Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW HAND, Chief Judge. I. INTRODUCTION This cause came before the Court pursuant to Wayne Eugene Ritter’s petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Petitioner was tried and convicted of capital murder and sentenced to death in 1977 in an Alabama state court. Petitioner and John Lewis Evans committed an armed robbery of a pawn shop in Mobile, Alabama on January 5, 1977. During the course of the robbery, the pawn shop proprietor, Mr. Edward Nassar, was shot in the back by Evans and died. Petitioner and Evans were indicted under Alabama’s capital murder statute. Each expressed a desire to plead guilty and forego a jury trial but that procedure was not permissible under the death penalty statute then in force. See Prothro v. State, 370 So.2d 740 (Ala.Cr.App.1979). Petitioner and Evans gave inculpatory statements to the Grand Jury and each testified at trial admitting the necessary elements of the capital murder indictment and demanded the death penalty. The jury returned a verdict of guilty and, pursuant to the dictates of the death penalty statute, included in its verdict a sentence of death. Following the verdict, additional evidence was presented to the trial judge regarding the aggravating and mitigating factors set out in Code of Alabama, 1975, Section 13-11-6 and 7, following which the trial judge sentenced petitioner and Evans to death. The conviction and death sentence were subject to automatic review under Code of Alabama, 1975, Section 13-11-5, and petitioner’s case was in the Alabama appellate courts or before the Supreme Court of the United States for six years. Certiorari was granted by the United States Supreme Court on three occasions, but each resulted in a remand rather than any decision on the merits. This petition involves the first presentation of petitioner’s claims to the Federal Courts under 28 U.S.C. § 2254. The petition was filed on May 5, 1983 alleging ten separate claims for habeas corpus relief. At that time petitioner was scheduled to be executed on May 13, 1983. Following an initial hearing on the petition, the Court determined it had jurisdiction and that at least one of the ten alleged constitutional deprivations alleged in Mr. Ritter’s petition raised substantial federal questions, and accordingly issued an order staying execution. The second evidentiary hearing was conducted on June 1 and 2, 1983, following discovery. The parties have filed briefs and proposed findings of fact and conclusions of law. As noted above the petition advances ten separately identified claims. By order dated May 11, 1983, this Court directed petitioner to amend his petition and to present in this action any additional claims which he believed provided a basis for relief from his conviction or sentence. No amendment was filed. The Court therefore considers the ten grounds advanced in petitioner’s original petition as the only basis upon which habeas corpus relief is available to the petitioner, and that any additional grounds have been waived. Habeas Rule 9(b). The Court will address each of these ten claims in this opinion. For the reasons discussed more fully in the body of this decision, the Court concludes that there is no basis for the claimed relief and the petition will be dismissed with prejudice. The Court will also order that the stay entered May 6, 1983 be dissolved. II. FINDINGS OF FACT Based upon all of the records, files, exhibits, and testimony herein, this Court finds the following facts: A. Electrocution as Cruel and Unusual Punishment 1. At the two day habeas hearing the Court took testimony on essentially three of the ten issues. The first dealt with whether capital punishment as practiced by the State of Alabama violated the Eighth Amendment’s Cruel and Unusual Punishment Clause. That claim was dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for reasons stated on the record. The second and third issues related to the Alabama “preclusion clause”. (See discussion infra). In particular testimony was taken on: 1) whether the “preclusion clause” was a factor in the petitioner’s adoption of a trial strategy to intentionally seek the death penalty; and 2) whether despite petitioner’s trial strategy he was entitled to a jury instruction on the lesser included offense of felony murder. B. Preclusion Clause — Trial Strategy 2. Petitioner was tried and convicted under the 1975 Alabama capital punishment law which defined some fourteen crimes for which the death penalty might be imposed and which also provided that an indictment and trial for one of those fourteen offenses “shall not include any lesser offenses .... ” Code of Alabama, 1975, Section 13-11-3. The clause was later found to be unconstitutional in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). That decision was later modified in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) which provides that the entitlement of the lesser included offense instruction is warranted only in those cases in which the evidence reasonably could support a verdict on the lesser included offense. 3. Petitioner claims that the “preclusion clause” has prejudiced him in two ways. First, he claims that his trial and pretrial tactics of confessing to the crime, cooperating with the prosecution, and attempting to coerce the jury into a guilty verdict were all motivated in part by his knowledge of the preclusion clause. Second, petitioner contends that without regard to the impact of the preclusion clause on petitioner’s trial tactics, he was entitled under Beck, supra, and other applicable state and federal law to a charge on the lesser included non-capital felony murder offense. 4. At the habeas hearing on June 2, 1983, petitioner testified that he and his co-defendant, John Lewis Evans, entered a pawn shop in Mobile, Alabama on January 5, 1977, for the purpose of robbing the proprietor and obtaining a different handgun for the petitioner. During the course of the robbery, the proprietor, Mr. Edward Nassar, was shot and fatally wounded by Evans. This was one of a series of crimes committed by Evans and the petitioner between December 25, 1976 and March 7, 1977. In all, the pair committed some three dozen violent crimes during this crime spree including armed robbery, kidnapping, extortion and murder. 5. Petitioner testified at his trial that during the two-and-a-half month long multi-state crime spree, petitioner knew that sooner or later law enforcement officers would catch up with him and Evans. (Exhibit 1, 343) In his own words, “we didn’t intend to be taken alive when it did happen .. . mainly because we didn’t want to spend all that time in prison.” Id. Accordingly, petitioner and his co-defendant Evans entered into a pact in which they agreed to shoot it out with law enforcement officers and be killed rather than be captured alive. (Exhibit 1, 330-331, 343-344) On cross-examination at the habeas hearing, petitioner admitted that his above-described testimony in his state court trial was true. 6. On March 7, 1977, petitioner and Evans were captured separately in Little Rock, Arkansas by FBI agents. (Testimony of Agents Bill Hardin and Jack Juel at the evidentiary hearing; Exhibit 1, 344). 