Opposition Brief — Jones v. Alabama

> MSAD” — BTEwes

Oo. 64-

October Term, 1964

ON PETITION FOR WRIT OF CERTIORARI

TO THE ALABAMA SUPREME COURT

*Lisieon Counsel

250 Adminiotretive Building

64 Worth Union Street

Montqomery, Alebeme 36150

205/834-5150

peerivend

JAN 24 BS

Orr. or tm br

a

ei. oe

ms)

1. Where petitioner raises @ question which was neither

presented to nor decided by the etete supreme court to which

petitioner seeks to heve the writ issued, does this Court

have jurisdiction to decide the question?

2. If this Court does have jurisdiction, dee6 the

Constitution require that eny specific weight be given to «

jury'® e@visory sentence verdict in « capitel punishment

system?

The caption conteins the names of oll the parties in

thie case.

TABLE OF COMTEBTS. « «ounce c nn nee nneeeneneeneneeeeeeeeees aa

TABLE OF AUTHORITIOS. « «66 0c c cnc cncnleweeweccncewceeece chil

sill SE i

Poult Ola e SES

1. THIS COURT LACKS JURISDICTION

TO DECIDE THE CONSTITUTIONAL ITY

OF THE ADVISORY VERDICT SreTER

IN ALABAMA'S 1961 CAPITAL PuR-

ISWHENT STATUTE, BECAUSE THAT

ISSUE GAS NEITHER RAISED

DECIDED BY THE ALABAMA SUPREME

“aa

OPINIONS BELOW

The decision of the Alabama Supreme Court is reported as

Ex parte Jones, 456 So.2d 380 (Ala. 19864), and a copy of it

is attached to this brief as Appendix A. The decision of the

Alabama Court of Criminal Appeals is reported as Jones v.

State, 456 So.2d 366 (Ala.Cr.App. 1983), and a copy of it is

attached to this brief as Appendix B-

JURISDICTION

In an order dated November 16, 1964, Justice Powell

extended petitioner's time for filing the certiorari petition

to and including December 16, 1984. The certificate of

service and affidavit of mailing attached to the petition,

show that it was not filed until December 17, 1984.

Therefore, the petition is not timely filed.

However, the State of Alabama does not request that the

petition be denied because of untimely filing.

Irrespective of whether the petition was timely filed,

this Court does not have jurisdiction of it, because the

question presented in it was neither presented to nor decided

by the Alabama Supreme Court.

STATUTORY CONSTITUT PROV I

The questions presented in the petition raises issues

involving the Eighth and Fourteenth Amendments. It also

involves Code of Alabama 1975, §13A-5-47(e) which provides:

In deciding upon the sentence, the

trial court shall determine whether the

aggravating circumstances it finds to

exist outweigh the mitigating circum-

stances it finds to exist, and in doing so

the trial court shall consider the recon-

mendation of the jury contained in its ad-

visory verdict, unless such a verdict has

been weighed pursuant to section

13A-5-46(a) or 13A-5-46(g). While che

jury's recommendation concerning sentence

shall be given consideration, it is not

binding upon the court.

That provision is part of Alabama's 1981 capital punishment

statute, which is reproduced as Appendix C to this brief.

STATEMENT OF THE CASE

For present purposes, the chronology of events set out

in the “Statement of the Case” and “Statement of the Facts”

in the petition is sufficiently correct.

However, it should be noted that in his written sentence

orders, after specifying the aggravating and mitigating

circumstances, the trial court gave the following explanation

about why it had decided to override the jury's sentence

recommendation:

The Court having considered the aggra-

vating circumstances and the mitigating

circumstances and after weighing them, the

Court is convinced beyond a reasonable

doubt and to a moral certainty and it is

the judgment of the Court that the aggra-

vating circumstances far outweigh the

mitigating circumstances and that the

death penalty should be imposed.

The Court is fully aware of the great

responsibility that is placed on the trial

judge in cases of this magnitude. The

Court struggled long and hard with the de-

cision that it must make in this case, and

in = the determination to override

the decision of the jury's edvisory sen-

tence of life imprisonment without parole.

The Court must follow the dictates of its

own conscience.

The Court is not chastising or infer-

ring that the jury was lax in their re-

sponsibility. The Court feels that it is

its responsibility to follow the law as

written, and that society must be pro-

tected and that an example must be set

forth and made apparent so that our citi-

zens may be secure in their homes and bus-

inesses.

The Court therefore, re the ad-

visory sentence of the jury in this case.

Jones v. State, 456 So.24 366, 379 (Ala.Cr.App. 1983) [App.

B, hereto).

-2

I. THIS COURT LACKS JURISDICTION

TO DECIDE THE CONSTITUTIONALITY

OF THE ADVISORY VERDICT SYSTEM

IN ALABAMA'S 1981 CAPITAL PUN-

ISHMENT STATUTE, BECAUSE THAT

ISSUE WAS NEITHER RAISED IN NOR

DECIDED BY THE ALABAMA SUPREME

COURT

Petitioner asks this Court to iesue a writ of certiorari

to the Alabama Supreme Court, however, the sole issue raised

in his petition was neither presented to nor decided by the

Alabama Supreme Court. Instead, petitioner conceded in the

state supreme court that the advisory verdict sentencing

scheme was constitutional, and simply urged the court to

adopt specific limitations on the trial court's power to

override the jury's advises , verdict. See, Ex parte Jones,

Because petitioner did not present the question

concerning the constitutionality of Alabama's advisory

verdict sentencing system to the Alabama Supreme Court and it

was not decided by that court, this Court need not decide the

question, Moore v. Illinois, 408 U.S. 786, 799 (1972); should

not decide it, Puller v. Oregon, 417 U.S. 40, 50 nm. 11

(1974); and has no jurisdiction to decide it. Street v. New

York, 394 U.S. 576, 581-562 (1969); Bailey v. Anderson, 326

U.S. 203, 206-207 (1945); see, 26 U.S.C. §1257 (2) and (3).

Il. THE PETITION SHOULD BE DENIED

BECAUSE THE QUESTION PRESENTED

IS NOT A SUBSTANTIAL ONE

In the alternative, the petition should be denied

because the question presented is not 4 substantial one. In

Spanziano v. Florida, 104 S.Ct. 3154 (1984), this Court

upheld the constitutionality of an advisory jury verdict

mechanism in a capital punishment sentencing system. It is

true that the Florida system upheld in Spaziano contained the

Tedder v. State, 322 So.24 908 (Fla. 1975)

+» limitation, which

the Alabama system does not, Ex parte Jones, 456 $0.24 380,

382-383 (Ala. 1984). However, this Court's decision in

Spaziano makes it clear that the Tec ier rule is not

constitutionally required.

This Court specifically held in Spagiano that there was

no constitutional requirement for any jury input at all in

capital sentencing. Id., at 3163, 3165.

If the Constitution

does not require any jury input at all in capital sentencing,

which is what this Court held in Spaziano,

then it follows

that the Constitution does not require that jury input which

is statutorily provided be given any particular weight.

In Spaziano this Court stated as follows:

We see nothing that suggests

that the

application of the jury-override proce-

dure has resulted in arbitrary

or dis-

crimina application of the death

penalty, either in general or

particular case. Regardless

in this

of the

jury's recommendation the trial judge is

required to conduct an independent review

of the evidence and to make his own find-

ings regarding aggravati and mitigating

circumstances. If the , & imposes «4

sentence of death, he must set forth in

writing the findings on which the sen-

tence is based. Fla.Stat. § 921.141(3)

(Supp. 1964). The Florida Supreme Court

must review every —* sentence to en-

sure that the ty has not been in-

sss arbitrarily or capriciously.

921.141(4). As Justice STEVENS noted

in » there is no evidence that the

Flor eme Court hase failed in its

a to perform meaningful ap-

pellate review of each death sentence,

either in cases in which both the jury

and the trial court have concluded that

death is the appropriate penalty or in

cases when the jury hes r life

Gefendant to death. See Barclay ‘3

Florida, U.Ss., at , and n. ’

-Ct., at 3436, and n. 33 (opinion con-

curring in the judgment).

104 S.Ct. at 3166. Precisely the same is true about

Alabama's 1981 capital punishment statute.

This Court should deny the petition for writ of

certiorari.

Respectfully submitted,

GENERAL

ADDRESS OF COUNSEL:

250 Administrative Building

64 Worth Union Street

ry. Alabama 36130

205/834-5150

CERTIFICATE OF SERVICE

I, Bd@ward E. Carnes, a member of the Bar of the Supreme

Court of the United States, do hereby certify that I did

serve a copy of this brief on petitioner by placing « copy in

the United States mail, postage prepaid, and properly

addressed to his counsel of record as follows:

Hon. Vernon 2. Crawford

Hon. Roosevelt Simmons

1407 Davis Avenue

Mobile, Alabama 36603

I further certify that I have served all parties

required to be served.

J

Ll

APPENDIX A—Conunued

°@ We ane Ue coropus appucsoor >/

Such current Urough Une bedy of the sad

Arthur Jones o/&/s Arthur Jones Jr unui

che sasd Arthur Jones sis Arthur Jones

ar be dead and may Almighty God teve

mercy on your soul

ORDERED the 19th day of February

ome

an) possession was s substance sum iar

© Nat used by meum © duuiding Muneture

§Og cBdIn 5) ce. courts findings ~once>

"6 sggrereung and mugeung cre.

ances were supported by evdence and

(©) deaw wes 2 proper sentence

Affirmed

denes J concurred # -esult and fied

pur

Heomernte 155

In prose soe for murder dumng ~>

Dery @ firss degree or stuempt thereof

COMMIT Dy defendant « sas proper for

(we! court Ww overnde jury s advuory ver

Get of fe mpmsonmen anc mpose ser

tence of Geath Code 197) § 1Sa-5<T

2 Seacwnes one

Where pian anguage s used statute

Tus De Muerpreted we mean etactly whe!

sys

2 Comenel Lew ans

| Red States onsuteuoe sues not re

que Supreme (our w dnp Teade- “we

al OP onder Wo sustaw senuence of seaur

fotlowng jury recommendsuen of ve

face suggesung « sentence of death

should De se clear and con. incing that or

tu@ 5 ne reasoned person could differ

Code 1973 § WaT

cles were erence @ case @ whch the

ems sere marned for denuficstion @er

In murder prosecuuor Una coun tc

not err on ‘inding (Rai give on unfe found

© defender’ s possessor was sudstanc+

“wmlar w het used by rum @ dulding

oe mmeture og Bde fF ~we >of weumen,

CX PARTE JONES ~—s

ee ee eed

of state 5 MDersior. exper chai the gives

were “of the came “Semmes! group

Juser 8 Brectr anc 8 Donat Botton

Je of Poster Bracke @ Bolten Polew for

penivoner

Chartes A Greddick Atty Gee and Be

ward Carvers aod Marthe Gal Ingren

Asst Attys Gen for respondent

REATTY Jusuce

Be grantee ~eroerer pursuan' | ode

of 1973, § 124-3) and Bole Te AR

A? whech prowsde for rewee as & matter

oo mgm @ crvmema cases © oferh the

Sea? pene’) Sas beer ™mpesed a pu at

ment The petitioner alleges Ghat the

our of Comma Appesis 456 So le 366

erred m effwming We we cours judg

ment denwing hur oe see we aac © af

‘omong We sentence mpesec Dy We wma

court. The facts are fully set cut & the

spemor of une Cour of Urmme Appee

4 Wer comsderguor of (he ssues reamed Dy

Ure peutQFener we affirm re teswor of

that court

jones arges ‘hs our w reverse the

tensor of he our of mmma Appees

ere? Rel Wet certam statemeru of ‘he

presecuGer 8 FB Od vot create ver)

bie error and w remand he cause for 6

ow Te

We agree oh te Court of Crome!

Appeas Ue De prosecutors slale Merl

ind pO" “Bute Or) prewaee Tsaporefer

worn by Me ery @ igh of the cursnve

mseuctens given by Me Uwe cour and the

statemen of defense counse wg los

MQ argwvers Ad@uensly gue w the

other evwdence @ Whe case the ‘ype of glue

oe the unfe referred w& © -oamg argu

ment, was sot the “foierum of the Suates

cane as the peGueeer argues @ beef We

have careful considered whe - coer’

erguTeow du! we car find & r= te

euheusuve Geetment of He a. de

ear of Onmuna Appees

u

11.5) Jones alse alleges error @& he

sentencing procedure OGecause “he 7s

court verwade the ar) 8 a@vBery vertic:

0’ fe mpreenmer: anc mpused a ser

tence of Goeth The Court of Crimunal

A.gea. aff. ed the mm ours decision

beset eper Murty « Stee G5 So

(Ae Cem App 1983) @fech & currently

pending Gefere the Court oe « ort of

~~rue: an

The statute @ Geer @ Ghat cose and @

Ge present one @ Code of 1975 § IJa-s

€ ehec? prowdes @ part

‘© le Gecding upor (Me sentence (he

we cour shal Geuer™ ~e @heimer (he

a@gTR GUNg CETUMsiances ( finds we e1

et outwewg? De wigs >) ortum=unc

« fed & emit and © domg co the

Uu™a our ste. -0amdr: *e ~ecomemre

Gammon of Re tery contorsed | .s od

CRO Ty ere enews suc? 8 rerMic Yas

jeer faved pursuan' & secuer 34 ~

ee ee

wrommendahion concererng eratrace

a. be ewe coaMderehret UM w tor

rang upoe fe court Emopnas.>

adored

This statute clear) reveals che legrsiauve

mien’ "Ne ee wry s -ecommendsber «

eT) Sor Of) and ‘us & ww nding spor

the ore cour Where pine enguage «

usec Se statute st fe ntereed

meer .coctly het Qcaws) Ey porte Wed

wor County @86 So De 198 400 (Ale 198)

(3) Tre peuuene concedes the const .

