Petition for Writ of Certiorari — Anthony Keith Johnson v. Alabama

any standard whatsoever to review judicial overrides of jury

life-without-parole recommendations. See Ex parte Harrell],

470 So.2d 1309, 1317 (Ala. 1985). Thus, without any standard

for review for jury overrides, the Alabama Supreme Court has

left sentencing judges free to reject jury recommendations of

life without parole for any reason or for no reason at all.

This is the danger which undeniably permits and, in all

likelihood, leads to wholly arbitrary and standardless

imposition of the death penalty. This, in itself, renders

the statute, as applied, unconstitutional. And when one

considers that the potential for invidious or discriminatory

imposition of the death penalty is unchecked under such a

statute, the statutory scheme’s inherent constitutional

defect becomes all too apparent.

In sharp contrast to the results in Florida where

the Tedder rule for jury overrides has resulted in the

numerous reductions of sentences as hereinbefore described,

in the Alabama, appellate courts have never set aside as

improper any of the seventeen trial judge overrides of life-

without-parole jury recommendations under the capital

punishment statute at issue here. Consequently, the two-part

sentencing system in the Alabama post-Furman capital statute

is rendered a nullity. This Court, as it noted in Spaziano,

Supra, at 465, has already recognized the importance of the

Tedder standard. See Dobbert v. Florida, 432 U.S. 282, 294-

295 (1987) The absence of such a standard in Alabama and

cannot withstand constitutional scrutiny.

B. Because the Jury’s Role with Respect to Sentencing in

Reliability in the sentencing process in death

penalty cases has been, as it must be, a fundamental concern.

—- 2 ee

Cr Fr * dh aod

As this Court has stated, relying upon the Eighth Amendment

to the United States Constitution, "(t]he qualitative

difference of death from all other punishments requires a

correspondingly greater degree of scrutiny of the capital

sentencing determination." California vy. Ramos, 463 U.S.

998-999 (1983). The need for insuring that the sentencing

process and the relative roles thereunder are exercised ina

responsible and reliable manner is greatest in the capital

sentencing arena. As this Court noted in Caldwell vy.

Mississippi, 472 U.S. 72770, 329 n.2 (1985), “[m)jany of the

limits that this Court has placed on the imposition of

capital punishment are rooted in a concern that the

sentencing process should facilitate the responsible and

reliable exercise of sentencing discretion." See, e-g-,

Eddings v. Oklahoma, 455 U.S. 104 (1982); Leckett v. Ohio,

438 U.S. 586 (1978) (plurality opinion); Gardner vy. Florida,

430 U.S. 349 (1977) (plurality opinion); Woodson v. North

Carolina, 428 U.S. 280 (1976). See also Barefoot v. Estelle,

463 U.S. 880, 924 (1983) (Blackmun, J., dissenting)

(Weedson’s concern for assuring heightened reliability in the

capital sentencing determination “is as firmly established as

any in our Eighth Amendment juris-prudence")

This Court in Beck vy. Alabama, supra, considered

the former Alabama capital statute’s preclusion of the

consideration of lesser included offenses at the guilt-

innocence phase, where evidence svwpported such instruction,

and concluded that such a preclusion was unconstitutional.

Underlying the Court’s decision was a determination that such

preclusion undermined the reliability of the jury’s guilt-

innocence determination because the jury was forced to choose

between acquittal and a capital murder conviction in

instances where the evidence supported alternative lesser

verdicts.

The statutory scheme now at issue suffers from a

similar constitutional defect. As happened in this case, the

— _ s Le 2 =

jury deliberated long and hard on the question of guilt or

innocence and finally arrived at a verdict of guilty;

however, the jury deliberated only a short period of time

before arriving at a recommendation of life without parole by

an overwhelming vote of nine to three. The Court overrode

this clear recommendation by the jury, and such override is

subject to no standard of review. As a result, any question

that may have remained in a given juror’s mind with respect

to guilt or innocence which that juror might have attempted

to resolve by seeking the less severe punishment at the

sentencing phase was virtually wiped out. It must be

constitutionally defective for a Court, unguided by any

standards to be permitted to override such an overwhelming

decision without such override being subjected to scrutiny by

a reviewing court.

1. The Unconstitutional Application of the New Alabama

Statute in Petitioner’s Case.

Alabama’s post-Beck capital statutory scheme and

Rule 45A of the Alabama Rules of Appellate Procedure provide

for an “independent” review of the record by state reviewing

ourts. The analysis under these provisions in this case is

set forth in the opinion of the Alabama Court of Criminal

Appeals (See Appendix "B" at 14-16).

Section 13A-5-53(a) Code of Alabama (1975) requires

the state appellate court to review the imposition of the

death penalty in a given case by answering three questions:

(1.) Was any error adversely effecting the rights

of the defendant made in the sentence proceedings?

(2.) Were the trial Court’s findings concerning

the aggravating and mitigating circumstances

supported by the evidence?

(3.) Was the death penalty the proper sentence in

this case?

To answer the third question, whether the death

penalty was properly imposed in the case, the Court must

determine:

(1.) Whether the sentence of death was imposed

other arbitrary factor; (emphasis added)

(2.) Whether an independent weighing of the

aggravating and mitigating circumstances at the

10

appellate level indicate that death was the proper

sentence;

(3.) Whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar

cases, considering both the crime and the

defendant.

See Appendix "B" at 15, citing Code of Alabama (1975),

Section 13A-5-53(b) and Beck vy. State, 396 So.2d 645 (Ala.

1980).

The Court of Criminal Appeals in this case found

"nothing in the record before us which even intimates that

the death penalty was imposed under the influence of passion,

prejudice, or any other arbitrary factor." Jd, But, an error

by the trial court wholly robbed the appellate court of a

meaningful opportunity to determine whether its conclusion

was accurate.

Despite a pre-trial motion filed by Petitioner for a complete

record of all proceedings (R-1107), including specifically

"opening statements" and "closing arguements" (sic), the

trial Court failed to permit a record to be made of opening

statements during the guilt-innocence phase or of closing

arguments during the sentencing phase to the jury and to the

Court. Arguments to the jury during both guilt-innocence

and, more especially, sentencing phases are, perhaps, the

most ripe areas for the interjection of appeals to passion,

prejudice, and other arbitrary and impermissible factors.

Without a record of these key areas of the trial Court

proceedings, there is no record for the appellate court to

review in carrying out its responsibility to guard against

the influence of such factors.

This is especially significant in this case where

the trial was held in a rural county with a prosecutor known

for his emotional appeals and whose closing argument during

the sentencing phase in this case, upon information and

belief, consisted of an emotionally wrenching performance

replete with biblical references and delivered between sobs

with periodic breaks to wipe his teary eyes with a

handkerchief.

11

This Court has repeatedly had to consider

constitutionally violative closing arguments in death penalty

cases. See e.g. Caldwell] yv. Mississippi, 472 U.S. 320

(1985). Such improper argument as may well have occurred in

this case, but which Petitioner has been precluded from

raising because of the trial court’s refusal to provide a

record, is most especially dangerous in the capital

sentencing arena because of the nature of the punishment.

The failure to provide a record with respect to

such key areas of the proceeding as are relevant to a

consideration of the propriety of sentencing seriously

undercuts the minimal provisions that are present in the

Alabama statutory scheme for review of sentence and severely

diminishes any role the "plain error" rule might have in the

review process.

2. Alabama’s Unique Capital Sentencing Scheme, Like Its

Predecessor, Lends Itself to Unreliable Guilt-Innocence

Decisions.

In this case, the jury deliberated for quite a

lengthy period with respect to the guilt or innocence

decision. In contrast, it deliberated a very short period of

time in reaching its nine to three sentencing verdict of life

without parole. Although there perhaps should not be a way

under our system of law to know what exactly was

determinative for each individual juror with respect to his

or her decision, where the final step of a judicial override

is provided for by statute, it is absolutely essential that

there be a standard for review of such an override that is at

least as stringent as the procedures in practice in Florida.

Otherwise, the reliability of the jury’s verdict on the

question of guilt or innocence is severely diminished. It is

quite possible that the jury in this case, as in many cases,

either led there by some unrecorded improper argument, or

through its own understanding of the Court’s instruction with

respect to its role in sentencing, premised its guilty

verdict on thy mistaken belief that it could "compromise"

12

such a verdict by sentencing the Petitioner to life without

parole rather than to death. If that were the case, then the

jury in this case, and in many other cases operating under

the Alabama capital sentencing scheme, like juries operating

under the defect in Beck might well have reached the wrong

verdict, simply by virtue of the statutory scheme’s

provisions.

In sum, Alabama’‘s capital sentencing scheme

provides for and leads to a unique capital sentencing system.

The statutory scheme provides for jury input in the

sentencing decision; however, that input is very limited.

The ultimate sentencing decision is left with the judge and,

in instances in which the judge overrides the recommendation

of the jury, as was the case here, there is no test for

reviewing the propriety of the judge’s override decision.

This is the principal distinguishing factor between the

Alabama system and the Florida system approved by this Court

in Spaziano, supra. The Tedder rule was in place in Florida

when this Court reviewed Spaziano; and Alabama simply has

nothing akin to the Tedder rule, has specifically rejected

such a rule, and has in place no procedural or substantive

safeguard to prevent the arbitrary or discriminatory

imposition of the death penalty by virtue of a jury override.

As has been discussed, a lack of reliability is

inherent in the Alabama capital sentencing scheme. That is,

inherent in the system is the potential for the jury to

mistakenly perceive its role as both determiner of guilt and

sentencer. The jury may compromise its guilt-innocence

determination in favor of guilt, with the intention of

imposing the more lenient sentencing alternative, life

without parole.

The Alabama sentencing scheme is simply

intellectually dishonest. The jury perceives itself as an

important part of the process, so much so that it is

13

. | ="

a.

instructed that it must sit through an entire second trial

before recommending punishment if it returns a guilty

verdict. Though the jury is advised that its sentencing

verdict is a recommendation, it is significant that it is not

told that its recommendation can be rejected for any reason

or for no reason at all. Although the court must set out

its findings with respect to aggravating and mitigating

circumstances, its specific reason for overriding the jury,

and in this case overriding an overwhelming verdict by the

jury, is not subject to review. The jury, therefore, labors

under the mistaken impression, not just during its penalty

phase deliberations, but during the guilt-innocence phase as

well, that its sentencing verdict will have a profound effect

on the sentence ultimately received by the accused.

There are several methods which could be adopted to

bring Alabama’s capital sentencing scheme within the

parameters of sentencing processes of other states that have

been upheld by this Court. The two level system could be

eliminated such that the jury is given final sentencing

decision authority; the sentencing decision could be made

entirely a matter for the Court; or a trial Judge’s override

of a jury’s recommendation, rejecting life without parole in

favor of a death sentence, could be subjected to scrutiny

under a standard such as Florida’s Tedder rule, approved by

this Court in Spaziano, supra. Whichever alternative is

eventually selected, as a preliminary matter, the present

Alabama statutory scheme must be struck down as

unconstitutional.

14

CONCLUSION

For the reasons stated, Petitioner respectfully

requests that the Petition for Writ of Certiorari be granted.

Respectfully submitted,

7 . \ y -

_ David Scheen

Kak Cohen

Y

COUNSEL FOR THE PETITIONER:

David Schoen, Attorney at Law

Moore Building, Suite 212

217 South Court Street

Montgomery, Alabama 36104

Telephone (205) 263-2077

J. Richard Cohen, Attorney at Law

702 Cloverdale Road

Montgomery, Alabama 36104

CERTIFICATE OF SERVICE

The undersigned hereby certify that they have served a

true and exact copy of the foregoing Petition for writ of

Certiorari on William Little, Assistant Attorney General, 11

South Union Street, Montgomery, Alabama 36130, by Placing same in

the United States Mail, postage prepaid and properly addressed,

on this the 5th day of May, 1988.

x { 7 ‘ a

an: Schoen >

Richard Cohen

15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

ANTHONY KEITH JOHNSON, Petitioner,

Vv.

STATE OF ALABAMA, Respondent.

7 APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Counsel for the Petitioner:

David Schoen, Attorney at Law

Moore Building, Suite 212

217 South Court Street

Montgomery, Alabama 36104

Telephone (205) 263-2077

' | FR 5 1988

in Me TOE ARAMA

APPENDIX “A”

THE STATE OF ALABAMA ~ = = = = = JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1987-868

Ex parte Anthony Keith Johnson

PETITION FOR WRIT OF CERTIORARI

86-792 TO THE COURT OF CRIMINAL APPEALS

(Re: Anthony Keith Johnson

Vv.

State of Alabama)

PER CURIAM.

Pursuant to Rule 39(c), A.R.App.P., we granted the

defendant's petition to review the judgment of the Court of

Criminal Appeals affirming his conviction and sentence of death.

Johnson v. State, (Ms. 8 Div. 446) _—« So. 2d (Ala. Cr. App.

1986). After carefully and thoroughly considering the record of

trial, the Court of Criminal Appeals’ opinion, and the briefs and

arguments of the parties, we find no besis for reversal of the

judgment of the Court of Criminal Appeals.

AFFIRMED.

All the Justices concur.

FEB 5 1988

eee PL

APPENDIX "B"

THE STATE OF ALABAMA ~ JUDICIAL DEPARTMENT

THE ALABAMA COURT © CKIMINAL APPEALS

OCTOBER TRH, 1906-687

G6 Piv. 446

Anthony Feith Johnson

Vv.

Staie

Appeal from Morg.n Circuit Court

TAYLOR, JUDGE

Appellant, Anthony Keith Johnson, was indicted by the

June 1984 term of the Morga. County Grand Jury for the

intentional murder of Kenneth vantrell, during the course of

a robbery, in violation of §13A-5-40, Code 1975. The

indictment charged specifically that “Anthony Keith Johnson

= eS ee

..s @id intentionally cause the death of Kenneth Cantrell

by shooting him with a pist« " and that he “caused said

death during ... the course « attempting to commit a theft

of property of Kenneth Cant: 1) ... by the use of force

against the person of Kenr th Cantreli with intent to

overcome his physica) resis ance or physical power of

resistance ... .* Appellar was subsequently tried and

found quilty as charyed in tl indictment. A sentencing

hearing was held, at which the jury recommended § that

appellant be sentenced to life imprisonment without parole.

The trial court overrode the jury's recommendation and, on

November 8, 1985, sentenced a; ellant to death.

The record reveals that on the evening of March 11,

1984, the victim, Kenneth .antrell, and his wife, Nell

Cantrell, were at their home in Hartselle, Alabama. The

Cantrells had been in the jewe.ry business for 24 years and

at this time were conducting the business from their home.

Mrs. Cantrell received a phone call from a person

identifying himself as Bill Spears from Florence, Alabama,

and he asked to speak to Mr. Cantrell. He told Mr. Cantrell

that he would like to purchase some jewelry from him, and

they arranged a meeting a short time thereafter at the

Cantrell home. Mr. Cantrell was apparently suspicious of

the caller, because he asked his wife to hide his wallet and

bring him his .38 caliber pist»l.

When Mrs. Cantrell heard a knock at the door, which led

from cheir carport inte the combined living room and dining

room area of their home, ste went to answer it. She

observed that the man already had the storm door open, but

she had to onen the door to hear what he had to say. When

she opened the door she encountered a man between 45 and 50

years of age who identified simself as Bill Speers. She

noticed that he held one hand vehind his back and she asked

a

4

if he was concealing somethin He said that he was not and

showed her his hand.

At the same time he mot oned for another man who had

been hiding in the carport to vome forward. At this, the

man already at the door grabbe | Mrs. Cantrell, and the other

man, wearing a blue bandana over his face and brandishing 4

“real shiney” gun in his hand, announced “This is a holdup.*

Mrs. Cantrell, attempting to warn her husband, was able

to break free from the first nan who was holding her, run to

her husband and fall at his feet. As she lay at her

husband's feet she heard one of the men say, “Come on in,

Bubba, I have got him,* wnereupon Mr. Cantrell said,

*Freeze.... No we have got jou" and one of the men said,

"No, we have got you." Durirg this verbal exchange one of

the men fired at Mr. Cantrell); he returned fire and a short

gun battle ensued. Mrs. Cantrell lay motionless at her

husband's feet while this exchange occurred, only raising

her head up enough to notice that one man had on brown

boots. After a number of shcts were exchanged. there was 4

silence, and then Mr. Cantrell fired one last shot. When

this shot was fired she heard one of the intruders say,

"Oh", and then she heard the sound of shuffling feet, as if

one of the intruders was assisting the other in getting out

the door.