7. The only reason petitioner was captured alive was the circumstances under which the FBI agents surprised and captured him. (Exhibit 1, 344) Upon being captured, petitioner expressed disappointment that he had been captured alive, and, indeed, made a statement to one of the FBI agents which was to the effect of: Why hadn’t they shot him, because it would have saved everyone a lot of trouble. (Testimony at the evidentiary hearing) 8. On March 8,1977, in Little Rock, Arkansas, after being repeatedly advised of his Miranda rights and freely waiving them, petitioner freely and voluntarily confessed to FBI agents his guilt for the many violent felonies he and Evans had committed in the above-described crime spree. (Exhibit 1, 293-312; testimony of agents Hardin and Juel at the evidentiary hearing). 9. On March 8,1977, in Little Rock, Arkansas, petitioner stated to FBI agents who were interviewing him that he preferred execution to spending the rest of his life in prison, and he indicated at that time that he intended to seek execution when he returned to Alabama. Agent Hardin testified that Mr. Ritter told him that he (Ritter) had led a good life and had done more in a short period of time than most people do in their entire lives. Agent Hardin also stated that he personally had at that time no knowledge of the preclusion clause. Agent Juel testified that both Ritter and Evans indicated a preference for death over life imprisonment. Agent Juel further testified that this statement had not been included in their reports because the arrestees’ philosophy was not relevant to a report on crimes committed. Nevertheless, he was certain they made the “death preference” statement because he had never heard such a statement in his then previous thirteen years of service. (Testimony of Agents Hardin and Juel at the evidentiary hearing). The Court finds that at the time petitioner made those statements and expressed that intent, he had no knowledge of the procedural aspects of Alabama’s capital punishment statute, the preclusion clause, or the sentence alternatives available under the statute. (Testimony of Agents Hardin and Juel at the evidentiary hearing; testimony of Ritter at the evidentiary hearing). 10. Sometime after March 8, 1977, and on or before March 11, 1977, petitioner waived extradition and was flown from Little Rock, Arkansas to Mobile, Alabama. (Testimony of Captain Sam McLarity at the evidentiary hearing.) After being advised of his Miranda rights and freely and voluntarily waiving them, petitioner made several oral statements to the Mobile police officers who accompanied him on the flight back to Alabama. (Testimony of Captain McLarity at the evidentiary hearing). On that flight John Evans in the presence of petitioner asked Captain McLarity if Alabama had a death penalty statute. Captain McLarity responded in the affirmative. Both Evans and petitioner then stated that they intended to plead guilty and seek the death penalty. Indeed, petitioner stated that he hoped he could be executed within sixty days. There was no talk of the preclusion clause during that discussion. Like Agent Juel, Captain McLarity stated, the death preference statement was so unique that he could not forget it; he had never heard anything like it before. (Testimony of Officer McLarity at the evidentiary hearing.) The Court finds that at the time petitioner made those statements and expressed that intent, he had no knowledge of the procedural aspects of Alabama’s capital punishment statute, the preclusion clause, or the sentence alternatives available under the statute. (Testimony of Officer McLarity and Ritter at the evidentiary hearing). 11. Continuously, from the first day he arrived back in Alabama, which was on or before March 11, 1977, throughout his entire trial and sentencing proceedings, petitioner intentionally and stubbornly pursued a course of actively assisting the prosecution in proving beyond a reasonable doubt that he was guilty of the capital offense and that he deserved the death penalty. He did so as early as in his formal interview with Mobile police officers (Exhibit 1, 288-292); at the Grand Jury, before whom he insisted on appearing (Exhibit 1, 24, 338— 347); at arraignment where he entered an oral guilty plea (Exhibit 1, 27, 59-60); and at trial when he entered a written guilty plea and took the stand to testify against himself. (Exhibit 1, 207-10, 216-221, 252, 283). When the jury verdict convicting him of the capital offense and fixing his punishment at death was read, petitioner turned, smiled, and gave a “thumbs up” gesture of approval. (Exhibit 2, television tape of testimony). 12. Petitioner’s course of actively admitting his guilt of the capital offense and seeking the death penalty continued at least up through the Alabama Supreme Court’s first decision in the case, which was entered on May 19, 1978. Evans and Ritter v. State, 361 So.2d 666, 667 (Ala.1978) (“[N]either petitioner has expressed dissatisfaction with his conviction nor his death sentence ....”) 13. The course of conduct described in the preceding paragraphs was freely, knowingly and voluntarily undertaken by petitioner against the repeated and emphatic advice of his able and experienced attorney. (Exhibit 1, 22-23, 24, 48-54, 57-59, 217-220, 284, 318-320; testimony of attorney Reggie Stephens and of petitioner at the evidentiary hearing.) As the Alabama Court of Criminal Appeals found regarding both petitioner and his co-defendant Evans: The able attorneys appointed to represent the appellants have been given a most perplexing responsibility. Here again, over their specific advice, and over their objections, each appellant went before the Mobile County Grand Jury and openly testified as to his involvement in the robbery and murder of Edward A. Nassar. When each appellant appeared at arraignment, against the advice of his attorney and over the advice of the trial court, he entered a guilty plea. At trial, each appellant, again against the advice of his attorney’s objection, took the stand and openly admitted his participation in the robbery and murder of Edward A. Nassar. These attorneys have performed a great public service at considerable sacrifice to themselves. Each appellant admitted that he had no complaint with the caliber of representation, and that his attorney had fully advised him at each step of the proceedings of his constitutional rights. Beyond question, there can be no fault, or suggestion of fault, attributed to the caliber of representation of each appellant by his respective attorney. This court specifically finds that both Evans and Ritter were fully, fairly, and thoroughly represented by these attorneys. Evans v. State, 361 So.2d 654, 661-662 (Ala.r.App.1977). 14. As a result of confessions that he freely and voluntarily gave after being advised of and waiving his Miranda rights, including confessions he gave to the FBI agents before he knew anything about Alabama’s capital punishment statute, petitioner had detainers from at least five different states lodged against him. Those detainers involved multiple charges of armed robbery, kidnapping, aggravated kidnapping, aggravated burglary, and aggravated robbery. (Exhibit 1, 233, 349-354, 365, 358, 365-367; Exhibit 3.) In addition, those states and other states would have brought additional charges and lodged additional detainers against the petitioner if he had not been sentenced to death in Alabama. (Exhibit 1, 233.) 