Gemaeot) of Aueme + statutern schere

sentencing under Prefix + Flenda 425

ee . Fe. SU

L Ed be H3 197 ema? sphed Ue consu

twuenalt) of Plormda s sumuar ge.th gene

\y procedure ev? We folleerng a nguage

Tes Court hes powted out et jury

ser mong (© 8 CEprte case can perfor™

er ~peorent secew funcuen 8 tr-

sees © Aheow 3 US 520 S192 15

SS mele 6) IM @ Lee

77S (198%), bet & hes sewer suggested

ae at eertencmg 8 ~OnsUtuLona +

wey uret And ( foun appear De oe

“et 6 SOUTHERS REPORTER t¢ SERIES

ee ee a | emery oO Ge Flere Sapeme

“@ oren greeter ~ eer) © De mee a al *. ewe? preset wee off ~te

meee oe oat es ee oe ot eee = 0eee eewg Oe

Perr em ome te Te +-6g* 8 Ture wa, 4 - ew - eng?

espereneet & senten og Ber 6 ery erred OF ee ore fete fe me ,

ent Serle « wr she © ™guee —=— = = eee at aot eet «

ower esl OF eee oe

ed

eon he ame ~~ ee «See lea

o_O 6 em war fs tare ~ °

ve wer" s+ gr@eer « verve fhe 7 on)

reer) -erte [err ff ~~ wg _’t Mee were oh he

~~ Se ee en ee =e 2° Cee phew & he out"

pee fe Eee eee Ben Praff\\ wwyre “npr

ia a * 8. ma tm . =» oe ee ee

te) rT ee oe 7 ure mane = at

OM een werwer he lortse eo! -—- -———- erg De re #° @ --¢-

porety etuts ent sphedd Ge Te cour" Ce ce ee : . o

eee tt fe eee ee 3 |e _— — - . edde

oug? Ge pry “Ot wromewndet "= ~-s “ » * ——. . : ed

erm CH ¢ ote ‘we ow" * e .

el

~~ *eedert © © «we «6 www

ower « _ a ere *

ve ers weer of 6¢ ar) eer

ne - oan “rome ‘

w~wedpe ( fe

a er ~ ho? — * gud ne Tedder

=e + ee + aoe of

- = + gerne -* -_—~ :

@eev ‘otwwmg 6 ut rw ee ee

. ‘ ~—- —- @ —_ wrem + © .

fc se ‘ere eer . o—* ’

, * ’ vale ore hfe -~ a

we! wt << = & i“

—rer “a “ere eat’ - he te

warag Ae “ree (9 * sere

” =" - - ' ee

rere weed & Ter _ ots

” a 66 "6 - -

ss , | F. A empress bd

-'°*'- —_— ‘ oe ee

— ote ewer te ~~ Poe

> - " | e

“ , —— a » : -

. = a _ + to - ae

- ~ - .

‘se 4 + yr a * mee -~ erent

- ~ o re . . > ~~ .

‘. “we ow ov ef re og .

. e -_ =. - re

re eelegvuar®: « pe wie we e

Pe _ ae - «

— al se / & & . "a # .

lea - _

aad : _ oem - “%@ s* "<s- o~

ee ~& - prwet ure s a | “es . > _ “7*e oe fe -~. “*

: ™ =rede' * may © eer? °< + e'*g ar™ « ° -

ire ty ‘ee re wage *% 5 «*der fe y - wlen’e . : -. ~

rtar" ag vaeederts adr Me . "ee «@ er ter 4 ahem: ee

re” a? ee a en =e e « - \ wee 6 se e so

"er aget "ee se he Gerace t -« ~~ 2 <—rrere ve *

‘e he of 7 pe @le “aoe *- - 7 erg’ * Fe | ’ ‘at

Se he DB tbat 0 et wer £4 we i tre eo t . ‘- _

Se © & 7 wre — he we -—— ---« orra og - ro

ee 2 tole-se 4 ert) er © ‘ore moe fe Ree. § oes * *

~ fe ow be Te wage ent es hot / e+ er © prenee ° ae ~

twee @ Denaiders -

~~ ae Te 1D, oh Ge

« ae w Ge Cort «&

-— @mvianmr

LINDSEY + sTaTE - oo

—- eee ee a =

tere et) he egeeture end -onlorm

“e & De vietuwry purpose of Flerda +

“eu @& eppreved by “he ated Sotes

Seereme aur (he pet oner + argumen:

for the edeqiaer of editions standard. of

rovree of 0 re cour) sentence ee «-

proper’) edadressed w ie egwie ure

‘ The = one argue farther un

~~ Te eer «See eres Ghee

mom 8 « order of fine sentencing

Pow We re cour menue wd 6 teeny

men ger by "Oo emnesses +f gp ad du

* rere ne were carrying « beg we

wer tee rhed he beg a 6 brwer gape’

one -omtanog Topperwere eh the vw

mam nether den (ete re ww ne beg

ohh ote parted he warh The geutsone

words he be vag es “erted (6 Ger

‘eames as “ote s Extebe Ne 6 ter Gee

Ss eT ees of ovdtence

Therefore he eeserts “het the Wel cour

art 8 pers) | 6 awore @hw! ~ee wever

ctened & re ef 6 perie bese for (he

worienee overrueng De ur) + e@veer er

tw The record Gane sot demonsireu he

he Tupperware end brew, paper tag eere

‘Orme 9 nirutered me ev dene “-<

eh 6 h6—er 6a fee ee le

‘ee were merted for den (eur ater

foi ty he wu) mother oho was 6

reese (or he Maw Geye ot wlore pe

ww) 6s er meewt — © of

cenere Therefore Ue mew agate com

— @ he! Pewee ete et were ov ere

ene 0 06epe + Stee Tee we ”

Ate 7m Age 199

: ‘werend ‘he ire our seed 6

“ondengs of fart ef the wenieering \earng

ea be Cae tee aentlad @ res

t.e ghee oo ‘he tele (ound © the tofend

or) peewee” 8s Weng 6 tubelame er

ao « he eset ') he rtm © bwldeng ©

noetere ag she he petterer os

i ee le ee ee

—evee tert ‘her ©es & wel.

Qh tomers he tnife oe om &

meta amti~w he ww Wn

eo “ete + @heretery caper Get ae se)

Cd i ee ee ee

= © (be bom) compe oh? we ese

oot w= Gt weuly het He gue were

Pe seme chem re gry "rerefore une

we cour td aot ory © ae funding he: re

cue fore emer

Accoréng') we ‘nd a error © ether

he 6re proper w © the suteequen sen

wrong praredure edveraety efferiing the

mere of (ne tefendan: a of ws

‘ 7S * ~~ Som tery ~ a ooh

Qe our of meme Apprew ‘he! the wel

cour a findings concerning he eggrere:

ie i Do ai ie ie

gered Sy he ervdence end hel Geer was

© proper sentence © (he case Therefore

the wagmen: of ‘he our effirmomg ‘he

wwe court + pedgmern' end serene « fcc

« wo offrmed | 2 tered

ary Rmeer

. he lume oeee wf

’ ot “HErunm «£ =

JONES sane er ermng «+ he

Ow"

were © the we out ete he

Vedder rue Vedde- o~ TT &e be oe

re i¥ bu! eppirng he! standard |

coud efferm the convwuer end ihe eon

ance

ee ee

erare

i =

ow of "ee topwee ( tearere

Noe ~

—rrernng imaat Se BB *.

loner Ce mre nm © he aren

al Bone aunty Breswe | | eareti

| @ @peel @orde oot we eopeeied

The Court of Ormene! Ageente Tyeee /

Camm eee ee ee

ee re ee

er mee onemtoreces (Re (emu

ee ee al

Le eur he are 0 werved and ‘unde

ee ae

ee ee ee

were 8 eer ore

le he wesons eet Sout rere

he agp retes (or whearng

(eo lemdme| Cen —worwwed 6 he re!

oar festwe Counm erry i Wen

» 1. wore Greg 6 er ©

ee gree ae my Reren! -om mn

“ pe tol ondan yk -—

™ Mt Omne 8 wee

Teyter J hetd (het (|) proserwter proper

| RNR Ot spe Wome heh OtRoug?

0 ateed 0 Otenne COR Teed

yD parame ae oo denee © (he presence

of pe ary 2) tofendam es property

elormed of ha mgt w presence of on

omen 7 turng quecumem@g end “fer of

8 REGEN ted eMerne) See Set mE wer)

eee ed oP 8 furere ume ewan}

re or ered jury + edreory

O

5

ee ee

of pao preredere om ary other ertenrery

fervor € evvtwece wes suffiewe: © sup

or fang Dee RUgEORg wen

aocee chee aed he hee

ee ee

te ee mm On owee 8 Er pEr Ene.

top «felonies © he tee pee

Ce ed

Ae

noe st - «& &e

| Owes! Lew Tne)

eer men et om

an ee —weeenene ome ome

Ce ee

ee ee

ee ee

tone © prememee of Pe ary

t (mnt Lew one

nde ques = auemane (orm

ears of warnings & we giver © 8 crwrune

teleedar| @ © he ~retmwaene gh

prewerted by het Geren USCA Comm

Ament 8

. (mane Lew Sore

Drosde cerumgs gree w tefendan:

proper’) aformed tue of ke mgm © we

presence 9! af OMerney Furng pueotmr ing

end ted oe! mproper'y ese ew offer /

OF teen ied Ofterney © 6 furure ume 6

oon USCA Comm ament 6

sOwes + eTaTe -

ee ee

(oe 19773 @ ihe

fedang of the mery mart 14 4 4de &

© Creme Lew Grrr se | Homers othe

[> preven for munter by the te le prumerwswe for murter by Une @

pertethnde @ preseseme of defendan: Ot We! Bed of mrgeing cwremstnnr

nohed Get cont by ree oe meet te OOO TE, OF eee, ee

+ Geet oe ere coe op

pertinent fect sot © evilenee er Get 6h Cremene! Lew @rrnee ee

orthout cupper by Gny evuienee ond Gs Remente 1m

eres onde 6 ofivcone

ite § fete ») ot © Oooo

Benen J+ of Feswr Brecee @ Ronen

a rr re

* \54 6 omen) (24 6 Ome & (here 4 Grediet 40) fe ond Be

wort (arses ant Barve 2) lngrem

ead Aow 4twe (ee fer aepeiee

ba oe

‘eedar' terme 0 ~heery © the foe te WURERT TAYLOR jetge

oo

-

Seer er Cee tert amt er owtet on

~ + 66 Oo & Abe

ma 7S (= orton Sy ne tofemtae: farm 6

cohhery © the Nee agree = as eter

-_ ee te ae a

8 parte Seng — AGETe Teen amt

ONG ooometenrss he ary Meet op

'e lee + pomehowe at ffs merece

oman: Gurng + conhery & he fret de whew perete Buleequently Ge on

pete weg het he aggrereen, eat ae

.

Geang —eroemowmnwws purtuam ws § 14

© Cote of Athenee 9") and feting

angerg cVerwene "2erw the

efreer) verte end set agg

ert penahmer: e tower Mee wor &

fmdunge of fer

[Phe Og gTereung wunmearnre Oh. +

Me eer ote te

wer Cee Be EO OR eh mer:

ie Me

ow age fw ok mm

framd euler: w

Revenues Se © 8 ~wrewiee of 6 ee

Cem ee tng © 6 Or wore a oe

> ~~ ~~ Tere ‘eo! preeereer oF:

me

& Rewer Bare coufe ae ©

weer - _— “~~ © 0 meh

—me set Gee «& "he ae flor

Me Fem COs wee Ofer emer for

» fre -erte amr »/

tows f B Beee. “Nom gee wee or coun

he ee tate “ ~ 2a ef | gry

rer@e serth 9 BD, Bate + mete Soome

—— SS Gee oat The ~~ er

‘oret Mgt ey TRA our te free: .