Mrs. Cantrell waited a moment after the intruders left,

looked up at her husband, noticed that he had blood all over

him and that she had blood all over her but that she was not

shot. She then called an ambulance and police to the scene.

Mr. Cantrell] sustaineu six gunshot wounds in the

exchange, three in the right side of his chest, one in the

left side of his chest, one on the back of his right arm,

and one to his right middle finger. The bullets which

—_ er

idl Dee ed eee ee Bee.) ae al

7

_ —— = — i=" —=-° -

struck him in the chest pass: d through his lungs anc the

seres arteries from the heart, causing rapid Geath.

On the evening of March 2, 1964, the day etter the

murder, appellant went to the home of David Lindsey, who wee

@ friend, in Newell, Alabam Appellant told Lindsey that

he had been shot. When Lit sey inquired as to whet hee

happened, appellant stated, “Well you know how it is wher

you have got the habit.” Aprellant toid Lindsey thet he

knew he had been to Vietnam ar asked if he knew @ medic oF

someone who could get the bul) +t out. Lindsey told hin that

he knew no one who could do trout.

At appellant's request, Lindsey, on the morning of

March 13, 1984, drove him to a motel in Oxford to meet Gene

Loyd. Lindsey testified that Loyd and appellant were giec

to see each other, and Loyd asked appellant where he hee

been. Appellant replied that he “had to get the heli out of

Hartselle." He said that he and some friends hed gone inte

a place to get some gold and that he had Dern shot

According to Lindsey, appellant stated, “I got shot. mut

got off a couple of rounds, and I believe | got thet son of

a bitch.” Lindsey returned home, where he hearc (thet ®&

murder had occurred in Hartselle, end he contected

authorities.

7 Appellant was arrested on March 14, 1984. @f The more

where he had been taken by Lindsey. A pair of brown boots

which appellant claimed to own, were found at the sone of

the arrest. A bullet wound was discovered in his beck, the’

wound was $0.5 inches from the ground when appelient wer

standing. A search warrant was obtained, and the Bulle’ wee

removed from his back.

It was discovered that Mr. Cantrell hed firec hie Fo&

brand revolver six times at the intruders. Most of the

shots were in an upward direction from the point where fe

-4-

was sitting on his couch. Tie revolver was loaded with .36

special C.C.1. Blazer cart: dges manufactured by Omark

industries. Four C.C.1. Blazer bullets were recovered from

objects which they had struck at the scene. One bullet

apparently passed through t e ceiling and could not be

found. One bullet passed t! ough a pane of glass on the

back door 46.375 inches frcem the ground. A search of

cardboard boxes and the wall i this bullet's path failed to

reveal the bullet. The four ©.C.I. Blazer bullets found at

the scene had the same numbe of lands and grooves as_ the

bullets test fired from Mr. Céentrell's R.G. revolver, but it

was impossible to definitely wake a determination that Mr.

Cantrell's revolver actually f:red the bullets.

The bullet whici was renoved from appellant's back was

a .38 special C.C.I. Blazer. ‘the bullet had the same number

of lands and grooves as those ‘test fired from Mr. Cantrell's

R.G. revolver and those found at the scene, but again, it

was impossible to make a definite determination that Mr.

Cantrell's revolver actually fired the bullet.

The bullet which was removed from appellant's back had

glass imbedded in its nose. Test comparisons of the glass

removed from the bullet and that found in the pane on the

back door, through which the unaccounted-for bullet had

passed, revealed that all of their physical properties

matched, with no measurable discrepancies. Based upon

F.B.I. statistical information, it was determined that only

3.8 out of 100 samples could have the same physical

properties, based -upon the refractive index test alone,

which was performed. a

I

Appellant contends that the trial court erred in

permitting the State to challenge juror Carrell for cause

over appellant's objection. Appellant argues that juror

Carre)1] was not unalterably oj; »osed to the death penalty and

that she was able to follow tl! ~- trial court's instruction as

to the law. He contends that shen the trial court permitted

the challenge for cause of -:ror Ca:rell it effectively

denied appellant a fair trial sinder the Sixth and Fourteenth

Amendments of the United States Constitution.

The most pertinent questivns posed to juror Carrell on

this issue by District Attorney, Mike Moebes, defense

attorney, Thomas Digiulian, ind the trial court and the

corresponding answers given by juror Carrell were as

follows:

"MR. MOEBES: Well, let's say if you

heard all of the evidence and the

testimony anu the witnesses and _ the

Judge's charge on the law and your oath,

if the evidence in this case proved to

you beyond a reasonable doubt and to a

moral certainty that the Defendant was

guilty as charged, would you return a

verdict of guilty?

"JUROR CARRELL: Well, I guess you would

almost have to.

“MR. MOEBES: Well, if one of the

punishments in this case for such an

offense is that of death by

electrocution --

“JUROR CARRELL: No, I couldn't do that.

“MR. MOEBES: You could not do it?

“JUROR CARRELL: No, I couldn't do that.

"MR. MOEBES: Under no circumstances

would you consider the punishment of

death by electrocution?

"JUROR CARRELL: No, sir. I couldn't do

that.

"MR. MOEBES: Anyone else?

(NO RESPONSE)

"MR. MOEBES: Then I take it, Mrs.

Carrell, that what you have said is that

you would not be willing to consider the

death penalty as provided by law in this

case, is that what you are saying?

“JUROR CARRELL: Electrocution. I mean

I just -- 1 just cannot -- I don't feel

like it is my plac> to put somebody

- ade

oO —— hUlCUh ee

else's life in my he ids. I mean just

-- my belief is we are not -- we are

just -- we are mnt suppose to take

another human being's life in our hands.

“MR. MOEBES: Mrs. Carrell, I am not

asking you to defer } your position. I

just want to know wlat your position is

now. Be truthful vith me and the Court

and the lawyers ove: there.

"JUROR CARRELL: 1 c szwldn't do it.

"MR. MOFRBES: That is what we want to

know, is how you teel about the death

penalty.

"JUROR CARRELL: I couldn't do it.

“MR. MOEBES: Then I take it, Mrs.

Carrell, that you feel that you would

never under any circumstances vote as 4a

juror for a death penalty?

"JUROR CARRELL: No, I wouldn't.

"MR. MOEBES: I take it that you would

refuse to apply the death penalty no

matter how strong the evidence and under

all circumstances in any case?

“JUROR CARRELL: That is right. i just

don't believe I coul< do it.

"MR. DIGIULIAN: ++. Now, I believe you

testified in response to Mr. Moebes that

you didn't think there would be any

circumstances under which you could

require someone to be put to death for

the commission of a crime, is that

correct?

"JUROR CARRELL: That is right.

“MR. DIGIULIAN: Now, is that based on

your religious beliefs?

"JUROR CARRELL: { feel like there

should be punishment, but I just don't

feel like I could say by death, you

know.

"MR. DIGIULIAN: Now, is that in this

case alone or any?

“JUROR CARRELL: I just don't think -- I

wouldn't want to have it on my neck --

on my heart and my hands that I did that

to somebody.

“MR. DIGIULIAN: ... AS jurors you would

be called on to do sour: vic duty in

this case if you are chosen to hear the

evidence end renéer a verdict in

accordance with your oath and

instructions from the Court and the

evidence that you hear. Now if you were

chosen as a4 juror ii this case, would

you be able as your ‘ivic duty to listen

to the evidence and “ollow your oath as

a juror, which we.ld require you to

consider the impos tion of the death

penalty in this case

"JUROR CARRELL: You know, that is hard

to answer. I am vel nervous, too. I 4

mean I have stated my feelings, you

know, and 1 just do::'t know. I mean 1

would have co follow the oath. I know

that. We need to -- we have got to have

laws, but still in .7 own heart I just

can't find where 1 could say death by

electrocution or, yu know, just death,

you know. It would eally bother me.

"MR. DIGIULIAN: Bt then that is a

serious thing to hav. to do, isn't it?

"JUROR CARRELL: Thal is right.

“MR. DIGIULIAN: It should bother

everybody, shouldn't it?

“JUROR CARRELL: That is right.

“MR. DIGIULIAN: Bit you would’ follow

your oath, would you not?

“JUROR CARRELL: Yes, I would follow it.

“MR. DIGLULIAN: Following your oath and

consider the death oenalty in this case

-- you would follow your oath, would you

not? Don't make m2 put words in your

mouth. Answer from ,our heart.

“JUROR CARRELL: I guess that -- now

explain a little bit about following the

oath. To me that means -- see, lots of

this is new to me. This is my firt

experience as a j-ror or to be in a

courtroom or anything, and I am very

nervous. I want to do the right thing,

and I know there are others involved and

that the other family is involved, too,

in this, but still --

"MR. DIGIULIAN: Ma'am, you --

"JUROR CARRELI.: 1 don't know. I --

could I just say it would be hard for me

to say until I amin that situation

--really there in that area. When

it is like this sit ‘ion is with me,

and as many people as we have to pick

from with people feeling in their hearts

like I do, why wou] we even have to do

that Why were we ut in a position to

make this choice.

"MR. DIGIULIAN: .. In your oath as a

juror it provides thut you will well and

truly try all issves which may be

submitted to you and true verdicts

render according to ‘he evidence. That

is your oath. Ia not trying to put

you on the spot. . want to know what

you think.

“JUROR CARRELL: I would have to really

-- 1 mean my feelings would -- 1 would

have to follow my oath. I would have to

do what I felt right, you know.

"MR. DIGIULIAN: In the event that you

were call..i to be a juror in the trial

of the murder of a child, and that is

not the case here, but maybe it is a

brutal murder and the chiid was maybe

tortured, would you then consider the

death penalty under those kind of

circumstances?

“JUROR CARRELL: Well, can I answer like

this? I know there has to be

punishment, but there again it would be

hard for me to say yes, death, you know.

I just fee) like we are not -- I don't

have that person's life in my hands to

judge, and I know now being a juror we

are to judge, but I guess that is the

reason I said -- I am a strong believer

in my religion, you know, and 1 _ know

that we are not supp2sed to take lives.

"MR. DIGIULIAN: But you would’ follow

your oath as a juror?

"JUROR CARRELL: I would have to follow

my oath.

"MR. DIGIULIAN: And you would discharge

your duty even thoug4 it would be hard.

"JUROR CARRELL: It would be hard, but—I

would have to follow my oath.

"MR. MOEBES: If ;ou were chosen as a

juror in the trial of this case, would

your views on capital punishment prevent

or substantially impair the performance

of your duties as a juror in accordance

with your instructions and oath? That

is either prevent or substantially

impair.

“JUROR CARRELL: it would probably

prevent.

"MR. MOEBES: In your opinion it would

prevent it?

“JUROR CARRELL: Uh - huh.

“THE COURT: Mrs. Ce rell, can you think

of any case that yu would impose the

death penalty in? Just answer me, can

you or can't you?

“JUROR CARRELL: No.

“THE COURT: Is your belief based on

your religious convictions that you

shouldn't kill another human being under

any circumstances?

"JUROR CARRELL: That is right. It is

besed on that.”

In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844,

83 L.Ed.2a@ 841 (1985), the Supreme Court reaffirmed and

again set forth the proper standard for determining when a4

prospective juror may be excluded for cause because of his

or her views on capital punishwent. The standard, as stated

by the Court, is “whether the juror's views would prevent or

substantially impair the pe:formance of his duties as 4a

juror in accordance with his instructions and his oath.”

The Court went on to note that the juror's bias need not be

proved with “unmistakable cl:rity,” and in discussing its

reasoning stated:

"This is because determinations of juror

bias cannot be reduced to question-and-

answer sessions whicn obtain results in

the manner of a catechism. What common

sense should have cealized experienc.

has proved: many venizremen simply cannot

be asked enough questions to reach the

point where their cias has been made

unmistakably clear; these veniremen may

not know how they will react when faced

with imposing the desth sentence, oi may

be unable to articul:te, or may wish to

hide their true feelings. Despite this

lack of clarity in «he printed record,

however, there will be situations where

the trial judge is left with the

definite impression that a prospective

juror would be unabie to faithfully and

impartially apply th law. For reasons

-10-

that will be more fu'ly developed infra,

this is why deferen:e must be pa to

the trial judge whe sees and h urs the

juror."

Wainwright v. Witt, supra, 4 9 U.S. at , 105, S.Ct. at

R52-53.

From the record, as set forth above, it is apparent

that juror Carrell vacillatec in her answers regarding her

ability to fulfill her oath. Her final response on the

issue, when asked whether her views would either prevent or

substantially impair the performance of her duties in

accordance with the trial cour:'s instructions and her oath,

was that “It would probably prevent." In view of this

statement and the cumulative «ffect of her other reponses,

we find that juror Carre)] si: ficiently indicated that her

bias towards the death peneity would indeed prevent the

performance of her duties «#«s a juror in this case.

Accordingly, we find that the trial court committed no error

in permitting the State to chaJlenge juror Carrell for

cause.

If

The appellant contends that the trial court erred when

it refused to instruct the jury that they could not consider

the theft (by the use of force) allegation in the capital

murder indictment as an aggravating circumstance in the

penalty phase of the trial. The appellant cites Keller v.

State, 380 So.2d 926 (Ala.Cr.App 1979), cert. denied, 380

So.2d 938 (Ala. 1980), and Bufford v. State, %62 So.2d 1162

(Ala.Cr.App.) cert. denied, 382 So.2d 1175 (Ala. 1980), in

support of this argument. The triai court, in refusing this

charge, orrectly noted that this line of cases was

overruled by Kyser v. State, 399 So.2d 330 (Ala. 1981). See

also Dobard v. tate, 435 So.2d 1338 (Ala.Cr.App. 1982),

affirmed, 435 So.c<d 1351 (Ala. 1983), cert. denied, 464 U.S.

1063, 104 6.Ct. 745, 79 L.Ed.2d 203 (1984).

Ste

Furthermore, $§13A-5-50, ode of Alabama 1975, entitled

Consideration of Aggravatinc Circumstances in Sentence

Determination, provides as follows:

"The fact that « particular capital

offense as defined in section 13A-5-

40(a) necessarily i cludes one or more

aggrav»ting circums ances as_ specified

in section 13A-5 49 shall not be

construed to preclue the finding and

consideration of that relevant

circumstance or circumstances in

determining sentence. By way of

illustration and nt limitation, the

aggravating circumsiance specified in

section 13A-5-49(4) shal. be ‘ound and

considered in dete. mining sentence in

every case in which a defendant is

convicted of the capital offenses

defined in subdivisions (1) through (4)

of subsection (a) of section 13A-5-40."

Pursuant to this code provisi.n and the decisions in Kyzer,

supra, and Dobard, supra, ve can find no basis for the

appellant's contention that :his charge should have been

given. Accordingly, we find that the trial court committed

no error in refusing the reque:ited charge.

II

Appellant contends that the trial court erred in

refusing his motions for judgment of acquittal on the

grounds that there was no proof that he was in Morgan

County, where the murder was committed, and no proof that

the gun which he possessed at the time he was arrested was

used in the shooting.

Cvutrary to appellant's contention that there was no

proof he was in Morgan County when the murder was committed,

we find that considerable evidence was presented on this

issue. According to the testimony of David Lindsey,

appellant, by his own admission stated that he had been in

Hartselle, that he was involve:| in a robbery, that he had

been shot, and that he believsd he had a shot the man who

shot him. There was also considerable additional

«iq

circumstantial evidence, as ée ready set forth above, which

placed appellant at the scene f the crime.

We note that the jury was fully informed that a pistol

which was found in appelle.t's possession when he was

arrested was not the murder «:apon and that they apparently

accorded this fact little weic t. The jury apparently did

not find it unusual that the appellant no longer had _ the

murder weapon in his possess on when he was arrested some

three days after the murder wa: committed.

In Cumbo v. State, 368 so.2d 871 (Ala.Cr.App. 1978),

cert. denied, 368 So.2d 877 (Aa. 1979), this court stated:

“In reviewing a cunviction based on

circumstantial evidence, this court must

view that evidence in the light most

favorable to the prosecution. The test

to be applied is whether the jury might

reasonably find that the evidence

excluded every reusonable hypothesis

except that of guilt; mot whether such

evidence excludes every reasonable

hypothesis but guilt, but whether a jury

might reasonably so conclude."