15. At the time petitioner undertook the self-destructive strategy that he pursued in the Alabama court system, the petitioner knew that even if he somehow could have escaped the death penalty and obtained parole in Alabama, he would never have finished serving the prison sentences he would have received for all of the violent felonies he had confessed to committing in other states. (Exhibit 1, 346; testimony of petitioner at the evidentiary hearing.) In addition, petitioner had violated parole from a previous robbery sentence to begin this multi-state crime spree (Exhibit 1, 230, 243, 338), and he believed that he would never be paroled again no matter what happened in Alabama. Petitioner also admitted at the hearing, even if he had somehow been eligible for and had received a parole from his Alabama crimes, other states were waiting with enough charges to give him more sentences than he could serve in five lifetimes. (Testimony of petitioner at evidentiary hearing.) 16. It is apparent to the Court, based upon the above-described findings of fact, that the reason petitioner pursued the self-destructive course of action that he did through the Alabama court system was his preference for death over a long prison sentence or series of long prison sentences. Evans v. State, 361 So.2d 654, 662 (Ala.Cr.App.1977) (“This court is convinced that each appellant is sincere in seeking the death sentence, preferring this course to a long prison sentence.”) (Exhibit 1, 259, 346; testimony of Dr. Brown, Agent Hardin, Agent Juel, and Captain McLarity.) Because of the circumstances specified in the preceding paragraph, petitioner made no distinction between a life sentence and a life without parole sentence. (Testimony of Attorney Reggie Stephens at the evidentiary hearing.) 17. The only other factor that possibly contributed to petitioner’s course of conduct was his appetite for publicity and notoriety and his desire for news media attention, which petitioner referred to as having the effect of a drug. (Testimony of petitioner at the evidentiary hearing.) However, even if there had been no news media coverage and publicity, petitioner would still have pursued the same course of action he did. This is apparent because his intention to pursue that course of action was formulated and first announced before petitioner returned to Mobile, Alabama and before meeting with the press. (Testimony of Agents Hardin and Juel, and Captain McLarity.) 18. Petitioner’s claim, that he would have undertaken a different course of conduct in the Alabama court system had it not been for various provisions of the Alabama capital punishment statute, lacks credibility and other than petitioner’s self-serving statements at the evidentiary hearing, has no basis in the evidence whatsoever. The testimony of all of the witnesses at the hearing, including the testimony of his former attorney, supports the finding of fact that petitioner’s determination to seek the death penalty and adopt a concomitant trial strategy was made before he returned to Mobile for trial and without any knowledge whatsoever of Alabama criminal procedure. Petitioner’s claim that he would have undertaken a different course of conduct in the Alabama court system had it not been for various provisions of the Alabama capital punishment statute is also contradicted by his own testimony at trial. (Exhibit 1, 207-208, 216-221, 283, 344-347.) In assessing petitioner’s credibility in this matter the Court also considers the fact that many or most of the charges against petitioner in other states have been dropped due to speedy trial problems. Thus, petitioner now might not spend all of his life in jail if for some reason his conviction was reversed and he was charged with and found either innocent or guilty of a lesser included offense. Thus petitioner’s original reason for preferring death over life imprisonment no longer exists. (Petitioner’s testimony at the evidentiary hearing.) 19. And based upon petitioner’s testimony at the evidentiary hearing the Court will also find that at no time did any state or federal officer, agent, or official coerce the petitioner, mistreat him, or violate any of his rights in any way. Petitioner has at all times been treated courteously and with the utmost respect for his person and constitutional rights. (Exhibit 1; testimony at the evidentiary hearing.) 20. The reason that the petitioner is facing a death sentence is not the result of any peculiarities of the capital punishment statute under which he was tried. Rather, the petitioner is facing a sentence of death as a result of his own criminal conduct and his having adopted a legal strategy, however unwise, which was adopted freely, knowingly, and voluntarily by the petitioner himself for which no other person or factor is responsible. The Court cannot help but note that as attorney Stephens testified at the evidentiary hearing, the petitioner obtained exactly what he wanted. 21. Based upon all of the evidence, the Court finds beyond a reasonable doubt that the course of action petitioner followed at the pretrial, trial, sentencing, and initial appellate stages of the Alabama court system was not caused by or influenced by any aspect of Alabama’s capital punishment statute or the sentence alternatives available under it. The Court believes that the petitioner would have followed the same course of action no matter how Alabama’s capital punishment statute had been drawn or structured. The Court further finds that beyond a reasonable doubt petitioner was not prejudiced by the “preclusion clause” as it pertained to his trial tactics. C. Sentencing Procedures 22. At the time petitioner and Evans began their cross country spree, petitioner was on parole for robbery. (Exhibit 1, 243, 338). The crime spree lasted about two- and-a-half months and involved approximately three dozen felonies. Under oath in front of the Grand Jury, petitioner testified his “vocation” was armed robbery because it was easy and he was good at it. (Exhibit 1, 347). At trial he testified under oath that if he were ever freed he would pursue the life of a professional criminal and that, “if it became necessary, I would [kill again].” Exhibit 1, 221). 23. Petitioner failed to show any remorse prior to or during his sentencing. In fact [as will be noted many times in the course of this opinion] he in effect boasted that he would have shot Edward Nassar if necessary, and would kill again in the future if allowed to go free. (See Exhibit 1, 217-221, 340-345). 24. At every stage of the state trial court proceedings petitioner actively sought the death sentence. (See Findings of Fact 9-21, supra). He filed a written “Request to Enter Guilty Plea” which was admitted into evidence and went to the jury.” (Exhibit 1, 207-208, 252, 283). He took the stand and admitted all elements of the capital offense, and threatened the jurors with harm if they did not convict him and sentence him to death. (Exhibit 1, 216-221). At the time he threatened the jury, he was smiling or grinning and appeared to be menancing and extremely dangerous. (Exhibit 2, Video tape of Trial Testimony). 25. Following the testimony of petitioner, and similar testimony by his co-defendant John Lewis Evans (Exhibit 1, 211-216), the jury retired for deliberations, and within fifteen minutes returned a verdict of guilty. At that time under Alabama law the guilty verdict in a capital murder case also “fixed” petitioner’s sentence at death. (Exhibit 1, 29, 226-227). Petitioner gave the “thumbs up” gesture of approval upon hearing the verdict. (Exhibit 2). 