Behe 8 wee erlang appre mew -_

See@ret ‘eo «ae © he ghee, er

ne foe! ke eter = ere ore = © mnt

eer he ree eee Ne eewre mer

Se Beeke een w wee 8 Se oe

° prevearnag fs ee ereund § pm ow

Se ae a - ote fe heer lve

«| a: we »~ = =

———en he ewe om | le rm

Ne eee eh oe Grey ow he ee

_— of oe The ie tee

ohrre e686 mer Teerhed Geer hy he

~ OP exte he eter Me @ewme as me

ee ow! few

of Tore © © ages em Ber me ow

—ere me wee fe tte g em

“er oer

re mer GD Bare cteerres ore o

her eee’ eat Gert peewee He wae «

= t =e tepre emer) ee foe eee

~re © wg cot © pee © erg?

co ser Ome oe he ugh “

om! Gee Ww fe errvng + bewe

~~ ete we ef heet & he ag heed

= ew + pee gerteagr eg © Bee

A Re ee

ee

es +. ee = oe oe

~~ |The

~ or

wn

~~ oe he «* Wu me!

Seng? ee ae wwe ‘ere fo & he

Grewed Ow 0 Gunter Soom & he Soe

S Bete, “Negeee astro &

Sartre « ~mer Ow Ba ime “K.-mye

oa ent hee eee BD Bu he ° @~" ene

en ee, ee ee

“ =) Ge eee were

SB Beamer gmee oife we

om Mgtee, 5) egerwemew: © are

work -f © ear te een Qe

jnoremear Me ecetet We wes Une “eho

we ower Seaghe "wemgmee

Sepeeeeer (4 (G8 armen § Bp &

~~ oe © he mg err @her be © fe oe

© We beer end uetd kee Oe thong? one

~en

wert often me Gere caer he tm

i A ee ee ee ee

ee ee, en ee ee _

"Ne, tere o& ss)

oe 0 heme emt 8) rem = -— ao

ere (Ney eee 6 cher bert mer © coring

© eek ~~ ow of me fer .

Treg stemeeet Ue mars weg? 6

ome Se ee ee

a ey

@ ne ee ee am ne errrem he

a ee oe ee ee

a = = & Ge eee ".

wget fren fe eee One See ea

oe whe om ~~ ee Cee ee

Me hee ewe BD Bethe 8 cheagee pe

ow SS tee + 2 OF oe~wen © De &

~ 8 ea we ae wer ~ =

ed Me re eer =m) agen e mow

> rer@e cew? ether be ese Ge be ee em @

. 8 & este oe roe ‘ . oe

Se Noe a ee ~“e

a ee oe ed -— @ ee -_—

—-_

se og? @ "\ ng « —" a ae

ee

ee oh ee i eo an a |

oe me oer egy Ome: few Ree

ere wl hee ee Ber eee

BO ew pe confer me cher we

'— ee ame = ke eee + Qe ‘ eug *=

het Beer benterg 0 mg oe ee met

ome Che? Seg ved engether cee «¢ tee

erage (ee Net deere et Ne cee coung

ee ee | ee

c-— = hee 6 & eheg & athe OS

ee ee ee es ee ee)

Sh. ie ee |

et & * ot + eee fee « Oe

——— et oe ape f

ee

oom © Ge fF Beeggeeer) Here o@

| i

Hilt

# i:

BE

—< omnes = me coma ee

¢ een ng 6 gee — cere

a Ge tales of Ge telgere OF te

wm ~~

_— = et em = pertage ewe,

— © oe © ee eee ee eee

Wien eee et Geet & ee of certeee

ee ee

m_

Ce a ee

ee

a we a ~— ase

a a 7

—— | 2. « ~~

on Om 8 &

= =.

“+ = se OG 6h ee = Be &

_—_- ewe oe — —

~~ ee ee ree

= *

ae ee ee

ee - —_ er ee ee

~~ -S ewer OG Ge eg le

~— = o& —— = om

/- -.° ete -— -—- ewe —~

—_—_ oii Ceo

ee ee ee Oo<-

— ee Se . -

-_ oe ee « ~ _~ ~ ~~

=— = & Se eee -

~~ o> - |! -~— = S. ~ ~—

->~- — — &.

oo =. _ Oe" ot or,

“ a ee [ow

- ee ~g- ws — 2. +

any ————_ iO '- >

= 8) oe -ew ge

~ =a -_ aw" “—= ww =e

~~ ee 6 & & wee 2 sete

~~ _=eaagr SO ¢

-— = -=——_-- > «> ee

I —e ee ~

—S" ee —— ¢ =

ee ee

FT =e. Ss oe a a ae

—_ ME = Se = fe

— , ae ee

‘oe = Sees « - +

— —<—6 | ae ee we 6 ow ge

tlt a |

—— — 2 eww em es we ee

os a oat ee

— =e 6 eee le le”

_— OO me mag ot eee

———_ em mews

—— ee = ete

=e REE GEPOeTER & eleeee

=a eke + ee’ « eeeeliant test

ee ee ee oe rrr 8 ee er appellant or

a4 rw ww He hac

—~- ~~ Ge epweliant find

= + eee ee femeewme use and

v———_ -— of” ~~ ne murder

_ 6 — eer mee he Ov Olvemen:

— = ewes ee fe "Seg morning

oo - = eee et Gere the gun

= See See Be Ge ee recall the

— ~~ or o& ¢

= ete ome ewer me at one poin

a See Se Seer 14s Name

me Beeee came « Ree Kecause the

—— —— She we eee Gee cure of ice

on~w.- @--

= meee be Ge emee ounsel Mr

—- ~— Sees = four as «

aweant How

~—- ~~ Ts 22" ~@ or by he

=_—= © efeme we og = § denufed

Ce e-* o @ —~ « appe an’

~_ e ~.4~ = w ec if evther

ee ee mag appellant

~- ~~ = oe —aer & app

—)

—™ ee & «© + brother y

Cs _- - oo. - eh —-n grocery

= 2 6 "ew een ne morning

“er " eee © corres He located

~ eg @- toe _ ndadred and

- = = w Outdoors

~ ~ — =" a= the “ec

ww eer De

Wren ne

ou oe -

-_— ~~ = —_ » _ at on We

© . ~—— oo He wok the

_— ~ — ant ges @rs Thomp

on athe ?s « “eee forensx pe

-_— ~ © &lerminme the wr

“= @enrd by mjunes Ww the

~~ ww Unree gunshot wounds

» Ge weet eee neck The body alse evi

ow he loree Wauma whuch indicated

oe wwe nad been struct wth an object

emmy Stewart was recalled by the State

ome wesufied appellant toid hum during ne

wwnvertauen et appellants house Uet he

~-~r

-—-

= ws.

r a frend of appellant test,

-d & pwto! from appellant on

of September 15. He had

quested that appellant find

» for his personal use and

pon learning of the murder

‘ants possible invoivemen:

eport the following morning

amecked” and threw the gun

ay He did not recall the

r of the gun

80 testified that at one poin:

nt had changed hw name wo

ne of Baagee Because the

bet, he was not sure of itz

von by defense counse| Mr

<@ State's exhibit four as «

wonged Ww appellant How

rther examination by the

ted having earlier denufied

the one which appellan

iid not say which, f either

‘ver belonged wo appellant

hey were sumilar to appe!

er. the victim's brother-in

found @ brown grocery

Tupperware on the morning

was murdered He located

mately ome hundred and

is south of The Outdoors

ht hand side of the road

out half way between the

earby Gri road When he

( wes siting fiat on the

wp was open. He took the

and geve « to Mrs. Thomp

dc a State forensic pe

od he determined the nic

caused by injures to the

rom Uree gunsh& wounds

neck. The body also evi

~~ Gaumea which mdocated

een struck with an object

wes recalled by the State

elian( Wold hum during Une

appellants house Unet he

Am 37)

Cie we OO God tet Ain Cs Age 10RD)

hed recently cut hus finger whue changing

ear

Mr. Bobby Thompson wok the stand

agar and testified that after the robbery a

beg containing four hundred dollars was

found as wel) as two hundred dollars

the cash register Because it was ume Ww

buy gasoline and beer for the store which

were purchased i cash there should have

been apprommately @ thousand dollars in

cash at the store. He had not seen the

money but had been told by hw son that it

wee available im the store for those pur

chases

Roland Howell retook the stand and tes

ufied The Outdoorsman was located in

Baldwin County, Alabama The State rest

ed at the close of hu testumony

Appellant muved to dismus the States

case for fadure Ww establish a prima fame

case i that the State failed w prove «

robbery occurred The wis! court denied

appeiian( ss mouon

Arenzo Thigpen. called by appellant to

tesufy stated he was a {mend of appelian:

He recalled having twice borrowed appe!

lant's automobile once on a Sunday and

once on a Tuesday He dened any connec

Gen wth the shooung m Baidwin County

and stated he had sot been np Baldwin

County wrthin the last year

Appellant rested at the close of Thig

pens tesumony The State presented no

rebuttal and appellant s mouon wo exciude

Une State 5 evidence and for s directed ver

dict was demed

Appellant contends thal reversibie error

occurred when the prosecutor commented

on evidence which had not been formally

admitted at tra! while making hus closing

argument t the jury The items in ques

Gon, State's exhibit number six. are the

Tupperware bowls and the brown paper

grocery bag which contained them which

were found near the bag of garbage at the

crime scene The record reflects the fol

lowing denuficauon was made during the

tesumony of the vicum 6 mother

"Q Mrs Thompson, | will ask you &

look into the bag that’s been marked for

idenuficaaon as State's Exhibit Number

Su will ask you if you can recognuze

the ‘tems inside the bag which have been

marked for menuficavon

"Q | asked you w look at what's been

marked for dentificauon as State's Ex

hibit Six. Do you recognize that tem’

‘A Yea. ld

“Q Could you wll the ladies and gentle

men of the Jury whet that tem is’

“A Ite the bowl Tupperware bowls

that | gave my son his lunch and break

the oext Gme you saw thet item”

“A The sext morning September the

15th

‘'O Ant where Gd that tem come

from’

A lt was found

‘Oo Where’

A On the road below the store

‘Q And was that tem found—on what

side of the road. what side of 225"

A On the same side ws the store

‘'@ Were you with the people that

found the item’

Yes, | was We were all walking

Who was that’

Vy son in-law

Who was given wo’

Me

Q And after you had it, who did you

ove « we’

A | think Mr Woodrow Overbey, one

of the law enforcement officers I'm

simost certam & was Woodrow Over

bey

Later i the wisl, Curtis Lassiter, the

vicum 6 brother in iaw testufied he found a

brown grocery bag contauning Tupperware

on the morning following the murder He

wok the bag. which he found on the

ground between The Outdoorsman and the

Girt road, and gave & w& Mra. Thompson

eo oe

SS

372 Am

During the presentation of the appel

lant s case appellant conducted the follow

ing examimavon of appellants witness Ar

enzo Thigpen

Q I'm going & show you « bag mark

od as State's Exhibe Six and ask you &

took nade of Unere

A Okey

MR. WILKINS. Ge shead vou can

look

THE WITNESS (Witness reviewing

struments and documents What are we

looking for’

BY MR ENFINGER

Q Did you look at the tems i the

bag’

A Not really Lat me check & out

again | weally dor know what vad

supposed tw be looking for

G Heve you ever seen those tems be

fore’

A Notas! know of I! seen « lot of

tems that look like that its Tupper

ware Most housewives have them |

dont know whether | seen them before

or not

{i} Although the record does not in

sate that the Tupperware and grocery +

were formally wntroduced into evidence

they were marked for denufication ment

fied by o States witness displayed before

Une jury and commented upon by severe!

witnesses. The articles were. therefore

evidence @ the case = (Nope © State F8

So 2d 745 (Ala. Cr App), cert denwed 78

So. 24 747 (Ala 1979), Simepeon © State

Alm App. 779. 24 Sold Th (1979 As

such, the artcies were proper subjects for

he prosecutor to comment upon and drew

reasonable inferences from during his clos

img argument. Hope. supra

The arucies were repeatedly referred u

by the prosecutor and appellants counse

during \hew examinations of varous wrt

nesses As werated above, appellants

course! questioned hw own wrtness on &

rect examinavon concerning the articles

Bow) pares having treated the arucles as

evidence m the presence of the jury there

= ao error Goelston © State 7) So td

471 (Ala_Cr App 1979)

.

