The record shows that Ketchum's requested jury instruction number 10 read: "'I charge you ladies and gentlemen of the jury, if the evidence convinces you that Lauren Kinney is a woman of bad character and unworthy of belief, then you may disregard her evidence altogether.' Ashlock v. State, 367 So.2d 560 (Ala.Crim.App.1978)." (C. 215.
Giles alleges that the trial court improperly found the "Great Risk of Death to Many" aggravating factor in his case. (Doc. no. 44, at 115 (citing Ashlock. v. State, 367 So. 560, 561 (Ala. Crim. App. 1979)). He further alleges that, under the circumstances, the finding of the "Great Risk" factor violates the Double Jeopardy Clause.
Alabama is the only other state to take this position. See, Ashlock v. State, 367 So.2d 560 (Ala.Cr.App. 1978). In State v. Irwin, 304 N.C. 93, 282 S.E.2d 439, 448 (1981), the North Carolina Supreme Court stated that "the aggravating circumstance of pecuniary gain will almost always be appropriately submitted to the jury where a murder is committed during the course of an armed robbery."
On consideration of the refusal of the identical requested charge on the last appeal of this case, this Court held: "The refusal of a virtually identical charge was found to constitute reversible error in Ashlock v. State, 367 So.2d 560 (Ala.Cr.App. 1978), cert. denied, 367 So.2d 562 (Ala. 1979). However, here the court's failure to give the charge was not properly preserved for our review.
"The trial court erred in refusing to instruct the jury regarding character evidence improperly adduced by the State at trial against Appellant. Since the evidence brought out by the State of Alabama was so detrimental and prejudicial toward Appellant, constituted plain error for the trial [sic, but we consider the contention as if the word `court' or `judge' were inserted] failed to instruct the jury as to character evidence generally. See Ashlock v. State, 367 So.2d 560 (Ala. 1978)."
My anti-stacking view is not without its supporters. State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874 (1977); Ashlock v. State, 367 So.2d 560, 561 (Ala.Cr.App. 1978); and Provence v. State, 337 So.2d 783, 786 (Fla. 1976). In future capital murder trials in which the killing occurred while defendant was in the course of commission of a robbery, jury instructions at the sentencing phase should not authorize the finding of two aggravating circumstances predicated upon the same factual occurrence.
(Emphasis added.) The Court of Criminal Appeals found that the refusal to give this charge was error, citing Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973), and Ashlock v. State, 367 So.2d 560 (Ala.Crim.App.), cert. denied, 367 So.2d 562 (Ala. 1979). In Ashlock, the charge in question approved by the Court of Criminal Appeals was as follows:
In its decision in this case, the Court of Criminal Appeals recognized that these charges are proper. Ashlock v. State, 367 So.2d 560 (Ala.Crim.App. 1978), cert. denied, 367 So.2d 562 (Ala. 1979). However, based upon Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973), the court of appeals found that although it was error to refuse to instruct the jury as requested in charges five and six, that error was harmless.
"While it is clear that the aggravating circumstance, that the offense was committed ‘for pecuniary gain,’ can be applied to a capital offense under § 13A–5–40(a)(7), Cook v. State, 369 So. 2d 1251, 1256 (Ala. 1978) ; Ashlock v. State, 367 So. 2d 560, 561 (Ala. Cr. App. 1978), writ denied, 367 So. 2d 562 (Ala. 1979) ; Johnson v. State, 399 So. 2d 859, 867 (Ala. Cr. App. 1979), we can find no authority for the proposition that this aggravating circumstance is automatically to be applied to the capital offense of murder for hire. Therefore, we must look to the definition and application of ‘hire,’ as encompassed in ‘murder for hire,’ and ‘pecuniary gain,’ as encompassed in the aggravating circumstance.
Chavers v. State, 361 So.2d 1106, 1107 (Ala. 1978). See also Ashlock v. State, 367 So.2d 560, 561, (Ala.Cr.App. 1978), cert. denied, 367 So.2d 562 (Ala. 1979); Giles v. State, 366 So.2d 351 (Ala.Cr.App. 1978)." Coon v. State, 494 So.2d 184, 186 (Ala.Cr.App. 1986).