Brett Richard Yeiter v. State of Alabama (Appeal from Escambia Circuit Court: CC-15-42)

Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals

OCTOBER TERM, 2023-2024

_________________________

CR-18-0599

_________________________

Brett Richard Yeiter

v.

State of Alabama

Appeal from Escambia Circuit Court

(CC-15-42)

On Remand from the Alabama Supreme Court

MINOR, Judge.

A jury convicted Brett Richard Yeiter of capital murder for the

shooting death of his father-in-law Paul Phillips while Phillips was

sitting in his parked truck. See § 13A-5-40(a)(17), Ala. Crim. App. 1975.

The jury unanimously found the existence of two aggravating factors and,

CR-18-0599

by a vote of 10-2, voted for Yeiter to be sentenced to death. 1 The trial

court, believing it had to follow that recommendation under the 2017

amendment to Alabama's capital-sentencing scheme, sentenced Yeiter to

death.

On original submission, this Court held that the trial court erred in

admitting, over Yeiter's objection, evidence during the guilt phase about

Yeiter's prior convictions and incarceration and that the admission of

that evidence was not harmless error. We thus reversed Yeiter's

conviction and death sentence, pretermitting consideration of the other

issues Yeiter raised on appeal. Yeiter v. State, [Ms. CR-18-0599, Dec. 17,

2021] ___ So. 3d ___ (Ala. Crim. App. 2021). The Alabama Supreme Court

reversed this Court's judgment, holding that the error was harmless.

State v. Yeiter, [Ms. SC-2022-0417, Sept. 2, 2022] ___ So. 3d ___ (Ala.

2022).

After reviewing those remaining issues that Yeiter preserved for

1During the penalty phase, the jury returned special verdict forms

unanimously finding that the State proved beyond a reasonable doubt

"that the capital offense was especially heinous, atrocious, or cruel

compared to other offenses" and that Yeiter "was previously convicted of

a felony involving the use or threat of violence to a person." (C. 542-43.)

See § 13A-5-49(2) and § 13A-5-49(8), Ala. Code 1975.

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appellate review, we find no error. But we hold that the trial court

applied the wrong capital-sentencing scheme. Because Yeiter was

charged with capital murder before April 11, 2017, the trial court, not the

jury, has the final sentencing decision here. We thus vacate the trial

court's order sentencing Yeiter to death and remand the case for the trial

court to apply the correct sentencing scheme and to impose a new

sentence.

FACTS AND PROCEDURAL HISTORY

On original submission, this Court summarized the evidence

presented at trial:

"On the evening of October 26, 2014, Phillips attended

the Book of Acts Holiness Church, where he was the preacher.

Phillips's grandson Nathan Blair also attended the church

that evening. Blair's vehicle was low on oil, so he decided to

leave it parked in the church parking lot until he could get

some oil. The next morning, Phillips and Blair returned to the

church with oil to put in the vehicle. Yeiter, who was Phillips's

son-in-law and Blair's stepfather, was already in the church

parking lot. Yeiter was upset because Blair's vehicle was low

on oil and Blair had allowed his vehicle to run low on oil in

the past.

"Blair testified that Yeiter 'would try to pour the oil into

the car, but he would—he would try to push [Phillips], you

know, like trying to, I guess trying to get him to—agitated,

you know.' Blair testified that he thought Yeiter was 'trying

to start a fight with' Phillips and that Yeiter 'grabbed

[Phillips's] glasses off of his face' and threw them on the

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ground. Blair testified that once they put oil in the vehicle,

Phillips sent him to take a bill to Kristen Garner's house,

which was 'around the corner' from the church. Before he left,

Blair saw Phillips try to remove a lawnmower from the back

of his truck and Yeiter tried to 'shake it away' from Phillips.

"In a statement he made to the police a week later,

Yeiter said he was trying to help Phillips with the lawnmower

but that he and Phillips 'got to tussling back and forth with

the mower' and '[t]hat's when [Phillips] finally said he was

going to get his gun. "Let me go get my gun," or something like

that he said. Hell if I know.' Yeiter got in his truck, drove the

short distance to his house, got his shotgun, and returned to

the church. When he returned, Yeiter saw Phillips sitting in

his parked truck, and the engine was running. Yeiter said he

walked toward Phillips but did not see a weapon. Yeiter said

he told Phillips to 'pull' his weapon, and then Yeiter shot

Phillips. Yeiter said he 'believe[d]' he shot Phillips 'right in

the chest.' Yeiter, however, shot Phillips in the side of his

head, killing him.

"Blair returned to the church in time to hear the

gunshot. He saw Yeiter in the parking lot holding a 'long' gun

in his hand. Yeiter drove away, and Blair went to Phillips's

truck and saw that Phillips was shot. He returned to Garner's

house, and she telephoned 911.

"Yeiter stopped at Suncoast Sod, a business near the

church. He went inside and told Toni Casey, who was

Phillips's niece,1 that he had shot Phillips. Yeiter gave his

mobile phone to Casey and told her he did not need it

anymore. Casey telephoned 911 and told them the Phillips

family had 'mentally abused' Yeiter for years and that they

'just drove him crazy.'

"Emergency personnel responded to the scene within 20

minutes. Phillips was still breathing, but there was no

evidence showing that he regained consciousness after Yeiter

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shot him. Police did not find a gun on Phillips or in his vehicle.

"Yeiter drove west for a few days, using credit cards to

buy gas and alcohol. He told law enforcement that he 'threw

[the shotgun] out in the woods somewhere' in Arkansas. He

said he kept the gun with him until then because he 'didn't

know whether [he] was going to kill [himself] yet or not.' Law

enforcement arrested Yeiter in Texas, and authorities

returned him to Alabama.

"Law enforcement in Alabama interviewed Yeiter a

week after the shooting. He told the police that he had

consumed 'half a gallon' of liquor beginning around 7 a.m. the

day he shot Phillips. He said that when he drove to his house

to get his gun, he 'thought about it all the way [to his house]

and all the way back.' When he made his statement to the

police a week after the shooting, Yeiter said he 'would still

[shoot Phillips] again because [Phillips has] had me over the

years so fricking mad about everything.' He said, 'I did it ....

Nothing is going to justify it.' He then told the police that he

had 'been up there to Atmore before' on work release for first-

degree theft of property and that he had a prior conviction in

Michigan.

"An Escambia County grand jury indicted Yeiter for

capital murder in January 2015. Before trial, Yeiter moved

to suppress the statement he had made to the police, and he

moved the trial court to remove any references to prior bad

acts, including his prior convictions. The trial court denied the

motions.

"At the end of the guilt phase of Yeiter's trial, the jury

found him guilty of capital murder. The next day, after the

evidence was presented at the penalty phase, the jury

returned special verdict forms showing that it unanimously

found (1) that Yeiter had a prior felony conviction involving

the use or threat of violence to a person and (2) that Yeiter's

crime was especially heinous, atrocious, or cruel as compared

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to other capital offense. The jury recommended, by a vote of

10-2, that the trial court sentence Yeiter to death. That same

day, without holding a separate hearing or entering a

sentencing order, the trial court sentenced Yeiter to death.

"_______________

"1Casey also testified that her cousin Kim was married

to Yeiter."

Yeiter v. State, ___ So. 3d at ___ (footnotes and citations to the record

omitted).

STANDARD OF REVIEW

"Rule 45A, Ala. R. App. P., was amended on January 12,

2023, to state:

" 'In all cases in which the death penalty has been

imposed, the Court of Criminal Appeals may, but

shall not be obligated to, notice any plain error or

defect in the proceedings under review, whether or

not brought to the attention of the trial court, and

take appropriate appellate action by reason

thereof, whenever such error has or probably has

adversely affected the substantial right of the

appellant.'

"Before Rule 45A was amended, this Court was required to

conduct plain-error review in all cases in which the death

penalty had been imposed. Although Rule 45A now provides

that plain-error review is discretionary in such cases, this

Court has explained that it will continue to conduct plain-

error review in all cases in which the death penalty has been

imposed. Iervolino v. State, [Ms. CR-21-0283, Aug. 18, 2023]

___ So. 3d ___, ___ (Ala. Crim. App. 2023). However, that does

not mean that this Court will provide a detailed analysis, or

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even any analysis, of those claims that were not properly

preserved for appellate review, as it historically did when

plain-error review was mandatory. Id.

"The standard this Court employs in conducting plain-

error review is well settled:

" ' " 'The standard of review in reviewing a claim

under the plain-error doctrine is stricter than the

standard used in reviewing an issue that was

properly raised in the trial court or on appeal.'

Hall v. State, 820 So. 2d 113, 121 (Ala. Crim. App.

1999), aff'd, 820 So. 2d 152 (Ala. 2001). Plain error

is 'error that is so obvious that the failure to notice

it would seriously affect the fairness or integrity of

the judicial proceedings.' Ex parte Trawick, 698

So. 2d 162, 167 (Ala. 1997), modified on other

grounds, Ex parte Wood, 715 So. 2d 819 (Ala.

1998). 'To rise to the level of plain error, the

claimed error must not only seriously affect a

defendant's "substantial rights," but it must also

have an unfair prejudicial impact on the jury's

deliberations.' Hyde v. State, 778 So. 2d 199, 209

(Ala. Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala.

2000). 'The plain error standard applies only

where a particularly egregious error occurred at

trial and that error has or probably has

substantially prejudiced the defendant.' Ex parte

Trawick, 698 So. 2d at 167. '[P]lain error must be

obvious on the face of the record. A silent record,

that is a record that on its face contains no

evidence to support the alleged error, does not

establish an obvious error.' Ex parte Walker, 972

So. 2d 737, 753 (Ala. 2007). Thus, '[u]nder the

plain-error standard, the appellant must establish

that an obvious, indisputable error occurred, and

he must establish that the error adversely affected

the outcome of the trial.' Wilson v. State, 142 So.