Moreove our review of the record nd

cates that * wer appellant's own counse

who first commented upon the articies dur

ing closing arguments as follows

Nonetheless, he was going back and

forth there. the short black man. you

now, even though the vision was «&

good \ say it was @ short biack man and

had op « (-ehurt and low and behold here

he @ carrying the paper bag. and | be

heve, < was (he paper bag

Ladies and gentlemen there is no doubt

shout «& That's just reasonable This

paper beg. apd then, some kind of dark

plastic bag garbage bag

No question that the Tupperware was

found out there No ques about tha

whoever wes runr _ ewe fror ha

store was carrying that Tupperware

But let's clear away the smoke scree:

that the DA has tied & ou rn here

about the garbage and the give on the

fe The tnife. the Tupperware and

all thus other stuff

We fail lo see therefore how appellant

could Neve been harmed by the prose

tore sumiar reference to the articles dur

ing hw subsequent closing argumer

ii

Appellant contends the wording of the

warming he received prior ¥ making «

statemer © police was insuffiment w ad

vise hor . he nsutuuonal mghts under

Miranda 4mzona Wa a '

1602 S LL tale 0a or Hence. he

argues ws slatements were inadmissidve a

uv

Officer Robert Stewart testufied he ad

vised appellant of hw constitubonal mghts

m the following manner pror u nlerrogs

img tur et hut home on September |6 th

WY Now. what & thet cord. if you o

A 1s & waertng of constitutions

nght anc & warver

W And how Gd you use that cor

anew! you’

cevew of Une record indy

appellant s own counse|

ted upon the arucies dur

vents as follows

he was going back and

e short bieck man, you

ough te vein wes to

as 6 short black man and

and low and behold here

this paper bag, and | be

s paper beg

‘themen. there # no doubt

s just reasonable The

then, some kind of dark

bage bag

hat the Tupperware was

No question sbout that

running away from that

ng that Tupperware

, away Une smoke screen

= wed w& put m here

age and the glue on the

fe the Tupperware, and

r stuff

Unerefore how appellant

harmed by the prosecu

rence to the articles dur

( closing argument

il

ends the wording of the

ved preor & making 6

ce was insuffment w ad

onsttuuens! mght under

yma, 4 US 406, 6 5.Ct

i 64 (1066) Hence, be

nents were nadmussibie at

Stewart tesufied he ad

{ hue consututena! ngh

nanner pmor lo mlerroga!

me on September 16 198)

< @ het ord if you will”

rerning of consutuuons!

aver

a4 you wee that ard &

JONES + STATE Am 373

el

“- | aeed & & reading the Defendant

his consttuuona! igh

“Q And would you read to this Jury the

nhs that you read to the Defendant at

unat ume”

“- Yeo of ‘You have the nght &

talk toe lawyer have hum eth you while

you are being quesuoned if you wants

lawyer but cannot afford one the Court

wl! appout one for you

You have the right & remain silent

anything you say can and will be used

against you in « Court of law

Q@ Al ght ov Where were you

when Uus was done’

A Seated at the kitchen table

‘Q Who else was seated at the tbie’

A Mr Jones and Detective Pickett and

Roland Howe!l! but | also went one step

farther and advwed him that should he

decide wo talk w us and any ume during

that conversauon that he wwhed to. he

could stop talking and request an sttor

ney ot any time

Officer Wayne Ive testified that he also

read appellant hw consutuuonal nghts

shortly before Officer Stewart arnved at

appeiiants home on September 16 198)

Officer Ivie teetufied he instructed appel

ant as follows

A Yeo, or. | edvined him that he hed

the mght to remam edent and anything

that he said could and would be used

against him im @ Court of low. that he

hed the might & have an ettorney

present, and f he couldn't afford an at

torney one would be appointed for hum

And at any Ume during the questioning

if he 80 desired Une quesuoning would be

stopped | asked Mr Jones if he under

stood the mghw and he replied that he

did

Qo Wa anyone else present at Ge

ure’

A Sergeant Picken”

Officer Walter Pickett teetified he was

present and heard both Officer Stewart and

Officer lve advise appellant of hw consotu

uonal nghe

with « future Gme wm court

omitted) There was no error @ the re

life without parole recommended by the

jury. & order & elevate hie sentence

death, wae error, Appellants arguments

have been precluded, however, by our re

cent decision in Murray © State 655 So 2d

58 (Ala. Cr App. 1988). There was no impro

riety im the trial judge's deceien © com

tence appellant to death

~®

374 Ae

Vaughn Thompsons father dentufied

that tem for you And that GUme. when

Arthur Jones was placed under arrest

thie tem of evidence was found wm Ar

ther Jones’ pocket. Thee item

dence had the give on & that hat young

Thompeon boy was mating hw little mod

el hobby with And the tem, the tem

came out of Vaughn Thompson s pocket

and wound up in Une Defendan( s pocket

That's what the eb man coud =e cond

the give that knefe was competent

with the type of give that was found that

Vaughn Thompson had been using at Une

store

MR ENFINGER

” ov

on

Judge. we're going

to object to the prior remart made by the

Prosecutor om Une base thal there was

n esumony from any States witness

het that give that was found on he

blade of Une knife was found et the scene

f une crwne

THE COURT Ladies and gentiemen of

he Jury. et me metruct you ot (he Ome

hat ¥ are only mawier the ev’

fence Unal y have heard from the @ti

ees sland and only whet your recolle

mn of what thal ewwience @ ane Ger

wheal Une attorneys are saying Ww you

They are only arguing the case to you as

© how they remember it and how bey

recollect i The facts as they beet ve

member @ what ey are trying & por

urey They are gathenng thew reason

able inference Lnerefrom so you consider

yniy what comes from the @witnese stand

as you remember it

Appellant argues Una

mepslated We lesumony and stated

Une

evidence thus cresting reversible error

The does not deny hat

Uvere was sever any evidence presented

Unal Ure laboratory expert stated the give

“et on We mente

samples taken from Une ct § possesamn

at Ure seene of Une crvme were of Une same

wee a thet found on the baile

Une prosecutor 6

remart

on Pee Ot

a tect supported by

State on appea

abun oor any gue

eer

In Une State # closing argument @ rebut

tal erroneous reference was agamwn made w&

®

454 SOUTHERN REPORTER. t¢ SERIES

the laborstory experts tesumeony

pears below

And | went you & look af that

when you get « beck Were wm that /

Reom You look at that knife very close

ly You ok up under tus Gung and you

“= &

unife

ary

wok of & ane you see what Wet sub

stance © ets on Che enife 6M 6 Smee

told gou from the lab What was 8 kind

of whatever type give be cont =f wee

Une same type give used mw the mode «

Supergiue

The tesumony of the laboratory exper

Mr James Smal! medicated hu

vealed Unal Une mater or

give of the cyanecrylate group

stated chat samples of ¢@

ceived from

me

the korfe wee a

He aim

four a ee.

Officer Rotand Howell were of

the same cyanoacrylate group as We give

on the knife How ever here wae fo We

mony by Mr Smal! Officer Howe!

one cise as Wo Une org

ples obtauned by (the

ompared with the give on the knife

any

= the ge oor

officer “wheh we

vr Soe westified Unal he recenv ed

Lo

o wmode a bottle labeled as Elmers give

and « jar hd contaming give from Office

There wae &

of

ye wart testiTmony hoe

ever

give of

hal any those ‘tems

yanoecry iate grout

“on Lained

the

5 6) While counsel should Newe wule

ia! sce es 8 a nadie nfere .

from Che evidence unse’ should me 7

sllowed uu argue a 6 te hat @hech @

tupported y Une evidence presented dumng

be] Al

9 Ala

juesUon Ural Une pros

uve rows «© Stete 774 Some

Apt

9%

afArmead 4 we

we without

ecvuterw! arguments quoted shove were

we

the

factual mestatements of Smalls teen

mony @whech fall ether

When Une prosecutor asserts « fact

evidence

cused

profi vUer

woof

~~ &

State

which @ prejudicw &

Dra mond +

S63 So Dd 108 (Ala Cr App 1978

not every argument fect not

dence @ so prejudeew! as W fecessar')

affect Ure subetanua) mgs of the defend

See, Brown, supra ot S98, Fivnr «

State T70 Seo dd B82 (Ale Cr App 1978)

error occurs

Mowever

ows -

ent

ERIES

/ expert's etimeny a ap

*« you & tok ot (hat knife

et & beck there @ that Jury

\ooe at Chat knife very cloee

* up under Us Gung and you

od you eee what Det seb

at's on the knife. Mr Small

m the eb Dat © wae & bind

type give be sas nh oe

pe give used @ the mode «4

ny ef the Iaberetery expert

~e! we@eeted be wee re

* matera! on the knife was «

yanoeryiate group. He also

wr samples of give he re

‘freer Roland Howe!l! were of

woacrylate group as the glue

However Unere was no lest)

mall Offweer Howell or any

une om@gy of Une glue sam

by the officer which were

the give on the knife

so Westulied Unet he recerved

otue abeied as Elmers give

~optaming give from Officer

was G0 elmew how

y of Unese tems contamed

ancacrylate group

© counse! should have ende

guing reasonable inferences

ence counse’ should not be

we as & fact that whch @ not

Me evidence presented dunng

» State 774 Se dd i (Ae

vemed T74 Sold 196 (Aue

Ureut quesuen Unat We pros

amentsa quoted above were

temenw of Mr Smalls test

fal e@rthn the prohibition

seculor asserta & fet pet in

ch @ preedies! & te a

nour Deemond © State

Ala Cr App 1978) However

wment of « fact not m@ ev

weyediewm) a2¢ W fecessar'y

etanual mghe of We defend

~~ supre at 596, Pheer ©

dd 382 (Ala Cr App 197TH)

JONES + STATE

ee

(7) In order for unsupported prosecuto

me statements o! fact to require reversal

une obyecuonabdie s.etements must be (|)

made as of fact (2) without support by any

evidence 3) perunent to Une waves and (4)

heave 8 nature’ tendency to mfluence the

finding of the jury Tillman «© State 34

Se 2d 922 (Ala Cr App 1978). cert quashed

974 So.2d 926, 927 (Ala. 1979), Flent, supra

The proreculoma: statements quesuon

clearly violated (actors (|) and (3) above

The prosecutor § argumen( was phrased as

@ statemen of fact and nol as an mference

from the face The knife s connection to

the victim Dy Une presence of the same type

of give as used in the meum s cab mode!

was clearly pertuner( in proving Une Suate 5

enurely curcumstanual case

As @ factor (2), we cannot say that De

prosecutors argument was enurely unsup

ported by any evidence at wal §=The scien

ufe expert dd weufy Unat the give on the

knife and certain give samples from the

officers mvesugeung he case were of (he

same chemical group The prosecutor may

heave argued as 8 legrumate in /. ence from

Une testimony Unat « knefe which was bot

wdenufied by the meetin s father and which

bore evidence of give must have been the

wetm s knefe Yet there sul) was no base

for hue statement Unal Ue expert actually

wentufied Une give samples from Une crime

scene as (he same type a the give on he

knafe

We look finally and cruciaily nen at

factor (4) te determune whewer We nature)

tendency of Ww mustatement of Une ex

pert s tesumony was to nfluence ne find

img of he jury ageimmet appellants miter

ou

The State + case agains’ appellant while

epurely crcumetantal wes © Be wwe be

penden! upon Une experts testimony on the

menuty of the glue type & eetedieh an

overs helming “ase ageunst appeiian: bye

witnesses feecrbed the assailian’ + rece

hewgh( and weight eithough Whey were un

adie to Genufy hem because of the futance

from @hich Uney wwewed lum One ertness

coun’ eee Unel Ue aasasian( carned « brown

paper sack ands pinsue gartage tag The

Am 375

victim » father observed ar sutomobdile on a

Ube tnufe prewwousty made by the weums

fauner

-® .

rT A 6 SUTWERS REPORTER t¢ SERIES

4 ‘Nees of appedant + weufled w haring cule. New Gd you cum wee oe Ge

ered 6 gue ‘ror appedant om the morn specific give’ Ded they’ That was nee

2 meng De weréger eherh he inter ° Ree Gpred

ae’ | CUewnese oe feared ( wes oo

ww & he P urder

Pimally the wai court metructed the en

Munn, ~~ ore charge eo appear dew e

: e ag’ of the epmrety of the a “The statemeew or asseruons of counse

“ee Ge ewdence agams appellant we ore oot evens @ Ge case You take

ee BO ee We prosecutors mastetemen ie weumon, of he erinesses ageUner

© 2 -e8Uer @ Nerrng @ nature wadenc) u& oO & proper and reasonadee nferences

afvence wre ery agers appr lant & a unerefrom apply your commer sense

= Sere Geeeee aeppelent of « foe ial anc © af honest and imparta way ro

Peni eupre We Ged the w be o come Grtermame Ghat wou telewe Ww be the

where the ewwlence as w the @en@ty of eww

sppetant wes co overwheimungly = fever = Nght of Geese ertens we de sot be

f ne State Ua! | 8 mconcervadie Une a eve the prasecwter’s statement crested re

SSRSSS ry Would hove returued © ver versie error See Braue ieee ©

fet of net guclty See Brown cupran ~The Sold 1089 (Ale Cr Ape 198 Werdrth

argument of « fact set © e~dence was nor eee 2 —" , ale Age _

© preiedecwm a8 & Wve neressar') affect domed. 370 So 34 1078 19

oo Ube subetanuse “gu >f appe wa we

Brows supra a ie

We are aflvenced toe by the fe Ne Revwwmng the - ‘ .

he UW cour Gf el overrule appr an’ + ako — of Alpers 19 - mad ne

a) aM ia) ner ommend . a) oe

- = = - here @Gs se error adverse’) af'>

wi. metre" Ne “™~ of yucoterd supm

Appe ian tid noi further pursue hw odmex

ower woe) may be eben we mediieete be

mg ne mgms of the appellant made

® Une sentenceng hearnng

feund the wage s mstrucuen sufficen « he UW cours Adin gy COTM Gg

hal ume Ww cure any maapprefensimor dy me aggreveung and mugeung

Ure ur As we 2pPF |r § Munsee sua melarces Gere supperted Dy ‘e

ed Whe followwmg & We urn © omNg ergy evwence

mer’ @hech folle@ed We praserutor s us \ _ he SPO wes Lhe proper sentence

saemer “Ss “See

Now 8 pockethnfe foes et of i Seer uM ng Le prepmery

ger semen Seve pee tetinwes by ar | he semtence of Grau we have determine

pertetinrves Wey use (hem of a!) kinds . lance ech 6 A >a ne

of Dungs Se many Gungs you car use Almdame |% wet We record nadwaws

ew for eo mary Uhings dul you remem evidence Unet We We judge umpoeed Une

ber wher tem ashing “el mar adow! sertence of Grew ender We of veace

ne Gilferent qualities of thet give and gession srejudice or caw othe art crery

“eure «( Newe beer any other (ype g\ve forte i a. ee weghing of Ure

end gor 8) nese Cypes of other gives QEgTe sung Gee WUgeung cwrumstances

Neve certaw tonds of qualues) And rou ewvdenced Dy Ue recernd pieces us © ercerc

ee Were wee sever aay glee tre ee ee Se oe 's app

Suces Wet where Ge DA brought Rm ents penmeeeet . deoch We ‘od =

one Ge Ok De wes De glee Get Ge Gf the we wage be ewwdence ei an)

young “ompeor feiee used working PrU@tONg Woumslances risted stetuwr

eu Ne Ge and used Porting ew Ne 7 eherwee @ appellants fare ae.

