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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 876

## Text

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.

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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

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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

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..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

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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

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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 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 vember , 1985.

’ Y> Citcuit Judge

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|

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
.*

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
‘
,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0005%3A2. Public record. Not legal advice.