(Citations omitted. )

See also Daniels v. State, (Ms. 1 Div. 92, Nov. 16, 1985]

So.2d w= (Ala.Cr. App. 1985).

Viewing the State's evidence by this principle we find

that the evidence was more thas sufficient to allow the jury

to reasonably conclude that the evidence excluded every

reasonable hypothesis except that of guilt. Accordingly, we

find that the trial court did not err in denying appellant's

motion for judgment of acquittal.

Iv

Appellant, finally, contends that the trial court erred

when it refused to strike intormation from a pre-sentence

report indicating that marijvana was found at the scene

where the defendant was arrested. When appellant requested

that this information be stricken from the report, the trial

court replied, “I won't striks it, but I won't consider it

as being [an] aggravating circumstance." The sentencing

ef Fq

order reveais that Lhe trie court, in fact, did not

consider this information in ronouncing sentence upon the

appellant.

In a most relevant portic.: of Thompson v. State, [Ms. 6

Div. 799, April 8, 1986) _ So.2d_ (Ala.Cr.App.

1986), this Court found as fo] ows:

“The appellant contends that the

inclusion in the pre-sentence report's

criminal history section of charges that

had not resulted =. convictions was

reversible error. However, Rule 3

(b)(2), Alabama ‘Ivemporary Rules of

Criminal Procedure, specifies that the

pre-sentence report may contain the

‘defendant's prior criminal and juvenile

record, if any." It is clear that the

inclusion of charges that did not result

in convictions is proper because the

Rule allows for juvenile charges to be

included. It is well settled that

juvenile charges, even those that result

in an adjudication vf guilt, are not

convictions and may not be used to

enhance punishment. See Baldwin v.

State, 456 So.2d 117, 125 (Ala.Crim.App.

1963), aff'd, 456 So.2d 129 (Ala. 1984),

aff'd, U.S. ____, 105 S.Ct. 2727,

L.Ed.2d ad 9 (1985). The

inclusion of the charges in no way

prejudiced the appellant. The trial

judge did consider some of the charges

listed, but only those which had

resulted in convictiuns.”

From the above, it is apparent that the mere presence of

information in the pre-sentence report which should not be

considered for the purpose of enhancing punishment is not,

per se, prejudicial. In sentencing the appellant, the trial

court in the instant case did not consider the portion of

the report which indicated that marijuana was found at the

scene. Consequently, we find that although this information

was not stricken from the report as requested, it in no way

prejudiced the appellant.

Vv

As required by §13A-5-53(a), Code of Alabama 1975, this

court reviews the propriety of the imposition of the death

-8@e

penalty in this case. ur review must include a

determination of the following questions:

(1) Was any error dversely affecting

the rights of the d:fendant made in the

sentence proceedings

(2) Were the tria court's findings

concerning the aggravating and

mitigating circumst:nces supported by

the evidence?

(3) Was the death penalty the proper

sentence in this cas:?

As to the first question, we have reviewed the sentence

proceedings and have found no .rror adversely affecting the

defendant's rights. As to the second question, we have

reviewed the record and are satisfied that the trial court's

written findings concerning tne aggravating and mitigating

circumstances are fully supported by the evidence.

To answer the third question, whether the death penalty

was properly imposed in this case, we must determine:

"(1) Whether the sentence of death

was imposed under the influence of

passion, prejudice, or any other

arbitrary factor;

"(2) Whethe- an independent

weighing of the aggravating and

mitigating circumstances at the

appellate level indicates that death was

the proper sentence; and

"(3) Whether tne sentence of death

is excessive or disproportionate tc the

penalty imposed i similar cases,

considering both -:he crime and the

defendant."

Code of Alabama 1975, §13A-5-33(b); see also Beck v. State,

396 So.2d 645 (Ala. 1960).

There is nothing in the record before us which even

intimates that the death penalty was imposed under the

influence of passion, prejudice, or any other arbitrary

factor.

Our independent weighiig of the aggravating and

mitigating circumstances lea'es us with no doubt that the

death penalty was appropriate in this case. We find that

-15-

there were two statutory aggravating circumstances in this

case, as provided by §13A-5-4%(1) and (4), Code of Alabama

1975. Those were that appellai:.t commiti.d the offense while

he was under a sentence of imprisonment and that the capital

offense .as comaitted during *ae course of a robbery. We

further find thet there wre no statutory mitigating

circumstances, as provided by §13A-5-51, Code of Alabama

1975. Finding none of che nonstatutory mitigating

circumstances raised by app lilant to have merit, we

determine that the aggravating circumstances clearly

outweigh the mitigating circ .mstances and that the death

penalty was appropriate in thi; case.

In regard to the final ‘etermination this court must

make, we find that the de:th penalty imposed on the

cefendant is mot excessive or disproportionate to the

penalty imposed in similar cases. See, e.g., Hamilton v.

State, (Ms. 8 Div. 421, September 9, 1986] —— —- So. 2d

(Ala. Cr. App. 1986): Thomis v. State, 460 So.2d 207

(Ala.Cr.App. 1983), affirmed. 460 So.2d 216 (Ala. 1984);

Singleton v. State, 465 So 2d 432 (Ala.Cr.App. 1983),

affirmed, 465 So.2d 443 (Ala. 1985); Bush v. State, 431

So.2d 555 (Ala.Cr.App. 1982) affirmed, 431 So.2d 563 (Ala.),

cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175

(1983); Jacobs v. State, 361 So.2d 607 (Ala.Cr.App. 1977),

affirmed, 361 So.2d 640 (Ala: 1978), cert. denied, 439 U.S.

1122, 99 S.Ct. 1034, 59 L.Ed.2qa 83 (1979).

As required by Rule 45A, A.R.A.P., we have searched the

record for any plain error or defect in the proceedings

below, which may or may not have been brought to the

attention of the trial court, which might adversely affect

the substantial rights of the appellant. In doing so we

discover that the appellant objected to the introduction of

the bullet whica was removed from his back.

o86-

‘

t

The bu!tlet was removed from appellant's back pursuant

to a search warrant issued by the Circuit Court of Morgan

County. Appellant, after the -arrant was issued, petitioned

this court for a writ of prohivition, which we denied in Ex

parte Johnson, 452 So.2d 888 :Ala.Cr.App. 1984). While the

appellant did not raise it o., appeal, we believe that we

should address any effect of Winston v. Lee, 470 U.S. 753,

36035 8.Ct. 1611, 84 L.Ed.2d 662 (1985), upon our decision to

allow the surgical removal] of the bullet, as the direct

consequence of that decision was the introduction of the

bullet at trial.

In Winston, a shopkee»ver was wounded during an

_attempted robbery, but, being armed himself, was apparently

able to wound his assailant in the left side before he fled.

Lee was found eight blocks from the scene suffering from a

gunshot wound to his left ches~.

The Commonwealth of Virgiiiia moved in state court for

an order directing Lee to undergo surgery to remove the

bullet, asserting that the bullet would provide evidence of

Lee's guilt or innocence. As a result of expert testimony,

which indicated that the surgery would require an _ incision

of only 1/2 inch, and would be performed under local

anesthesia without incurring the dangers of general

anesthesia, the trial court granted the motion to compel Lee

to undergo surgery. The Virginia Supreme Court, thereafter,

denied Lee's petition for a writ ot prohibition. Lee then

attempted to have the operation enjoined by bringing an

action, based on Fourth Ameniment grounds, in the United

States District Court tor the astern District of Virginia.

That court refused to issue an ifijunction.

Just prior to surgei,, nowever, X-rays revealed that

the bullet was, in fact, substintially deeper in Lee's chest

than earlier believed, and :he surgeon determined that

«89a

general anesthesia would be

rehearing, which was denicd

denial was affirmed by the Vir

returned to the federal dist:

evidentiary hearing,

Appeals for the Fourth Circu

States Supreme Court granted c

a State could compel a susp

surgery in a search for eviden

The Supreme Court stated

surgical

case approach, in whicn th

privacy and security are weigh:

in conducting the procedur::

discussing the risks associate:

noted that one surgeon had

difficulty of discovering the

extensive probing and retractiig of

be required, which could lead |

vessels, and nerves. The Court

which indicated

cavity and the larger incisions

risk of infection. The Court

Lee would be required to unde

found that "([t)his kind

divestment

probing beneath his skin."

enjoine:!

that the greute.

needed.

y t he tr ial

the surgery

aftirmed,

rtiorari

*t to underg

se of a

tc

crime.

that “[t]lhe reas

intrusions beneath tie skin

depends

individual '

dg against

” The

with the

testified

exact l

o injury

}

the

S

Suprer

SU

also noted

‘

cati

required wi

also address

rgo general

of surgery

In examining the other part of t

interest in conducting the proc

arguments of a compelling ne

persuasive. The Court notec

available to it substantial adc

the individual who accosted the shopkeeper

= 18~

edure,

ed for

that

itional

he

¥

intrusior

invc

tne

of respondent's ordinary control

mea

evider

wn

fn

*

the robbery. The Court went on to aftirm the decision of

the district court prohibitin the surgical removal of the

bullet.

We believe that the inst nt case can be distinguished

from Winston. Here, there w:s competent medical testimony

which established tha* the o»ullet was lodged in fatty

tissue, just beneath the skin in the area of the shoulder

blade; that surgery would be minor and would be performed

with local anesthetic; and t at practically no danger to

life or health would be presented by the surgery. Due to

the almost non-existent risk vf danger to appellant as a

result of the surgery and the potential value of the bullet

to the State's case, we find “hat the appellant's interest

in privacy and security did not outweigh socicty's interest

in conducting the procedure. Therefore, we reaffirm our

decision in Ex parte Johnson, supra, which permitted the

surgical removal of the bullet, and we find that the buliet

was properly introduced into evidence at trial.

A further review of the cecord pursuant to Rule 45A,

A.R.A.P., reveals no other issve which might adversely

affect the rights of the defendant. We, therefore, find

thet the judgment of the trial court is due to be affirmed.

AFFIRMED.

ALL THE JUDGES CONCUR.

-19-

. es q APPENDIX “cr ; en ee eh ae

ADDER DUM

= -

IN THE CIRCULT COURT OF MsRGAN COUNTY, ALABAMA

STATI. OF ALABAMA, }

PLAINTIFF ;

: “ss =O. :

- cuca 7» CASE NO. CCE64-0331

ANTHONY KEITH JOUNSON,

DEFENDANT B> bi Ooo

DETERMLNATION OF ! ¥YIENCE BY COURT

_A3A-5-47, CODE ( ALABAMA 1975 —

—

The senlencing hearing in this case has been conducted,

the jury has returned an advisury verdict and the Court now

proceeds to determine the sentence

The Court has previously ordered a pre-sentence investigation

report which has been filed contasuing the information prescribed

by law for feleny cases. he Court requester no specific

additional information. None of che report vas hept confidential

and a hearing has been held in open court to afford both

sides an opportunity lo respond to the pre-sentence report and

present <:y evidence about any portion of it that wight be

subject to factual dispute. This | caring has been recorded by

the Reporter.

At the conclusion of the hea: ing the Court afforded each

side an opportunily Lo present arytnents concerning the existence

of apyravatin, and mitigating cireumstances. The order of the

argument was the sawe as at the t: iw? of a case.

-20-

The Court now proceeds to en er specific written findings

concerning the existence or non-e: istence of each aggravating

circumstance enumerated in Sectior 1%4A-5-49, Code of Alabama 1975.

Apgravating ( ircumstances

The Court finds beyond 4 1vas+nable doubt the aggravating

circumstance defined in 13A-5-49(1) EXISTS in this case in

that the capital offense was commi,: ted by a person under

sentence of imprisonment.

2. The aggravating circumsta-ce defined in Section 13A-5-49(2)

DOES NOT EXIST and no evidence in ;upport of such an aggravating

circumstance was offered.

3. The aggravating circumstance defined in Section 13A-5-49(3)

DOES NOT EXIST and no evidence in support of such an aggravating

circumstance was offered.

4. ‘The Court finds beyond a 1casonable doubt that the

agyravaling circumstance defined i: Section i 1A-5-49(4) EXISTS

in this case by reason that the capital offense was committed

while the defendant was engaged in the commission of a robbery.

5. The aggravating circumstan:e defined in Section 13A-5-49(5)

DOES NOT EXIST and no evidence in +: apport of such an aggravating

circumstance was offered.

6 The aggravating circumstan.: defined in Section 13A-5-49(6)

DOES NOT EXIST and no evidence in support such an aggravating

circumstance was offered.

«2 i-

——p ee Ue

De ad ie aii

-”

7. The aggravating circumetiice defined in Section 13A-5-49(7)

DOES NOT EXIST and no evidence in support of such an aggravating

circumstance was offered.

6. The aggravating circumsts ice defined in Section 13A-5-49(8)

WOES NOT EXIST and no evidence in support of such an aggravating

circumstance was offered.

Mitigating Circumst neces - Generally

1. The Court finds that the mitigating circumstance

defined in 13A-5-51 DOES NOT EXIST in that the defendant

does have a significant history of prior criminal activity.

2. The mitigating circumstance defined in 13A-5-51(2)

DOES NOT EXIST in that the capita] offense was not committed

while the defendant was under the influence of extreme mental

or ewotional disturbance.

3. The mitigating circumstance de ined in 13A-5-51(3)

DOES NOT EXIST in that the victim vas nt a participant in

the defendant's conduct and did not consent tc it.

4. The mitigating circumstance defined in 13A-5-51(4)

DOES NOT EXIST. The defendant was an accomplice in the

capital offense committed, but the evidence does not clearly

demonstrate that it was “committed wy another person." Whether

the defendant actually fired a [uta; shot or not, his participation

cannot be considered relatively minor. His participation was

substantial and critical.

sities . \ -

5. The mitigati | circumstan e defined i; .3A-5-51(5)

DOES NOT talST in that the record does not reflect that the

defendant was under extreme duress or under the substantia)

domination of another person.

6. The mitigating circumstance defined in 13A-5-51(6)

DOES NOT EXIST in that there is mo substantial evidence before

the Court that the capacity of the defendant to appreciate

the criminality of his conduct or «inform his conduct to the

requirements of law was substantialiy impaired. Defendant

argues that he had a dope habit, bt there is no evidence

that he was under the influence of any drug which impaired

his responsibility at the time cf :ie murder. The evidence

reflects that his actions before, uring and after the crime

were calculated and completely subj +:t to his control.

7. The mitigating circumstance defined in 13A-5-51(7)

DOES NOT EXIST in that the «we of ie ¢ fendant at the time

the crime was committed was 27 year.

The Court has addressed ai! of the statutory mitigating

circumstances although the defenuar’. only argued those enumerated

in (1), (4), (6) and (7) of Sectior, 13A-5-51, © le of Alabama 1975.

Consideratiun of Defenda.t's Character Record

_ Section 13A-5-52, Coce of Alabama 1975 _

In addition to the mitigating « ircumstances specified

in Section 13A-5-51, the Court has considered all aspects of

defendant's character of record and the circumstances of the

offense which the defendant has of! red as a basis for a

sentence of life imprisonment with t parole instead of

death. The Court further invited 1 .e defendant to direct

the Court's attention to any other elevant mitigating

circumstances from any source. The Court finds that there

are some statements in the pre-sen! nce report and some other

aspects of the case that have certi (n witigating aspects to

them. These were considered.

Consideration of tt: Jury's Verdict

The Court has independently we ghed the jury's verdict,

which was for life imprisonment without parole, and considers

it an aspect of mitigation, separate and apart and in addition

to the mitigating circumstances provided by Section 13A-5-51l,

Section 13A-5-352.

Weighing of Aggravating and 'itigating Circumstances

__Section 13A-5-46, Codv of Alabama 1975

The Court now proceeds to weigh the aggravating and mitigating

circumstances to determine the apprupriate sentence under the law.

The Court has not merely tallied fe) the purpose of numerical

comparison the aggravating and mitiyating circumstances, but has

marshaled and considered in organized fashion, for the purpose of

determining the proper sentence, al! of the circumstances in this

case whether aggravating or mitigating, including a]l relevant

mitigating circumstances whether ci.umerated in the criminal code

or net, including the jury's recome.ndation.