/. = com) Nebage of far amiag fore ee ee Se

oe © reer at magmeng

Ge you ~we wew of thet

” Dat chew’ Theat wae nee

4

eS er meTuetet the un

hare a2 appears beioe

°° @ oF aaeem™eons of ~ounse

oor @ Ge cee You uke

+ Of the qcneeses Loge der

© and reasoned ff ferences

278) er commer ernse

oes and emparte war eo.

“= yee belewe we le De

heer ethene @e G cet be

lor ® etatemen( create

wwe Seer «© See

er App 1981: Mirredeet ¢

2 7S .4.Cr Ape) core

ad 1079 (197TH

,

* coer @ igh of § 134-5

abame 975 we find that

~ erm edverte’y) affect

coe of We appellant mage

wocmg we

oar 8 findings comcerning

amg end mtgeung -v

* were suppers’ by the

ees UM proaer sentence ©

ermumeng Ue proprety of

wel we Nerve Bee Meme

wm * 34-5. Cade of

“oe We rererd nacawes

© Wel wage mposed the

> ender We afvence of

° oF amy other artetrery

eeende. Seghing of Une

!

!

:

|

Hit

i

(Fy

ff

i

I

7

.

i!

‘i

uit

Ht

if

tee

sentence © Pe case

AFFIRMED

A he Jeages concur

APPENDIX 4

IN THE CIRCUIT COURT OF BALD

WIN COUNTY aLaBala

CRIMINAL DIVISION

STATE OF ALABAMA Plamoff

vs

ARTHUR JONES a t a ARTHUR

JONES JR Defendan

CASE NO CC #40

SUMMARY OF FINDING OF Facts

FROM TWE TRIAL

Qe September (4 198) severa: evinces

2 Neart gu show deg fed a We but

eG De send etere cary © cect nen oe

tag 4 (One of Ge bags was enuiied a: «

Drew payer bag = We Geecrpuee met the

@erere seecrpaer of the Defendant Ts

person preceeded ‘rom Une store and wen:

© 0 southerly Grecvor w ar afrequerty

weed Gri reed =A anort Gime after the «

car sped out of the san Gr mad oe Hig»

wa, 2S end went @ 0 southerly arecuor

i ie a

Bay Causeway Apprommatety oneheif

Dw ewrce betrecer Ne huedeeremar

More and from the pout efec® the cad

verre ef was found s brown pager dag

COP nr og “upperware ef." Ue ewur s

meiner Geeufte Ne xm unct Nec tee

. A) 8 poem where Whe oar aged ewe,

we od 8 garbage Dag ehh ~woumer

Cert 80s and ee eemopes of etet wes

ores ne Defendmani s same and address

The Oefename stpued he hed at beer 2

Saltese Goeety & Ge @ eevee @eeks

Bean cos WRC @ pedh @fuct meshed

ae emer of We permoe semcrvhed oy

Le ey yesses W 8 poem’ where the gartage

was foood and We cer sped eway There

wae ae fend Gere & “@ garbage «

de> cage

Photographs were made of he Gee

We es on (he Mead whe? oes wsnfed w

Dy a Skate Tomeosget as Demmg semua we

Usose ores found om Ue Defendant: veh

cm «The Senate Tomeotoget aise weufied

Laat Pere were Rawson the Lendage eto

wed & poet wel) @eeufed as eae of a

Mat person Defender Deng of une Diact

-

Bren ine Defendaet was Reng aun

gece > e Rater ouer) op wesugeior

Une Oefendime( eget Une Uney cousdr pw!

her Rate (ourn ef We uateorsmar

Store ot $68 pm of the naght of the shoot

ag ee eeeer Row be ames wher ome

De 8eeGng aur fe Became merous

378 Ae

APPENDIX A—Contunued

and upset and had no explanation. The

Defendant also told Une officers that he had

a cut and had thrown Ube bandage whuch he

had placed on it im his garbage. When first

quesboaed by the wvesugators concerning

garbage. the Defendant sax that he had

had no gartege for apprommmately ten days

to tw weeks » being informed that «

sack of garbage with the tems as men

tioned shows was found near the scene of

the comme, ibe De’ ndant changed hus story

and he A that he had a few days

prior to that Gme taken hus garbage w &

Hess Service Stauion and was directed by

the attendant where to deposit & The

Defendant entfied the attendant at the

stabon to the invesugsators and the attend

ant at tral demed having directed the De

fendant where to deposit hw garbage The

Defendant demed to the investigators that

he had a pistol, but « witness testified that

the day following the robbery that the De

fendant gave him « pistol A day or so

later when the witness heard that the De

fendant had seen charged with the murder

of Vaughn Thompson, he became fright

ened and drove to the Mobide Bay Highway

and threw the puto! m the bay

At the Gime that the Defendant was or

rested, a knife was found on the Defendar

which the mcum's father denufied as be

longing to the vicum. There was residue

on the knife which the State Toxicologs

identified as being & similar substance

The jury concluded beyond a reasonabie

doubt from thus and other ewdence thal he

Defendant was guilty of the Capital Of

fense of Robbery Murder as charged i the

indictment. The Court concurred » ther

verdct

SENTENCING HEARING BY

THE COURT

The Court having conducted a hearing

pursuant to Tith 13A-5-47 of the Code of

Alabama, 1975 as amended to determine

whether or sot the Court will sentence

Arther Jones a/k/a Arthur Jones, Jr. w

death or tw lif? imprisonment without pe

role and the Court having considered the

/*

456 SOUTHERN REPORTER, 24 SERIES

evudence presented at the trial and at the

sentencing hearing before the jury and Lhe

hearing conducted before the Court along

with the preeentence invesugauon report

which has been made part of thie record

the Court makes the following determina

Goo

AGGRAVATING CIRCUMSTANCES

The Court first consxiers the aggrevat

img arcumstances as ouUined and descn>

ed » Title 15A-5-49, Code of Alabama

(1) The Court finds that the capital of

fense was committed by Arthur Jones

a/k/a Arthur Jones, Jr while he was under

sentence of umpraonment although he was

serving the latter part of hu sentence on

parole at the Ume

(2) The Court finds that the defendant

was previously convicted of another caprta

felony or a felony involving the use or

threat of wolence to the person

(3) The Court finds that there @ no evi

dence that the Defendant did knowingly

create « great mek of death \ many per

sons

offense

the Defendant was

f a robbery

(4) The Court finds the capita

was

engaged wv

The Court finds the “apis

committed for the purpose

arrest ef

committed while

the commussion

offense

was : ’

. z

fecung an escape from custody

ww preventing & awfu

6) The Court finds that the capita! of

fense was not committed for pecunmry

gan

7) The Cowrt finds the capital offense

was not committed to disrupt or hinder the

lawful exercuse of any governmental func

uen or the enforcement of laws

(8) The Court finds that the capital of

f. ee was not especially heinous strociwous

or crue! compared to other capital offenses

The Court finds beyond « reasonable

doubt that the aggravaung cucumstances

described wm Title 13A-5-49 and se: out

above m subparagraphs (1), (2) and (4) par

ticularly apply to the Defendant Arthur

Jones a/k/a Arthur Jones, Jr w the case

‘RIES

nted at the trial and at the

ring before the jury and the

sted before the Court along

ertence invesQgsGon report

mn made part of thw record

es the following determina.

“ING CIRCUMSTANCES

rst consxders the aggrevat

ces as outlined and descnb

4-449, Code of Alabama

t finds that the capital of

nmitted by Arthur Jones

ones Jr while he was under

maonment, although he was

ver part of his sentence on

ne

t finds that the defendant

convicted of another capita!

ony mvolving ‘he use or

ce to the person;

finds that there @ no evr

Defendant did knowingiy

mak of death t© many per

finds the capital offense

while the Defendant was

commission of a robbery

finds the capital offense

tted for the purpose of

enung « lawful arrest ef

« from custody

finds that the capital of

committed for pecuniary

finds the capital offense

ed to disrupt or hinder the

if any governmenta! func-

cement of «ws,

funds that the capita! of

pecially heinous atromous

d Ww ot.or capital offenses.

vis beyond « reasonable

\ggreveung circumstances

le 13A-5-49 and set cat

graphs (1), (2) and (4) par

w the Defendant Arthur

nur Jones, Jr. @ this case

JONES +. STATE

Cike ae 60 Bead B88 (Ain Cr App 1OEB)

APPENDIX A—Continued

MITIGATING CIRCUMSTANCES

The Court now considers the mitigating

curcumstances as described and set out in

Title 13A-5-51, Code of Alabama

(1) The Court finds that the Defendant

has ® significant history of pmor crumnal

acuvity

(2) The Court finds that the capital of

fense was not committed while the Defend

ant was under the influence of extreme

mental or emoviona! disturbance

(9) The Court finds that the victim was

not & participant in the Defendant's con

duct or consented to It.

(4) The Court finds that the Defendant

was not an accomplice in the capital of

fense committed, but was in fact the princr

pal who ropbed and intentionally killed the

vicum Vaughn Thompson,

(5) The Court finds that the Defendant

did not act under extreme duress or under

the substanua! domination of another per

son,

(6) The Court does not find that the cs

pacity of the Defendant to appreciate the

crmminality of his conduct or to conform his

conduct to the requirements of law was

substanually umpaured. and

(7) The Court finds that the age of the

Defendant @ not & mitigeung circum

siance

CONCLUSION

The Court having considered the aggrs

vaung circumstances and the mitgaung

circumstances and after weighing them.

the Court is convinced beyond a reasonable

doubt and to a mora! certainty and it w the

judgment of the Court that the aggravat

ing circumstances far outweigh the mit

gaung curcumstances and that the death

penalty should be imposed

The Court is fully aware of the great

decision that it must make in this case, and

wn making the determination to overnde the

decision of the jury's advwory sentence of

Als, 379

life imprisonment without parole. The

Court must follow the dictates of its own

consmence

The Court ia not chastising or infernng

that the jury was lax oo thew responsibility

The Court feels that it is its responsibility

to follow the law as written, and that soc

ty must be protected and that an exampie

must be set forth and made apparent so

that our citizens may be secure m ther

hames and businesses

The Court therefore, rejects the advuwory

sentence of the jury in this case

It w therefore, considered and adjudged

by the Court that Arthur Jones a/k/a, Ar

thur Jones, Jr. w guilty of the of.