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3d 732, 751 (Ala. Crim. App. 2010). '[T]he plain

error exception to the contemporaneous-objection

rule is to be "used sparingly, solely in those

circumstances in which a miscarriage of justice

would otherwise result." ' United States v. Young,

470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1

(1985) (quoting United States v. Frady, 456 U.S.

152, 163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d 816

(1982))." '

"Iervolino, ___ So. 3d at ___ (quoting DeBlase v. State, 294 So.

3d 154, 182-83 (Ala. Crim. App. 2018))."

Henderson v. State, [Ms. CR-21-0044, May 3, 2024] ___ So. 3d ___, ___

(Ala. Crim. App. 2024). Because we are vacating the trial court's order

sentencing Yeiter to death, we have not reviewed the record for plain

error, nor have we reviewed the issues Yeiter raises in his brief on appeal

but did not raise in the trial court.

DISCUSSION

I. MOTION TO DISQUALIFY THE DISTRICT ATTORNEY'S

OFFICE

In August 2016, Yeiter moved to disqualify the District Attorney's

Office for the 21st Judicial Circuit. (C. 167.) The trial court held an

evidentiary hearing on the motion in November 2018. (R. 120.) James

Eric Coale, an Assistant District Attorney for the 21st Judicial Circuit,

testified that he was at that time and had been a partner for 22 years

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with the law firm Otts, Moore, Coale, Godwin, Stearns & Darby. Coale

testified that Michael D. Godwin was the supernumerary district

attorney for the 21st Judicial Circuit. Coale testified that, while he was

also an assistant district attorney, he or his law office prepared

documents in December 2015 for an uncontested answer-and-waiver

divorce on behalf of Kimberly Yeiter. Coale testified that he took the

divorce papers to the Escambia County jail, that Yeiter signed them, and

that the chief deputy for the Escambia County Sheriff's Office, Michael

E. Lambert, notarized the documents. 2 Coale testified that he had no

communication with Yeiter except telling him that the paperwork was

there, asking him if he was ready to sign, and pointing out what Yeiter

needed to sign. Coale said that he did not speak with Yeiter about the

capital-murder charges and that he had not "participated in any capacity

in the prosecution of Mr. Yeiter." (R. 133.) He also testified that Stearns,

another partner in his law firm and an assistant district attorney, in no

way participated in representing Kimberly in the divorce from Yeiter.

After hearing this testimony and arguments from the parties, the trial

2Coale did not testify as to when he took the documents for Yeiter

to sign, but Yeiter's motion asserts that it happened on December 17,

2015. (C. 168.)

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court denied Yeiter's motion to disqualify the district attorney's office. (R.

143.)

On appeal, Yeiter argues that the trial court erred in denying the

motion to disqualify the District Attorney's Office for the 21st Judicial

Circuit. (Yeiter's brief, p. 76.) He argues that the trial court "[i]gnor[ed]

the risk that Mr. Yeiter's Sixth Amendment right to counsel was violated

when Mr. Coale, an officer of the State, met with Mr. Yeiter outside the

presence of his attorneys and after formal charges had been initiated, see

Moran v. Burbine, 475 U.S. 412, 431 (1986), and erroneously

determin[ed] that there was no conflict of interest." (Yeiter's brief, p. 78.)

Yeiter cites Davenport v. State, 157 Ga. App. 704, 278 S.E.2d 440 (1981),

as a decision that, he says, "addressed an almost identical issue." (Yeiter's

brief, p. 79.)

In Davenport, Martha Davenport was convicted in June 1978 of

aggravated assault against her husband Harold Davenport. Before the

assault, Martha had filed for divorce from Harold in October 1975.

Harold retained Robert Keller to represent him in the divorce, which was

pending from October 1975 until October 1978. In July 1977, Keller was

appointed district attorney of the Clayton Judicial Circuit but did not

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withdraw as Harold's attorney in the divorce action until October 1978.

157 Ga. App. at 705, 278 S.E.2d at 441.

Martha shot Harold in April 1976, and a grand jury indicted her in

June 1976. Martha was arraigned in October 1977, after Keller became

the district attorney. Keller signed Martha's plea of not guilty at her

arraignment. An assistant district attorney handled all pretrial motions

and Martha's trial, but Keller was present at the counsel table during the

trial. 157 Ga. App. at 705, 278 S.E.2d at 441.

The Georgia Court of Appeals held that Martha was due a new trial

because of "Keller's role in the prosecution of the case against her." 157

Ga. App. at 705, 278 S.E.2d at 441.

"While we do not believe Mr. Keller would act intentionally in

any manner which would prejudice a criminal case prosecuted

by his office, we are constrained to hold that he should not

have participated in any way in the prosecution of the

aggravated assault case against Mrs. Davenport. It is clear

that he was cognizant of information and incidents that

occurred between the victim and appellant by virtue of his

representation of Mr. Davenport in the divorce proceedings.

Under such circumstances there is at least the appearance of

impropriety, and we must conclude that appellant was denied

fundamental fairness in the state's prosecution of the charges

against her. 'The administration of the law, and especially

that of the criminal law, should, like Caesar's wife, be above

suspicion, and should be free from all temptation, bias or

prejudice, so far as it is possible for our courts to accomplish

it ...' Nichols v. State, 17 Ga. App. 593, 606, 87 S.E. 817

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(1915). In our opinion public policy prohibits a district

attorney from prosecuting a case, even though he does not

actually try the case himself, while representing the victim of

the alleged criminal act in a divorce proceeding involving the

accused."

Davenport v. State, 157 Ga. App. 704, 705-06, 278 S.E.2d 440, 441 (1981).

First, Davenport is distinguishable because the trial court found

that Coale had no role in Yeiter's prosecution. The trial court cited

evidence showing that Coale was "walled off" from the prosecution. (R.

144 "There is a firewall. There's no relationship between Mr. Coale and

this case whatsoever.").

Yeiter argues, however, that it is "immaterial" that

"Coale never participated in any capacity in the prosecution

of Mr. Yeiter … because Mr. Stearns—Mr. Coale's partner in

their private law firm—was one of the lead prosecutors in Mr.

Yeiter's case. Under these circumstances it was possible that

Mr. Stearns 'obtained confidential information which would

be helpful' in Mr. Yeiter's prosecution."

(Yeiter's brief, p. 80 (citing State v. Hatfield, 218 Neb. 470, 473, 356

N.W.2d 872, 875 (1984).) In Hatfield, the Nebraska Supreme Court

stated:

"We do agree that a prosecuting attorney who himself,

or a member of his same firm, has represented the spouse of

a defendant should be disqualified from prosecuting such

defendant for a crime arising out of the marriage relationship.

Disqualification would also be proper where, because of such

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representation, it is shown that the attorney has obtained

confidential information which would be helpful in such

criminal prosecution."

218 Neb. at 473, 356 N.W.2d at 875 (citations omitted). Neither scenario

identified by the Nebraska Supreme Court, however, is present. Unlike

the crime in Davenport, Yeiter's crime did not "aris[e] out of the marriage

relationship." And the only evidence before the trial court was that Coale

had no role in Yeiter's prosecution and that Stearns had no role in

Kimberly's divorce. Nothing suggests that either attorney obtained

confidential information used against Yeiter in the capital-murder

prosecution.

In a footnote, Yeiter asserts that "Mr. Coale's conflict of interest

was imputed to Mr. Stearns," and Yeiter cites, with no explanation, Rule

1.10(a), Ala. R. Prof'l Conduct. Rule 1.10(a) provides: "While lawyers are

associated in a firm, none of them shall knowingly represent a client

when any of them, practicing alone, would be prohibited from doing so by

Rules 1.7, 1.8(a)-1.8(k), 1.9, or 2.2." Yeiter has not shown that Coale or

Stearns had a conflict, however, and thus no conflict could be imputed

under this rule.

Finally, Yeiter asserts:

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"[T]he settlement agreement between Mr. Yeiter and

Kimberly Yeiter, which Mr. Yeiter signed while incarcerated

at Escambia County Jail awaiting trial for capital murder

after being cornered by Mr. Coale outside the presence of his

attorneys, awarded significant property to Kimberly Yeiter.

This transference of high-value marital property, combined

with the relationship between the divorce and the alleged

crime that preceded the divorce, undoubtedly planted

improper seeds of motivation in the State's mind and created

a great risk that the State would fail to 'execute its

discretionary function in an evenhanded manner.' "

(Yeiter's brief, pp. 80-81 (emphasis added) (quoting State v. Cope, 50 P.3d

513, 515 (Kan. Ct. App. 2002).) Yeiter contends that "[p]articipation by

the District Attorney's office in Mr. Yeiter's capital murder trial caused

'injury to the entire system of justice,' Hannon, 266 So. 2d at 829, and

denied Mr. Yeiter the 'fundamental fairness assured by the Due Process

Clause of the Fourteenth Amendment.' Ganger, 379 F.2d at 714."

(Yeiter's brief, p. 81.)

First, there is no evidence of Coale "cornering" Yeiter at the jail.

Nor was there merely an "alleged crime that preceded the divorce"—

Yeiter in fact murdered Phillips. And Yeiter has not explained or shown

what "improper seeds of motivation" could have been "planted … in the

State's mind." In short, Yeiter's arguments on this issue lack merit. He

is due no relief.

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II. DENIAL OF YEITER'S MOTION TO USE JUROR

QUESTIONNAIRES

Yeiter argues that the trial court erred in denying his "unopposed"

motion for juror questionnaires. (C. 243, 391; R. 264.) (Yeiter's brief, p.