26. In addition to the evidence which was presented during the guilt stage of the trial, at the sentencing hearing the State introduced the following: The Grand Jury testimony of petitioner and Evans; petitioner’s prior record; an additional lengthy confession petitioner gave the FBI which recounted his many criminal activities; a summary of the crime spree based on their statements to Mobile police officers; and a number of warrants received from other states indicating that they would attempt to extradite and prosecute petitioner if he was not sentenced to death in Alabama. (Exhibit 1, 229-233). All of this additional evidence was presented without objection. (Exhibit 1, 231-233.) Petitioner submitted no evidence at the sentencing hearing. 27. After deliberation, the trial court entered written findings concerning the aggravating and mitigating circumstances. (Exhibit 1, 243-247.) The Court found the following four aggravating circumstances in petitioner’s case: (a) . The Court finds that the Capital Felony was committed by Mr. Ritter while he was under sentence of imprisonment although he was serving the remainder of his sentence on parole at the time; (b) . The Court finds that Mr. Ritter has been previously convicted of another felony involving the use or threat of violence to the person: to-wit: the offense of robbery; (c) . The Court finds that Mr. Ritter has knowingly on approximately thirty-nine previous occasions created a great risk of death to many persons; (d) . The Court finds that the Capital Felony was committed while Mr. Ritter was an accomplice in the commission of a robbery; (Exhibit 1, 243-244.) The trial court found one statutory mitigating circumstance: age at the time of the crime (23 years old); and one non-statutory mitigating circumstance: the fact that no attempt was made to harm Mr. Nassar’s two young daughters who were present when their father was murdered. (Exhibit 1, 246.) The Court found that the aggravating circumstances “far outweigh” the mitigating circumstances; adjudged petitioner guilty of the capital offense charged in the indictment; “and specifically of intentionally killing Edward A. Nassar during the robbery or attempt thereof;” and sentenced him to death. (Exhibit 1, 246-247.) 28. On direct appeal the Alabama Court of Criminal Appeals considered and upheld the propriety of the death sentence for petitioner and his co-defendant Evans. In doing so that court held: The aggravating circumstances were here averred and proved at trial, and also determined by the trial judge in a public hearing, as required by law. In addition, this Court has weighed the aggravating and mitigating circumstances independently. As stated by Harris, J., in Jacobs [v. State, 361 So.2d 607 (1977) ], supra, ‘The aggravating circumstances found by the trial court are amply supported by the evidence in this case. The verdict of the jury is overwhelmingly sustained by a preponderance of the evidence.’ Additionally, this Court has weighed the various factors presented by this record, and is of the opinion that the punishment here -imposed fits the crime for which each appellant has been found guilty thereof. Evans v. State, 361 So.2d at 662. 29. In its sixth and final decision in this case, the Alabama Supreme Court addressed the sentencing procedure claims which petitioner has raised as Claims No. 3, 4, and 5 of this habeas petition. Ritter v. State, 429 So.2d 928 (Ala.1983). In doing so, the Alabama Supreme Court stressed that, “[t]he uniqueness of the facts of Ritter’s case merit particular emphasis ...” and after considering those facts it concluded that: “[w]e in nowise find the sentencing procedure here provided and employed, prejudicial to Ritter.” Id. at 935. 30. At the evidentiary hearing held in this habeas petition, petitioner’s own trial counsel testified that in his opinion petitioner would still have been sentenced to death even if the mandatory jury verdict form requirement had not existed. (Testimony of attorney Stephens at the evidentiary hearing.) 31. Based upon a careful examination of •the state trial court record and consideration of the testimony presented at the evidentiary hearing in this ease this Court finds beyond a reasonable doubt that there is no evidence that petitioner was harmed or prejudiced in any way by the existence of the mandatory jury verdict form requirement or any other aspect of the sentencing procedure employed in this case. 32. Based upon a careful examination of the state trial court record and consideration of the testimony presented at the evidentiary hearing, this Court finds beyond a reasonable doubt that petitioner would still have been sentenced to death even if the mandatory jury verdict form requirement and other aspects of the sentencing procedure about which he now complains had not been employed at his trial. 33. Given the facts and circumstances of this case, including but not limited to the fact that the petitioner threatened to harm the jury if he was not sentenced to death, this Court finds beyond a reasonable doubt that no sentencing authority could reasonably have sentenced petitioner to anything other than death regardless of the sentencing procedure employed. D. Jury Charge 34. Petitioner claims that the trial court’s jury charge at Exhibit 1, 222-225, was deficient. Both the petitioner and his trial counsel, attorney Stephens, testified at the evidentiary hearing that petitioner freely and voluntarily instructed his trial counsel not to object to any major points at trial, not to “muddy the water,” and not to submit any written requested jury instructions to the trial court judge. Petitioner did not object to the jury charge at the time of the trial, nor did he submit any written requested jury charges. (Exhibit 1, 225-226.) Based upon the testimony of the petitioner and attorney Stephens, the Court finds beyond a reasonable doubt that the sole reason for the failure of the petitioner to object to the jury charge at the time of trial and to submit any requested jury charges was that the petitioner had instructed his attorney not to do so. E. Intent 35. Petitioner also claims that his sentence of death is disproportionate because he did not kill, attempt to kill, or intend to kill Edward Nassar. All of the testimony at all stages of these legal proceedings indicates that petitioner neither killed nor made an actual attempt to kill Edward Nassar. Conversely, as discussed below, all testimony up to the evidentiary hearing on his habeas petition has been to the effect that petitioner had the requisite intent to kill. 36. In all or virtually all of the more than three dozen violent felonies that he and Evans committed during their two-and-a-half month long crime spree, petitioner was armed with a loaded, deadly weapon. (Exhibit 1, 212-213, 324, 339-340; testimony of petitioner at evidentiary hearing.) And although it is true that Evans shot Edward Nassar, at the time of the shooting petitioner was loading or had loaded a pistol with live ammunition for use in the robbery. (Exhibit 1, 221, 346; testimony of petitioner at evidentiary hearing.) 