fense charged in the indictment rnd that he

intentionally tallied Vaughn Thompson in

the course of a robbery in the first degree

Arthur Jones. do you have anything to

say before the sentence of law w passed

on you’ The Defendant has nothing to

say

It ws ORDERED, ADJUDGED and DE

CREED that you, Arthur Jones a/k/a Ar

thur Jones Jr suffer death by electrocu-

von at any ume before the hour of sunrse

on the twentieth (20th) day of May, 1962

inside the walls of William C. Holman Unit

of the Prnson System at Atmore, Alabama

in & room arranged for the purpose of

electrocuung convicts sentenced to death

by electrocution

It ws therefore, further ORDERED. AD-

JUDGED and DECREED by the Court that

the Warden of Wilham C. Holman Unit of

che Prison System at Atmore, or in case of

his death, disability or absence, hw deputy

or in the event of the death, disability or

absence of both the Warden and his depu-

ty then the person designated Administra

tor by law for such purpose at any Ume

before the hour of sunrise shall on the

twenueth day of May. 1982 inside the walls

of William C. Holman Unit of the Prison

System at Atmore, m 8 room arranged for

the purpose of electrocuung convicts sen

tenced to death by electrocution, cause to

pass thr ugh the body of the sand Arthur

Jones, a/k/a Arthur Jones, Jr., o current of

electrneity of suffiment imtensity to cause

RSE

380 Au

APPENDIX A—Continued

hue death and the conunua! applicanon of

such current through the body of the said

Arthur Jones a/k/a Arthur Jones, Jr until

the saad Arthur Jones a/k/a Arthur Jones

Jr. be dead, and may Almighty God have

mercy on your soul

ORDERED thus 19th day of February

1982

s/ Harry J Wikers, Jr

CIRCUIT JUDGE

Twerty-eighth Judie! Circuit

Saidwin Coutty. Alabama

© fey eumrme (rite

Ex parte Arthur JONES

Re Arthur Jones

’

State

43-05

Supreme Court of Alabama

June 8, lve4

Rehearings Denied Aug 24. 1984

and Sept M4

Defendant was convicted in the Circuit

Court, Baidwin County, Harry J Wilters

Jr. J.. of murder during & robbery im the

first degree or an attempt thereof commit

ted by defendant. and he appesied The

Court of Crmuinal Appeals, 456 Seo 2d 366

affirmed. On grant of certiorar, the Su

preme Court, Beatty, J. held that: (1) cer

tal statements of prosecubon at tmal uid

not create reversible error (2) 1 was prop

er for tna! court to overnde jury 8 advisory

verdict of life impmsonment and pose

sentence of death (3) although cerum

items which trial court menGoned m sen

tencing were not formally mtroduced into

evidence, such artcles were “evidence

the case; (4) wal court Gd not err

finding Unat glue or unife found w defend

454 SOUTHERN REPORTER, 24 SERIES

ants possession was « substance ‘similar

to that used by wieum in building minature

bog cabin. (5) tra! court's findings concern

ing aggreveung and mitgeung circum

stances were supported by evidence, and

(6) death was & proper sentence

Affirmed

Jones, J.. concurred in result and filed

opuu0e

|. Homicide O° 354

In prosecuuon for murder dumng rob

bery im first degree or attempt thereof

committed by defendant. it was proper for

wal court W override jury's advisory ver

dict of life imprwonment and impose ser

tence of death Code 1975. § 13A-5-47

2 Statutes © 188

Where plain language is used

must be wmterpreted &

it says

statule

mean exactivy what

3. Criminal Law ©6845

United States Constituuor

jure Supreme Cour Ww adopt

nat

KX 2s not re

Tedder rule

im order \ sustain sentence of death

following jury recommendation of iife

facts suggesting « sentence of death

should be so clear and convincing that wir

tually no reasonable person could differ

Code 1975. § 13A-5-47

i. Crimonel Law ©°986.!

Although certain

ment ned r

troduced int

tems which ra

our sentencing were never

forma evidence the art

es were evidence nm case in which the

tems were marked for denuficatuion, ider

tufied hy

states witness displayed before

jury. and commented upon by several wit

nesses

Words and Phrases

and

avior

ner udicia

onsiruc tions

5. Criminal Law © 494

In murder prosecution, tna! court did

not err in finding that glue on knife found

wm defendant's possession was substance

sumilar’ to that used by weum wm building

® minature log cabin, m new of tesumony

PLNISHMEN AN ENTENCEH 1A 49

No constitutional requirement of jury 2d 740 ‘Ala mn Apt ,

sentencing in apite eases Beck ale Jury consideration of death sentence

' ~ 7m ‘ Apt aff ¢ ‘ Aca J ao @ “ le

+ | ere 44 : a 4 rieve \e *

ns ; ) a dea wntence st . posed t ‘

” ; ‘ > lel «? ; be oT Pose Beck Stale ‘

But defendar annot waive jury trial ~ ; ‘ des

‘ : ‘ Trial pudge sentences defendant

‘ r ‘ " ask ‘ 2 6 Gelend Seal?

e . i _ : ' >] .

‘ j F p type Hubba a2 &

‘ , ‘ A A pt 4 aff 42 So 2d 59

, iz , , Alia ™ . 4 r ema as _ Za OF

Ala 4+-

" jefenca " The death penalty i# not necessarily «

he ‘ Lt he disproportionate sentence for accomplice

" s * ue 8 ale he egnin ene

: ee oe an e ahere he :

" " e e capital fe Ritte

- : a . J , a ete

44 + ™ 44 td

: . Apt ™ s € ,

" a ¢ a.

Fact thet leocel district etterneys hed

’ diacretion » he tele A

. ’ "

. Zz 4 at . * mw Of at

’ "

" . ; ; ai *

g ‘ ‘ ff + “ no ‘ . 4 Ne

: ; . Z 44 e a ¢ r

> . 4 e ” ina A ae

—_ And sentence not permissible without Indictment sufficrent t

. erdict of jury : vated offense a a 7

“se : . . -

, de “ . . mt . r at?

" a 4 7 2 te ‘ “as engage

” Py the a t “a

* dea ‘ x - hare

rT" * ' ene

» 4 agreerr . ale . al . "

: ‘ . e 44 : ;

" ® « ‘ i ‘

: - \

13A-5-30 through 13A-5-38. Repeal \ » wo 8 .

‘

‘tT, dn

(om ommiss ners "te . amet . J

he a

§ 13A-5-39. Definitions

. aed ’ ‘ \ ‘ “a t le <a

ae . Lofs . andl

;

- 1 eT leat? pr . “ ; : . re

;

RIMINA pet ’ 13A-5-40

RIN The term as used in sect: 13A-5-4 eans in the course

fori nnection with the commission of, or in ed ‘ flight from the

mmission of the underlying lelor w attempt t '

3) Exes e< axnp Exeroston The terms shal! have the meanings pro

led in section 1JA 4012) and ‘J

4: BuRpen ; renvecTlm THe & Sona be defined as provided if

sé \ Li4

Mi RDER AN Mi aper ey THe pre Sha!! be defined as pr Jed

{ ns A.5-492' and LJA-9 | Nene err reter t event » rring

before the date f the sentence hearing

UNDER SENTENCE OF IMP As used in section 13A-5-49 1), the

term means while serving a term of mbr nment while under a suspended

sentence. while probatior r parole wr while mn work release. furloug?

es mm r any other t pe {f release rT eaom wf ‘ r after ser ng terrr

f imprisonment, other than uncond nai release and freedom after expira

; r i the terry ‘ enter ‘ 4 ‘ a * - bd ' 20 |

13A-5-40. Capital offenses

: The f “wing are at ; {lens

Murder by the defendant du Z Kidnapping it e first degree or ar

ittempt thereo! mmitted by the defend

Murder ¢ he delendar Juring a robber mn the first Gegree or ar

attempt thereol minitted by the detendar

}) Murder t the defendant during a rape in the first or -econd degree or

an attempt thereot mmitted t the defendant r murder bv the detendar

juring sodomy in the first or second degree or an attempt thereof comm tted

py U jelendant

4) Murder by the defendant during a burglary iv the first or second

degree r an attempt thereof committed by the defendant

Murder of any po ce officer, sheriff Geput state trooper federa aw

enforcement officer. or any other state or federal peace officer of a kind

r pr ; " x ara. owe e suc? (Ticer r gu | n dut r heca ‘ ‘

some off : r wb-related act or performance such office x ;

6) Murder committed while the defendant is under sentence of life impris

Murder done for a pecuniar r other valuable Nsidera mn or pur

suant to a niract or tor hire

®: Murder by the defendant dur g sexual abuse im the first or second

degree or an attempt thereof corn ed by the defendant

9:' Murder by the defendar } ne arson on the first or second degree

mmitted by the defendant r murde by the a ia by means of exp

DY

Al

he

: :

P ‘

}

/

e

. e

.

may he

f+

‘

:

Der a

A-4

: lef

flens«e

re

o

he der

+} ,

:

.

¢

4

es

~“

jlete

so

def

r 45¢

where

_

by the de

’

rmer p

; ’ Al

: he

aircraft ¢

’ der at

4 :

“ert nir

«

fond

¥

al ™

Jete

for +}

”

A

‘

‘ ‘

,

io .

> ha

= te

: re

ree :

ateve

...

lec

er

e at

as Get

: 4

vr rd

‘

‘the at

per :

enacar

45

iv

e © eagg’s

> > o > 7. =

. " ™

Lesser ir sded

ole es

(,ullty plea. burde

reterences

Tral of capita

included offense«

" a’ : :

°

e ~ we

‘

- *

‘ Pa

flenses

-

of proof UPON sate

offenses dis< harge

sentencing

of

~ -

» -

- :

: Z me

4 ‘ “

Fr r

~ Oe

: " wher

‘ag -

- ar

: 4

44

waver

defendan

"= a

a _

‘

Bec *

sentencing

lesser

$ 13A-5-44 CRIMINAL CODE > 13A-5-45

ib) If the defendant is found not guilty of the capita! offense or offenses with

which he is charged, and not guilty of any lesser included offense or offenses

considered pursuant to section 13A-5-41. the defendant shall be discharged

ic) If the defendant is found not guilty of the capital offense or offenses with

which he is charged, and is found guilty of a lesser included offense or offenses

considered pursuant to section 13A-5-41. sentence shal! be determined and

imposed as provided by law

id) If the defendant is found guilty of a capital offense or offenses with which

he is charged, the sentence shal! be determined as provided in sections

13A-5-45 through 13A-5-53 ‘Acts 1981, No 81-178 p 203,85

Collateral references ag CJS. Tra 76 Am Jur 2d. Trial. 98 DILL. 1215. 1173

+ 487

§ 13A-5-44. Jury selection and separation; waiver by defendant of jury

participation in sentence hearing.

‘a) The selection of the jury for the trial of a capita! case shal! include the

selection of at least two alternate jurors chosen according to procedures spec:

fied by law or court rule

(b) The separation of the jurv during the pendency of the trial of a capital

case shal! be governed by applicable law or court rule

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 134-5-46 Provided

however, before any such waiver 1s valid. it must affirmatively appear in the

record that the defendant himself has freely waived his mght to the participa

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

of such right. (Acts 1981. No 81-178. p 203. 8 6)

Collateral references 50 CJS. Junes

> 5

47 Am Jur 2d. Jurv. 33 7 12. 72. 159

§ 13A-5-45. 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 sha!

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 1s to be conducted before

the trial judge without a jury or before the trial yudge and a jurv 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

126

& 1JA-5-4

the senter

investigat

ib: The

and closin

and argur

as at triai

ic) Atti

the court «

the aggra\

13A-5-51

considerec

stances w

hearing. u

one before

d) Any

be receive

exclusion:

opportuni:

construed

the Const

e; Att

bevond a

Provided

the defenc

be conside

hearing

fi Unte

13A-5-49

ig’ The

defined in

offered mi:

burden of

the burde

preponder

! teernera

like "

L Ges

The sent

with the re

clause of th

+ Mate 399

re. d on oth

Lyn

But the tr

with wheth

admissible |

evigcence It’

$ 13A-5-45 PUNISHMENTS AND SENTENCES § 13A-5-45

the sentence hearing shall! 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 shall be the same

is attria

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

the court deems relevant to sentence and shall 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

onsidered 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 1s conducted betore a jury other than the

one before which the defendant was tried

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

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

ex jssonarvy rules of evidence. provided that the defendant is accorded a fair

opportunity to rebut any hearsay statements This subsection shall not be

ynstrued to authorize the introduction of any evidence secured !n ¥ ation of

the Constitution of the United States ne state {f Alabama

e) At the sentence hearing the state sna have the burden of proving

bevond a reasonabie doubt the existence f any ggravating rcumstances

Provided. however. anv aggravating circuristance which the verdict convicting

the defendant establishes was pr en de nd a reasonable doubt at trial shall

be considered as proven bDevond 4 rea t jout r purposes of the sentence

fi Unless at least one aggravating : ® as defined in section

13A-5-49 exists. the sentence shal! be mene without gasels

g) The defendant shail be a sed sf Z e rcumstance

defined in sections 13A-5-51 and \ \ he ta ja! existence of an

flered mitigating circumstance its ina i he defendant shal! have the

burden of intenecting the issue. Dut or ed the state shall have

the burder ft disproving the | j ex / rcumstance DOV @

preponder ance of the evidence \ ™ N “ s | Z

en Ta

ih j } “

1 GENERAL CONSIDERATION

The sentencing process must comply . we , ,

‘ r - ‘ 7+™~

with the requirements of the due process : . maa : . :

clause of the fourteenth amendment bh . vr ‘ a om

aon A os ; 4 Ss . a

state m4 Ss Jd Alu tr Ar , - ‘

. The trial court is not obligated to do more

rev @ of how ground ys, 2d "

“ . than provide a fair opportunity for

rebuttal. \ he he recerd und ‘ hut the

But the tria! court need not be concerned jetend giver j ' m

with whether certain evidence would thx ‘ emer ide an

admissible under the exclesionary rules «| ente ‘ uo there no error dohr

evidence If the evider as probative At a . PRIA ‘ \pr 9

§ 13A-5-46 PUNISHMENTS AND SENTENCES § 13A-5.46

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

sit unless impossible or impracticable; separation of jury;

instructions to jury; advisory verdicts; vote required;

mistrial; waiver of right to advisory verdict.