31.) We disagree.

A trial court has broad discretion in handling voir dire, and its

rulings will not be reversed without a showing of an abuse of that

discretion. McWhorter v. State, 781 So. 2d 257, 322 (Ala. Crim. App.

1999). The trial court's broad discretion extends to whether to permit a

juror questionnaire. Brown v. State, 11 So. 3d 866, 885 (Ala. Crim. App.

2007).

Yeiter has not shown that the trial court abused its discretion in

denying his request for juror questionnaires. The voir dire here covers

almost 1,000 pages of the transcript. (R. 340-1303.) Yet Yeiter cites no

instance of an adverse ruling during voir dire. 3 Given the extensive voir

3Yeiter also argues in this part of his brief that the trial court erred

by "repeatedly rushing and limiting voir dire." (Yeiter's brief, p. 32.)

Yeiter cites these pages from voir dire as examples of the trial court's

allegedly erroneous conduct during voir dire: R. 475, 479, 694-95, 711,

713, 727, 762, 764, 770, 779, 823-25, 864, 890, 895-97, 920, 934-935, 939,

1122, 1177. Those cited pages include comments directed to both counsel

for Yeiter and the State. Those pages show no objection from Yeiter.

Thus, this issue was not preserved for review.

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dire conducted by the parties and the trial court, Yeiter is due no relief

on this issue.

III. REMOVAL OF PROSPECTIVE JURORS S.T. AND T.Y.

Yeiter argues that the trial court erred by granting the State's

motions to remove prospective jurors S.T. and T.Y. for cause. (Yeiter's

brief, p. 54.)

Prospective juror S.T.: When the trial court asked the

veniremembers if they had fixed opinions against capital punishment,

prospective juror S.T. raised her hand. (R. 696.) In response to

questioning from the trial court, S.T. stated: "I don't believe that one

man should impose death on any other person." (R. 697.) When defense

counsel asked, "[b]ut do you accept the fact that our State has decided to

make [the death penalty] part of the judicial system," S.T. stated that she

did accept that fact and that she understood that jurors must follow the

law. (R. 698-99.) She also stated that she "[w]ould be able to follow the

court's instructions and put aside personal feelings." (R. 699-700.) The

State then asked S.T. whether she would "[e]ver be able to vote to impose

the death penalty," and S.T. responded, "I don't know. I don't know. I

don't believe in the death penalty. I get that it's a part of our judicial

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system, but me personally, I can't—I don't want to impose death on

anybody." (R. 700-01.) S.T. did, however, state that she could follow the

trial court's instructions. (R. 701.)

In granting the State's challenge of S.T. for cause, the trial court

ruled:

"I heard her answers and I heard the intensity about she

didn't know if she could [follow the court's instructions] and

that she's against the death penalty. I don't think that this

juror can meet that level of commitment that the law requires

on that. And as a consequence, I grant the State's motion to

strike her for cause.

"And, again, I know what [defense counsel] said. I heard

that as well. But I heard the other side of the equation and I

was the one trying to kind of see, where is this lady's heart,

what is it that she's thinking. And she's not in favor of the

death penalty. And I don't think that she could compromise

that. And if she—I just don't think she would. I don't think

she would at all."

(R. 703.) Yeiter contends that S.T. gave "unequivocal statements that she

could set aside her personal views and follow the law" and thus that "she

was qualified to serve and could not be struck for cause." (Yeiter's brief,

p. 56.)

" 'The test for determining whether a strike rises to the

level of a challenge for cause is "whether a juror can set aside

their opinions and try the case fairly and impartially,

according to the law and the evidence." Marshall v. State, 598

So. 2d 14, 16 (Ala. Cr. App. 1991). "Broad discretion is vested

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with the trial court in determining whether or not to sustain

challenges for cause." Ex parte Nettles, 435 So. 2d 151, 153

(Ala. 1983). "The decision of the trial court 'on such questions

is entitled to great weight and will not be interfered with

unless clearly erroneous, equivalent to an abuse of

discretion.' " Nettles, 435 So. 2d at 153.' "

Thompson v. State, 153 So. 3d 84, 115-16 (Ala. Crim. App. 2012) (quoting

Dunning v. State, 659 So. 2d 995, 997 (Ala. Crim. App. 1994)). And "[t]he

qualification of a juror is a matter within the discretion of the trial court.

Clark v. State, 443 So. 2d 1287, 1288 (Ala. Cr. App. 1983). The trial judge

is in the best position to hear a prospective juror and to observe his or her

demeanor.' Ex parte Dinkins, 567 So. 2d 1313, 1314 (Ala. 1990)."

Thompson, 153 So. 3d 84 at 116.

The trial court ruled based on its observation of prospective juror

S.T. including the "intensity" of her responses. Yeiter has not shown that

the trial court exceeded its broad discretion in granting the State's

challenge for cause as to prospective juror S.T.

Prospective juror T.Y.: When the State asked a panel of

veniremembers whether any of them would "automatically vote against

the death penalty," T.Y. raised her hand. (R. 1177.) The trial court later

brought T.Y. in for private questioning with counsel for Yeiter and for the

State:

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"[PROSECUTOR]: [T.Y.], you responded, on a couple of

questions you said you would have difficulty sitting in

judgment of others.

"….

"[T.Y.]: Yes.

"[PROSECUTOR]: And you also said you would be unable to

impose the death penalty if Mr. Yeiter is found guilty.

"[T.Y.]: Of course. ….

"[DEFENSE COUNSEL]: … Now, Ms. [Y.], you have stated

you do not favor the death penalty; is that correct?

"[T.Y.]: That's correct.

"[DEFENSE COUNSEL]: Okay. That is your personal

feelings?

"[T.Y.]: Yeah. Religious beliefs and personal feelings. I work

in Holman Correctional Facility where there are executions. I

do not work in the executions place.

"[DEFENSE COUNSEL]: Okay. But you do accept the fact

that our State has decided to make it part of the criminal

justice system. You accept the fact it is part of the law.

"[T.Y.]: It is a part of the law.

"[DEFENSE COUNSEL]: And you understand that for our

system to function, jurors, like you, must follow the law as the

court sets it out. Do you understand that?

"[T.Y.]: I understand.

"[DEFENSE COUNSEL]: Now, you're the judge of the facts,

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Judge Rice is the judge of the law. Do you agree with that?

"[T.Y.]: Uh-huh.

"[DEFENSE COUNSEL]: Okay. And you understand, if you

were selected as a juror in the case, Judge Rice would tell you

what the—tell you what law you were to apply concerning all

aspects of this case including, if reached, punishment; the

death penalty or life without parole. You understand he would

be the one to instruct you under the law, correct?

"[T.Y.]: Yes, I do.

"[DEFENSE COUNSEL]: And you would be able to follow the

court's instructions and put aside any personal feelings and

do what—"

(R. 1260-62.) The trial court, stating it was "just trying to move along,"

interrupted defense counsel and questioned T.Y.:

"THE COURT: … As I understood, you have a religious

conviction against imposing the death penalty?

"[T.Y.]: Yes, I do.

"THE COURT: Is there any circumstance in this case where,

if it made it to that point where you were called upon to vote

death or not, that you would just not ever be able to vote for

[the] death penalty?

"[T.Y.]: I would not.

"THE COURT: Okay. Follow up on that?

"[PROSECUTOR]: No, Your Honor.

"[DEFENSE COUNSEL]: You could follow the law, though,

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correct? Whatever the law told you to do.

"[T.Y.]: Uh-huh.

"[DEFENSE COUNSEL]: So she just said that she could

follow the law and that's a requirement of a juror. So if the

court instructs her as to what—

"THE COURT: I'm the one that makes those decisions.

"My question is do you have—

"[T.Y.]: I will not vote death penalty at all.

"THE COURT: Follow up from defense in regard to that

comment?

"[DEFENSE COUNSEL]: No, sir."

(R. 1262-63.)

The State then moved to strike T.Y. for cause. Given a chance to

respond, defense counsel had "[n]o response." (R. 1263.) The trial court

then granted the State's motion:

"It's obvious. She has a religious conviction and she says—I'm

reading the demeanor and what she's saying and the

intensity. It doesn't make any difference what it is, she doesn't

have in her mind—or she has in her mind that she would

never impose the death penalty. And that is a strike for cause

and I grant the strike for cause."

(R. 1263-64.)

Yeiter argues that the trial court erred by, he says, "preventing

21

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defense counsel from properly questioning T.Y. on her ability to follow

the law, and subsequently extracting a prejudicial answer from her."

(Yeiter's brief, p. 57.) Although we question whether Yeiter preserved

this issue, it has no merit.

First, as the above shows, the trial court gave defense counsel the

chance to keep questioning T.Y., but counsel chose not to. Second, as with

prospective juror S.T., the trial court's ruling was based on its

observation of prospective juror T.Y., including the "intensity" of her

responses and her demeanor. Yeiter has not shown that the trial court

exceeded its broad discretion in granting the State's challenge for cause

as to prospective juror T.Y. Thompson, 153 So. 3d at 115-16. See also

Johnson v. State, 820 So. 2d 842, 856 (Ala. Crim. App. 2000) ("Clearly, as

evidenced by the above-referenced portions of the record, this juror

unequivocally stated that he could not impose the death penalty under

any circumstances. The trial court correctly granted the State's challenge

for cause of this juror.").

Yeiter is due no relief on this issue.

IV. ALLEGED JUROR MISCONDUCT BY JUROR M.K.

During voir dire, the State asked prospective jurors if "any of you

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or any member of your immediate family … [had] ever been arrested by

any member or officer of the Escambia County Sheriff's Department." (R.

