Opinion
No. CR-97-1258.
Decided August 31, 2001.
Appeal from Houston Circuit Court (CC-97-0270).
ON RETURN TO SECOND REMAND
On original submission of this capital death case, we affirmed the conviction of the appellant, Jerry Jerome Smith, for the capital offense of "[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct," § 13A-5-40(a)(10), Ala. Code 1975. Smith v. State, [Ms. CR-97-1258, December 22, 2000] ___ So.2d ___ (Ala.Crim.App. 2000). At that time, we examined the record for plain error, whether or not brought to our attention or to the attention of the trial court, in accordance with Ala.R.App.P. 45A, and found no plain error or defect in the proceedings in the guilt phase of the trial or in the jury-sentencing phase. However, we could not review the appellant's sentence of death at that time because of ambiguities in the final sentencing proceeding before the trial court, and because of deficiencies and possible errors in the trial court's sentencing order. We remanded the case to the trial court with instructions that that court enter a new sentencing order in full compliance with § 13A-5-47(d), and with our specific directions set out in Parts IX, X, XI, and XXIX of our opinion. The trial court filed its return to remand on February 6, 2001, in the form of a supplemental sentencing order; that order addressed some of the concerns set out in our remand order, but failed to address others.
On March 30, 2001, we again remanded this case with instructions that the trial court enter a new sentencing order in full compliance with § 13A-5-47(d), and that the court address all the directives and concerns we raised in Parts IX, X, XI, and XXIX of our opinion on original submission. We also requested that the trial court not merely supplement a previous order, but submit an all-inclusive sentencing order. We pointed out that until the trial court submitted an order from which we could clearly discern its findings as to the aggravating, statutory mitigating, and nonstatutory mitigating circumstances, we could not carry out our statutory duty of review pursuant to § 13A-5-53; that section requires us to determine if the trial court's findings concerning the aggravating circumstances and the mitigating circumstances were supported by the evidence, and to weigh those circumstances ourselves to determine whether death was the proper sentence.
The trial court filed its return to our second remand on May 11, 2001. The sentencing order on this second return appears to be all inclusive, as we requested, and appears to comply with our instructions set out in the previous opinions in this case. It satisfies the requirements of § 13A-5-47(d) that the trial court "enter specific written findings" concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, each statutory mitigating circumstance enumerated in § 13A-5-51, and any nonstatutory mitigating circumstance found to exist under § 13A-5-52, as well as written findings of fact summarizing the crime and the appellant's participation in the crime. We now have an order before us that enables us to perform the review required by § 13A-5-53. We will now review the record of the final sentencing proceeding before the trial court and the court's final sentencing order.
Section 13A-5-53(a) requires that, in addition to reviewing the case for any error involving the conviction, we review the propriety of the death sentence. This review shall include our determination of the following: (1) whether any error adversely affecting the rights of the defendant occurred in the sentencing proceedings; (2) whether the trial court's findings concerning the aggravating circumstances and the mitigating circumstances were supported by the evidence; and (3) whether death is the appropriate sentence in the case. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we determine: (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether our independent weighing of the aggravating circumstances and the mitigating circumstances indicates that death is 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 defendant.
After the jury convicted the appellant of the capital offense charged in the indictment, a separate sentencing hearing was held before the jury, in accordance with §§ 13A-5-45 and -46. After hearing evidence concerning the aggravating circumstances and the mitigating circumstances and after being advised as to its function in reference to the finding of any aggravating circumstance and any mitigating circumstance, the weighing of those circumstances, if appropriate, and its responsibility in reference to the return of an advisory verdict, the jury recommended, by a vote of 11 to 1, that the appellant be sentenced to death.
Thereafter, the trial court held another sentencing hearing, in accordance with § 13A-5-47, to determine whether it would sentence the appellant to death as recommended by the jury or to life imprisonment without the possibility of parole. The trial court ordered, and received, a written presentence investigation report, as required by § 13A-5-47(b). The trial court's final sentencing order reflects that the court considered all of the evidence presented, the arguments of counsel, the presentence investigation report, and the advisory verdict of the jury; that the trial court weighed the aggravating circumstances against the mitigating circumstances; and that, finding that the aggravating circumstances outweighed the mitigating circumstances, the trial court sentenced the appellant to death.
In accordance with Ala.R.App.P. 45A and the requirements of § 13A-5-53, we have examined the record for any plain error, whether or not brought to our attention or to the attention of the trial court. As we have already found, the proceedings in the guilt phase and in the sentencing phase before the jury do not present any plain error or defect. Now after reviewing the final sentencing proceeding before the trial court, including its sentencing order filed with this court on May 11, 2001, we find no plain error or defect in that proceeding.
In further exercising our review mandated by § 13A-5-53, we have scrutinized the trial court's findings concerning the aggravating circumstances and the mitigating circumstances to determine if they are supported by the evidence. In its findings of fact in its final sentencing order, the trial court found the existence of two aggravating circumstances: (1) that the defendant was previously convicted of a felony involving the use of violence to the person, § 13A-5-49(2), specifically first-degree assault (that conviction was based on the appellant's guilty plea, the factual basis of which was that he shot the victim with a shotgun because the victim allegedly refused to pay him money owed him); and (2) that the defendant knowingly created a great risk of death to many persons, § 13A-5-49(3). We find that the evidence supports these two aggravating circumstances.
See our discussion of this aggravating circumstance as it relates to the facts of this case in Part XI of our opinion on original submission. Smith v. State, [Ms. CR-97-1258, December 22, 2000] ___ So.2d ___ (Ala.Crim.App. 2000).