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-5-44ic), it shall be conducted before a jury which shall return an advisory

verdict as provided by subsection ‘e of this section. If both partie; with the

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

jury, the trial judge shall proceed to determine sentence without an advisory

verdict from a jury. Otherwise the hearing shall be conducted before a jury 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 jurv shall be impaneliled to sit at the

sentence hearing. The selection of tha 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 verd:ct 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 shal! be instructed on its function and on the

relevant law by the trial judge. The jury shall 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) If the yurv determines that no aggravating circumstances as defined in

section 13A-5-49 exist, it shall return an advisory verdict recommend ng to

the trial court that the penalty be life imprisonment without parole

2) If the jurv 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 ‘mprisonment without parole

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 shall 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 feast ten jurors. The verdict of the jury must

be in writing and must specify the vote

129

§ 13A-5-47

CRIMINAL CODE

U

§ 13A-5-47

(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, p. 203. § 8.)

Editor's note. — In light of the sumilarity 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 wer:

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. 3&2

Se 24577:Ala Crim App 1979). aff'd. 382 So

2d 597 Ala 1980). rev don remand. 405 So 2d

695 Ala 1981

Jury not required to make specific

findings 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

aggravating circumstances during the

sentencing phase of the proceedings Bush +

State. 431 So 24555 :Ala Crim App 1982

It 1s sufficrent that the trial court. which 1s in

no way bound by the jury s recommendation

concerning sentence is required to enter

specific written findings concerning the exis

tence or nonexistence of each aggraveting cir

cumstance Bush v State. 43! So 24555: Ala

Crim App 1962

dury verdict not binding on trial court. —

The jury s verdict whether to sentence a defen

dant to death or to life without parole is

advisory only Bush v State 431 Se 2d 555

Ala Crim App 1982

The requirement that the jury fix the pun

ishment at death if it finds the defendant guilty

of a capital offense is in no way binding on the

trial court as the final sentencing authority

Beck v State. 396 Se 2d 645 ‘Ala 1980

Act not mandatory where judge

empowered to alter jury verdict. — Before a

death penalty can be imposed in Alabama. the

trial yudge is compelled to hold a separate

hearing and make written findings of one or

more of the aggras ating circumstances set forth

in the act If the trial yudge fails to find one or

more aggravating circumstances. supported by

the evidence. he us 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 tria!

court the act cannot under any construction be

classed as mandatory Williamson v State. 370

Su éd 1054 Ala Crom App 1978), aff'd. 370

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

Seo 24 69= ‘Ala Crim App i9sl)

But crime charged in indictment cannot

be used as both criminal charge and cir.

cumstance aggravating that charge Keiler +

State. ISU Se 2d 926 ‘Ala Crim App 1979

cert. denied. 360 So 2d 938 +Ala 198u

Appellate court does not have statutory

authority to reduce penalty and resentence

the appellant itself That duty is vested in the

trial court Lewis s State 380 So 24d 970: Ala

Crim App 1979

Collateral references. — 2403S Crim

nal Law. 22 15735-1576

21 Am Jur 2d Criminal Law 22 527. 586

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

tion report; presentation of arguments on aggravating and

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 jurv has

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

130

§ 13A-5-47

vided in sect

to determine

(b) Before :

and receive a

tain the infor

and any add

report shall b

to it and to p:

the subject of

nection with

ic) Before

present argu

circumstance

the argumen

id) Based

during the se

evidence sub

written find

circumstance

enumerated

offered pursi

findings of fa

‘e) In dec:

the aggrava

cumstances

recommenda

verdict hast

the jury s re

it is not bin

Editor's not.

the provision

t 13A-5-435 are

this section

Legislative

intended tu per

aggre. ated cu

» State 199s

Statute dd

confer right t

deaih penaits

Stitution bs cx

right to comm

State 36) So

365 So ld i

grounds 447 |

2d 392. on ren

§ 13A-5-47 PUNISHMENTS AND SENTENCES > 13A-5-47

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

to determine the sentence

b) Before making the sentence determination. the trial court shal! order

and receive a written pre-sentence investigation report The report shal! con

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

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

report shal! be kept confidential. and the parties shall have the right to respond

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

the subject of factual dispute. The report and any evidence submitted in 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 to

present arguments concerning the existence of aggravating and mitigating

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

the arguments shall be the same as at tie trial of a case

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

during the sentence hearing, and the pre-sentence investigation report ara any

evidence submitted in connection with it, the trial court shall enter specific

written findings concerning the existence or nonexistence of each aggravating

circumstance enumerated in section 13A-5-49. each mitigating circumstance

enumerated in section 13A-5-51. and anv additionai mitigating circumstances

offered pursuant to section 13A-5-52. The trial court shall also enter writter

findings of facts summarizing the crime and the defendant s participation in it

e' In deciding upon the sentence. the trial court shal! determine whether

the aggravating circumstances it finds to exist outweigh the mitigating cir

cumstances it finds to exist, and in doing so the trial court shal! consider the

recommendation of the jury contained in its advisory verdict. unless such a

verdict has been waived pursuant to section 13A-5-46/a) or 13.4-5-40:g') While

the jury's recommendation concerning sentence shall be given consideration

t 1s not binding upon the court. ‘Acts 1981. No. 81-178. p. 203.8 9

Editor's note In light of the semilarity of The trial court judge and not the jury ts

the pr fr decision under former the sentencing authority. Beck ~ ”

4.5 sre included in the annotations tor So ld 64 Alu 14s

ih ” f The ur\ = erd w he

defendant death of ‘

Legislative intent The legislature .

, 4 ob ad ors f Bu-t _ ‘

ntended perrr Ne ria udge t “ew t

. . Ala Crom Ape ~

iggTu ated ary ynces enumeruted Ky zer

lt ss sufl b he tr

State 399 So 2d 430: Ala 198

r “a t r Ne r)

Statute does not unconstitutionally neering -eNntene

confer right to commute upon judge The specific written findings « e “

death penalty statute does not violate the Con tence of Nonexistence of each ag

t nferring upon the trial judge the umstance Bu-t Mate 4315 4 ‘

right t mmute a sentence of death Beck + Crm App 1982

State. 365 So 2d 985 ‘Ala Crom App ail d Jury not required to make specific

165 Se Jd 106 ‘Ala 1978) revd on other findings of aggravating circumstances

grounds 447 US 625. 1008S Ct 2382 65L Ed There no requirement under Alabir ew

2d 392. on remand. J96 So Jd 64 Ala ign aptial felony «tatute that th it ke

131

§ 13A-5-48

specific findings 5 to the eximence of

aggravating § circumstances during the

sentencing phase of the proceedings Bush v

State, 431 Sc 24 555 (Al Crim App 1982)

The sole purpose of requiring that the

trial judge, as the sentencing suthority,

make # written finding of the aggravating

circumstance is to provide for appellate review

of the sentence of death Kyzerv 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 « sentence of

death fixed by the yury Kyzer v State. 399 Se

2d 330 ‘Ala 1981)

If no mitigating circumstances exist. the

order should so state. Hubbard v S:ate 38?

So 24577 ‘Ala Crim App 1979). aff'd. 382 So

2d 597 ‘Ala 1980), rev don remand. 405 Se 2a

695 ‘Ala 198)

And cause must be remanded for court's

order to be extended. — Where court s order

CRIMINAL CODE

§ 13A-5-49

is insufficient because it did not specify

mitigating circumsiances enumerated in the

statute which it found insufficient to outweigh

aggravating circumstances. cause must be

remanded with instructions that courts order

be extended to include findings of fact from tria!

and mitigating circumstances. if any. con

sidered as required by statute Hubbard

State. 382 So 24 577 Ala Crim App 1979

aff'd. 382 So 2d 597 ‘Ala 1980). revd on

remand. 405 So 24 695 ‘Ala 1981)

For circumstances. where sentence of life

punishment.

McGinnis v State. 362 So 24 605 ‘Ala Crim

App 1979). cert dened. 382 So 2d 609 ‘Ale

1989)

Collateral references. — 24 CIS. Crim

inal Law. 88 1573-1576

21 Am Jur 2d. Cruminal Lew. 94 527, 586

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

stances defined.

The process described in sections 13A-5-461e" 2), 13A-5-46'e"3) and section

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

determine the sentence shall not be defined to mean a mere tallving of

aggravating and mitigating circumstances for the purpose of numerical com-

parison. Instead, it shal! 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 ar individual case 1s life imprisonment without

parole or death. (Acts 1981. No 81-178. p. 203, 8 10)

Collateral references 2CJS. Crm

yal Law, ¢ 1573

21 Am Jur 24 Crominal Lew ¢9 527. Sea

§ 13A-5-49. Aggravating circumstances.

Aggravating circumstances shall be the following

(1) The capita! offense was commutted by a pers. 0 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.

(4) The capital offense was committed while the defendan: 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

k:dnapping.

132

§ 13A-5-49

(5) The cap

preventing a |

(6) The cap

7) The car

exercise of an

(8) The cap

to other capit

82-567. p. 94

1 General Cons

fl Decrsson- L xd

1. GENERAI

Section must b:

imperative that

aggravating circur

possitie the strict

inchmation to gra

aggravating rey

wording of Une «tat

unconstituliona:

felony statute Ke

Ala Crom App

938 Ala 1980

Crming! stutut

mn favor of these 5

to their operat

death penalts ca

no further in mea

v State 402 ™

Crime charg

used as both «:

stance aggrese

State jn Se Ce

cert denied jm

A finding of

cumsetance is 6

penalty Keller

Crom App 19

Ala ive)

Cited in Bust

(rom Apt w=

Collateral re

mal Law +>

21 Ar

Vala

parole pret

i. DEC Ist

Editor's not

The whole +

13A-5-34. thee

dure tor ~nte

now repre wd

Pt

The capita!

preventing a lawful arrest or effectir

NISHMENTS AND

SENTENCES ’ 1JA

fifense was comruitted for the purpose of avoiding or

g an escape trom custody

6) The capita! offense was commitied for pecuniary gain

The capita! offense was committed to disrupt or hinder the lawfu

exercise of any governmental function or the enforcement of iaws. or

The capita

to other capita! offenses

82-567, p. 945, 8 1

Acts 1981

onsideration

Decirssons Under ?nor Law

Genera

1. GENERAL CONSIDERATION

Section must be strictly followed

mpera . nat tria art r setiing u

aggravating circumstances { » os ~~ as

possible ihe wording his se A

r 4 gracua t ade he Ope

gar . ® r rr 2 . > nd Ne

wording e sta e“ e es ar

r : ITD Ls ‘pila

s La > . " ‘ <a =f

Ala m App 1979" cert demed. JAD Se 2

208 Ala +~

stute ’ mh ed

2. or hose pers wugt we ~ubjected

herr onera r Tt especia rue of

death pena ases Pena Jtes are reach

- urther in mear g tha heir words Berard

Mate 40s 50 26 44, A (rom Ape a

Crome charged im indictment cannot be

used as both criminal charge end circum

stance aggravating ‘he harge Keller

“tate Lad _ 2a 92t A ‘rT Ant 9

ert demed So ld Ye Ala 19%

A finding of only one aggravating cir

cumstance is sufficient sin the death

pena Keller State “~ So 2d 926 Aw

rr Apr 9 . te = ~ ‘oh

Ale 19°

Cited in Bust State 4 Se id Als

m Ape ”

Collateral references 46 5 7

; ~ om

- é ‘rT ae m4

4 t a re~ a

re © proba = agen

ses e ‘ ALR3d 4

Il. DECISIONS UNDER PRIOR LAW

Editor's note n light of the similar

ne pr s1ons decision sander rmer

+ are ir sded Ne ann ‘

hes section

The whole purpose of former ¢* 1345-33

13A-5-34. this section and ? 13A-5-36 proce

Sure r senter g nme a te . e ive

* repesied' « 4 * tor sd . ~

ffense was especial!v heinous

atrocious or crue! compared

fo. 81-178. p. 203, 8 11; Acts 1982. N

sentence of death fixed by the jurv Avzer

ate 399 50 2d Ale 198

The language of subdivision (5) cannot

have been intended \ (he legi-iature (o have

expansir.e apr 4 na apo ied

4 © ’ am nw Ls Gea? nha . jor

~ sarc (fa ne . pose

e Ie * co ti oer

ne m Ea parte Johnsen JI9Y

~ “ Als 379

The aggravating circumstance listed in

subsection (*) was intended to apply to only

those conscienceless or pitiless hom’. ides

wich are unnecessarily torturous to the

victim. * . Mate mS oo -d Ala

4™

Finding “aggrevaetion™ not listed in sex

von The : a! yudge at the

werner ng hes a ™a ¢ ae

s\erre he dictment wasn h

4 4 aggravating T Ne

s Je 4> 4pp .*« « r

ere ete :

ee s gai.ne :

determining wheth mo

death Kveze “Ma s > 4

+™

The “capital felony” referred to im this

section refer. to an inte

& Gnuppi ne hther rap . bh

State 99 S50 ld Ala iv

Heinows means extremely wicked or

shocking!s evi

outrageously wicked end vile and cruci

etroc hous means

means de-igne er

ait? 4: flerence t evene

J . her Joninser = -

2d * A rim App i979 dons

- i on par oo Za # A 4

4 Ging (tf © hor Ie

" niorr . ~~ nw?

finding that the crime was expe

at rox at

" e stute re e

. 4 ~ 4 Ala -

® 13A-5-50. Consideration of aggravating ~ircumstances

determination

The ; Na Da 1 ar } tle ~~ a >| ~t

‘ 4 49 «b ‘ ; he

Na : ’ de

B “a i, Z

- “e \ 4 le

~~ 7 : ae a ’ : : : e r

e ; g 4 ‘ ¢

4 A im N\ - at y 41 ~ \ a ‘

ted . ~

atera! referen .