The Court find: he appravat nov circumst. .ces are substantial

and contre !iing. ‘The mitigating ircumstances (other than the

jury's recoumendation) can be ford only by a strained

search and are deemed insubstanti.] by the Court in the face

of the evidence which dewonstrate a vicious killing of a

man in what should have been the wiet repose and safety of

his own home.

The Court sentences the def+ dant, after allocution, to

death by electrocution on a date .o be fixed by the Supreme

Court of this State after disposi.ion of the automatic appeals

provided for by law. The Sherifi shai) immediately transfer

the defendant to the custody of t e Director ef Corrections

and Institutions who shali-execut: the following judgment of

the Court:

On this date the defendant w.: brought before the Court

for the purpose of imposing sentence. He was accompanied by

his attorneys of record. As reflected by the previous orders

and judgments of this Court, the defendant has been tried by

a jury and found guilty of the cajital offense charged in the

indictment. He has been afforded 2 sentencing hearing at which

the jury recommended the puni.vime:.t at life imprisonment without

parole by a vote of 9 to 3. Defer dant has been afforded all

other hearings provided by law, ii :luding the challenge of the

pre-sentence report, and othe: hes:ings as are evidenced by

written findings of fact of recorc in this case.

The defendant, Anthony Keith Jotinson, being asked by the

Court if he had anything to say wa: the judgment of the Court

and sentence of the law should m, be pronounced against him

replied, NOTHING

It is now considered by the : ourt and it is its judgment,

after weighing of all of the agpruvating and mitigating circumstances,

including the verdict of the jury that the defendant is guiity

as charged in the indictment of the offense of capital murder

and the Court hereby fixes his punishment at death by electrocution.

It is, therefore,

ORDERED AND ADJUDGED that th: Sheriff of Morgan County,

Alabama iuanediately deliver the defendant, Anthc.y Keith Johnson,

into the custody of the Director ci the Department of Corrections

and Institutions, there to be safeiy kepr by said Director until

a date is fixed by the Supreme (©. t of the State of Alabama for

the execution of this judgment «iter an exhaustion of defendant's

appeals.

On that date and at such time fixed by the Supreme Court of

this State, the designated executivner shall], at the proper place

for the execution of one sencrenced to suffer death by electrocution,

cause a current of electricity of sufficient intensity to cause

death to pass through the body of the said Anthony Keith Johnson

until he is dead.

The Court Reporter shall imvesiately prepare a transcript of

all of the evidentiary proceedings held in this case and the Clerk

-26-

shall prepare the record proper.

commence this date.

This the 8th day of

The appellate process shall

> vember , 1985.

’ Y> Citcuit Judge

-27-

|

7

§ 13A-5-44

eut in criminal case

| lesser penalty. |

‘Tr; sentencing.

guilty to it, but

capital offense

e considered in

The guilty plea

\ the proceeding

ce. A defendant

ll be sentenced

Yo. 81-178, § 4.)

| Law, $8 484, 495;

$$ 125, 1170-1172

endant; lesser

| the admissible

nt. It shall then

onse or offenses

nses considered

or offenses with

ense or offenses

be discharged.

or offenses with

‘ense or offenses

jetermined and

nses with which

ded in sections

} L121, 1115, 1173

endant of jury

hall include the

rocedures speci-

rial of a capital

Pm

APPENDIX "“D"

§ 13A-5-45 PUNIS) MENTS AND SENTENCES $ 13A-5-45

(c) Notwithstanding any other provision of law, the defendant with the

consent of the state and with the approval! of the court may waive the participa-

tion of a jury in the sentence hearing provided in section 13A-5-46. Provided,

however, before any such waiver is valid, it must affirmatively appear in the

record that the defendant himself has freely waived his right to the participa-

tion of a jury in the sentence proceeding, after having been expressly informed

of such right. (Acts 1981, No. 81-178, § 6.)

—

Collateral references. — 50 C.J.S., Juries,

$ 86

47 Am, Jur. 2d, Jury, $§ 7, 12, 72, 159

—_—

§ 13A- Sentence hearing — Delay; statements and arguments;

admissibility of evidence; burden of proof; mitigating and

™ aggravating circumstances.

(a) Upon conviction of a defendant for a capital offense, the trial court shal!

conduct a separate sentence hearing to determine whether the defendant shal!

be sentenced to life imprisonment without parole or to death. The sentence

hearing shall be conducted as soon as practicable after the defendant is

convicted. Provided, however, if the sentence hearing is to be conducted before

the trial judge without a jury or before the trial judge and a jury other than the

trial jury, as provided elsewhere in this article, the trial court with the consent

of both parties may delay the sentence hearing until it has received the

pre-sentence investigation report specified in section 13A-5-47(b). Otherwise,

the sentence hearing shal! not be delayed pending receipt of the pre-sentence

investigation report.

(b) The state and the defendant shal! be allowed to make opening statements

and closing arguments at the sentence hearing. The order of those statements

and arguments and the order of presentation of the evidence shal! be the same

as at trial.

(c) At the sentence hearing evidence may be presented as to any matter that

the court deems relevant to sentence and shal! include any matters relating to

the aggravating and mitigating circumstances referred to in sections 13A-5-49,

13A-5-51 and 13A-5-52. Evidence presented at the trial of the case may be

considered insofar as it is relevant to the aggravating and mitigating circum-

stances without the necessity of re-introducing that evidence at the sentence

hearing, unless the sentence hearing is conducted before a jury other than the

one before which the defendant was tried.

(d) Any evidence which has probative value and is relevant to sentence shall

be received at the sentence hearing regardless of its admissibility under the

exclusionary rules of evidence, provided that the defendant is accorded a fair

opportunity to rebut any hearsay statements. This subsection shall not be

construed to authorize the introduction of any evidence secured in violation of

the Constitution of the United States or the state of Alabama.

(e) At the sentence hearing the state shall have the burden of proving

beyond a reasonable doubt the existence of any aggravating circumstances.

123

VE akon > ene

§ 13A-5-45

CRIMINAL CODE

§ 13A-5-45

Provided, however, any aggravating circumstance which the verdict convicting

the defendant establishes was proven beyond a reasonable doubt at trial shal]

be considered as proven beyond a reasonable doubt for purposes of the sentence

hearing.

() Unless at least one aggravating circumstance

as defined in section

13A-5-49 exists, the sentence shall be life imprisonment without parole.

(g) The defendant shall be

allowed to offer any mitigating circumstance

defined in sections 13A-5-51 and 13A-5-52. When the factual existence of an

offered mitigating circumstance is in dispute, the defendant shall have the

burden of interjecting the issue, but once it is interjected the state shal! have

the burden of disproving

the factual existence of that circumstance by a

preponderance of the evidence. (Acts 1981, No. 81-178, § 7.)

1. General Consideration

il. Decisions Under Prior Law

lL. GENERAL CONSIDERATION.

But the trial court need not be concerned

with whether certain evidence would be

admissible under the exclusionary rules of

evidence. If the evidence has probative valu it

may be received, provided the defendant is

accorded a fair opportunity to rebut any

hearsay statements. Johnson v. State, 399 So

2d 859 (Ala. Crim. App. 1979), aff'd in part and

rev'd in part, 399 So. 2d 873 (Ala. 1981)

The trial court is not obligated to do more

than provide a fair opportunity for

rebuttal. Where the record indicates that the

defendant was given sufficient opportunity to

rebut any hearsay statements made at the

sentencing , there is no error. Johnson

v. State, 399 So. 2d 859 (Als. Crim App. 1979),

aff'd in part and rev'd in part, 399 So. 2d 873

(Ala. 1981)

Cited in Morrison v. State, 398 So. 2d 730

(Aia. Crim. App. 1979); Julius v. State, 407 So

2d 141 (Ala. Crim. App. 1980); Watkins v

State, 409 So. 2d 901 (Ala. Crim App. 1981)

Collateral references. — 24 C.J.S., Crim-

inal Law, $§ 1573-1576

21 Am. Jur. 2d, Criminal Law, § 527

Right of court to hear evidence for purpose of

determining to be imposed. 77 ALR

1211

ll. DECISIONS UNDER PRIOR LAW.

Editor's note. — In light of the similarity of

the provisions, decisions under former

$ 13A-5-32 are included in the annotations for

this section

124

Sentencing process must conform with

due process. — The sentencing hearing must

not be # constitutional facade; though the

burden of establishing mitigating circum.

stances must realistically rest with the defen-

dant, this does r >t relieve the trial court from

the requirement of due process in the

sentencing hearing. Richardson v. State, 376

So. 2d 206 (Ala. Crim. App. 1978), aff'd, 376 So.

2d 228 (Ala. 1979)

And exclusionary rules of evidence do

not apply. — The sentencing hearing is a due

process hearing of the highest magnitude and

the exclusionary rules of evidence play no part.

The trial evidence must be reviewed to deter-

mine all of the aggravating circumstances

leading up to and culminating in the death of

the victim and then all the mitigating circum-

stances must be considered in determining if

any outweigh the aggravating circumstances so

found in the trial court's findings of fact

Richardson v. State, 376 So. 2d 206 (Ale. Crim

App. 1978), aff'd, 376 So. 2d 228 (Ala. 1979)

Alabama's sentencing scheme in death cases

broadly allows the accused to present evidence

of mitigating circumstances. Jacobs v. State,

361 So. 2d 640 (Ala. 1978), cert. denied, 439

U.S. 1122, 99 S. Ct. 1034, 59 L. Ed. 2d 82 (1979),

overruled on other grounds, Beck v. State, 396

So. 2d 645 (Ala. 1980)

Alab 's sent ng process in death cases

permits consideration of the character and rec-

ord of the individual offender and the circum-

stances of the particular offense as &

constitutionally indispensable part of the pro-

cess of inflicting the penalty of death. Jacobe v

State, 361 So. 2d 640 (Ale. 1978), cert. denied,

439 U.S. 1122, 99 S. Ct. 1034, 59 L. Ed. 2d 82

(1979), overruled on other grounds, Beck v.

State, 396 So. 2d 645 (Ala. 1980)

And section does not y

confer right to commute upon judge. — The

atitr ti llw

§ 13A-5-45 $ 13A-5-46

ct convicting

at trial shal)

the sentence

death penalty statute does not violate the Con-

stitution by conferring upon the trial judge the

right to tea t of death. Beck v

State, 365 So. 2d 985 (Ala. Crim. App.), aff'd,

365 So. 2d 1006 (Ala. 1978), rev'd on other

grounds, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed

2d 392, on remand, 396 So. 2d 645 (Ala. 1980)

Court not restricted to statutory

mitigating factors. — The sentencing court

considered evidence as to any matter that the

court deemed relevant to sentence, and was not

to those mitigating factors

statutorily defined. Kyzer v. State, 399 So. 2d

317 (Ala. Crim. App. 1979), rev'd on other

grounds, 399 So. 2d 330 (Ala. 1981)

But the only aggraveting circumstances

which may be considered under the capita!

felony statute relating to a defendant's prior

criminal history are set out in the statute

Keller v. State, 380 So. 2d 926 (Ala. Crim. App

i in section

parole

ircumstance

stence of an

Ul have the

> shall have

itance by a

onform with

PUNISHMENTS AND SENTENCES

§ 13A-5-46

proper aggravating circumstances, but likewie+

based sentence on one or more improper

aggravating circumstances, remandment to

trial court for new sentencing hearing should be

mandated by appellate court finding

vating circumstances improper. Bufford

¥ te, 382 So. 2d 1162 (Ala. Crim. App.), cert

denied, 382 So. 2d 1175 (Ala. 1980)

Crime charged in indictment cannot be

used as both criminal charge and circum.

stances aggravating that charge. Keller v

State, 380 So. 2d 926 (Ala. Crim. App. 1979),

cert denied, 380 So. 2d 938 (Ala. 1980)

Options in sentencing. — In any case in

which the jury finds the defendant guilty and

imposes the death sentence, the trial court is

required to hold a presentence hearing to deter.

mine whether to sentence the defendant to

death or to life imprisonment without parole.

these are the only options for the sentencing

1979), cert. denied, 380 So. 2d 938 (Ala. 1980)

Remand for new hearing where

authority. Evans v. Britton, 472 F. Supp. 707

hearing must (S.D. Ala. 1979), rev'd on other grounds, 628

though the improper aggravating circumstances F 2d 400 (5th Cir 1980)

iting circum- found. — Where tria! court found one or more

ith the defen-

ial court from .

cess in the § 13A-5-46. Same — Conducted before jury unless waived; trial jury to

v. State, 376

sit for unless impossible or impracticable; separation of

jury; instructions to jury; advisory verdicts; vote required;

mistrial; waiver of right to advisory verdict.

, aff'd, 376 So

evidence do

ring is a due

agnitude and

play no part.

wed to deter-

ircumstances

(a) Unless both parties with the consent of the court waive the right to have

the sentence hearing conducted before a jury as provided in section

13A-5-44(c), it shall be conducted before a jury which shall return an advisory

the death of verdict as provided by subsection (e) of this section. If both parties with the

poem my 4 consent of the court waive the right to have the hearing conducted before a

umstances so jury, the trial judge shal] proceed to determine sentence without an advisory

ngs of fact

verdict from a jury. Otherwise, the hearing shall be conducted before ajury as

provided in the remaining subsections of this section

(b) If the defendant was tried and convicted by a jury, the sentence hearing

shall be conducted before that same jury unless it is impossible or

impracticable to do so. If it is impossible or impracticable for the trial! jury to

sit at the sentence hearing, or if the case on appeal is remanded for a new

sentence hearing before a jury, a new jury shal! be impanelled to sit at the

sentence hearing. The selection of that jury shall be according to the laws and

rules governing the selection of a jury for the trial of a capital case.

(c) The separation of the jury during the pendency of the sentence hearing,

and if the sentence hearing is before the same jury which convicted the defen-

dant, the separation of the jury during the time between the guilty verdict and

the beginning of the sentence hearing, shall be governed by the law and court

rules applicable to the separation of the jury during the trial of a capital case.

