Jury, it is therefore the order and judgment of the Court that the Jury's verdict of death be accepted in the manner and form provided by law."

The defendant argues that the court erred in finding that the murder was committed for pecuniary gain and cites Ex Parte Cook, 369 So.2d 1251 (Ala.1978), rehearing denied, opinion corrected, February 9, 1979). Cook was convicted of "robbery . . . when the victim is intentionally killed". Section 13-11-2(a)(2). The Supreme Court held that the aggravating circumstance of "a capital felony committed for pecuniary gain" was not to be applied to a robbery. "At Cook's sentencing hearing the trial judge found that two aggravating circumstances were present: (4) a capital felony committed in the course of a robbery, and (6) a capital felony committed for pecuniary gain.

In so finding we feel that the learned trial judge misconstrued the latter aggravating circumstance, in effect condemning Cook twice for the same culpable act stealing money. Subsection 6 would, of course, cover a variety of crimes committed with the hope of financial benefit, ranging from 'murder-for-hire' to an heir killing his benefactor to gain his inheritance. But we do not think it appropriate to apply this aggravating circumstance to situations already condemned under subsection 4 which by definition involve an attempt at pecuniary gain. Thus, to avoid repetition, subsection 6 should not be applied to a robbery. The trial court erred in considering it and including it in the findings of fact."

Since the defendant in this case was not charged with robbery, subsection 6 could be an aggravating circumstance. Under the testimony presented at the sentencing hearing the court acted within its discretion in finding that it was an aggravating circumstance.

Though not raised by the defendant, we note that the court's order does not contain a statement of "the findings of fact from the trial" as required by Section 13-11-4. The court's order is also insufficient because it does not specify the mitigating circumstances enumerated in Section 13-11-7 which it found insufficient to outweigh the aggravating circumstances. If no mitigating circumstances exist, the order should so state. Consequently this cause must be remanded with instructions that the court's order be extended to include the findings of fact from the trial and the mitigating circumstances, if any, considered as required by statute.

We have carefully searched the record for any error prejudicial to the defendant. After due consideration to the record and to the alleged errors asserted on appeal it is our opinion that the defendant received a fair trial. Remanded for further proceedings in accordance with this opinion. All Judges concur.

AFTER REMANDMENT - On the return to our order of remand the trial judge has most adequately complied with Alabama Code Section 13-11-4 (1975) as directed. The findings of the trial court now being proper and in compliance with the statutory requirements, the judgment of the circuit court is affirmed.

Hubbard v. State, 405 So.2d 695 (Ala.Cr.App. 1981).