958.) Yeiter argues that he was "deprived … of his right 'to truthfully

know jurors' biases' and, therefore, to a fair and impartial proceeding"

because, he says, M.K., the foreperson of the jury, did not disclose that

she had prior arrests in Escambia County. (Yeiter's brief, p. 67 (citations

omitted).) Defense counsel raised this issue in a motion for a new trial,

asserting that M.K. "failed to truthfully respond and did not disclose

prior arrests." (C. 555.) At the hearing on the motion, Yeiter offered

records that, he said, showed that M.K. had misdemeanor charges in

Escambia County in 2010 for criminal trespass and harassment. (R.

1983-84; Supp. C. 378-79.) According to defense counsel, the charges were

later nolle prossed upon motion of the district attorney. The trial court

denied Yeiter's motion, holding that, as for M.K.'s failure to disclose, "the

court does not see that that rises to the level that would require a retrial."

(R. 1985.)

On appeal, Yeiter characterizes the two pages of records he offered

at the hearing on the new-trial motion as "showing that M.K. had been

arrested in Escambia County in 2010 and charged with criminal trespass

23

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and harassment." (Yeiter's brief, p. 68.) He asserts that although "those

charges were subsequently nolle prossed upon motion of the district

attorney, the question posed during voir dire concerned arrest history

and M.K. no doubt should have responded affirmatively." (Yeiter's brief,

pp. 68-69.) He argues that the trial court abused its discretion in denying

his motion for a new trial "without conducting any of the requisite

analysis." (Yeiter's brief, p. 69 (citing Porter v. State, 196 So. 3d 365, 371

(Ala. Crim. App. 2015).) That analysis, Yeiter argues, should have

included considering the factors stated in Ex parte Dobyne, 805 So. 2d

763 (Ala. 2001), for determining whether a party was prejudiced by a

prospective juror's failure to answer a question during voir dire.

The State, on the other hand, argues that the trial court did not

abuse its discretion. The State correctly notes that Yeiter had the burden

of proving " the allegations of his motion—that the juror committed the

alleged misconduct—to the satisfaction of the trial court." (State's brief,

p. 29 (citing Dawson v. State, 710 So. 2d 472, 475 (Ala. 1997).) Citing the

two pages of records that Yeiter offered, the State contends that Yeiter

offered nothing—such a date of birth or Social Security number—to show

that the records involved the same M.K. who served as the foreperson of

24

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his jury. The State also notes that Yeiter did not call M.K. as a witness

at the hearing to verify that she was the person referenced in the "SJIS

display" on the two pages of records or to ask her any questions about the

circumstances of the alleged charges. (State's brief, p. 29.) Thus, the

State argues that Yeiter simply failed to prove his claim and that the

circuit court did not abuse its discretion in denying it.

"In Dobyne, the Alabama Supreme Court held:

" 'The proper standard for determining

whether juror misconduct warrants a new trial, as

set out by this Court's precedent, is whether the

misconduct might have prejudiced, not whether it

actually did prejudice, the defendant. See Ex

parte Stewart, 659 So. 2d 122 (Ala. 1993);

Campbell v. Williams, 638 So. 2d 804 (Ala. 1994);

Union Mortgage Co. v. Barlow, 595 So. 2d 1335

(Ala. 1992), cert. denied, 506 U.S. 906, 113 S. Ct.

301, 121 L. Ed. 2d 224 (1992). The "might-have-

been-prejudiced" standard, of course, casts a

"lighter" burden on the defendant than the actual-

prejudice standard. See Tomlin v. State, [695 So.

2d 157, 170 (Ala. Crim. App. 1996)]. For a more

recent detailed discussion of the burden of proof

required to make a showing under the "might-

have-been-prejudiced" standard, see Ex parte

Apicella, [809 So. 2d 865, 871 (Ala. 2001)] ("It is

clear, then, that the question whether the jury's

decision might have been affected is answered not

by a bare showing of juror misconduct, but rather

by an examination of the circumstances particular

to the case." (Emphasis original.)).

25

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" 'It is true that the parties in a case are

entitled to true and honest answers to their

questions on voir dire, so that they may exercise

their peremptory strikes wisely. See Fabianke v.

Weaver, 527 So. 2d 1253 (Ala. 1988). However, not

every failure to respond properly to questions

propounded during voir dire "automatically

entitles [the defendant] to a new trial or reversal

of the cause on appeal." Freeman v. Hall, 286 Ala.

161, 166, 238 So. 2d 330, 335 (1970); see also

Dawson v. State, [710 So. 2d 472,] 474 [ (Ala.

1997)]; and Reed v. State, [547 So. 2d 596 (Ala.

1989)]. As stated previously, the proper standard

to apply in determining whether a party is entitled

to a new trial in this circumstance is "whether the

defendant might have been prejudiced by a

veniremember's failure to make a proper

response." Ex parte Stewart, 659 So. 2d at 124.

Further, the determination of whether a party

might have been prejudiced, i.e., whether there

was probable prejudice, is a matter within the trial

court's discretion. Eaton v. Horton, 565 So. 2d 183

(Ala. 1990); Land & Assocs., Inc. v. Simmons, 562

So. 2d 140 (Ala. 1989) (Houston, J., concurring

specially).

" ' "The determination of whether

the complaining party was prejudiced

by a juror's failure to answer voir dire

questions is a matter within the

discretion of the trial court and will not

be reversed unless the court has

abused its discretion. Some of the

factors that this Court has approved for

using to determine whether there was

probable prejudice include: 'temporal

remoteness of the matter inquired

about, the ambiguity of the question

26

CR-18-0599

propounded, the prospective juror's

inadvertence or willfulness in

falsifying or failing to answer, the

failure of the juror to recollect, and the

materiality of the matter inquired

about.' "

" 'Union Mortgage Co. v. Barlow, 595 So. 2d at

1342-43 (quoting Freeman v. Hall, supra (other

citations omitted)).'

"805 So. 2d at 771-72 (footnote omitted). The Court went on in

Dobyne to explain that

" '[t]he form of prejudice that would entitle a party

to relief for a juror's nondisclosure or falsification

in voir dire would be its effect, if any, to cause the

party to forgo challenging the juror for cause or

exercising a peremptory challenge to strike the

juror. Ex parte Ledbetter, 404 So. 2d 731 (Ala.

1981); Warrick v. State, 460 So. 2d 320 (Ala. Crim.

App. 1984); and Leach v. State, 31 Ala. App. 390,

18 So. 2d 285 (1944). If the party establishes that

the juror's disclosure of the truth would have

caused the party either to (successfully) challenge

the juror for cause or to exercise a peremptory

challenge to strike the juror, then the party has

made a prima facie showing of prejudice. Id. Such

prejudice can be established by the obvious

tendency of the true facts to bias the juror, as in

Ledbetter, supra, or by direct testimony of trial

counsel that the true facts would have prompted a

challenge against the juror, as in State v.

Freeman, 605 So. 2d 1258 (Ala. Crim. App. 1992).'

"805 So. 2d at 772-73."

Porter v. State, 196 So. 3d 365, 368-69 (Ala. Crim. App. 2015).

27

CR-18-0599

In Porter, this Court held that the trial court had not properly

applied the Dobyne factors in its analysis of whether the defendant might

have been prejudiced by juror R.R.'s failure to respond that he had a

conviction for DUI when the prosecutor asked "whether any prospective

juror had 'been arrested, charged or convicted of a crime." 196 So. 3d at

367, 371. This Court also noted that defense counsel stated in an

affidavit "that knowledge of juror R.R.'s arrest history would have

prompted him to ask further questions and to seriously consider

challenging him for cause or exercising a peremptory strike." 196 So. 3d

at 371.

The two-page record that Yeiter offered in support of his juror-

misconduct claim includes the same name as M.K., lists two

misdemeanor charges, and lists as the date of the charges August 2010.

The record also includes "NOL PRS/DA MOTION," which presumably

means, as Yeiter's counsel asserted at the hearing, that the charges were

nolle prossed on the motion of the district attorney. The record includes

several codes, but Yeiter offered no evidence to explain what the codes

mean.

Unlike the broad question asked by the prosecutor in Porter, the

28

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question here concerned only a prior arrest. So far as we can determine,

however, the two-page record does not show that M.K. was arrested on

the 2010 misdemeanor charges. What's more, Yeiter's attorney did not

include an affidavit stating that knowledge of the 2010 charges "would

have prompted him to ask further questions and to seriously consider

challenging [M.K.] for cause or exercising a peremptory strike." 196 So.

3d at 371. Nor can we say that the limited record Yeiter offered shows

"the obvious tendency of the true facts to bias the juror." 196 So. 3d at

369. Thus, Porter does not support Yeiter's claim.

Based on the limited evidence Yeiter offered in support of his claim,

we cannot say that the trial court should have analyzed the Dobyne

factors, nor can we say that the trial court abused its discretion in

denying the claim. Yeiter is due no relief.

V. ADMISSION OF YEITER'S STATEMENT TO THE POLICE

Yeiter argues that the trial court erred in admitting his November

3, 2014, statement to Deputy Billy Blair and Investigator Adam Johnson,

employees with the Escambia County Sheriff's Office. (Yeiter's brief, p.