37. On March 8, 1977, petitioner, after being advised of his Miranda rights and freely and voluntarily waiving them, voluntarily admitted to FBI agents in Little Rock, Arkansas that he would have shot and killed Edward Nassar if Evans had not done so first. (Testimony of Agents Hardin and Juel at the evidentiary hearing.) 38. On April 4,1977, petitioner voluntarily appeared before the Mobile County Grand Jury, and against the advice of his attorney freely testified at length concerning his participation in the robbery and murder of Edward Nassar. (Exhibit 1, 338-347.) During his testimony in front of the Grand Jury the petitioner was asked: Q: Uh, were you there, uh, to stand ready and assist and aid John Evans in any way that was necessary to accomplish the armed robbery? A: Yes. Q: And that went as far as shooting Edward Nassar had you had the opportunity? A: Yes. (Exhibit 1, 341.) Q: Uh, if you ever had to shoot someone in an armed robbery, would you have done so? A: If it was a choice between them and me, I would’ve. Q: Alright. Did both you and John make a pact together or agreement together to assist and aid each other under any set of circumstances and if it meant taking a life, would you do so? A: Yes. (Exhibit 1, 343-44.) Q: Uh, yet you would kill an individual if it became necessary to — to escape or to assist your accomplice, John Evans? A: Yes, I would. Q: If you were given the opportunity to be turned back onto the streets or go back free, uh, what occupation would you pursue? A: Probably robbery. Q: And, uh, if it became necessary to kill other individuals in that occupation would you do so? A: Yes. (Exhibit 1, 344-45.) 39. At his arraignment on April 18, 1977, petitioner plead guilty to the indictment charging him with the capital offense. (Exhibit 1, 27, 59-60.) Petitioner’s guilty plea was accepted (Exhibit 1, 27.), but in full compliance with the requirements of the subsequent decision in Prothro v. State, 370 So.2d 740 (Ala.Cr.App.1979), the trial court ordered the matter submitted to a jury. (Exhibit 1, 60.) And at petitioner’s trial, which began on April 26, 1977, after the state had presented its case, petitioner filed a written .“Motion to Enter Guilty Plea” which was admitted into evidence and which went to the jury. (Exhibit 1, 207-208, 252, 283.) 40. Petitioner also took the stand, against the advice of his attorney, and admitted each of the elements of a capital offense. (Exhibit 1, 216-221.) 41. On direct examination the petitioner testified as follows: A: ... the plan was that I was to ask to see a pistol. I had some .38 caliber ammunition in my left hand, and we went in, I asked Mr. Nassar to see the gun, he handed it to me, I opened it up, looked at it, John started to draw his gun, and I started loading the pistol he showed me. Immediately, Nassar dropped down and started going around the corner, which was an “L” shape, the counter, then towards the office. He got to the office, reached up with, I believe, his left hand, to a counter or something, and that’s when he was shot. We knew he was going for a gun. He wouldn’t have hesitated to kill us, so he had to be killed. There was no other way.... Q: Mr. Ritter, do you want to say anything to these people sitting on the jury box as to what you want them to do when they get back there? A: Well, I think there are two considerations. First, we did kill Mr. Nassar. We knew we might have to kill somebody during any robbery. We had discussed it before. If anybody went for a gun, that was what was going to happen.... (Exhibit 1, 219-220.) 42. And during petitioner’s testimony at his state court trial, he testified as follows on cross-examination: Q: I noticed in your confession (given to the Mobile Police Department) where you said you wouldn’t say who shot Mr. Nassar, is that correct? A: That’s correct. Q: I want you to turn and look at the Jury, if you will, Mr. Ritter, and tell that jury if you had an opportunity, to kill Mr. Nassar, would you have killed him? A: My gun was loaded, and I would have killed him, yes. Q: You stood ready to assist your cohort in crime in anyway you could, and that went as far as shooting Mr. Nassar in the back if you had to do so. A: Yes. John was in my line of fire, but I was there in case he missed. Q: And if you walked out of this courtroom here today, or if you were ever allowed to walk out of any courtroom, any penitentiary from now until any time in the future, what profession would you start back into? A: Armed robbery. Q: And if you had to kill again, would you do it? A: If it became necessary, I would. (Exhibit 1, 221.) 43. During its oral charge to the jury, the trial court instructed the jury that petitioner could not be convicted of the capital offense unless he had, “an actual or positive intent to kill.” (Exhibit 1, 223) The jury convicted petitioner of the robbery-intentional killing capital offense and the trial court judge adjudged petitioner guilty of the capital offense, “and specifically of intentionally killing Edward A. Nassar during the robbery or attempt thereof.” (Exhibit 1, 246.) 44. Following an affirmance of the petitioner’s conviction and sentence by the Alabama Court of Criminal Appeals in Evans v. State, 361 So.2d 654 (Ala.Cr.App.1977), the Alabama Supreme Court granted certiorari as a matter of right pursuant to Alabama Rule of Appellate Procedure 39(c). The Alabama Supreme Court issued an opinion remanding petitioner’s case to the Court of Criminal Appeals for consideration of the non-triggerman issue which the Court of Criminal Appeals had not previously addressed. Evans v. State, 361 So.2d 666 (Ala.1978). 45. On remand, the Court of Criminal Appeals again upheld petitioner’s conviction and sentence even though petitioner did not actually fire the shot that killed Mr. Nassar. Ritter v. State, 375 So.2d 266, 267 (Ala.Cr.App.1978). The court held that under Alabama’s capital punishment statute the felony murder doctrine could not be used to supply the requisite intent to kill, and held that it was not used in petitioner s case. Id. Instead, the Court explained: In brief, it was really simply a matter of logistics that Ritter did not also fire his weapon, i.e., his companion Evans, according to his own statement, was in his line of fire. In our original opinion, and in this extension this court had carefully reviewed all of the evidence and did not, and does not now, rely upon the felony murder doctrine to imply evidence of intent on the part of Ritter in this cause. To the contrary, Ritter’s active participation in the Nassar murder supplies the requisite intent for an intentional killing necessary under Section 13-ll-2(a), Code of Alabama, 1975, which is the aggravated offense of robbery when the victim is intentionally killed by the defendant. Id. (Emphasis in original.) 46. In a separate concurrence, Judge Bookout, of the Court of Criminal Appeals, stated: I believe the facts of the instant case bring the appellant within the capital felony statute via the accomplice statute. He could be charged equally with Evans for the murder of Edward Nassar even though he did not personally fire the weapon. In planning the robbery, Evans and Ritter had discussed that they might have to kill someone during the course of the robbery. Ritter stated that he would have shot Nassar if Evans had not been in his line of fire. Each would therefore be guilty equally under the accomplice statute. Howell v. State, Ala.Crim.App., 339 So.2d 138 (1976). 