(d) After hearing the evidence and the arguments of both parties at the

sentence hearing, the jury shall be instructed on its function and on the

125

2d 82 (1979),

v. State, 396

death cases

ster and rec-

the circum-

mee as &

of the pro-

h. Jacobs v

ert. denied,

.. Ed. 2d 82

is, Beck v

itutionally

dge. — The

§ 13A-5-46 CRIMINAL CODE § 13A-5-46

relevant law by the trial judge. The jury shal! then retire to deliberate con-

cerning the advisory verdict it is to return

(e) After deliberation, the jury shall return an advisory verdict as follows

(1) Ifthe jury determines that no aggravating circumstances as defined in

section 13A-5-49 exist, it shal] return an advisory verdict recommending to

the trial court that the penalty be life imprisonment without parole;

(2) If the jury determines that one or more aggravating circumstances as

defined in section 13A-5-49 exist but do not outweigh the mitigating circum-

stances, it shall return an advisory verdict recommending to the trial court

that the penalty be life imprisonment without parole;

(3) If the jury determines that one or more aggravating circumstances as

defined in section 13A-5-49 exist and that they Outweigh the mitigating

circumstances, if any, it shal] return an advisory verdict recommending to

the trial court that the penalty be death

(f) The decision of the jury to return an advisory verdict recommending a

sentence of life imprisonment without parole must be based on a vote of a

majority of the jurors. The decision of the jury to recommend a sentence of

death must be based on a vote of at least ten jurors. The verdict of the jury must

be in writing and must specify the vote

(g) If the jury is unable to reach an advisory verdict recommending a sen-

tence, or for other manifest necessity, the trial court may declare a mistrial of

the sentence hearing. Such a mistrial shall not affect the conviction After such

a mistrial or mistrials another sentence hearing shal] be conducted before

another jury, selected according to the laws and rules governing the selection

of a jury for the trial of a capital case. Provided, however, that, subject to the

provisions of section 13A-5-44(c), after one or more mistrials both parties with

the consent of the court may waive the right to have an advisory verdict from

a jury, in which event the issue of sentence shal! be submitted to the trial court

without a recommendation from a jury. (Acts 1981, No. 81-178, § 8

Editor's note. — In light of the similarity of

the provisions, decisions under former

§ 13A-5-33 are included in the annotations for

this section

Sentencing hearing should not serve

function of hearing on petition for writ of

error coram nobis. Once having litigated this

issue before the same judge who conducted the

sentencing hearing, and a determination

having been made that the allegations were

without merit, the defendant had no right to

relitigate the same issue and argue contentions

which had already been determined to be

without factual support. Hubbard v. State, 382

So. 2d 577 (Ala. Crim. App. 1979), aff'd, 382 So

2d 597 (Ala. 1980), rev'd on remand, 405 So. 2d

696 (Ala. 1981)

Jury verdict not binding on trial court. —

The requirement that the jury fix the pun-

ishment at death if it finds the defendant guilty

of a capita! offense is in no way binding on the

trial court as the final sentencing authority

Beck v. State, 396 So. 2d 645 (Ale. 1980

Act not mandatory where judge

empowered to alter jury verdict. — Before a

death penalty can be imposed in Alabama, the

trial judge is compelled to hold a separate

hearing and make written findings of one or

more of the aggravating circumstances set forth

in the act. If the trial judge fails to find one or

more aggravating circumstances, supported by

the evidence, he is empowered to alter the

verdict of the jury and sentence the defendant

to life imprisonment without parole Since the

verdict of the jury is not binding on the trial

court the act cannot under any construction be

classed as mandatory. Williamson v. State, 370

So. 2d 1054 (Ala. Crim. App. 1978), aff'd, 370

So. 2d 1066 (Ala. 1979), rev'd on remand, 405

So. 2d 698 (Ala. Crim. App. 1981)

But crime charged in indictment cannot

be used as both criminal charge and-cir-

126

ee ®

-—--

§ 13A-5-47 PUNISHMENTS AND SENTENCES

§ 13A-5-47

cumstance aggravating that charge Kellerv trial court Lewsey State 540 Se 2d 870 Ale

State, 380 So. 2d 926 (Ale. Crim. App. 1979), Crim App 1979

cert. denied, 380 So. 2d 938 (Ala. 1980) Collateral references mm“ CJS58 a"

Appellate court does not have statutory § ina! Lew. $f 1573-1576

authority to reduce p ity and r tence 21 Am. Jur. 2d. Crumuna!l Lew #4 G2” See

the appellant itself. That duty is vested in the

§ 13A-5-47. Determination of sentence by court; pre-sentence investigs

tion report; presentation of arguments on aggravating anc

mitigating circumstances; court to enter written findings

court not bound by sentence recommended by jury

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

returned an advisory verdict, or after such a verdict has been waived as 5

vided in section 13A-5-46(a) or section 13A-5-46/g), the trial court shal! procee:

to determine the sentence

(b) Before making the sentence determination, the trial court shall order

and receive a written pre-sentence investigation report. The report shal

tain the information prescribed by law or court rule for felony cases genera

and any additional information specified by the trial court No part of the

report shall be kept confidential, and the parties sha!! have the nght to respond

wo it and to present evidence to the court about any part of the report which us

the subject of factual dispute. The report and any evidence submitted m cor

nection with it shall be made part of the record in the case

(c) Before imposing sentence the trial court shal! permit the parties

present arguments concerning the existence of aggravating and mitigating

circumstances and the proper sentence to be imposed in the case The order

the arguments shal! be the same as at the tria! of « case

(d) Based upon the evidence presented at trial, the evidence presente

during the sentence hearing, and the pre-sentence investigation report and ar

evidence submitted in connection with it, the trial court shal! enter speci!

written findings concerning the existence or nonexistence of each aggravating

circumstance enumerated in section 13A-5-49, each mitigating circumsta

enumerated in section 13A-5-51, and any additiona! mitigating circumstances

offered pursuant to section 13A-5-52. The tria! court shal! also enter writte

findings of facts summarizing the crime and the defendant's participator

(e) In deciding upon the sentence, the trial court shal! determine whethe

the aggravating circumstances it finds to exist outweigh the mitigating

cumstances it finds to exist, and in doing so the tria! court she nside

recommendation of the jury contained in its advisory verdict. unless suct

verdict has been waived pursuant to section 13A-5-46/a) or 13A-5-461¢ ©

the jury’s recommendation concerning sentence sha!! be given considers

it is not binding upon the court. (Acts 1981, No. 81-178. §

Editor’s note. — In light of the similarnty of Legisiative intent The \equele

the provisions, decisions under former ntended to perm! Lhe tna. judge te wang?

§ 13A-5-33 are included in the annotations for aggravated circumstances enumerated K vse

thus section v. State, 399 So 2d 330 (Ale 198

§ 13A-5-48

Statute does not unconstitutionally

confer right to commute upon judge. — The

death penalty statute does not violate the Con

stitution by conferring upon the trial judge the

right to commute a sentence of death Beck v

State, 365 So. 2d 985 (Ala. Crim. App. 1978

aff'd, 365 So. 2d 1006 (Ala. 1978), rev'd on other

grounds, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed

2d 392, on remand, 396 So. 2d 645 (Ala. 1980)

The trial court judge and not the jury is

the sentencing authority. Beck v. State, 396

So. 2d 645 (Ala. 1980)

The sole purpose of requiring that the

trial judge, as the sentencing suthority,

make a written finding of the aggravating

circumstance is to provide for appellate review

of the sentence of death. Kyzer v. State, 399 So

2d 330 (Ala. 1981)

The whole purpose of this section and

$§ 13A-5-34 through 13A-5-36 (now repealed

is to allow for judicial review of a sentence of

death fixed by the jury. Kyzer v. State, 399 So

2d 330 (Ala. 1981)

If no mitigating circumstances exist, the

order sho.ld so state. Hubbard v. State, 382

So. 2d 577 (Ala. Crim. App. 1979), aff'd, 382 So

CRIMINAL CODE

§ 13A-5-49

2d 597 (Ala. 1980), rev'd on remand, 405 So. 2d

695 (Ala. 1981

And cause must be remanded for court's

order to be extenced. — Where court's order

is insufficient because it did not specify

mitigating circumstances enumerated in the

statute which it found insufficient to outweigh

aggrevating circumstances, cause must be

remanded with instructions that court's order

be extended to inciude findings of fact from tria

and mitigating circumstances, if any, con

sidered as required by statute. Hubbard v

State, 382 So. 2d 577 (Ala. Crim. App. 1979

aff'd, 382 Se 2d 597 (Ala. 1980), rev'd or

remand, 405 So. 2d 695 (Ala. 1981)

For circumstances, where sentence of life

imprisonment without parole was not

disproportionate and did not constitute

cruel and unusual punishment, see

McGinnis v. State, 382 So. 2d 605 (Ale. Crin

App. 1979), cert. denied, 382 So. 2d 609 (Als

1980

Collateral references. — 24 CJS. Crim

inal Law, $$ 1573-1576

21 Am. Jur. 2d, Criminal Law, $§ 527, 586

§ 13A-5-48. Process of weighing aggravating and mitigating circum

stances defined.

The process described in sections 13A-5-46(e)(2), 13A-5-46(e)(3) and sectior

13A-5-47(e) of weighing the aggravating and mitigating circumstances to

determine the sentence shal] not be defined to mean a mere tallying of

aggravating and mitigating circumstances for the purpose of numerica! com

parison. Instead, it shall be defined to mean a process by which circumstances

relevant to sentence are marshalled and considered in an organized fashion for

the purpose of determining whether the proper sentence in view of all the

relevant circumstances in an individual case is life imprisonment without

parole or death. (Acts 1981, No. 81-178, § 10

Collateral references 24CJS rim 21 Am. Jur. 2d, Criminal! Law, $§ 527, 584

inal Law, § 1573

§ 13A-5-49. Aggravating circumstances

Aggravating circumstances shal! be the following

(1) The capital offense was committed by a person under sentence

imprisonment,

(2) The defendant was previously convicted of another capita! felony or a

felony involving the use or threat of violence to the person

(3) The defendant knowingly created a great risk of death to many

persons;

(4) The capital offense was committed while the defendant was engaged or

was an accomplice in the commission of, or an attempt to commit, or flight

19

128

‘i

om trial

y. con-

bard v

1979),

ev'd on

e of life

as not

vetitute

it see

s. Crim

19 (Ala

Crim-

rcum-

ection

ces to

ing of

| com-

tances

ion for

ill the

ithout

27, 584

§ 13A-5-49 PUNISHMENTS AND SENTENCES § 13A-5-49

after committing, or attempting to commit, rape, robbery, burglary or

kidnapping;

(5) The capital offense was committed for the purpose of avoiding or

preventing a lawful arrest or effecting an escape from custody,

(6) The capital offense was committed for pecuniary gain;

(7) The capital offense was committed to disrupt or hinder the lawful

exercise of any governmental function or the enforcement of laws; or

(8) The capital offense was especially heinous, atrocious or cruel compared

to other capital offenses. (Acts 1981, No. 81-178, § 11.)

|. General Consideration

ll. Decisions Under Prior Law

L GENERAL CONSIDERATION.

Section must be strictly followed. — It is

imperative that trial courts in setting out

aggravating circumstances follow as closely as

possible the strict wording of this section. An

inclination to gradually broaden the scope of

aggravating circumstances beyond the strict

wording of the statute will eventually lead to an

unconstitutional application of the capital

felony statute. Keller v. State, 380 So. 2d 926

(Ala. Crim. App. 1979), cert. denied, 380 So. 2d

938 (Ala. 1980)

Crimina! statutes are to be strictly construed

in favor of those persons sought to be subjected

to their operation. This is especially true in

death penalty cases. Penal statutes are to reach

no further in meaning than their words. Berard

v. State, 402 So. 2d 1044 (Ala. Crim. App. 1981)

stance aggravating that charge. Keller v

State, 380 So. 2d 926 (Ala. Crim. App. 1979),

cert. denied, 380 So. 2d 938 (Ala. 1980)

A finding of only one aggravating cir

cumstance is sufficient to sustain the death

penalty. Keller v. State, 380 So. 2d 926 (Ala

Crim. App. 1979), cert. denied, 380 So. 2d 938

(Ala. 1980)

Collateral references. — 24B C.J.S., Crim-

inal Law, § 1983(1)

21 Am. Jur. 2d, Criminal Law, § 584

Validity of statutes prohibiting or restricting

parole, probation, or suspension of sentence in

cases of violent crimes. 100 ALR3d 431

Il. DECISIONS UNDER PRIOR LAW.

Editor’s note. — In light of the similarity of

provisions, decisions under former

§ 13A-5-35 are included in the annotations for

this section

The whole purpose of former $4 13A-5-33,

13A-5-34, this section and § 13A-5-36 (proce-

dure for sentencing hearing before the judge)

(now repealed) was to allow for judicial review

of @ sentence of death fixed by the jury. Kyzer

v. State, 399 So. 2d 330 (Ala. 1961)

The language of subdivision (5) cannot

have been intended by the jegisiature to have

such an expansive application as to be applied

in all felony cases in which death has ensued,

for it could be said that one of the purposes of

inflicting any death would be to prevent iden-

tification by the victim. Ex parte Johnson, 399

So. 2d 873 (Ala. 1979)

The aggravating circumstance listed in

subsection (8) was intended to apply to only

bomicides

victim. Kyzer v. State, 399 So 2d 330 (Ale

1981)

Finding “aggravation” not listed in sec-

tion. — The jury, and the trial judge at the

sentencing hearing, may find the “aggravation”

averred in the indictment was not listed in this

section as an “aggravating circumstance.” The

jury or trial judge, as applicable, will weigh the

“aggravation” or “aggravating circumstance”

against any mitigating circumstances in

determining whether to impose a sentence of

death. Kyzer v. State, 399 So. 2d 330 (Ala

1981)

The “capital felony” referred to in this

section refers to an intentional killing, not to

“kidnapping,” “robbery,” “rape,” etc. Kyzer v

State, 399 So. 2d 330 (Ala. 1981)

Heinous means extremely wicked or

shockingly evil; atrocious means

outrageously wicked and vile; and cruel

means designed to inflict a high degree of pain

with utter indifference to, or even enjoyment of,

the suffering of others. Johnson v. State, 399 So

2d 859 (Ala. Crim. App. 1979), aff'd in part and

rev'd in part, 399 So. 2d 873 (Ala. 1981)

A finding that the homicides were “brutal”

fails to conform to this section which requires a

finding that the crimes was “especially heinous,

atrocious or cruel.” The crime was in fact

brutal, but the statute requires more. Berard v

State, 402 So. 2d 1044 (Ala. Crim. App. 1981)

129

§ 13A-5-49

The first-degree murder of two or more

victims is not, by definition, especially

heinous, atrocious or cruel. Kyzer v. State,

399 So. 2d 330 (Ala. 1981)

“Great risk to many persons” not

applicable to two robbery victims. — The

aggravating circumstance that the defendant

knowingly created a great risk of death to many

persons is not applicable to the situation where

the only possible risk of death is to the two

victims of the robbery. Ashlock v. State, 367 So

24 560 (Ala. Crim. App. 1978), cert. denied, 367

So. 2d 562 (Ala. 1979)

Pecuniary gain covers murder-for-hire

not stealing money. — The aggravating cir-

cumstance that the capital felony was

committed for pecuniary gain covers the

“murder-for-hire” situation and not the circum-

stance where the intentional killing was

committed by the appellant while stealing

money. Ashlock v. State, 367 So. 2d 560 (Ala

Crim. App. 1978), cert. denied, 367 So. 2d 562

(Ala. 1979)

To avoid repetition, subdivision (6) of this

section should not be applied to a robbery. Cook

v. State, 369 So. 2d 1251 (Ala. 1978)

Pecuniary gain may not be used as an

aggrevating circumstance in a case of capita!

robbery. Bufford v. State, 382 So. 2d 1162 (Ala

Crim. App.), cert. denied, 382 So. 2d 1175 (Ale

1980); Johnson v. State, 399 So. 2d 859 (Ala

Crim. App. 1979), aff'd in part and rev'd in part,

399 So. 2d 873 (Ala. 1981)

Prior criminal history. — The only

aggravating circumstances relating to a defen

dant’s prior criminal history which may be con

sidered are set out in subdivision (2) of this

section. Keller v. State, 380 So. 2d 926 (Ala

Crim. App. 1979), cert. denied, 380 So. 2d 938

(Ala. 1980)

Use against an individual of unproven

charges is prohibited in this life or death sit-

uation. Keller v. State, 380 So. 2d 926 (Ala

Crim. App. 1979), cert. denied, 380 So. 2d 938

(Ala. 1980)

Only evidence of adjudicated charge, not

original charge admissible. — It is not appro-

priate, in considering a previously adjudicated

criminal charge, to admit evidence of the

orginal charge of assault with intent to

murder, which was reduced to malicious

destruction of property; instead the court must

rely on the prior judge's decision that defen

dant’s acts were most appropriately treated as

malicious destruction of property. Cook v

State, 369 So. 2d 1251 (Ala. 1978)

Defendant's prior convictions for assault

and battery and abusive language held not

130

CRIMINAL CODE

§ 13A-5-49

convictions of felony as required by subsec

tion (2). Bufford v. State, 382 So. 2d 1162 (Ale

Crim. App.), cert. denied, 382 So. 2d 1175 (Ala

1980)

Inappropriate findings of aggravation. —

Findings of fact that the robbery was

committed for “pecuniary gain” and that the

killing was “unnecessary,” are inappropriate

Lewis v. State. 380 So. 2d 970 ‘Ala. Crim. App

1979)

That @ capital felony was “hateful” is not an

aggravating circumstance set out in the stat

ute. Keller v. State, 380 So. 2d 926 (Ala. Crim

App. 1979), cert. denied, 380 So. 2d 938 (Ale

1980)

This section does not allow a crime against

property by stealth to be set out as an

aggravating circumstance. Neither does it

enumerate as an aggravating circumstance

that a defendant served time in a number of

penitentiaries. Mack v. State, 375 So. 2d 476

(Ala. Crim. App. 1978), aff'd, 375 So. 2d 504

(Ala. 1979), vacated, 448 US. 903, 100 S. Ct

3044, 65 L. Ed. 2d 1134 (1980), rev'd on remand

405 So. 2d 701 (Ala. Crim. App. 1981)

An absence of provocation is not an

aggravating circumstance listed in the cap

ital felony section. Such a finding has no more

legal effect than a finding that the crime was

“unnecessary.” Berard v. State, 402 So. 2d 1044

(Ala. Crim. App. 1981)

Robbery cannot be aggravated by

robbery or else defendant is punished

twice for same act. Bufford v. State, 382 So. 2d

1162 (Ala. Crim. App.), cert. denied, 382 So. 2d

1175 (Ala. 1980)

Where defendant found guilty of “robbery or

attempt thereof when the victim is inten

tionally killed by the defendant” primary ele

ment of instant charge, robbery, cannot be used

to aggravate same charge. Bufford v. State, 382

So. 2d 1162 (Ala. Crim. App.), cert. denied, 382

So. 2d 1175 (Ala. 1980)

Fact that capital felony was committed

by @ person under sentence of imprison-

ment may be considered under subsection (1

as aggravating circumstance. Bufford v State

382 So. 2d 1162 (Ala. Crim. App.), cert. denied

382 So. 2d 1175 (Ala. 1980)

Appellate court must independently

‘weigh the aggravating and mitigating cir

cumstances in a capita! case. Lewis v. State

380 So. 2d 970 (Ala. Crim. App. 1979)

For trial court finding that crime was

especially heinous, atrocious, and cruel

under subsection (8), see Bufford v. State, 382

So. 2d 1162 (Ala. Crim. App.), cert. denied, 382

So. 2d 1175 (Ala. 1980

4-5-49

subsec

32 (Ale

75 (Ale

tion. —

y was

hat the

opriate

m. App

‘not an

ve stat

Crim

8 (Ala

against

as an

does it

nstance

nber of

2d 476

2d 504

1S. Ct

emand,

»ot an

he cap

0 more

ne was

ld 1044

od oby

nished

2 So. 2d

So. 2d

bery or

inten

ry ele

re used

te, 382

ed, 382

mitted

»rison-

tion (1

State

jenied

dently

1g cir

State

© was

cruel

e, 382

ed, 382

ae

—

§ 13A-5-50

determination.