48.) Before trial, Yeiter moved to suppress the statement. (C. 303.) The

trial court held a hearing on the motion at which Deputy Blair and

29

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Investigator Johnson testified. At that hearing, the State offered a

recording and a transcript of the statement and a waiver-of-rights form

signed by Yeiter, Blair, and Johnson. (Supp. C. 214-15.) After the

hearing, the trial court denied the motion, and the trial court admitted

the statement over Yeiter's objection at trial. 4

Yeiter argues that his "inculpatory statement" was "elicited after

[he] invoked his right to counsel and did not reinitiate contact with

authorities." (Yeiter's brief, p. 49.) He argues that the admission of the

statement "violated his rights against self-incrimination and to counsel

and his rights to due process, a fair trial, and a reliable conviction and

sentence under the Fifth, Sixth, Eighth, and Fourteenth Amendments of

the United States Constitution and Alabama law." (Yeiter's brief, pp. 53-

54.) He contends that the admission of his statement was reversible error

4On original submission, this Court agreed with Yeiter's argument

that, during the State's case-in-chief in the guilt phase, the trial court

erred by not redacting evidence of prior bad acts from Yeiter's statement

to law enforcement, and we reversed his conviction and sentence.

(Yeiter's brief, p. 11.) On certiorari review, the Alabama Supreme Court

reversed our judgment and held that any error in the admission of that

statement was harmless beyond a reasonable doubt. State v. Yeiter, [Ms.

SC-2022-0417, Sept. 2, 2022] ___ So. 3d ___, ___ (Ala. 2022).

30

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under the principles recognized in Edwards v. Arizona, 451 U.S. 477

(1981). (Yeiter's brief, p. 48.)

Yeiter gave a statement on November 3, 2014, in Deputy Blair's

office, which was located "across from the county jail." (R. 180.) The

statement began with Yeiter stating his name, his date of birth, and his

highest level of education, a G.E.D. Then this happened:

"INVESTIGATOR JOHNSON: Okay. I guess you know

what we want to talk to you about but before we do I have to

read you your rights.

"[YEITER]: Sure.

"INVESTIGATOR JOHNSON: And I'm going to show it

to you while I read it and we'll go over it. If you have any

questions just stop me and we'll go over any part of it.

"You must understand your rights before we ask you any

questions. You have the right to remain silent. Anything that

you say can be used against you in court. You have the right

to talk to a lawyer for advice before being questioned. You

have the right to have him with you during questioning. If you

cannot afford a lawyer and want one a lawyer will be

appointed for you by the court. If you decide to answer

questions now without a lawyer present you will still have the

right to stop the questioning at anytime. You also have the

right to stop the questioning at any time til you speak to a

lawyer.

"[YEITER]: I guess I'm going to need a lawyer because

they going to give me one when I go over there regardless if I

need one or not.

31

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"INVESTIGATOR JOHNSON: Well, they are going to

give you an attorney but you don't have to have one to speak

with us but that's your rights. It's up to you.

"[YEITER]: Well, the more I speak to y'all the more I

incriminate myself, right?

"INVESTIGATOR JOHNSON: Well, I mean we've got

our case proven but we would like to hear your side of the

story.

"[YEITER]: Yeah, I can. I mean …

"INVESTIGATOR JOHNSON: I mean but before—

before I can ask you any questions about your side of the story

I have to read you your rights.

"[YEITER]: I'll sign it.

"INVESTIGATOR JOHNSON: You sure?

"[YEITER]: Yeah.

"INVESTIGATOR JOHNSON: I mean that's up to you.

"Okay. Date, time, sign it and print. I'm tell [sic] you the

date. Today's date—

"[YEITER]: Can you answer me one question. I'm going

to sign this.

"INVESTIGATOR JOHNSON: Okay.

"[YEITER]: I want one—Hang on.

"INVESTIGATOR JOHNSON: Today's date is

November 3rd, and the time is 10:31.

32

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"The second part is a waiver of rights. It says, I do not

want a lawyer at this time. I understand and know what I'm

doing. No promises or threats have been made to me and no

pressure or force of any kind as been used against me. I hereby

voluntarily and intentionally waive my rights, and I'm willing

to make a statement or answer questions.

"But even though you sign this saying you waive your

rights and you want to talk to me you can stop at any time.

You understand?

"[YEITER]: Yeah.

"INVESTIGATOR JOHNSON: Sign, date and time.

Same date, and time is 10:32 now.

"Are you on any medication?

"[YEITER]: Nah. I don't want to pay for it.

"INVESTIGATOR JOHNSON: Sir?

"[YEITER]: Y'all going to have to hang on.

"INVESTIGATOR JOHNSON: Okay.

"CAPTAIN BLAIR: Have you got a question of us, Mr.

Yeiter?

"[YEITER]: Couple of them. Just hold on.

"INVESTIGATOR JOHNSON: We'll hold on. You want

a tissue?"

(Supp. C. 216-19 (emphasis added).) Yeiter then asked about whether his

sons were okay and whether anyone had picked up his younger son from

33

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school on the day he shot Phillips and left town. He also asked about

whether his wife Kimberly was "okay." (Supp. C. 220.) Investigator

Johnson responded that he had talked "with all three of them and they

are all okay." (Id.) Yeiter then told the officers, "Okay. That's all I need

to know. What do you want to know?" (Supp. C. 221.) He then

participated in the interview with the officers.

Citing the emphasized language above, Yeiter contends that he

made "an unequivocal assertion of the right to counsel," and he asserts

that his statement that "the more I speak to y'all the more I incriminate

myself, right" "only reinforced his initial request for counsel. (Yeiter's

brief, pp. 50-51.) Yeiter asserts that he "clearly 'expressed his desire to

deal with the police only through counsel' " but that "the officers

disregarded his requests and pushed forward, encouraging him to sign

the waiver so they could talk to him." (Yeiter's brief, p. 50 (quoting

Edwards, 451 U.S. at 484).) We disagree.

"During a custodial interrogation, if the suspect

unequivocally requests counsel at any time before or after the

suspect waives his Miranda [v. Arizona, 384 U.S. 436 (1966),]

rights, 'the interrogation must cease until an attorney is

present.' Miranda, 384 U.S. at 474. If the suspect makes an

equivocal reference to an attorney after waiving his Miranda

rights, the interrogating officer has no obligation to stop

questioning the suspect and the officer is not required to ask

34

CR-18-0599

questions to clarify whether the suspect actually wants an

attorney. Davis v. United States, 512 U.S. 452, 459-62, 114

S. Ct. 2350, 129 L. Ed. 2d 362 (1994). However, if a suspect

makes an equivocal reference to an attorney before waiving

his Miranda rights, the interrogating officer is required to ask

questions to clarify the reference until the suspect either

clearly invokes his right to counsel or waives it. See State v.

Collins, 937 So. 2d 86, 93 (Ala. Crim. App. 2005) (holding that

'[b]ecause [the defendant] did not waive her Miranda rights

before she asked the questions about obtaining a lawyer, the

ambiguity of her questions required the interrogating officer

to ask follow-up questions to clarify the ambiguity')."

Thompson v. State, 97 So. 3d 800, 806-07 (Ala. Crim. App. 2011).

"In determining whether a suspect's statement was an

unequivocal invocation of his right to counsel, we are guided

by the following principles:

" ' "The applicability of the ' "rigid"

prophylactic rule' of Edwards [v. Arizona, 451 U.S.

477, 101 S. Ct. 1880 (1981),] requires courts to

'determine whether the accused actually invoked

his right to counsel.' Smith v. Illinois, [469 U.S. 91,

95, 105 S. Ct. 490, 492, 83 L. Ed. 2d 488 (1984)]

(emphasis added), quoting Fare v. Michael C., 442

U.S. 707, 719 [99 S. Ct. 2560, 2569, 61 L. Ed. 2d

197] (1979). To avoid difficulties of proof and to

provide guidance to officers conducting

interrogations, this is an objective inquiry. See

Connecticut v. Barrett, supra, 479 U.S. [523], at

529 [107 S. Ct. [828] at 832 (1987)]. Invocation of

the Miranda right to counsel 'requires, at a

minimum, some statement that can reasonably be

construed to be an expression of a desire for the

assistance of an attorney.' McNeil v. Wisconsin,

501 U.S. [171] at 178 [111 S. Ct. [2204] at 2209

(1991).] ....

35

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" ' "... As we have observed, 'a statement

either is such an assertion of the right to counsel

or it is not.' Smith v. Illinois, 469 U.S., at 97-98

[105 S. Ct., at 494] (brackets and internal

quotation marks omitted). Although a suspect

need not 'speak with the discrimination of an

Oxford don,' post, at 476, 114 S. Ct., at 2364

(Souter, J., concurring in judgment), he must

articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer

in the circumstances would understand the

statement to be a request for an attorney." '

"Ex parte Cothren, 705 So. 2d 861, 864 (Ala. 1997) (quoting

Davis [v. United States], 512 U.S. [452,] 458-59 [(1994)]).

"Furthermore, a suspect's reference to an attorney is

equivocal if ' "a reasonable officer in light of the circumstances

would have understood only that the suspect might be

invoking the right to counsel." ' Cothren, 705 So. 2d at 864

(quoting Davis, 512 U.S. at 459). '[T]he proper standard to be

used in resolving this issue is an objective one—whether a

police officer in the field reasonably could have concluded from

the circumstances that a suspect was not absolutely refusing

to talk without the assistance of an attorney.' Cothren, 705

So. 2d at 866-67.

"Equivocal has been defined as:

" ' " 'Having different significations equally

appropriate or plausible; capable of double

interpretation; ambiguous,' 5 Oxford English

Dictionary 359 (2d ed., J.A. Simpson & E.S.C.

Weiner, eds., 1989); and as: 'Having two or more

significations; capable of more than one

interpretation; of doubtful meaning; ambiguous,'

36

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Webster's Third International Unabridged

Dictionary 769 (1986)." '

"Cothren, 705 So. 2d at 866 (quoting Coleman v. Singletary,

30 F.3d 1420, 1425 (11th Cir. 1994))."

Thompson, 97 So. 3d at 807-08.