375 So.2d at 269. 47. Following remand, the case once again returned to the Alabama Supreme Court. After examining the record, the Alabama Supreme Court found that the felony murder doctrine had not been used to convict Ritter of a capital offense and that the evidence established that Ritter possessed the requisite intent to kill: From the foregoing it is clear that the felony-murder doctrine was not used in this trial. (Indeed, it was never even mentioned.) Instead, Ritter could be convicted and sentenced to death under our capital felony statute as an accomplice in the intentional killing of Nassar. (There was also evidence from which the jury could have found that Ritter, aside from his status as an accomplice, had particularized intent to kill.. ..) The question then becomes, did the State prove that Ritter was an accomplice to the intentional killing? We think that it did. Through Ritter’s confession and again through his voluntary statements at trial the State showed that Ritter and Evans had a prior agreement that anyone that attempted to go for a gun would be killed. This possibility was discussed beforehand and planned for. As Ritter himself stated, the only reason he did not shoot Nassar himself was because Evans was in the way. Clearly Ritter encouraged and supported the killing and was present with Evans’ knowledge to render assistance should it become necessary. Ex Parte Ritter, 375 So.2d 270, 274-275 (Ala.1979). Thus, both the Alabama Court of Criminal Appeals and the Alabama Supreme Court have made factual findings that under Alabama law the petitioner had the legally requisite intent to kill. 48. And in Ritter v. State, 375 So.2d at 275 (Ala.1979), the Alabama Supreme Court also considered and addressed the disproportionality issue: Ritter also contends that the death penalty is a disproportionate sentence in light of his involvement in the capital felony and therefore violates the Eighth and Fourteenth Amendments. Ritter attempts to bolster his position by portraying himself as a mere accomplice to the robbery, “a minor participant” in a crime which led to a killing by someone else. The record, however, refutes this description of Ritter’s part in the crime at every point. It was Ritter, not Evans, who asked to see a .38 caliber Colt revolver, who began to load it with ammunition he had brought with him specifically for this purpose, and who carried the revolver out of the pawn shop after Nassar was shot. Thus Ritter could not seriously be considered a “minor participant” in the robbery, and, as we have noted above, he was clearly an accomplice to the killing. With this more accurate description of Ritter’s participation in the intentional killing and robbery in mind we must consider whether the death penalty is a disproportionate sentence for an accomplice to the killing. This is a question which has not yet been decided by the United States Supreme Court, although several cases before the Court have raised the issue.... In each of these cases the court reversed on other grounds. It did not reach the issue of disproportionality. While we opine that there may be situations where an accomplice’s participation is so minor that the death penalty would be constitutionally impermissible, such is not the case here. As the trial judge stated, Ritter’s participation was not relatively minor. The Court of Criminal Appeals agreed, and so do we. Ritter stands at the most culpable end of the spectrum of accomplice liability. He is closer to an individual who fires a non-fatal shot in a killing rather than one who waits outside as a lookout. By Ritter’s own statement it was mere fortuity which made John Evans the triggerman and not Ritter. Consequently, we see no constitutional infirmity in imposing the death sentence in this case. (Citations omitted) Thus, the Alabama Supreme Court again reiterated its findings that petitioner possessed the requisite intent to kill Mr. Nassar and would have killed him had Evans not done so, and, accordingly, his sentence of death was not disproportionate. 49. In addition to the factual findings of the Alabama Appellate Courts, this Court, based upon the evidence adduced at the hearing, finds independently beyond a reasonable doubt that petitioner intended the death of Mr. Nassar. The Court finds particularly compelling the evidentiary hearing testimony of FBI Agents Hardin and Juel. Both testified that the petitioner told them in an interview on the day following his capture that he (petitioner) would have killed Mr..Nassar if Evans had not done so. This testimony, which was apparently not presented at petitioner’s trial, adds considerably to what was, until petitioner’s testimony at the evidentiary hearing, uncontested evidence of petitioner’s intent as it relates to the death of Mr. Nassar. In assessing petitioner’s veracity on his testimony at the evidentiary hearing as to his intent, the Court cannot but be aware that his denial of any intent to kill Mr. Nassar was made more than six years after his trial and in the face of death by electrocution. His motives in changing his story at this late date are obvious, and the Court simply does not believe him. (See also Fact 18, re: detainers in other states.) Accordingly, the Court finds beyond a reasonable doubt, based upon the testimony of FBI Agents Hardin and Juel, as well as petitioner’s statements and testimony in the state criminal proceedings prior to the evidentiary hearing, that petitioner and Evans had an agreement to aid each in the commission of any crimes they carried out, including the killing of any persons if necessary; and pursuant to this general agreement that petitioner stood ready and able to kill, if necessary, in the robbery of Mr. Nassar’s pawn shop; and that John Evans was aware of petitioner’s support; indeed, he would have killed Mr. Nassar if required; and that the only reason why he did not do so is that John Evans relieved him of the burden. In essence, petitioner was not so much a non-triggerman, but was rather an unneeded triggerman. III. CONCLUSIONS OF LAW Petitioner alleges ten claims upon which he believes habeas relief ought to be granted. The Court addresses them in the order they are presented and concludes that each of the claims is without merit. A. Preclusion Clause. In Claim 1 (Para. 47-62) petitioner asserts that he was prejudiced by the 1975 Alabama Capital Punishment Statute which contained a lesser included offense “preclusion clause.” Code of Alabama, 1975, Section 13-ll-2(a) provided: (a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with aggravation shall not include any lesser offenses, (emphasis added) That clause was found to be constitutionally infirm in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Petitioner claims this clause prejudiced him in two ways. First, he claims that the “preclusion clause” was a factor in his decision to adopt a trial strategy which resulted in his receiving a death sentence. See Hopper v. Evans, 456 U.S. 605, 613-14 & *; 102 S.Ct. 2049, 2054 & *; 72 L.Ed.2d 367, 374 & *. More specifically, he claims that because of his knowledge of the “preclusion clause”, he knew that he would be charged with a capital crime, and not some kind of lesser included offense, and that in Alabama a person convicted of a capital crime must be sentenced to death or life imprisonment without parole. He was, he claims, certain that given the circumstances of his crime, he would be convicted of a capital offense. He goes on to allege that given a choice between life in prison and death, he preferred death. As a result he adopted a trial strategy insuring that he would be convicted and sentenced to death. He further claims that had it not been for the “preclusion clause”, he would have adopted a different trial strategy in which he would have waged a vigorous defense. Petitioner’s second claim is that regardless of his trial strategy, based upon the evidence adduced at his trial, he should have received an instruction on the lesser included offense of felony murder. Such an instruction could not be given because of the “preclusion clause”. 