PUNISHMENTS AND SENTENCES

§ 13A-5-50. Consideration of aggravating circumstances in sentence

§ 13A-5-51

The fact that a particular capital offense as defined in section 13A-5-40(a)

necessarily includes one or more aggravating circumstances as specified in

section 13A-5-49 shal] not be construed to preclude the finding and con

sideration of that relevant circumstance or circumstances in determining sen-

tence

By way of illustration and not limitation, the aggravating circumstance

specified in section 13A-5-49(4) shal! be found and considered in determining

sentence in every case in which a defendant is convicted of the capital offenses

defined in subdivisions (1) through (4) of subsection (a) of section 13A-5-40

(Acts 1981, No. 81-178, § 12.)

Collateral references. — 24B C.J.8., Crim

inal Law, § 1983(1)

21 Am. Jur. 2d, Crimina! Law, § 584

§ 13A-5-51. Mitigating circumstances — Generally.

Mitigating circumstances shall! include, but not be limited to, the following

(1) The defendant has no significant history of prior criminal! activity;

(2) The capital offense was committed while the defendant was under the

influence of extreme mental or emotiona! disturbance;

(3) The victim was a participant in the defendant's conduct or consented

to it;

(4) The defendant was an accomplice in the capital offense committed by

another person and his participation was relatively minor;

(5) The defendant acted under extreme duress or under the substantial

domination of another person;

(6) The capacity of the defendant to appreciate the criminality of his con-

duct or to conform his conduct to the requirements of law was substantially

impaired; and

(7) The age of the defendant at the time of the crime. (Acts 1981, No

81-178, § 13.)

| General Consideration

Il. Decisions Under Prior Law

I. GENERAL CONSIDERATION

Analysis of mitigeting circumstances

should be based on this section. — The safer

practice would be for a trial judge to simply

follow the verbiage of this section i. negating

aggravating circumstances rather than

devising his own tests. Berard v. State, 402 So

2d 1044 (Ala. Crim. App. 1981)

Collateral references. — 24B C.J.S., Crim

inal Law, § 1983/1)

21 Am. Jur. 2d, Criminal Law, § 584

131

ll. DECISIONS UNDER PRIOR LAW

Editor's note. — In light of the similarity of

the provisions, decisions under former

$ 13A-5-36 are included in the annotations for

this section

The whole purpose of former #4 13A-5-33

through 13A-5-36 (now repesied) was to allow

+ for judicial review of a sentence of death fixed

by the jury. Kyzer v. State, 399 So. 2d 330 (Ala

1981)

Subsections (2) and (6) of this section

were concerned with the degree of the

§ 13A-5-52

accused's mental disability. Berard v State.

402 So. 2d 1044 (Ala. Crim. App. 1981)

Scheme allows accused to present

mitigating evidence. — Alabama's sentencing

scheme in death cases broadly allows the

accused to present evidence of mitigating cir-

cumstances. Jacobs v. State, 361 So. 2d 640

(Ala. 1978), cert. denied, 439 U.S. 1122, 99 S

Ct. 1034, 59 L. Ed. 2d 82 (1979)

As constitutionally indispensabie part of

death penalty process. — Alabama's

sentencing process in death cases permits con-

sideration of the character and record of the

individual offender and the circumstances of

the particular offense as « constitutionally

indispensable part of the process of inflicting

the penalty of death. Jacobs v. State, 361 So. 2d

640 (Ala. 1978), cert. denied, 439 U.S. 1122, 99

S. Ct. 1034, 59 L. Ed. 2d 82 (1979)

Defendant permitted to introduce any

matter relating to mitigating circum-

stances. — At the sentencing hearing before

the jury, the court must permit the defendant to

introduce any matter relating to any

mitigating circumstances including those enu-

merated in this section. Beck v. State, 396 So

2d 645 (Ala. 1980)

imprisonment without parole. They must b<

considered with, and weighed against,

aggravating circumstances and the extent of

aggravation of such circumstances. Lewis v

State, 380 So. 2d 970 (Ala. Crim App. 1979)

A pending charge cannot be considered

es criminal history. Cook v. State, 369 So. 2d

1251 (Ala. 1978)

The legislature has indicated that lack of «

significant criminal history should operate in a

convicted individual's favor, and a court cannot

qualify this provision by relying on prior crim-

inal activity which does not rise to the level

CRIMINAL CODE

§ 13A-5-52

established by the legislature. Cook v. State

369 So. 2d 1251 (Ala. 1978)

Where sub-normality of defendant's

mind is great, the fixation of his punishment

at death should not be allowed to stand. Lewis

v. State, 380 So. 2d 970 (Ala. Crim. App. 1979)

Appellate court must independently

weigh aggravating and mitigating circum.

stances in a capita! case. Lewis v State, 380

So. 2d 970 (Ala. Crim. App. 1979)

If no mitigating circumstances exist, the

order should so state. Hubbard v. State, 382

So. 2d 577 (Ala. Crim. App. 1979), aff'd, 382 So

2d 597 (Ala. 1980), rev'd on remand, 405 So. 2d

695 (Ala. 1981)

And cause must be remanded to extend

court's order. — Where court's order is insuffi

cient because it did not specify mitigating cir

cumstances enumerated in this section which :t

found insufficient to outweigh aggravating cir

cumstances; cause must be remanded with

instructions that court's order be extended to

include findings of fact from trial and

mitigating circumstances, if any, considered as

required by statute. Hubbard v. State, 382 So

2d 577 (Ala. Crim. App. 1979), aff'd, 382 So. 2d

597 (Ala. 1980), rev'd on remand, 406 So. 2d 695

(Ala. 1981)

Trial court’s finding that defendant's age

of 23 was insufficient to outweigh

aggrevating circumstances not error

Bufford v. State, 382 So. 2d 1162 (Ala. Crim

App.), cert. denied, 382 So. 2d 1175 (Ala. 1980

For case where the sentencing court

made an independent assessment of the

evidence presented and determined indepen

dently of the jury's verdict, that the statutory

mitigating circumstances were inapplicable to

the appellant, see Kyzer v. State, 399 So. 2d 317

(Ala. Crim. App. 1979), rev'd on other grounds

399 So. 2d 330 (Ala. 1981

§ 13A-5-52. Same — Inclusion of defendant's character, record, etc.

In addition to the mitigating circumstances specified in section 13A-5-51

mitigating circumstances shall include any aspect of a defendant's character or

record and any of the circumstances of the offense that the defendant offers as

a basis for a sentence of life imprisonment without parole instead of death. and

any other relevant mitigating circumstance which the defendant offers as a

basis for a sentence of life imprisonment without parole instead of death. (Acts

1981, No. 81-178, § 14.)

Collateral references. — 24B C.J.S.. Crim

inal Law, § 1983/1)

21 Am. Jur. 2d, Criminal Law, § 584

132

§ 13A-5-53 PUNISHMENTS AND SENTENCES § 13A-5-53

§ 13A-5-53. Appellate review of death sentence; scope; remand; specific

determinations to be made by court; authority of court

following review.

(a) In any case in which the death penalty is imposed, in addition to

reviewing the case for any error involving the conviction, the Alabama court

of criminal! appeals, subject to review by the Alabama supreme court, shal! also

review the propriety of the death sentence. This review shall include the deter-

mination of whether any error adversely affecting the rights of the defendant

was made in the sentence proceedings, whether the trial court’s findings con-

cerning the aggravating and mitigating circumstances were supported by the

evidence, and whether death was the proper sentence in the case. If the court

determines that an error adversely affecting the rights of the defendant was

made in the sentence proceedings or that one or more of the trial court's

findings concerning aggravating and mitigating circumstances were not sup-

ported by the evidence, it shall remand the case for new proceedings to the

extent necessary to correct the error or errors. If the appellate court finds that

no error adversely affecting the rights of the defendant was made in the sen-

tence proceedings and that the tria] court's findings concerning aggravating

and mitigating circumstances were supported vy the evidence, it shall proceed

to review the propriety of the decision that death was the proper sentence

(b) In determining whether death was the proper sentence in the case the

Alabama court of criminal appeals, subject to review by the Alabama supreme

court, shall determine

(1) Whether the sentence of death was imposed under the influence of

passion, prejudice, or any other arbitrary factor;

(2) Whether an independent weighing of the aggravating and mitigating

circumstances at the appellate level indicates that death was the proper

sentence; and

(3) Whether the sentence of death is excessive or disproportionate to the

penalty imposed in similar cases, considering both the crime and the defen-

dant

(c) The court of criminal appeals shall explicitly address each of the three

questions specified in subsection (b) of this section in every case it reviews in

which a sentence of death has been imposed

(d) After performing the review specified in this section, the Alabama court

of criminal appeals, subject to review by the Alabama supreme court, shal! be

authorized to

(1) Affirm the sentence of death;

(2) Set the sentence of death aside and remand to the trial court for correc-

tion of any errors occurring during the sentence proceedings and for imposi-

tion of the appropriate penalty after any new sentence proceedings that are

necessary, provided that such errors shal! not affect the determination of

guilt and shal! not preclude the imposition of a sentence of death where it is

determined to be proper afer any new sentence proceedings that are deemed

necessary; or

133

§ 13A-5-54

CRIMINAL CODE

(3) In cases in which the death penalty is deemed inappropriate under

subdivision (b)(2) or (b)(3) of this section, set the sentence of death aside and

remand to the tria! court with directions that the defendant be sentenced to

life imprisonment without parole

Collateral references. — 24 CJ S., Crim

inal Law, $4 1643-1647, 1831-1840

5 Am. Jur. 2d, Appeal and Error, § 723

Acts 1981, No. 81-178, § 15

§ 13A-5-54. Appointment of experienced counsel for indigent defen-

dants.

Each person indicted for an offense punishable under the provisions of this

article who is not able to afford legal counsel must be provided with

court

Our

appointed counsel having no less than five years’ prior experience in the active

practice of criminal law. (Acts 1981, No. 81-178, § 16

Editor’s note. — In light of the similarity of

the provisions, decisions under former

§ 13A-5-37 are included in the annotations for

this section

This section does not require the record

to show that appointed c 1 has at least

five years’ prior experience in the active

practice of criminal! law; it simply requires that

the indigent accused be provided such counsel!

Absent some tangible indication that the

requirements were not met, a court cannot

summarily rule, as a matter of law, that the

statute was not complied with. Johnson v

State, 399 So. 2d 859 (Ala. Crim. App. 1979

aff'd in part and rev'd in part, 399 So. 2d 873

(Ala. 1981

Appointment in keeping witb section

Where an attorney has practiced cnmuina! law

at the call of the crimina! docket in the county

for 10 years, his appointment to « case

involving a capita! felony is in keeping with the

provision of this section requiring not less than

five years prior experience in the active pra

tice of criminal! law. Jacobs v. State, 371 So. 2d

429 (Ala. Crim. App. 1977), rev'd on other

grounds, 371 So. 2d 448 (Ala. 1979

Collateral references. — 23 CJS nm

inal Law, § 97%)

21 Am. Jur. 2d, Criminal Law, $4 309-3

Accused's right to represent humself in state

criminal proceeding — modern state cases 98

ALR3¢d 13

§ 13A-5-55. Conviction and sentence of death subject to automatic

review.

In al] cases in which a defendant is sentenced to death, the judgment of

conviction shall be subject to automatic review. The sentence of death shal! be

subject to review as provided in section 13A-5-53. (Acts 1981, No. 81-178, §

Editor's note. — In light of the similarity of

the provisions, decisions under former

§ 13A-5-34 are included in the annotations for

this section

The whole purpose of #§ 13A-6-33

through 13A-6-36 (now repealed) was to allow

for judicial review of a sentence of death fixed

by the jury. Kyzer v. State, 399 So. 2d 330 (Ala

1981

Scope of review. — Each death senteace

should be reviewed to ascertain whether the

crime was in fact one properly punishable by

death, whether sumilar crimes throughout the

state are being punished capitaliy and whether

the sentence of death is appropriate in reiahon

to the particular defendant. In making this

final determination, the courts should examine

the penalty imposed upon the defendant io

relation to that umposed upon his accomplices,

if any. Beck v. State, 396 So. 2d 645 (Ala. 1980)

Collateral references. — 24 CJS. Crim

inal Law, $4 1643-1647, 1831-1840

5 Am. Jur. 2d, Appeal and Error, § 723

*

ry

§ 13A-5-42 CRIMINAL CODE § 13A-5-45

Code commissioner's note. — This section Cited in Lindsey v. State, 456 So. 2d 383

is set out herein to correct a typographical Ala. Crim. App. 1983); Kennedy v. State, 472

error im the bound volume So. 2d 1106 (Ale. 1985)

$ 13A-5-42. Guilty plea; burden of proof upon state; waiver; sentenc-

ing.