Under those principles, Yeiter made, at most, an equivocal

reference to an attorney when he stated, "I guess I'm going to need a

lawyer because they going to give me one when I go over there regardless

if I need one or not." His statement, "Well, the more I speak to y'all the

more I incriminate myself, right?"—either alone or when considered as a

follow-up statement—also was not an unequivocal request for an

attorney. Thompson, 97 So. 3d at 808 (finding equivocal the statements

"I guess I got to call an attorney if I needed one, right? Is this the time

now when I need to?"); see also Petersen v. State, 326 So. 3d 535, 581

(Ala. Crim. App. 2019) (finding equivocal the statements "Probably

should talk to my mom and my lawyer before I go into or know what the

charges are I don't know," "I guess I have to talk to my lawyer," "Maybe

[I want to talk to an attorney], I don't know I'm not—attorney—

37

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apparently I did—I don't know …," and "need an attorney"). The trial

court did not err in admitting Yeiter's statement. 5

VI. REFUSAL TO INSTRUCT THE JURY ON PROVOCATION

MANSLAUGHTER

Yeiter argues that the trial court erred by not instructing the jury

on provocation or "heat-of-passion" manslaughter (Issue II.A. in Yeiter's

brief) and manslaughter due to voluntary intoxication (Issue II.B. in

Yeiter's brief). Yeiter preserved only Issue II.A. as to provocation

manslaughter; we thus review only that issue.

"The offense of 'heat-of-passion' manslaughter is defined

in § 13A-6-3(a)(2), Code of Alabama 1975,[6] as follows:

5What's more, as Yeiter explained in his statement, he had multiple

prior convictions and was thus experienced with the criminal justice

system.

6The version of § 13A-6-3, Ala. Code 1975, quoted here was in effect

when Yeiter committed the offense. Section 13A-6-3, Ala. Code 1975, has

been amended since then. See Act No. 2023-387, Ala. Acts 2023; Act No.

2024-103, Ala. Acts 2024. See also Minnifield v. State, 941 So. 2d 1000,

1001 (Ala. Crim. App. 2005) ("It is well settled that the law in effect at

the time of the commission of the offense controls the prosecution. See

Davis v. State, 571 So. 2d 1287, 1289 (Ala. Crim. App. 1990) ('A

defendant's sentence is determined by the law in effect at the time of the

commission of the offense.'); Hardy v. State, 570 So. 2d 871 (Ala. Crim.

App. 1990) (unless otherwise stated in the statute, the law in effect at the

time the offense was committed controls the offense); and Jefferson v.

City of Birmingham, 399 So. 2d 932 (Ala. Crim. App. 1981) (law in effect

at the time of the offense governs prosecution).").

38

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" '(a) A person commits the crime of manslaughter if:

" '....

" '(2) He causes the death of another person under

circumstances that would constitute murder under Section

13A-6-2; except, that he causes the death due to sudden heat

of passion caused by provocation recognized by law, and

before a reasonable time for the passion to cool and for reason

to reassert itself.'

"The defendant must present evidence of legal

provocation to require a charge on heat of passion.

" ' " 'Manslaughter is the unlawful killing of a

human being without malice; that is, the

unpremeditated result of passion-heated blood—

caused by a sudden, sufficient provocation. And

such provocation can, in no case, be less than

assault, either actually committed, or menaced

under such pending circumstances as reasonable

to convince the mind that the accused has cause

for believing, and did believe, he would be

presently assaulted, and that he struck, not in

consequence of a previously formed design,

general or special, but in consequence of the

passion suddenly aroused by the blow given, or

apparently about to be given ....' " '

"Easley v. State, 246 Ala. 359, 362, 20 So. 2d 519, 522 (1944),

quoting Reeves v. State, 186 Ala. 14, 16-17, 65 So. 160 (1914)."

Harris v. State, 683 So. 2d 26, 28 (Ala. Crim. App. 1996).

Yeiter asserts that he shot Phillips "after a heated struggle in which

Mr. Phillips had threatened lethal violence." (Yeiter's brief, p. 22.) He

39

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notes that the trial court denied defense counsel's request for a charge on

provocation manslaughter as a lesser-included offense. (C. 497; R. 1715.)

Yeiter argues:

"At trial, the defense relied on the theory that Mr. Yeiter

was provoked by Mr. Phillips, urging the jury in its opening

statement that the ultimate question in the case would 'get

down to the why.' (R. 1358.) Consistent with this theory, the

defense relied on evidence of a scuffle between Mr. Yeiter and

Mr. Phillips before the shooting occurred (R. 1390-92, 1403,

1408, 1613-14), during which Mr. Phillips said he was going

to get his gun. (R. 1610-11, 1613-14, 1741). Additional

testimony from Mr. Phillips's niece, Toni Casey, and a

recording of her 911 call, indicated that the Phillips [family]

had 'mentally abused' Mr. Yeiter leading up to the incident

and had finally pushed him over the edge. (R. 1417-18, 1491,

1739.)

"From these facts, the jury could have concluded that

Mr. Yeiter did not have the specific intent to kill Mr. Phillips

but instead acted under sufficient provocation to negate

intent. …"

(Yeiter's brief, pp. 25-26.) Yeiter cites Fuller v. State, 231 So. 3d 1207,

1218 (Ala. Crim. App. 2015), for its statements that manslaughter is "the

unlawful killing of a human being without malice; that is, the

unpremeditated result of passion—heated blood—caused by a sudden,

sufficient provocation" and that "the mere appearance of imminent

assault may be sufficient to arouse heat of passion." Fuller does not

support Yeiter's position, however, because there was no evidence here of

40

CR-18-0599

"a sudden, sufficient provocation" or "the mere appearance of imminent

assault."

" 'A person accused of the greater offense has a right to

have the court charge on lesser included offenses when there

is a reasonable theory from the evidence supporting those

lesser included offenses.' MacEwan v. State, 701 So. 2d 66, 69

(Ala. Crim. App. 1997). An accused has the right to have the

jury charged on ' "any material hypothesis which the evidence

in his favor tends to establish." ' Ex parte Stork, 475 So. 2d

623, 624 (Ala. 1985). '[E]very accused is entitled to have

charges given, which would not be misleading, which correctly

state the law of his case, and which are supported by any

evidence, however[ ] weak, insufficient, or doubtful in

credibility,' Ex parte Chavers, 361 So. 2d 1106, 1107 (Ala.

1978), 'even if the evidence supporting the charge is offered by

the State.' Ex parte Myers, 699 So. 2d 1285, 1290-91 (Ala.

1997), cert. denied, 522 U.S. 1054, 118 S. Ct. 706, 139 L. Ed.

2d 648 (1998). However, '[t]he court shall not charge the jury

with respect to an included offense unless there is a rational

basis for a verdict convicting the defendant of the included

offense.' § 13A-1-9(b), Ala. Code 1975. 'The basis of a charge

on a lesser-included offense must be derived from the evidence

presented at trial and cannot be based on speculation or

conjecture.' Broadnax v. State, 825 So. 2d 134, 200 (Ala. Crim.

App. 2000), aff'd, 825 So. 2d 233 (Ala. 2001), cert. denied, 536

U.S. 964, 122 S. Ct. 2675, 153 L. Ed. 2d 847 (2002). ' "A court

may properly refuse to charge on a lesser included offense only

when (1) it is clear to the judicial mind that there is no

evidence tending to bring the offense within the definition of

the lesser offense, or (2) the requested charge would have a

tendency to mislead or confuse the jury." ' Williams v. State,

675 So. 2d 537, 540-41 (Ala. Crim. App. 1996), quoting

Anderson v. State, 507 So. 2d 580, 582 (Ala. Crim. App.

1987)."

Clark v. State, 896 So. 2d 584, 641 (Ala. Crim. App. 2000).

41

CR-18-0599

In Bohannon v. State, 222 So. 3d 457 (Ala. Crim. App. 2015), this

Court stated:

"Here, there was no rational basis that would support a

jury instruction on heat-of-passion manslaughter. Three

cameras recorded the shootings. Rarely does a reviewing court

have the means to review this issue with such clarity. It is

clear from the videotapes that one victim did initially gently

shove Bohannon; however, that act is not sufficient to

constitute legal provocation for heat-of-passion

manslaughter. After one victim shoved Bohannon, both

victims turned their backs to Bohannon and started to walk

toward their vehicle when Bohannon grabbed his gun from

the back waistband of his pants and rushed after the two

victims with his gun pointed at them. The victims then ran

away from Bohannon and attempted to hide.

" ' "Manslaughter is the unlawful killing of a

human being without malice; that is, the

unpremeditated result of passion-heated blood—

caused by a sudden, sufficient provocation. And

such provocation can, in no case, be less than

assault, either actually committed, or menaced

under such pending circumstances as reasonable

to convince the mind that the accused has cause

for believing, and did believe, he would be

presently assaulted, and that he struck, not in

consequence of a previously formed design,

general or special, but in consequence of the

passion suddenly aroused by the blow given, or

apparently about to be given ...." '

"Easley v. State, 246 Ala. 359, 362, 20 So. 2d 519, 522 (1944),

quoting Reeves v. State, 186 Ala. 14, 16–17, 65 So. 160 (1914).

" 'Alabama courts have, in fact, recognized three

legal provocations sufficient to reduce murder to

42

CR-18-0599

manslaughter: (1) when the accused witnesses his

or her spouse in the act of adultery; (2) when the

accused is assaulted or faced with an imminent

assault on himself; and (3) when the accused

witnesses an assault on a family member or close

relative.'

"Spencer v. State, 58 So. 3d 215, 245 (Ala. Crim. App. 2008).