1. Trial Strategy. This Court has already found as fact that not only was petitioner unaware of the preclusion clause at the time he decided to adopt a trial strategy insuring the death penalty, but rather his decision to adopt such a strategy was the result of the many felonies which he had committed and confessed to in interviews with FBI agents. (Findings of Fact 2-21.) As a result of his confession to those many other crimes, plus the likelihood of a conviction for a serious offense in Alabama, petitioner knew that he would spend the rest of his life in jail; and this prospect was more onerous to him than death. It was for this reason, not any aspect of the “preclusion clause”, or any other aspect of Alabama’s substantive or procedural criminal law, that petitioner decided to seek the death penalty. Thus, the Court has found that petitioner’s decision to adopt a trial strategy, in which on several occasions he freely confessed to the crime of murder, and in which he testified in front of the grand jury and during the trial, was not in any way related to the “preclusion clause”. The Court, therefore, concludes beyond a reasonable doubt that petitioner was not prejudiced in any fashion by the “preclusion clause” as it may have related to petitioner’s trial strategy. Hopper, supra; and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). 2. Lesser Included Offense Instruction. The essence of this claim is that petitioner gave four separate statements related to his culpability in the murder of Edward Ñassar before or during his trial. He further claims that in two of them, one made to the FBI (Exhibit 1 at 303-04), and another to the Mobile Police Department (Exhibit 1 at 192-94) there was evidence indicating that he did not intend the death of Edward Nassar. Accordingly, he argues, he was entitled to an instruction on the lesser included offense of felony murder as a matter of both Alabama and Federal constitutional law. The petitioner in Beck, supra, 447 U.S. at 629-630, 100 S.Ct. at 2385-86, 65 L.Ed.2d at 398, admitted robbing one Roy Malone, but Consistently denied, however, that he killed the man or that he intended his death. Under petitioner’s version of the events, he and his accomplice entered their victim’s home in the afternoon, and, after petitioner had seized the man intending to bind him with a rope, his accomplice unexpectedly struck and killed him. As the State has conceded, absent the statutory prohibition on such instructions, this testimony would have entitled petitioner to a lesser included offense instruction on felony murder as a matter of state law. Based upon these facts, the United States Supreme Court in Beck struck down the lesser included offense preclusion clause, holding that a sentence of death may not be constitutionally “imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and ... when the evidence would have supported such a verdict (emphasis added) 447 U.S. at 627, 456 S.Ct. at 2384, 65 L.Ed.2d at 396. In Hopper v. Evans, 456 U.S. 605, 606, 102 S.Ct. 2049, 2050, 72 L.Ed.2d 367, 369-70 (1982), the United States Supreme Court “granted certiorari to determine whether after invalidation of a state law which precluded instructions on lesser included offenses in capital cases, a new trial is required in a capital case in which the defendant’s own evidence negates the possibility that such an instruction might have been warranted.” (emphasis added) The Court in limiting its holding in Beck, supra, held in the negative: “... due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.” Hopper v. Evans, 456 U.S. at 611, 102 S.Ct. at 2053, 72 L.Ed.2d at 373. (emphasis in original) The court went on to hold that the Alabama rule on entitlement to a lesser included offense instruction does not offend federal constitutional standards. Id. 456 U.S. at 612, 102 S.Ct. at 2053, 72 L.Ed.2d at 373. Following an analysis of Evans’ testimony, the Hopper Court concluded that Evans had the requisite intent to kill, and that he had suggested “no plausible claim which he might conceivably have made, had there been no preclusion clause, that is not contradicted by his own testimony at trial.” Id. 456 U.S. at 613, 102 S.Ct. at 2054, 72 L.Ed.2d at 374. In an accompanying footnote, the Court stated that no plausible claim of prejudice could be made because Evans “... confessed that he shot the victim and then pleaded guilty to capital murder.” (Id) On remand from the United States Supreme Court, the Alabama Supreme Court addressed the lesser included offense instruction issue in petitioner’s case in light of Hopper and concluded that petitioner, like Evans, “affirmatively negated any claim that he did not intend to kill the victim. An instruction on the offense of felony-murder, or any other lesser offense, was therefore not required. Consequently, we find the preclusion clause did not prejudice respondent in any way and a new trial is not warranted”. Ritter v. State, 429 So.2d 928, 933 (Ala.1983). The basis for that conclusion of law had been explained earlier in Ex Parte Ritter, 375 So.2d 270 (Ala.1979). In that case the Alabama Supreme Court, following remand to the Alabama Court of Criminal Appeals, determined that under the evidence produced at trial, petitioner had legally sufficient intent to be convicted of capital murder. That determination was based on three factors: petitioner’s testimony at his trial; “accomplice liability” under Alabama law as interpreted by the Alabama Supreme Court; and the distinction under Alabama law between accomplice liability and the felony murder doctrine. The Alabama Supreme Court first noted that under the capital felony statute evidence of intent could not, pursuant to Code of Alabama, 1975, Section 13 — 11—2(b), “be supplied by the felony-murder doctrine.” Id. at 273. Under felony-murder, It is not necessary that the individual accused of murder should have contemplated, intended, or willed the death of the victim .... Culpability stems instead from the accused’s participation in an inherently dangerous felony — one in which he should have known that there was a substantial possibility that someone would be killed. Id. at 273-74. In Alabama felony-murder is a non-capital crime punishable by life imprisonment. Id. at 274. The court stated, “as one commentator has observed, ‘[T]he death penalty is an untenable sanction for negligent or accidental homicide.’ ” Id. But as the court went on to hold, petitioner’s intent was not supplied by the felony-murder doctrine: The legislature did, however, indicate that an accomplice in a capital felony could be sentenced to death under our statute, for it included accomplice liability as a factor to be considered during the sentencing hearing under both aggravating circumstances, § 13-11-6(4), and mitigating circumstances, § 13-11-7(4). The significant distinction between use of the felony-murder doctrine and use of accomplice liability in this context is that accomplice liability requires a greater showing of the defendant’s individual intent. Under Alabama law, in order to hold an individual as an accomplice the State must prove that he aided and abetted in the crime, terms which “ ‘comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary.’ ” Jones v. State, 174 Ala. 53, 57 So. 31 (1911). As we noted in Jones, key elements of accomplice liability are encouragement or presence “with a view to render aid should it become necessary.” When liability is predicated on the latter it is essential that the principal be aware of the accomplice’s support and willingness to lend assistance. Jones, supra. Thus an accomplice while he may not have actually committed the crime by delivering the blow or firing the shot, has sanctioned and facilitated the crime so that his culpability is comparable to that of the principal. In Alabama, as in many states, this premise is statutorily recognized in § 13-9-1 which abolished the old common law distinctions among accessories before the fact, principals in the second degree and principals in the first degree and provides that “... all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals.... ” From the foregoing it is clear that the felony-murder doctrine was not used in this trial. (Indeed, it was never even mentioned.) Instead Ritter could be convicted and sentenced to death under our capital felony statute as an accomplice in the intentional killing of Nassar. (There was also evidence from which the jury could have found that Ritter, aside from his status as an accomplice, had the particularized intent to kill. Of course, it is not contended that Ritter is not fully liable as a principal for the robbery.) The question then becomes, did the State prove that Ritter was an accomplice to the intentional killing? We think it did. Through Ritter’s confession and again through his voluntary statement at trial the State showed that Ritter and Evans had a prior agreement that anyone who attempted to go for a gun would be killed. This possibility was discussed beforehand and planned for. As Ritter himself stated, the only reason he did not shoot Nassar himself was because Evans was in the way. Clearly Ritter encouraged and supported the killing and was present with Evans’ knowledge to render assistance should it become necessary. Id. 274-75. An analysis of the four separate statements given by the petitioner before and during his trial indicates there are no contradictions between his earlier statements and his trial testimony as they relate to “accomplice liability”. (This Court has already stated in the Findings of Fact why it gives no credence to petitioner’s exculpatory testimony at the evidentiary hearing.) Petitioner’s statement given to the FBI on March 8,1977, as it pertained to the murder of Edward Nassar, was cursory and part of a long inventory of crimes committed by him and John Evans during their crime spree. (Exhibit 1, 303-304.) Petitioner’s statement given to the Mobile Police Department is sketchy and void of any discussion on the issue of intent, Id. 192-194, and was in effect disclaimed by him at trial. (Exhibit 1, 221, and see Finding of Fact 42.) It is in his testimony before the Grand Jury in which he gives evidence relevant to intent and first states he would have shot Edward Nassar, Id. at 340, if he had the opportunity. Id. at 341. When asked if he was there “. .. to stand ready and assist and aid John Evans in any way that was necessary to accomplish the armed robbery,” he replied, “Yes.” Id. at 341. And that included the shooting of Edward Nassar. Id. When asked if he ever “had to shoot someone in an armed robbery, would you have done so?” he replied, “If it was a choice between them and me, I would’ve.” Id. at 343. Furthermore, he and Evans had entered into a pact to assist each other under any circumstances including the taking of a life. Id. at 344. When asked by one of the members of the Grand Jury if he had ever killed anyone, he replied, “Other than Mr. Nassar, no.” Id. at 347. And, “Uh, well, really, under the law it doesn’t matter whether I pulled the trigger or not, I was there and I would have .... ” Id. His trial testimony was even more explicit. (See Exhibit 1,216-221 and Exhibit 2: Video tape of Trial Testimony) Nowhere is there any conflict between these four statements. When viewed as a whole, the evidence is uncontested that petitioner had confessed to all of the elements necessary for conviction of capital murder under the theory of accomplice liability as interpreted by the Alabama Supreme Court. Accordingly, this Court concludes that as a matter of Alabama state law there was no basis in the evidence for an instruction on a lesser included offense. Chavers v. State and Fulghum v. State, n. 7 supra. This Court further concludes beyond a reasonable doubt that under federal constitutional law, where petitioner, as here, has negated any possibility that an instruction on a lesser included offense be given through his own testimony at trial and guilty plea, he has not been prejudiced within the meaning of .Beck v. Alabama, supra, as limited by Hopper v. Evans, supra. See also discussion of constitutional harmless error rule at Section III C, infra. B. Inadequacy of Jury Charge. Petitioner’s Claim 2 asserts that the jury charge given by the trial judge during the guilt phase of the trial was perfunctory and inadequate. This Court has found as fact that petitioner’s attorney failed to object to the jury charge at the time of trial, and also failed to submit any proposed written jury instructions. This Court has also found as fact that said failure to object to the jury charge was solely the result of petitioner’s decision to adopt a trial strategy in which he would seek the death penalty, and that said strategy was in no way a product of the Alabama preclusion clause. The Alabama Courts have ruled petitioner was adequately and professionally represented, and petitioner has not challenged that ruling in this petition. Evans v. State, 361 So.2d at 661-662 (1977). Under Alabama law, an error of commission (misstatement of law) in the oral charge to the jury is waived unless a timely and specific objection is made to it in the trial court. See Hill v. State, 409 So.2d 943, 944 (Ala.Cr.App.1981), cert. den., No. 81-196 (Ala.1982), in which the Alabama Court of Criminal Appeals stated, “Appellant made no exception to the trial court’s oral charge.” Similarly, in Pinkard v. State, 405 So.2d 411, 416 (Ala.Cr.App.1981), the court held, “The law is well settled in Alabama that when a defendant makes no exceptions or objections to the oral charge, this court cannot review the issue of asserted jury instructions.” The law is identical in Alabama on errors of omission (failure to charge on a necessary point). Such errors are waived unless a proper written requested instruction is tendered to the trial court on the omitted point: [wjhere a party desires the court to extend its oral charge to cover some applicable law in the trial of a case, his remedy is to request a writ