Effect of guilty plea. — As a general rule « ingly made, waives all nonjurisdictional de

guilty plea, intelligently and voluntarily made, fects in the prior proceedings against an ac

bars the later assertion of constitutional cha! cused. Cox v. State, 462 So. 2d 1047 (Ala. Crim

lenges to the pretrial proceedings. Cox v. State, App. 1985)

462 So. 2d 1047 (Ala. Crim App. 1985) Cited in Jackson v. State, 452 So. 2d 895

A plea of guilty is an admission of all the (Ala. Crim App. 1984)

elements of the offense. It is a waiver of rights Collateral references.

guaranteed by the due process clause of the Guilty plee safeguards as applicable to stipu-

Fifth Amendment. Cox v. State, 462 So. 2d lation allegedly amounting to guilty plea in

1047 (Ala. Crim. App. 1985) state criminal trial. 17 ALR4th 61

A voluntary guilty plea waives the right toa Power or duty of state court, which has

preliminary hearing. Cox v. State, 462 So. 2d accepted guilty plea, to pet aside such plea on

1047 (Ala. Crim. App. 1985) its own initiative prior to sentencing or entry

A guilty ples, if voluntarily and understand. of judgment. 31 ALR4Ath 504

§ 13A-5-45. Sentence hearing — Delay; statements and arguments;

admissibility of evidence; burden of proof; mitigating

“2 and aggravating circumstances. * oem Speer 2

L GENERAL CONSIDERATION Penalty phase of defendant's trial was im-

permissibly prejudiced by the prosecutor's ref.

jurors to “weigh” erences in his opening statement to several

‘ and mitigating factors, as offenses allegedly committed by defendant as

: determining them under reason- to which no evidence was ever introduced

able doubt standard. Whisenhant v. State, 482 Whisenhant v. State 482 So 2d 1225 (Ala

While the aggravating circumstances must Remarks made by the attorney genera! dur-

be proven beyond a reasonable doubt, the Jury ing his opening statement at the penalty phase

may return the death penalty if it simply does of capital murder trial constituted error, and

pot find that the aggravating circumstances such error was not harmless. Whisenhant v

are outweighed by the mitigating circum State, 482 So. 2d 1247 (Ale. 1984)

stances. Whisenhant v. State, 482 So. 2d 1225 Cited in Curtis v. State, 424 So. 2d 679 (Ala

(Ala. Crim. App. 1982) Crim. App. 1982); Luke v. State, 444 So. 2d 393

Jury may not ignore any factor. — It is (Ala. Crim. App. 1983)

the duty of the jury to weigh mitigating and Collateral references.

aggravating circumstances in its decision. The Former testimony used at subsequent tria!

jury is not free to arbitrarily ignore any factor, as subject to ordinary objections and excep-

positive or negative, in arriving at the correct tions. 40 ALR4th 514

sentence. Whisenhant v. State, 482 So. 2d 1225

(Ala. Crim. App. 1982) IL DECISIONS UNDER PRIOR LAW

The harmless error rule applies in capita!

cases at the sentence hearing Whisenhant v Constitutionality of former scheme. —

State,.482;So. 2d. 1241 (Ala 1983) : Alabama's former statutory scheme of fixing

Prosecutor's remarks held reversible capital punishment under repealed $4 13-11-2

error, ——-Remarks of prosécutor during the to 13-11-46, which required that a jury return

sentencing .phase closing argument of the an automatic “sentence” of death along with its

state, suggesting that a sentence of life impris- guilty verdict, while unusual, did not render

eument without parole might not prevent unconstitutional the death sentence the trial

defendant from, at some time, being released judge imposed, where the trial court operated

from prison, constituted reversible error. Rut- as the true sentencing authority after indepen-

ledge v. State,.482 So. 2d 1262 (Ala 1984) dently considering the condemned person's

38

IDE § 13A-5-45

ted in Lindsey v. State, 456 So. 2d 383

Crim. App. 1963); Kennedy v. State, 472

td 1106 (Ale. 1985)

f upon state; waiver; sentenc-

+ made, waives all nonjurisdictional de-

in the prior proceedings against an ac-

i. Coz v. State, 462 So. 2d 1047 (Ala. Crim

1985)

ted in Jackson v. State, 452 So. 2d 895

Crim. App. 1984)

Uateral references.

ilty plea safeguards as applicable to stipu-

» allegedly amounting to guilty plea in

criminal trial. 17 ALR4Ath 61.

wer or duty of state court, which has

ited guilty plea, to set aside such plea on

nm initiative prior to sentencing or entry

igment 31 ALR4th 504.

; statements and arguments;

burden of proof; mitigating

ances.’ iene Sere? Seer

a i ee © Ree Haw

wlty phase of defendant's trial was im-

ssibly prejudiced by the prosecutor's ref-

es in his opening statement to several

es allegedly committed by defendant as

uich no evidence was ever introduced.

wmbant v. State, 482 So. 2d 1225 (Ala.

App. 1982). 4

rarks made by the attorney genera) dur-

s opening statement at the penalty phase

ital murder tria) constituted error, and

yrror was not harmiess. Whisenhant v

482 So. 2d 1247 (Ala. 1984)

sd in Curtis v. State, 424 So. 2d 679 (Ala

App. 1982); Luke v. State, 444 So. 2d 393

Crim. App. 1983)

‘ateral references.

ner testimony used at subsequent trial

ject to ordinary objections and excep-

40 ALR4th 514

)ECISIONS UNDER PRIOR LAW.

stitudonality of former scheme. —

aa's former statutory scheme of fixing

pumshment under repealed $f 13-11-2

1-6, which required that « jury return

ymatic “sentence” of death along with its

verdict, while unusual, did not render

ututional the death sentence the: tna!

mposed, where the trial court operated

true sentencing authority after indepen-

considering the person's

a te

§ 13A-5-46

background and character and the circum-

PUNISHMENTS AND SENTENCES

§ 13A-5-47

Baldwin v. Alabama, — US. —. 105 S. Ct

stances of his crime and weighing specified 2721. — L. Ed. 2d — (1985) (decided under

aggravating and mitigating circumstances. prior law)

§ 13A-5-46. Same — Conducted before jury unless waived; trial jury to

sit for unless impossible or impracticable; separation of

‘jury; instructions to jury; advisory verdicts; vote re-

quired; mistrial; waiver of right to advisory verdict.

Constitutionality of former scheme. —

Alabama's former statutory scheme of fixing

capital punishment under repealed $4 13-11-2

to 13-11-6, which required that « jury return

an automatic “sentence” of death along with its

guilty verdict, while unusual, did not render

unconstitutional the death sentence the trial

judge imposed, where the trial court operated

aggravating and eq) circumstances.

Baldwin v. Alabama, US. —, 106 S. Ct.

2727, — L. Ed. 24 — (1985) (decided under

for cause, even

section its a death penalty verdict on the

vote of only 10 of the 12 trial jurors. Callahan

vy. State, 471 So. 2d 447 (Ala. Crim. App 1983),

rev'd on other grounds, 471 So 2d 463 (Ala.),

cert. denied, — US. —, 1065 Ct. 567, 88 L.

vating circumstances during the sentencing

phase of the proceedings. The jury's verdict

whether to sentence a defendant to death or to

life without parole is advisory only. It is

sufficient that the trial court, which is in no

way bound by the jury's recommendation con

cerning sentence, is required to enter specific

written findings concerning the existence or

nonexistence of each aggravating circum

stance. Bush v. State, 431 So. 2d 555 (Ale

Crim. App. 1982), aff'd, 431 So. 2d 563 (Ala.)

cart. denied, 464 U.S. 865, 104 S. Ct 200, 78 L

Ed. 2d 175 (1983)

Procedural and legal effect of jury's

inability to reech « unanimous verdict

need not be divulged to the jury

t vy. State, 482 So. 2d 1225 (Ala

Crim. App. 1982).

The barmiess error rule applies in capital

cases at the sentence bearing Whisenhent v

State, 482 So. 2d 1241 (Ala. 1983)

Prosecutor's remarks held reversible

error. — Remarks of prosecutor during the

sentencing phase closing argument of the

state, suggesting that a sentence of life impris

onment without parole might not prevent

defendant from, at some time, being released

from prison, constituted reversible error. Rut

ledge v. State, 482 So. 2d 1262 (Ala. 1984)

Remerks made by the attorney genera! dur-

ing his opening statement at the penalty phase

of a capita! murder tral constituted error, and

such error was not harmless Whisenhant v

State, 482 So. 2d 1247 (Ala. 1984)

Cited in Jackson v. State, 452 So. 2d 895

(Ale. Crim. App. 1984); Harrell v State, 470

So. 2d 1309 (Ale. 1985); Jefferson v State, 473

So. 24 1100 (Ala. Crim. App. 1984), aff'd, 473

So. 2d 1110 (Ala. 1985)

§ 13A-5-47. Determination of sentence by court; pre-sentence investi-

gation report, presen

tation of arguments on aggravating

and mitigating circumstances; court to enter written

findings; court not bound by sentence recommended by

jury.

Constitutionality of former scheme. —

Alabama's former statutory scheme of fixing

capital punishment under repealed $4 13-11-2

to 13-11-6, which required that « jury return

an automatic “sentence” of death along with its

guilty verdict, while unusual, did not render

unconstitutiona] the death sentence the trial

judge imposed, where the trial court operated

as the true sentencing authority after indepen

dently considering the condemned person's

39

§ 13A-5-48

beckground and character and the circum-

stances of his crime and weighing specified

aggravating and mitigating circumstances

Baldwin v. Alabama, — US. —, 106 S. Ct

2727, — L. Ed. 2d — (1985) (decided’ under

prior law).

Legisiative intent.

This statute clearly reveals the legislative

intent that the jury's recommendation is advi-

sory only and thus is not binding upon the trial

court. Where plain language is used, the

statute must be interpreted to mean exactly

what it says. Jones v. State, 456 So. 2d 380

(Ala. 1984)

Subsection (e) of this section is a clear

expression of what the legislature intended

bad gg = gh beled a “r

tion” “advisory verdict” throughout the

catate oa it is plainly stated that their

decision is not binding on the trial judge

Murry v. State, 455 So. 2d 63 (Ala. Crim. App

1983), rev'd on other grounds, 455 So. 2d 72

(Ala. 1964)

It ww the trial judge, who at « separate

bearing, determines whether or not the defen-

dant ‘is to suffer death or life imprisonment

without parole. The verdict of the jury is

advisory only. No sentence exists until the

pronouncement by the trial judge at the con-

clusion of the sentence -hearing. Murry v¥

State, 455 So. 2d 53 (Ala. Crim. App. :1983),

rev'd on other grounds, 455 So. 2d 72 (Ala

1984)

Jury not required to make specific find-

ings of aggravating circumstances. —

There is no requirement under Alabama's new

capital felony statute that the jury make

specific findings as to the existence of aggra-

vating circumstances during the sentencing

phase of the rr: The jury's verdict

whether to t defendant to death or to

life without —— ty is advisory only. It is

sufficient that the trial court, which is in no

way bound by the jury’s recommendation con-

cerning sentence, is required to enter specific

written findings concerning the existence or

CRIMINAL CODE

$ 13A-5-48

stance. Bush v. State, 431 So. 2d 556 (Ala.

Crim. App. 1982), aff'd, 431 So. 2d 563 (Ala.),

cert. denied, 464 U.S. 865, 104 S. Ct. 200,78 L. |

Ed. 2d 175 (1983)

When the death penalty is imposed, the

trial judge must review and issue written

findings of fact setting forth his determination

of sentence. These written findings of the trial

court, which must set forth both aggravating

and mitigating circumstances, provide the be-

sis necessary for the review of the imposition of

the death penalty. Whisenhant v. State, 482

So. 2d 1225 (Ala. Crim. App. 1962)

Murry v. State, 455 So. 2d 53 (Ala. Crim App.

1983), rev'd on other grounds, 455 So. 2d 72

(Ala. 1964)

The harmless error rule applies in capita!

cases at the sentence hearing. Whisenhant v.

State, 482 So. 2d 1241 (Ala 1963)

Prosecutor's remarks held reversible

error. — Remarks of prosecutor during the

sentencing phase closing argument of the

state, suggesting that a sentence of life impris-

eament without parole might not prevent

defendant from, at.some time, being released

from prison, constituted reversible error. Rut-

ledge v. State, 482 So. 2d 1262 (Ala. 1984)

Remarks made by the attorney genera! dur-

ing his opening statement at the penalty phase

of a capita) murder trial constituted error, and

such error was not harmiess. Whisenhant .v

State, 482 So. 2d 1247 (Ala. 1984)

Cited in Womack v. State, 435 So. 2d 754

(Ala. Crim. App. 1983); Luke v. State, 444 So

2d 393 (Ale. Crim. App. 1963); Luke v. State,

444 So. 2d 400 (Ala. 1963); Jones v. State, 450

So. 2d 171 (Ala. 1984); Heath v. State, 455 So

2d 896 (Ala: Crim. App..1983); Jones v. State,

456 So. 2d 366 (Ala. Crim. App. 1983); Lindsey

v. State, 456 So.:2d 383 (Ala. Crim. App. 1983);

Singleton v. State, 465 So. 2d 432 (Ala. Crim

App. 1963); Harrell v. State, 470 So. 2d 1303

(Ala. Crim. App. 1964); Harrell v. State, 470

nonexistence of each aggravating circum- So. 2d 1309 (Ala. 1985)

§ 13A-5-48. Process of weighing aggravating and mitigating circum-

stances defined.

vs

‘Constitutionality ‘of former otiied =

Alabama's former statutory scheme of fixing

capita] punishment under repealed §§ 13-11-2

to 13-11-6, which required that a jury return

an automatic “sentence” of death along with its

guilty verdict, while unusual, did not render

unconstitutional the death sentence the trial

judge imposed, where the trial court operated

40

‘as the true sentencing authority after indepen-

dently considering the condemmed person's

background and character and the circum-

stances of his crime and weighing specified

aggravating and mitigating circumstances

Baldwin v. Alabama, — US. —, 105 S. Ct

27277, — L. Ed. 2d — (1985) (decided under

price law)

flight «

kidnat

(5) 7

prever

(6) *

entence. These written findings of the trial

rt, which must set forth both aggravating

secessary for the review of the imposition of

death penalty. Whisenhant v. State, 482

2d 1225 (Ala. Crim. App. 1982).

NS ee Lae

6 recommendations of life imprison-

at without parole to the death sentence.

rry v. State, 455 So. 2d 63 (Ala. Crim. App

3), rev'd om other grounds, 455 So. 2d 72

1. 1984).

he harmless error rule applies in capita!

8 at the sentence hearing. Whisenhant v

te, 482 So. 2d 1241 (Ala. 1983).

rodant from, at_some time, being released

a prison, constituted reversible error. Rut-

re v. State, 482 So. 2d 1262 (Ala. 1984).

emarks made by the attorney genera! dur-

bus opening statement at the penalty phase

capital murder trial constituted error, and

1 error was not harmless. Whisenhant- v

#, 482 So. 2d 1247 (Ala. 1984).

ited in Womack v. State, 435 So. 2d 754

\. Crim. App. 1983); Luke v. State, 444 So

193 (Ala. Crim. App. 1983); Luke v. State,

So. 2d 400 (Ala. 1983); Jones v. State, 450

2d 171 (Ala. 1984); Heath v. State, 455 So

198 (Ala. Crim. App. 1983); Jones v. State,

So. 2d 366 (Ala. Crim. App. 1983); Lindsey

tate, 456 So. 2d 383 (Ala. Crim. App. 1983);

rleton v. State, 465 So. 2d 432 (Ala. Crim

1983); Harrell v. State, 470 So. 2d 1303

. Crim. App. 1984); Harrell v. State, 470

2d 1309 (Ala. 1985)

vating and mitigating circum-

re true sentencing authority after indepen-

ly considering the ~condemned person's

ground and character and the circum-

ces of his crime and weighing specified

avating and mitigating circumstances.

‘win v. Alabama, — U.S. —, 106 S. Ct

a Ca ee ae

c w)

§ 13A-5-49

not find the aggravating circumstances are

outweighed by the mitigating circumstances.

Whisenhant v. State, 482 So. 2d 1225 (Ala.

aggrave

jury is not ania

positive or negative, in arriving st the correct

sentence. Whisenhant v. State, 482 So. 2d 1225

(Ala. Crim. App. 1982).

The determination of whether the aggra-

vating circumstances outweigh the miti-

gating circumstances and vice versa, is not

a numerical one. It is based on the gravity of

the aggravating circumstances compared to

that of the mitigating circumstances. Murry v.

State, 455 So. 2d 53 (Ala. Crim. App. 1983),

rev'd on other grounds, 455 So. 2d 72 (Ala.

1984). «*r

The process of weighing the aggravating and

mitigating circumstances is a balancing pro-

cess wherein one aggravating circumstance

may outweigh any amount of mitigating evi-

dence or any number of statutory mitigating

circumstances. On the other hand, the sen-

tencer may give one mitigating factor, whether

or not defined by statute, such emphasis that it

outweighs several aggravating circumstances.

Clisby v. State, 456 So. 2d 99 (Ala. Crim. App

PUNISHMENTS AND SENTENCES

§ 13A-5-49

1983), cert. denied, — U.S. —, 195 S. Ct. 1372.

84 L. Ed. 2d 391 (1985).

The sentencing authority in Alabama, the

trial judge, has unlimited discretion to con-

sider suy perceived mitigating cir tances,

and he can assign appropriate weight to partic

ular mitigating circumstances. The United

States Constitution does not require that sve-

cific weights be assigned to different aggravat

ing and mitigating circumstances. Clisby v

State, 456 So. 2d 105 (Ala. 1984), cert. denied

— US. —, 105 S. Ct. 1372, 84 L. Ed. 2d 391

(1985).