" 'A minor or technical assault or battery is

insufficient, but a blow inflicting considerable pain

or injury ordinarily is sufficient Easley v. State,

246 Ala. 359, 20 So. 2d 519 (1945); Buffalow v.

State, 219 Ala. 407, 122 So. 633 (1929). Mere

abusive or opprobrious words or insulting gestures

are insufficient. Cates v. State, 50 Ala. 166 (1874);

Easley v. State, supra; Weaver v. State, 1 Ala. App.

48, 55 So. 956, rehearing denied, 2 Ala. App. 98, 56

So. 749 (1911). In a mutual fight where no more

than ordinary battery was intended, the blows

may constitute provocation, but use of deadly

weapon or undue advantage is usually murder.

Diamond v. State, 219 Ala. 674, 123 So. 55 (1929);

Lanier v. State, 31 Ala. App. 242, 15 So. 2d 278

(1943).'

"Commentary to § 13A-6-3, Ala. Code 1975.

"In Living v. State, 796 So. 2d 1121 (Ala. Crim. App.

2000), this Court found that the circuit court did not err in

refusing to give a jury instruction on heat-of-passion

manslaughter after the victim had shoved the defendant. We

stated:

" ' "[A]n extreme emotional or mental disturbance,

without legally recognized provocation, will not

reduce murder to manslaughter." MacEwan v.

State, 701 So. 2d [66,] 70 [(Ala. Crim. App. 1997)]

43

CR-18-0599

(quoting Gray v. State, 482 So. 2d 1318, 1319 (Ala.

Crim. App. 1985)). Moreover, [the victim] shoving

[the defendant] during an argument does not

constitute legal provocation for heat-of-passion

manslaughter. "A minor technical assault which

did not endanger life or inflict serious physical

injury or inflict substantial and considerable pain

would not amount to sufficient provocation."

Shultz v. State, 480 So. 2d 73, 76 (Ala. Crim. App.

1985). Because no evidence of adequate legal

provocation was presented at trial, the trial court

did not err in refusing to instruct the jury on heat-

of-passion manslaughter.'

"796 So. 2d at 1130. See also Woolf v. State, 220 So. 3d 338

(Ala. Crim. App. 2014)."

Bohannon, 222 So. 3d at 510-11.

The evidence at trial showed that Yeiter was the initial aggressor,

"grabb[ing] the glasses off [Phillips's] face" (R. 1391); that he walked

away from the initial confrontation and drove a half-mile to his house to

get his shotgun; that he drove back to the church; and that he shot

Phillips while Phillips was sitting inside his idling truck unarmed and

with his seatbelt buckled. (Supp. C. 234.) Yeiter told the police that it was

"premeditated murder" and that he "thought about it all the way [home]

and all the way back." (Supp. C. 233.) Yeiter's request for a charge on

heat-of-passion manslaughter had no support in the law or the evidence.

44

CR-18-0599

Thus, the trial court did not err in refusing Yeiter's request for a charge

on heat-of-passion manslaughter, and Yeiter is due no relief.

VII. EXCLUSION OF TESTIMONY FROM JEWELL PHILLIPS

Yeiter argues that the trial court erred in not allowing Jewell

Phillips—who was married to Phillips for over 50 years—to testify at the

penalty phase that, in her opinion, Phillips would not have wanted Yeiter

sentenced to death. (Yeiter's brief, p. 37.)

During the penalty phase, Yeiter called Jewell as a witness. (R.

1808.) In response to defense counsel's question, 7 Jewell testified: "I don't

want him to have the death penalty. I don't believe in it." (R. 1838.) Jewell

testified that she "still love[d] Brett Yeiter" and that she thought

executing him "would cause [her] family … more pain." (R. 1838.)

The State objected when defense counsel asked Jewell whether

Phillips would "want the death penalty" for Yeiter. (R. 1839.) The trial

court sustained the objection: "That is the mental operation of somebody

else and under our rules of evidence, that is not permitted." (R. 1839.)

On appeal, Yeiter argues that "[u]nder Alabama law, a victim's

7The State objected to the question at first. (R. 1810.) After a

lengthy discussion outside the presence of the jury, the State withdrew

its objection. (R. 1833.)

45

CR-18-0599

family member may recommend leniency or request a lesser sentence

during the sentencing hearing and this recommendation should be

considered as a [nonstatutory] mitigating factor." (Yeiter's brief, p. 38.)

For many reasons Yeiter asserts that the trial court erred.

This Court addressed an almost identical claim in Smith v. State,

[Ms. CR-17-1014, Sept. 2, 2022] ___ So. 3d ___ (Ala. Crim. App. 2022),

cert. denied (No. SC-2022-1033, June 23, 2023):

"Smith argues that the trial court 'improperly

prohibited [him] from introducing a victim's family member's

request for leniency' during the sentencing phase. (Smith's

brief, p. 36.) Specifically, Smith argues that the trial court

erred when it prevented Bobby Bennett, the brother of David

Bennett, from testifying that he was in favor of Smith's being

sentenced to life imprisonment without the possibility of

parole. (Smith's brief, p. 36.) According to Smith, 'victim

requests for leniency are admissible' and the trial court erred

in not allowing the jury to consider Bobby's testimony as a

mitigating circumstance. Thus, Smith says the trial court

denied him 'his right to present mitigating evidence and

receive an individualized sentencing determination under

Lockett [v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973

(1978)], Tennard [v. Dretke, 542 U.S. 274, 124 S. Ct. 2562, 159

L. Ed. 2d 384 (2004)], and [Ex parte] Carroll[, 852 So. 2d 833

(Ala. 2002)], and his rights to have mitigation found and

considered, a complete defense, due process, a fair trial, and a

reliable sentence.' (Smith's brief, pp. 38-39.)

"This Court, however, rejected this precise claim in

Barbour v. State, 673 So. 2d 461 (Ala. Crim. App. 1994):

" ' "In Payne [v. Tennessee, 501

46

CR-18-0599

U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d

720 (1991)], the court held that if the

State 'chooses to permit the admission

of victim impact evidence and

prosecutorial argument on the subject,

the Eighth Amendment erects no per se

bar.' McMillian v. State, 594 So. 2d

1253, 1275 (Ala. Cr. App. 1991). Payne

did not address the issue in this case,

whether a request for leniency by the

victim's family can properly be

considered as a mitigating

circumstance.

" ' "The United States Supreme

Court in Eddings v. Oklahoma, 455

U.S. 104 [102 S. Ct. 869, 71 L. Ed. 2d 1]

(1982), held that the sentencer in

capital cases must be permitted to

consider any relevant mitigating factor

touching the defendant's character and

record.

" ' "The Court is aware of three

cases which address the specific issue

presented. In Floyd v. State, 497 So. 2d

1211 (Fla. 1986), the court held the

testimony of the murder victim's

daughter that she and the victim

opposed capital punishment was

mitigating evidence. However, on

retrial of the case, the trial judge

refused to allow the victim's daughter

to testify to her opinion as to whether

Floyd should be executed and the

Florida Supreme Court held that the

trial judge did not abuse his discretion.

Floyd v. State, 569 So. 2d 1225 (1990),

47

CR-18-0599

cert. denied, 501 U.S. 1259, 111 S. Ct.

2912 [115 L. Ed. 2d 1075] (1991). The

Tenth Circuit Court of Appeals held

that a victim's relative was properly

prohibited from expressing her opinion

that the death penalty should not be

imposed in Robison v. Maynard, 829

F.2d 1501 (10th Cir. 1987) (applying

Oklahoma law). See Robison v.

Maynard, 943 F.2d 1216 (10th Cir.

1991) (the court reached the same

conclusion upon consideration after

Payne v. Tennessee, 501 U.S. 808, 111

S. Ct. 2597, 115 L. Ed. 2d 720 (1991)

was decided). See Kathryn E. Bartolo,

Payne v. Tennessee: The Future Role of

Victim's Statements of Opinion in

Capital Sentencing Proceedings, 77

[Iowa] L. Rev. 1217 (1992).

" ' "The Alabama Supreme Court

recently held that the defendant's

'Eighth Amendment rights were

violated if the trial judge ... considered

the portions of the victim impact

statement wherein the victim's family

members offered their

characterizations or opinions of ... the

appropriate punishment.' Ex parte

McWilliams, 640 So. 2d 1015 (Ala.

1993).

" ' "The Court held that opinions of

family members as to the appropriate

punishment either for the death

penalty, Ex parte McWilliams, or

against the death penalty, Robison I &

II, are inadmissible. The reasoning of

48

CR-18-0599

the Court in Robison I is persuasive.

The Court reasoned that such opinion

evidence is not relevant because

mitigating evidence is composed of

evidence of the defendant's character

or record or any of the circumstances of

the offense, and the witnesses' opinion

of the appropriate punishment is not

relevant to either. In Robison II the

court further explained its holding in

Robison I, and, notwithstanding that

the jury is the sentencing authority in

Oklahoma, the court's reasoning is also

persuasive. The court said that the

proffered testimony 'was calculated to

incite an arbitrary response [from the

jury], thus it was properly excluded.'

Robison II at 1217."

" 'The trial court's ruling was correct for the

reasons stated by the Alabama Supreme Court in

McWilliams v. State, 640 So. 2d 1015, 1017 (Ala.

1993). The court stated:

" ' "In Booth v. Maryland, 482 U.S.

496, 107 S. Ct. 2529, 96 L. Ed. 2d 440

(1987), the United States Supreme

Court vacated a death sentence,

holding that it violated the defendant's

Eighth Amendment rights for the

sentencer to consider victim impact

statements in sentencing the

defendant to death. The victim impact

statements in that case contained the

same types of information as were in

the statements in the present case. In

Payne v. Tennessee, 501 U.S. 808, 111

S. Ct. 2597, 115 L. Ed. 2d 720 (1991),

49

CR-18-0599

the Supreme Court partially overruled

Booth. The Court in Payne held that

the defendant's Eighth Amendment

rights were not violated by the trial

court's consideration of statements

regarding the victims and the impact of

their deaths upon the family members.