The trial court examined the evidence for statutory mitigating circumstances, pursuant to § 13A-5-51, and found the existence of one: that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired, § 13A-5-51(6). In finding this circumstance, the trial court found that the evidence supported the following specific findings:
"(1) [That the appellant's] mother and father were alcoholics and . . . [that] one or more of his family members abused drugs and alcohol.
"(2) [That the appellant] had no relationship with his father who was an alcoholic and usually unemployed and in jail.
"(3) [That the appellant's] home environment was not healthy. His grandmother raised him because of this parent's alcohol problems. [That the appellant] was sexually abused and molested by an older cousin when he was twelve years of age. [That the appellant's] older brother was also molested. [That the appellant's] sister became pregnant at the age of thirteen. [That the appellant] witnessed physical altercations between his parents. [That the appellant] and his siblings started abusing drugs and alcohol when he was eight years old. At the age of eighteen, [the appellant] lived with his sister who was abusing drugs and alcohol.
"(4) The evidence shows that [the appellant] had a brother with a serious mental illness and a sister who was mentally retarded. [The appellant's] older brother was also mentally retarded and took psychotropic medication and had been diagnosed as a schizophrenic. Both siblings had been incarcerated. (See pages 46 47 of the Court's Opinion [Smith v. State, [Ms. CR-97-1258, December 22, 2000] ___ So.2d ___ (Ala.Crim.App. 2000)].)
"Other evidence provided on this issue was the following:
"(1) [That the appellant's] use or misuse or abuse of drugs was a result of his mental or emotional disturbance.
"(2) [That the appellant] could never develop a father-son relationship with his natural father.
"(3) [That the appellant] generally has a pleasant disposition.
"(4) [That the appellant] is borderline mentally retarded.
"(5) [That the appellant] has the learning capacity of a third grader.
"(6) [That the appellant] was on drugs and alcohol when this crime was committed.
"(7) [That the appellant] acted under duress when this crime was committed inasmuch as he believed his mother would be injured or killed.
"(8) [That the appellant first] consumed alcohol at the age of eight.
"(9) [That the appellant was] sniffing gas and lacquer thinner at the age of nine or ten.
"(10) [That, at] the age of ten or eleven, [the appellant] was sexually abused by his cousin.
"(11) [That the appellant] was in special education classes all of his life; [he] only finished the eighth grade.
"(12) [That the appellant has] a history of excessive alcohol and drug abuse. [That the appellant] has sniffed gas, lacquer thinner and used marijuana, heroin, angel dust, acid (LSD), cocaine, Valium, Quaaludes, crank, rush, hash, alcohol, home brew and wine.
"(13) [That the appellant] cannot read or write.
"(14) [That the appellant has a] low IQ and . . . low frustration tolerance and poor impulse control.
"(15) The dysfunction of his childhood home.
"(16) [That the appellant] acted as a 12-year-old with regard to the capacity to form the intent to commit the crime."
The trial court also examined the evidence for nonstatutory mitigating circumstances, pursuant to the requirements of § 13A-5-52, and found the above-enumerated factors to also constitute nonstatutory mitigating circumstances. In addition, it recognized the following as nonstatutory mitigating circumstances:
"(1) [The appellant] did not resist arrest.
"(2) [The appellant] has adapted well to prison life."
In this list of factors that it found to be nonstatutory mitigating circumstances, the trial court included the following:
"In prison, [the appellant] is capable of helping other inmates and contributing to society. However, the Court finds that this evidence does not mitigate [the appellant's] crime or punishment, in that [the appellant] has a prior criminal history of violence. Apparently, his prior incarceration shows that [prison] did rehabilitate him and make him a better person in society."
We find from the trial court's conclusions that the court did not in fact consider this factor as a nonstatutory mitigating circumstance and, likewise, we do not so consider it. It is apparent that the trial court intended to say that prison did not rehabilitate the appellant, but it inadvertently omitted the word "not." Likewise, the trial court intended to say that his prior incarceration did not "make him a better person." In view of the appellant's record, it cannot be reasonably argued that incarceration has had a rehabilitative effect on him.
We hold that the trial court's findings in regard to the statutory mitigating circumstances and nonstatutory mitigating circumstances are supported by the evidence.
In determining whether death is the appropriate sentence for this appellant, we note that the appellant was convicted of the offense of "[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct," § 13A-5-40(10). This offense is defined by our statute as a capital offense. We take judicial notice that similar crimes have been punished capitally throughout the state. See, e.g., Williams v. State, 710 So.2d 1276 (Ala.Crim.App. 1996), aff'd, 710 So.2d 1350 (Ala. 1997);Siebert v. State, 555 So.2d 772 (Ala.Crim.App.), aff'd, 555 So.2d 780 (Ala. 1989); Holladay v. State, 549 So.2d 122 (Ala.Crim.App. 1988),aff'd, 549 So.2d 135 (Ala. 1989); Peoples v. State, 510 So.2d 554 (Ala.Crim.App. 1986), aff'd, 510 So.2d 574 (Ala. 1987).
After reviewing the record of the guilt phase and the sentencing phase of the appellant's trial, we find no indication that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. We have independently weighed the aggravating circumstances against the mitigating circumstances, and we find that the aggravating circumstances clearly outweigh the mitigating circumstances, and we are convinced that the sentence of death is appropriate in relation to this appellant and his crime. We concur in the recommendation of the jury and in the judgment of the trial court that death is the appropriate sentence in this case. The findings and conclusions of the trial court are amply supported by the evidence. Considering the crime committed and the appellant, we find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.
Accordingly, the appellant's conviction and the sentence of death are due to be, and they are hereby, affirmed.
The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e).
AFFIRMED.
McMillan, P.J., and Cobb, Baschab, and Wise, JJ., concur; Shaw, J. recuses himself.