There is no statutory or constitutional

requirement that the jury make specific

findings of aggravating or mitigating circum

stances considered during the sentence phase

of the proceedings. The jury's verdict is adv:

sory only. It is sufficient that the trial court

which is in no way bound by the jury's recom

mendation concerning sentencing, is required

to make written findings concerning the ex»

tence or non-existence of each aggravating and

mitigating circumstance. Clisby v. State, 456

So. 2d 106 (Ala. 1984), cert. denied, — US. —

105 S. Ct. 1372, 84 L. Ed. 2d 391 (1985)

The harmless error rule applies in capita!

cases at the sentence hearing. Whisenhant v

State, 482 So. 2d 1241 (Ala. 1983)

Prosecutor's remarks heia reversible

error. — Remarks made by the attorney

general during his opening statement at the

penalty phase of capital murder trial! const)

tuted error, and such error was not harmless

Whisenhant v. State, 482 So. 2d 1247 (Ala

1984). See also, Rutledge v. State, 482 So. 2d

1262 (Ala 1984)

§ 13A-5-49. Aggravating circumstances.

Aggravating circumstances shal! be the following:

(1) The capital offense was committed by a person under sentence of

imprisonment,

(2) The defendant was previously convicted of another capital offense or a

felony involving the use or threat of violence to the person;

(3) The defendant knowingly created a great risk of death to many

persons; —

) The capita! offense was committed while the defendant was engaged

or was an accomplice in the commission of, or an attempt to commit, or

flight after committing, or attempting to commit, rape, robbery, burglary or

kidnapping;

(5) The capital offense was committed for the purpose of avoiding or

preventing a lawful arrest or effecting an escape from custody;

(6) The capital offense was committed for pecuniary gain;

41

§ 13A-5-50

CRIMINAL CODE

§ 13A-5-50

(7) The capital offense was committed to disrupt or hinder the lawful

exercise of any governmental! function or the enforcement of laws; or

(8) The capital offense was especially heinous, atrocious or cruel com-

pared to other capital offenses. (Acts 1981, No. 81-178, p. 203, § 11; Acts

1982, No. 82-567, p. 945, § 1.)

Code commissioner's note. — This section

is set out herein to correct a typographical

error in the bound volume

I. GENERAL CONSIDERATION

A defendant's conviction for a crime of

violence can be an aggravating circum-

stance. Baldwin v. State, 456 So. 2d 117 (Ale

Crim. App. 1983), aff'd, 456 So. 2d 129 (Ale

1984)

A finding of only one aggravating cir-

cumstance, etc.

In accord with bound volume. See Murry v

State, 455 So. 2d 53 (Ala. Crim. App. 1983),

rev'd on other grounds, 455 So. 2d 72 (Ala

1984)

Youthful offenders. — Under the Alabama

statute, after one is adjudged « youthful of-

fender, any determination of guilt shal! not be

deemed « conviction, and thus, could not be an

aggravating circumstance under subdivision

(2). Baldwin v. State, 456 So. 2d 117 (Ala

Crim. App. 1983), aff'd, 456 So. 2d 129 (Ale

1984)

Adjudication of guilt in juvenile proceed-

ings does not fall within one of the aggravat-

ing circumstances enumerated in this section

Baldwin v. State, 456 So. 2d 117 (Ala. Crim

App. 1983), aff'd, 456 So. 2d 129 (Ala. 1984)

Cited in Bush v. State, 431 So. 2d 555 (Ala.

Crim. App. 1982); Dobard v. State, 4365 So. 2d

1351 (Ala. 1983); Luke v. State, 444 So. 2d 393

(Ala. Crim. App. 1983); Jones v. State, 460 So

2d 165 (Ale. Crim. App. 1983); Jones v. State,

456 So. 2d 366 (Ala. Crim. App. 1983); Lindsey

v. State, 456 So. 2d 383 (Ala. Crim. App. 1983);

Waldrop v. State, 459 So. 2d 963 (Ala. Crim

App. 1963); Singleton v. State, 465 So. 2d 432

(Ala. Crim. App. 1983); Arthur v. State, 472

So. 2d 650 (Ala. Crim. App. 1984); Heath v

Alabama, — US. —, 106 8. Ct. 433, — L. Ed

2d — (1985)

§ 13A-5-50. Consideration of aggravating circumstances in sentence

determination.

The fact that a particular capital offense e* defined in section 13A-5-40(a)

necessarily includes one or more aggravating circumstances as specified in

section 13A-5-49 shal] not be construed to preclude the finding and consider-

ation of that relevant circumstance or circumstances in determining sentence

By way of illustration and not limitation, the aggravating circumstance

specified in section 13A-5-494) shal] be found and considered in determining

sentence in every case in which a defendant is convicted of the capital offenses

defined in subdivisions (1) through (4) of subsection (a) of section 13A-5-40

(Acts 1981, No. 81-178, p. 203, § 12;

Code commissioner's note. — This section

is set out herein to correct « typographical

error in the bound volume

Cited in Bush v. State, 431 So. 2d 555 (Ala

Acts 1982, No. 82-567, p. 945, § 1.)

Crim. App. 1982); Heath v. State, 455 So. 2d

896 (Ala. Crim. App. 1983); Heath v. Alabama

— US 106 S. Ct. 433, — L. Ed. 2d

1985

§ 13A-5-50

disrupt or hinder the lawful

1e enforcement of laws; or

10us, atrocious or cruel com-

fo. 81-178, p. 203, § 13; Acts

vin v. State, 456 So. 2d 117 (Ala

». 1983), affd, 456 So. 2d 129 (Ala.

‘ation of guilt in juvenile proceed-

sot fall within one of the aggravat-

stances enumerated in this section

State, 456 So. 2d 117 (Ala. Crim.

), affd, 456 So. 2d 129 (Ala. 1984)

Bush v. State, 431 So. 2d 655 (Ala.

1982); Dobard v. State, 435 So. 2d

1983), Luke v. State, 444 So. 2d 393

App. 1983); Jones v. State, 450 So.

oan app 1983); Jones v. State,

(Ala. Crim. App. 1983); Lindsey

6 So. 2d 383 (Ala. Crim. App. 1983);

State, 459 So. 2d 953 (Ala. Crim.

; Singleton v. State, 465 So. 2d 432

App. 1983); Arthur v. State, 472

(Ala. Crim. App. 1984); Heath v.

: US. —, 106 8. Ct.-433,— L. Ed.

) ,

rcumstances in sentence

fined in section 13A-5-40(a)

rcumstances as specified in

je the finding and consider-

es in determining sentence.

aggravating circumstance

i considered in determining

victed of the capital offenses

ion (a) of section 13A-5-40.

. No. 82-567, ‘p. 945, § 1.)

1982); Heath v. State, 455 So. 2d

m. App. 1983); Heath v. Alabama.

106 S. Ct. 433, — L. Ed 2d —

§ 13A-5-51

§ 13A-5-51. Mitigating circumstances — Generally.

I. Miustrative Cases.

L GENERAL CONSIDERATION.

Death penalty schéme must allow coart

to consider any mitigating circumstances.

— Subject only to the loose evidentiary re-

quirement of relevance, capital defendants

have a right to offer any evidence they choose

on character or vecord or circumstances of the

offense. Further, a death penalty scheme must

allow the sentencing authority to consider and

y

State, 456 So. 2d 99 (Ala. Crim. App. 1983),

tigating circumstance. Cli

v. State; 456 So. 2d 99 (Ale. Crim. App. 1983),

cert. denied, = U.S: —, 106 8. Ct. 1372, 84 L.

Ed

— US. —, 105 S. Ct. 1372, 84 L. Ed. 2d 391

(1985)

The trial judge is free to consider each case

involves the gravity of the aggravation as

compared to the mitigation. Clisby v. State,

456 So. 2d 106 (Ala. 1984), cert. denied, — U.S

—, 106 8. Ct. 1372, 84 L. Ed. 2d 391 (1985)

The court must permit the defendant to

introduce any matter relating to. any. miti-

gating circumstances including those enu

a Po¥eret ~ “elt pe *s

—

+

>

.*

PUNISHMENTS AND SENTENCES

§ 13A-5-51

merated in the Code. Clisby v. State, 456 So. 2d

99 (Ala. Crim. App. 1983), cert. denied, — U.S

—, 105 S. Ct. 1372, 84 L. Ed. 2d 391 (1985)

The sentencer may not as « matter of law

preclude any relevant mitigating factors of-

fered by a defendant. Just as the state may not

by statute preclude the sentencer from consid-

ering any mitigating factor, neither may the

sentencer refuse to consider, as « matter of

law, any relevant mitigating evidence. Clisby

v. State, 456 So. 2d 99 (Ale. Crim. App. 1983),

cert. denied, — U.S. —, 105 S. Ct. 1372, 84 L.

Ed. 2d 391 (19865).

imprisonment without parole rather than

death. Clisby v. State, 456 So. 2d 99 (Ala.

Crim. App. 1983), cert. denied, — U.S. —, 105

S. Ct. 1372, 84 L. Ed. 2d 391 (1985).

Cited in Bush v. State, 431 So. 2d 565 (Ala

Crim. App. 1982); Dobard v. State, 435 So. 2d

1338 (Ala. Crim. App. 1982), aff'd, 435 So. 2d

1361 (Ala. 1983); Lake v. State, 444 So. 2d

(Ala. Crim. App. 1983); Jones v. State, 456 So.

2d 366 (Ala. Crim. App. 1983); Lindsey v

State, 456 So. 2d 383 (Ala. Crim. App. 1983);

Lindsey v. State, 456 So. 2d 393 (Ala. 1984);

Waldrop v. State, 459 So. 2d 953 (Ala. Crim

App. 1983); Singleton v. State, 465 So. 2d 432

(Ala. Crim. App. 1983); Harrell v. State, 470

So. 2d 1303 (Ala. Crim. App. 1984)

Il. ILLUSTRATIVE CASES.

Antisocial personality. — Where evidence

was presented that the defendant has an

antisocial personality, the defendant's mental

or emotional disturbance must be considered

as relevant mitigating evidence. However, it is

for the trial judge to determine the weight to

be given that evidence. Clisby v. State, 456 So

2d 99 (Ala. Crim. App. 1983), cert. denied, —

US. —, 106 S. Ct. 1372, 84 L. Ed. 2d 391

(1985)

Evidence of a difficult family history and

of emotional disturbance constitutes rele-

vant mitigating evidence. Clisby v. State, 456

So. 2d 99 (Ala. Crim. App. 1983), cert. denied,

— US. ~, 106 S. Ct. 1372, 84 L. Ed. 2d 391

(1985).

§ 13A-5-5?

§ 13A-5-52. Same — Inclusion of defendant's character

The court must permit the defendant &

introduce any matter relating to any mit

geting circumstances including ‘hose enu

merated in the Code Clisby v. State, 456 Se 2d

99 (Ala. Crim. App 1983), cert. dened ws

—, 106 S. Ct. 1372, 84 L. Ed. 2d 39 gas

Subject only to the loose evidentiary require

ment of relevance, capita! defendants have s

right to offer any evidence they choose

character or record or circumstances of the

offense Further, a death penalty scheme must

allow the sentencing authority to consider and

give independent weight to mitigating factors

in addition to those listed in the death penalty

statute. While « sentencing authority may

consider only those aggravating circumstances

listed in the relevant statute, it may consider

any mitigating factors that it wishes Clisby v

State, 456 So. 2d 99 (Ala Crim. App. 1983

cert. denied, — US 106 S. Ct. 1372, 84 L

Ed. 2d 391 (1985)

The sentencer may not as « matter of lew

preclude any relevant mitigating factors of

fered by a defendant. Just as the state may not

by statute preclude the sentencer from consid

ering any mitigating factor, neither may the

sentencer refuse to consider, as « matter of

law, any relevant mitigating evidence Clisby

y. State, 456 So. 2d 99 (Ala. Crim. App. 1983

cert. denied, — US 106 S. Ct. 1372, & 1

Ed 2d 391 (1985

§ 13A-5-53. Appellate review of death sentence; scope

cific determinations to be made by

SRIMIN A

record. etc

Effect of mitigeting

The existence of s m

Goes not

circumstances

geung

necessarily require « sentence of (ule

aime lanes

mpnsonment witho

Geath my ¥

mm App 1963), cert demed

s t 1372, & Ed 24 3 oar

Alleged remorse property discounted

mn light of evidence presentex agains

Gant. inciuding evidence

for secood degree murder «& pror con rictior

aeeeull =O) iwtent w& ret

testumony thal be was seen

scene of the murder “clapping his hands with «

big emule on his fece. the trial judge couk

bave properly discounted defendants «/lege

remorve and his cooperson as bot being tru

mitigating Harreil) » Stete. 470 Se 2d 1308

Aljs.), cart. Gemed s _ 5 Pao

88 L. Ed 2d 276 (1988

Cited in Bush » Stete. 4

rum. App. 1962), Lake + Stete. 444 Se Oe 39

Alea Crim. App. 1963) Heath + State 466 &

2d 896 (Als rum App i6 anes

State, 456 So. 2d 383 (Ala Crim Apo 19%

State. 459 So ke Aa rT

Harre

parove

‘tS ie

aine

Sate

we

i « orto

anc ¢vew! ines

running fom the

Seo 2¢ 556 Als

Waldrop v

App. 1983

Als rum. Ape

“ate « =

remanc

court

court following review

Death sentence would be upheld for de

fendant who burglarized a house and then

beet, terrorized, raped, and suffocated to death

a helpless 86-year-old woman. Grayson »

State, 479 So. 2d 76 (Ala. 1986

Cited in Bush v. State, 431 So. 2d 555 (Ala

Crim. App. 1982); Bush v. State, 431 So. 2d 563

(Aja. 1983); Lake v. State, 444 So. 2d 393 (Ala

Crim. App. 1983); Jones v. State, 450 So. 2d

165 (Ale. Crim. App. 1983); Murry v. State

455 So. 2d 53 (Ala. Crim. App. 1983); Heath »

State, 455 So. 2d 898 (Ala. Crim. App. 1983

Hill v. State, 455 So. 2d 930 (Ala. Crim. App

1984), Clisby v. State, 456 So. 2d 102 (Ala

Crim. App. 1983); Clisby v. State, 456 So. 2d

105 (Ala. 1984); Baldwin v. State, 456 So. 2d

117 (Ala. Crim. App. 1983); Jones v. State, 456

So. 2d 366 (Ala. Crim. App. 1983); Jones +

State, 456 So. 2d 380 (Ala. 1984); Lindsey

State, 456 So. 2d 383 (Ala. Crim. App. 1983

v. State, 472 So. 2d 65

State, 472 &

Kennedy ¥

Kennedy v

App. 1964

(Ala. 1985); Jefferson

Ala. Cri App. i984

So. 2d 1110 (Ale 1985

24 601 (Ala mm. App

475 So. 2d G08 ‘Ala 198°

476 So 2d 623 ‘Ale

APPENDIX “E"

My,

Wy “ »

DEPARTMENT OF SOCIOLOGY « UNIVERSITY OF FLORIDA

GUNESVILLE @ FLORIDA @ 32611

901 392.0265

Phone signer direct at 392-0255

March 7, 1988

Mr. Dennis Balske

P.O. Box 2104

Montgamery, AL 36102-2104

Dear Mr. Balske:

I completed my fh.P. in sociology at Purdue University in 1977, and

then compléted two years of Postdoctoral training in Psychiatry at the

University of Wisconsin in 1979. Later that year I came to the University

of Florida, where I am now an Associate Professor of Sociology.

In the past seven years I have published a dozen major papers relating

to capital punishment in the country’s top sociology, criminology, andj law

journals. As part of my research, I collect data on all post-fPurman capital

cases in Florida.

Since Florida’s current death penalty statute was enacted in December,

1972, there have been 526 death sentences imposed (or reinmposed) in the

state. Of those 526 death sentences, 113 (21.5 percent) involved jury

recommendations of life imprisonment. Of the 113, 93 have been decided by

the Florida supreme Court on direct appeal. Of the 93, 27 were affirmed

(the defendants in some of these cases have later had their death sentences

vacated). Of the remaining 66, 52 sentences were reduced to life, 9 inmates

received a new trial, 4 defendants were remanded to trial court for new

sentencing, and one case was dismissed because of insufficiency of the

evidence.

Yours Sincerely,

Auitet t. Qa

Michael L. Radelet, Ph.D.

Associate Professor

Sworn to and subscribed before me this J ee day of March, Wa

NOTARY iveuic

aotany Pum ic STATE OF FLORTOA

ae conatsseon (TP, WAY 2, 1990

pomty tway (fF mL AA ins. OM. ,

action trerLwortn

*

j

‘

,