The victim impact statements in Payne

did not contain characterizations or

opinions about the defendant, the

crime, or the appropriate punishment.

That portion of Booth that proscribed

the trial court's consideration of that

type of statement was, therefore, left

intact by Payne.

" ' "We conclude that

McWilliams's Eighth Amendment

rights were violated if the trial judge in

this case considered the portions of the

victim impact statements wherein the

victim's family members offered their

characterizations or opinions of the

defendant, the crime, or the

appropriate punishment."

" '(Emphasis added.)'

"Barbour, 673 So. 2d at 468-69.

"Here, Bobby's proposed testimony that Smith should be

sentenced to life imprisonment without the possibility of

parole is precisely the type of testimony that Payne, Booth,

and McWilliams prohibit. The opinion of a victim's family

member as to what punishment the defendant should receive

is impermissible, whether favorable to the defendant or not.7

Thus, the trial court did not err in refusing to allow Smith to

present Bobby's testimony as to what he believed the proper

50

CR-18-0599

punishment in this case should be. Accordingly, Smith is not

entitled to relief on this claim.

"_______________

"7Notably, the trial court did let Bobby testify to the fact

that his family had forgiven Smith—a fact that the jury could

consider when assessing the penalty-phase evidence."

Smith, ___ So. 3d at ___.

As recognized in Smith, Alabama law prohibited Jewell's testimony

about what punishment she thought Phillips would want Yeiter to

receive. Thus, the trial court did not err in disallowing that testimony,

and Yeiter is due no relief on this claim.

VIII. CAPITAL-SENTENCING SCHEME

In its brief the State notes that the trial court's sentencing "order

does not indicate the existence or non-existence of aggravating and

mitigating circumstances or make specific findings of fact" about the

aggravating circumstances as required by § 13A-5-47, Ala. Code 1975.

(State's brief, p. 54 n.8.) The State cites cases in which this Court has

remanded the case for the trial court to make such findings. See, e.g.,

Phillips v. State, 287 So. 3d 1063, 1157 (Ala. Crim. App. 2015)

(remanding for the trial court to clarify whether it found the existence or

nonexistence of each statutory and non-statutory mitigating

51

CR-18-0599

circumstance); Floyd v. State, 289 So. 3d 337, 446 (Ala. Crim. App. 2017)

(remanding for the trial court to make findings about the especially

heinous, atrocious, or cruel aggravating circumstance). The State is

correct. More than that, however, the record shows that, in treating the

jury's verdict as binding rather than advisory, the trial court applied the

wrong capital-sentencing scheme.

On original submission, we noted:

"The trial court repeatedly stated that it had to follow

the jury's verdict. (See R. 1934 ('[There is no] judicial override.

The court has absolutely no discretion. Therefore I see no need

to delay formal sentencing from the court. Because all I'm

doing is pronouncing the sentence imposed by the jury.'); R.

1784 ('[J]udicial override ... no longer exists.'); R. 1813 ('Now,

with the statute as it presently exists, the jury makes the

decision.').) Although both the State and Yeiter agreed with

the trial court, this position is erroneous.

"Act No. 2017-131, Ala. Acts 2017, amended §§ 13A-5-

45, 13A-5-46, and 13A-5-47, Ala. Code 1975, eliminated

judicial override, and placed the final sentencing decision in

the hands of the jury. That Act, however, did not apply

retroactively to Yeiter, who was charged with capital murder

before April 11, 2017—the effective date of the Act. See § 2,

Act No. 2017-131, Ala. Acts 2017 ('This act shall apply to any

defendant who is charged with capital murder after the

effective date of this act and shall not apply retroactively to

any defendant who has previously been convicted of capital

murder and sentenced to death prior to the effective date of

this act.'). Under the versions of §§ 13A-5-45, 13A-5-46, and

13A-5-47 applicable to Yeiter, the judge, not the jury, had the

final sentencing decision."

52

CR-18-0599

Yeiter, ___ So. 3d at ___ n.2.

This Court has repeatedly held that Act No. 2017-131, Ala. Acts

2017, does not apply to a defendant like Yeiter who was charged with

capital murder before April 11, 2017, the effective date of Act No. 2017-

131, but convicted and sentenced after that date.8 See, e.g., Sykes v.

State, [Ms. CR-2022-0546, May 3, 2024] ___ So. 3d ___, ___ (Ala. Crim.

App. 2024) ("The new capital sentencing scheme is triggered by the date

on which a defendant is charged with capital murder."); Dearman v.

State, [Ms. CR-18-0060, Aug. 5, 2022] ___ So. 3d ___ (Ala. Crim. App.

2022); Young v. State, 375 So. 3d 813 (Ala. Crim. App. 2021), cert. denied

(No. 1210291, Oct. 21, 2022); and Belcher v. State, 341 So. 3d 237 (Ala.

Crim. App. 2020), cert. denied (No. 1200374, May 21, 2021). Thus, the

trial court erred in concluding that Act No. 2017-131 applies to Yeiter.

The procedure the trial court used here satisfied former § 13A-5-45,

Ala. Code 1975. But for treating the jury's verdict as binding rather than

as an advisory verdict, the procedure likewise complied with former §

8A complaint charging Yeiter was filed on October 27, 2014. Law

enforcement arrested Yeiter in November 2014, and a grand jury indicted

him in January 2015. See Rule 1.4(b), Ala. R. Crim. P. (" 'Charge' means

a complaint, indictment, or information.").

53

CR-18-0599

13A-5-46, Ala. Code 1975. The procedure did not, however, comply with

former § 13A-5-47, which provided:

"(a) After the sentence hearing has been conducted, and

after the jury has returned an advisory verdict … the trial

court shall proceed to determine the sentence.

"(b) Before making the sentence determination, the trial

court shall order and receive a written presentence

investigation report. The report shall contain the information

prescribed by law or court rule for felony cases generally and

any additional information specified by the trial court. No

part of the report shall be kept confidential, and the parties

shall have the right to respond to it and to present evidence

to the court about any part of the report which is the subject

of factual dispute. The report and any evidence submitted in

connection with it shall be made part of the record in the case.

"(c) Before imposing sentence the trial court shall permit

the parties to present arguments concerning the existence of

aggravating and mitigating circumstances and the proper

sentence to be imposed in the case. The order of the

arguments shall be the same as at the trial of a case.

"(d) Based upon the evidence presented at trial, the

evidence presented during the sentence hearing, and the

presentence investigation report and any evidence submitted

in connection with it, the trial court shall enter specific

written findings concerning the existence or nonexistence of

each aggravating circumstance enumerated in Section 13A-5-

49, each mitigating circumstance enumerated in Section 13A-

5-51, and any additional mitigating circumstances offered

pursuant to Section 13A-5-52. The trial court shall also enter

written findings of facts summarizing the crime and the

defendant's participation in it.

"(e) In deciding upon the sentence, the trial court shall

54

CR-18-0599

determine whether the aggravating circumstances it finds to

exist outweigh the mitigating circumstances it finds to exist,

and in doing so the trial court shall consider the

recommendation of the jury contained in its advisory verdict,

…. While the jury's recommendation concerning sentence

shall be given consideration, it is not binding upon the court."

Thus, we must vacate the trial court's order sentencing Yeiter to

death and remand this case for the trial court to impose a new sentence

after following the procedure outlined in former § 13A-5-47. Rather than

conducting a new penalty-phase proceeding before a jury, the trial court

should treat the jury's penalty-phase verdict as an advisory verdict under

former § 13A-5-46. The trial court also should:

(1) Under former § 13A-5-47(b), "order and receive a written

presentence investigation report" and allow "the parties … to

respond to it and to present evidence to the court about any part

of the report which is the subject of factual dispute";9

(2) Under former § 13A-5-47(c), "permit the parties to present

arguments concerning the existence of aggravating and

mitigating circumstances and the proper sentence to be

imposed in the case";

(3) Under former § 13A-5-47(d), "enter specific written findings

concerning the existence or nonexistence of each aggravating

circumstance enumerated in Section 13A-5-49, each mitigating

circumstance enumerated in Section 13A-5-51, and any

9The trial court did not order a presentence report because the court

thought that the jury's penalty-phase verdict was binding. (See, e.g., R.

1933 ("[T]here is no need for a presentence report.").)

55

CR-18-0599

additional mitigating circumstances offered pursuant to

Section 13A-5-52" and "also enter written findings of facts

summarizing the crime and the defendant's participation in it."

(4) As to the aggravating circumstance that the murder "was

especially heinous, atrocious, or cruel compared to other capital

offenses," § 13A-5-49(8), Ala. Code 1975, " 'make specific

findings of fact explaining why this aggravating circumstance

was applicable' under the standard set forth in Ex parte Kyzer[,

399 So. 2d 330 (Ala. 1981), abrogated on other grounds by Ex

parte Stephens, 982 So. 2d 1148 (Ala. 2006),]" Floyd, 289 So. 3d

at 446 (quoting Miller v. State, 913 So. 2d 1148, 1152 (Ala.

Crim. App. 2004)); and

(5) Pronounce Yeiter's sentence in open court, see Ex parte Kelley,

246 So. 3d 1068 (Ala. 2015).

CONCLUSION

Because the trial court applied the wrong capital-sentencing

scheme, we vacate its order sentencing Yeiter to death, and we remand

this case for the trial court to apply the correct sentencing scheme as

stated above and to impose a new sentence. Due return should be filed in

this court no later than 120 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.

56