* 13A-5-51. Mitigating circumstances Cenerally

a . star : : ; we r -

T he de : « 4

T he : . — « e “ e dete

. : me yer . _ :

The was @ Da { he de j

4 he de 4 A ’ ’ 4

” r f nwa ‘

_ 46 ™ le

: De

4 | : 4 "ve Me

r + . —

ENP RAI SSIDERATI etere elerenc es

Analve:ns of muitig sting rcumstances

Lie I he besed o7 (his se r

= ll. DECISIONS LANDER

a te “ ~

ga a Editor « note

ted ‘ . ‘ The whole purpose of f

+ through

iA >» -

iA 5

m senten<

PRIOR LAW

§ 13A-5-52

for pudicial review of a sentence of death fixed

by the jury Kyzerv State 399 So 2¢ 330 Ala

198)

Subdivisions (2) and (6) of this section

were concerned with the degree of the

accused's mental disability Berard + State

402 Se 2d 1e4 Ale Crom App 1981

Scheme allows eccused to present

mitigrung evidence Alabama + sentencing

scherne om death .ases broadly aliows the

accused to present evidence of mitigating cir

cumstances Jacc*s v State. 361 Se 2d 640

Ala 197@ cert demed 499 LS 1iz2 95

Ci 1034. 59 L Ed 24 821979

As constituvionally indispensable pert of

death penalty process Alabama +

sentencing process in death cases permits con

sederation of the character and record of the

undi\edual offender and the circumstances of

the particular offense as 3a constitutional!

indi<pensable part of the proces» of inflicting

the penalty of death Jacobs + State 1 So Jd

640 Alea 1978 cert demeed 4990 5 lilz

S Ci 10% SOL Ed 24 82 (1979

Defendant permitted to mtroduce any

maetter relating t© Mitigeting circum

stances At the sentencing hearing before

the urs the court must permit the defendant |

niraduce any matter reiaiina to ans

mitigating crreumstences including those enu

merated mm thee section Beck » State 396 &

Jd 04 Ala i9"0

But existence of mitigating circum

stances does not necessarily require reduc

tien of punishment from death to iit

Mprisonment without parole They must be

nsidered eith and weighed again

ageras ating corcumstances and the extent of

aggravation of suct roumsatance Lewis

State 380 Se 24 979 Ale Crom App 19°9

A pending charge cennot be considered

es criminal history. ook » State 169 Se Jd

28 Ala 19°?

The legislature has indicated that leck of «

sgnificant criminal history should operate in a

CRIMINAL CODE

$ 13A-5-52

con\icted individual s favor and e court cannot

qualif. this provision by relying on prior crim

mal actrovety whech doee not ree to the level

established by the legislature Cook + State

369 So Je ‘251 ‘Ale 1978

Where ». normality of defencant’s

mind ie great. he fixation of his punishment

at death shou'd not be allowed to stand Lewis

v State 380 So 24970 Ala Crom App 1979

Appellate court must independent,

weigh eggrevetng end mitugeting circum

stances in « capital case Lewes » State. 380

Se 24 970 ‘Ala Crom App 1979

If no mitagating circumstances exist the

order should eo state Huboard » State 3*.

Se 24577 Ala Crem App 1979) affd. 382 So

2d 997 Ala 1980) rev don remand. 405 So 2d

695 ‘Ale 198!

. And cause must be remanded to extend

court's order. -~ Where court s order is insuff)

crent because it did not specify mitigating cir

cumstances enumerated in this section which it

found insufficient to outweigh aggres ating cir

umstances cause must be remanded eith

instructions (hat courts order be extended to

nclude findings of fect from tral and

mitigating circumstances if any considered as

requ.red by statute Hubbard » State 5142 So

2d 577 Ala Crom App 1979 affd 382 So 2d

97 Ala 1980) rev don remand 405 Se 24695

Ava 191

Trial court 6 finding that defendan( s age

of @ was insufficient t outweigh

egegreveting circumsetences fet error

Bufford » State 382 Se 2d 1162 ‘Ala Crom

App | cert demed 382% 241175 Ale 1980

For case where the sentencing court

made an independent assessment of the

evidence presenied and determined indepen

dentis of the pury + verdict that the statutory

mitigating circumstances were inapp!.cable to

the appellant see Kyzers State 39950 2d 3)

Ala Crom App 19/9). rev d on other grounds

199 Se 2d 190 Ale 1981

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

In addition to the mitigating circumstances specified in section 1J5A-5-51

mitigating circumstances shal! include any aspect of a defendant s character or

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

a bas)< for a sentence of life imprisonment without parole instead of death. and

an) 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. 8 14

~~

§ 13A-5-5.

Cited = B

Crom App 1

Cotlateral

mal Law ¢

21 Am Jw

§ 13A-5-5.

ia) Ina

reviewing

of crimina

review the

mination

was made

cerning th

evidence «

determine

made in t

find: ngs ec

ported by

extent nec

no error a

tence proc

and mitig.

te review

ib Ind

Alabama «

court, sha

aw

Passion

2w

circums

ser ne

ci

penalty

dant

tc’ The

questions

which a &

id) Afte

of crimine

authorize:

1 A

(2) &

tion of :

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

Cited in Bush » State 431 Se 2¢ 555 Ale

m App oR.

( ollatera: references 2BCIS Crm

nai Law. & 198i

21 Am Jur 24. Cremona! Lew. ¢ 564

§ 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, shall also

review the propriety of the death sentence This review shal! include the deter

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

was made in the sentence proceedings. “ hether the trial court's findings con

cerning the aggravating and mitigating circumstances were supported by the

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

determines that an err’. adversely affecting the mnghts 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 shal! remand the case for new proceedings to the

xtent necessary t rrect the error or errors If the appellate court finds that

error adversely aflecting the night { the defendant was made in the sen

tence proceedings and that the tria urt s findings correrning aggravating

and mitigating circumstances were supported by the evidence, it shal! 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 crimina! appeals. subject to review by the Alabama supreme

irt. shall determine

Whether the sentence of death was imposed under the influence of

pass prejudice. or any other arbitrary factor

2: Whether an independent weighing of the aggravating and mitigating

rcumstances 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

jant

The court of crimina! appeals shal! explicitly address each of the three

questions spec fied in subsection ‘b! of this section mn 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! appeais, 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 impos:

13

§ 13A-5-54

CRIMINAL CODE

§ 13A-5-55

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 preciude the imposition of a sentence of death where it is

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

necessary. or

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 trial court with directioss that the defendant be sentenced to

life imprisonment without parole

Cited in Bush » State 43! Se 2d 555 Al

Crm App 192: Bush» State 431 Se 24 569

Ala \9nJ

Acts 1981, No. 861-178, & 15

( offateral references “CIS. Crm

mal Law &: 1645-1647. 1891.1840

5 Am Jur 2d. Appeal end Error * 725

§ 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 lega! counse! must be provided with court

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

practice of criminal law ‘Acts 198)

Editor s note In light of the semilarits of

the provisions dec sions under former

13A.5 1 ere onchuded in the ennotations for

this section

This section applies only to persons

indicted for capital offenses Thatch. Sta

4'2. Se 228 Ala Crm App 19m)

This section does not require the record

to show that appointed counsel has at least

five veers prior experience in the active

practice of crominal law it semply requires that

the indigent accused be provided such counsel

Absent some tangible indication that the

rewuirements were fot met @€ court cannot

summMuor rule «a @ matter of law that the

ule “as fot mphed with Johnaen +

Stute We Se Jd 899 Ale Crom App 1979

aff'd om part and rev dm part 399 Se 2d 473

. +™

No 81-178. 8 16)

Apporntment in keeping sith section

Where an attorney has practiced crimina! lew

at the call of the criminal docket in the count)

for 10 years tue appormtment to « case

mvolving a capital felon. is on keeping with the

provisson of this section requiring .ot less than

five vears prior expenence in the active pre

tuce of cromenal jaw Jecots » State 371 Se 2d

429 ‘Ala Crm App 1977: vrewd on other

grounds 371 Se 24 448 Ale 1979

Cited wn Curts » State 424 Se 22 67° Ale

mal Lew 8 OH)

21 Am dur 26 Cromnal Lew 8 8-1

Accused « right to represen: himeel!l on state

criminal proceeding madern state cases OF

ALRid 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.% 17

Editors note In togttt of the semilarits of

the Pros isOMs Gecimrons = = under former

* 134 5-34 ere included in the annotations for

thes section

138

§ 13A-5.56

The whol

through 13A-!

for pudicial res

by the jury Ky

198)

Seope of re

should be rev,

creme was in ft

Geath whether

state are being

& 13A-5-56.

The Alab.

use Im case

13A-5-40: a)

promulgate

and sentenc

such verdict

this article

Collateral r

ment~ and Intea

we TN =

& 13A-5-57.

a’ Thisa

1981 Conds

by pre-exist

b) Sectio

or parts of |

shal! not afl

1201 AM.

Cede comm

& 13A-5-58

This arti

constitution

Collateral +

ma’ Lae '

21 Am Jur

\ Ȣ NISHME* AN SENTENCE

The a hole purpose of *e I3A-5-3) he senie : te apt ‘ . .

through 131A 5% waled wa . he oe ar detendta making t?

. - ‘ deat? a! dete "

. ¢ ~~ Se ] 4 he pena Np peor Sete

+ ela Nea owed eo :

Scope of reviee bs death « P Mev & . ” ' +*

« . ( olletera’ references ;

a aed - - Lame | — a :

a . ’ a’ ,oure

- apila ‘ “

§ 13A-5-56. Supreme court to promulgate indictment forms. verdict

forms and jury instructions

:

he Aiaba prerve r Na pr gate patte nd ‘ rr ’

‘ ane wl ; ‘ hare Z flense te ‘ er

." : : ire hereal re ‘ The Alabama supreme Na Ais

gate patter era ; patte iv ru ne (ria

4 sé ‘ g asp ase ‘ hereafter jer th ar ‘ solar a

’ ’ : 1 : ne Da ar . ' ase nde

" ‘ \ ™ N - ~ -

lateral references ; ;

= : : :

+ 13A-5-57. Application of article to conduct after effective date

: | art € appr “ ne a . Vi

™ ; - g before 1M +~ ha g err

e-er g law

~ \ tne ga? . ‘s are heret epe aied ." Ne a“

1. nf) ” ’ r : sre heret epeaied wale

: af! r apt : pre-ex re “ nd ’ oh

.M on m1 A m1. No & ap 2

( ote OmMMissironmers Note - -

a 7 ‘ (ved

liatere! references

§ 13A-5-54. Interpretation of article

T} : ’ ‘ ; : :

‘ i» . ~ 2

( ollateral references

§ 13A-5-59. Application of article upon finding of

s the inter f the legislature ha f the death per

, © are declared uncens . and uf the offer

. anr be reinterpreted 80 a pr 7 3 ns

he death penalty is ever Geciared oe ul

4 lants wt have been sente ec t feath under

o.as enced fe imprisonrme wit? parorw | s

eg 3 re ha he eve ae Ne te r De : pr

are Oe are if nst 4 nai @ re 4 = Te

na jeath pena he Geath pena

. nal per se , dete : . her

a pe ec In sect r ' : sr he sente an

_— parole (Acts 1981. No 81-978. & 3

( ofletere! references

unconstitutional’,

. provis r this

ot : r or

na jea'h pena

na per Na Ne

his erticle shal! be

ais Pe nter : re

: f +b ar ,

erpreted pr d+

s eve te arecd .

eafts n g

4 fe morisonmer

a

ana

iA