Opinion
No. CR-03-2040.
Decided November 23, 2005.
Appeal from Houston Circuit Court (CC-01-293).
On Return to Remand
On September 30, 2005, we remanded this case with instructions that the trial court amend its sentencing order to comply with the requirements of § 13A-5-47(d), Ala. Code 1975. On remand, the trial court complied with our instructions. We now address the appellant's remaining argument and review the propriety of his conviction and sentence of death.
I.
The appellant argues that the trial court did not properly weigh the aggravating and the mitigating circumstances. Specifically, he contends that his "youth and lack of prior criminal history, . . . read in the context of his traumatic personal life, make the death sentence in this case a travesty of justice." (Appellant's brief at p. 49.) With regard to the weighing of aggravating and mitigating circumstances, the Alabama Supreme Court explained as follows in Ex parte Waldrop, 859 So.2d 1181, 1189 — 90 (Ala. 2002):
"[T]he weighing process is not a factual determination. In fact, the relative `weight' of aggravating circumstances and mitigating circumstances is not susceptible to any quantum of proof. As the United States Court of Appeals for the Eleventh Circuit noted, `While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard . . . the relative weight is not.' Ford v. Strickland, 696 F.2d 804, 818 (11th Cir. 1983). This is because weighing the aggravating circumstances and the mitigating circumstances is a process in which `the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence.' Tuilaepa v. California, 512 U.S. 967, 972, 114 S. Ct. 2630, 129 L.Ed.2d 750 (1994). Moreover, the Supreme Court has held that the sentencer in a capital case need not even be instructed as to how to weigh particular facts when making a sentencing decision. See Harris v. Alabama, 513 U.S. 504, 512, 115 S. Ct. 1031, 130 L.Ed.2d 1004 (1995) (rejecting `the notion that "a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required'" (quoting Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S. Ct. 2320, 101 L.Ed.2d 155 (1988)) and holding that `the Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer').
"Thus, the weighing process is not a factual determination or an element of an offense; instead, it is a moral or legal judgment that takes into account a theoretically limitless set of facts and that cannot be reduced to a scientific formula or the discovery of a discrete, observable datum. See California v. Ramos, 463 U.S. 992, 1008, 103 S. Ct. 3446, 77 L.Ed.2d 1171 (1983) (`Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, . . . the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.'); Zant v. Stephens, 462 U.S. 862, 902, 103 S. Ct. 2733, 77 L.Ed.2d 235 (1983) (Rehnquist, J., concurring in the judgment) (`sentencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does').
"In Ford v. Strickland, supra, the defendant claimed that `the crime of capital murder in Florida includes the element of mitigating circumstances not outweighing aggravating circumstances and that the capital sentencing proceeding in Florida involves new findings of fact significantly affecting punishment.' Ford, 696 F.2d at 817. The United States Court of Appeals for the Eleventh Circuit rejected this argument, holding that `aggravating and mitigating circumstances are not facts or elements of the crime. Rather, they channel and restrict the sentencer's discretion in a structured way after guilt has been fixed.' 696 F.2d at 818. Furthermore, in addressing the defendant's claim that the State must prove beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances, the court stated that the defendant's argument
"`seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S. Ct. [1950], 40 L.Ed.2d 295 (1974), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617 — 18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party.'
"696 F.2d at 818. Alabama courts have adopted the Eleventh Circuit's rationale. See Lawhorn v. State, 581 So.2d 1159, 1171 (Ala.Crim.App. 1990) (`while the existence of an aggravating or mitigating circumstance is a fact susceptible to proof, the relative weight of each is not; the process of weighing, unlike facts, is not susceptible to proof by either party'); see also Melson v. State, 775 So.2d 857, 900 — 901 (Ala.Crim.App. 1999); Morrison v. State, 500 So.2d 36, 45 (Ala.Crim.App. 1985)."
(Footnote omitted.) Also, in Bush v. State, 695 So.2d 70, 94 (Ala.Crim.App. 1995), aff'd, 695 So.2d 138 (Ala. 1997), this Court stated:
"`[T]he sentencing authority in Alabama, the trial judge, has unlimited discretion to consider any perceived mitigating circumstances, and he can assign appropriate weight to particular mitigating circumstances. The United States Constitution does not require that specific weights be assigned to different aggravating and mitigating circumstances. Murry v. State, 455 So.2d 53 (Ala.Cr.App. 1983), rev'd on other grounds, 455 So.2d 72 (Ala. 1984). Therefore, the trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balkcom, 716 F.2d 1511 (11th Cir. 1983). The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation.'
" Clisby v. State, 456 So.2d 99, 102 (Ala.Cr.App. 1983)."
In its discretion, the trial court determined that the aggravating circumstance outweighed the mitigating circumstances. As we explain more fully in Part II of this opinion, the trial court properly considered and weighed the aggravating and the mitigating circumstances, we have independently weighed the aggravating and the mitigating circumstances, and we agree that the death sentence is appropriate. Therefore, we do not find that there was any error in this regard.
II.
Pursuant to § 13A-5-53, Ala. Code 1975, we are required to address the propriety of the appellant's conviction and sentence of death. The appellant was indicted for and convicted of capital murder because he committed the murder during the course of a robbery. See § 13A-5-40(a)(2), Ala. Code 1975.
The record does not reflect that the sentence of death was imposed as the result of the influence of passion, prejudice, or any other arbitrary factor. See § 13A-5-53(b)(1), Ala. Code 1975.
The trial court found that the aggravating circumstances outweighed the mitigating circumstances. It found that the State proved one aggravating circumstance — the appellant committed the capital offense while he was engaged in the commission of a first-degree robbery. See § 13A-5-49(4), Ala. Code 1975. The trial court found that two statutory mitigating circumstances existed — 1) the appellant did not have a significant history of prior criminal activity, see § 13A-5-51(1), Ala. Code 1975, and 2) the appellant was nineteen years and eleven months old at the time of the offense, see § 13A-5-51(7), Ala. Code 1975. It also made the following findings as to nonstatutory mitigating circumstances:
"1. Every person who acted as defendant's caregiver died suddenly during his childhood; his mother, his grandmother, his grandfather and his uncle. The Court specifically finds that this circumstance did exist.
"2. He was traumatized by the death of his uncle whom he found dead in his house. The Court specifically finds that this circumstance did not exist.
"3. Defendant never received grief counseling despite the repeated deaths of primary caregivers. The Court specifically finds that this circumstance did not exist.
"4. He was protective of his sister and she trusts him. The Court specifically finds that this circumstance did not exist.
"5. His father abandoned him during early childhood and adolescence. The Court specifically finds that this circumstance did not exist.
"6. His uncle abused him physically and emotionally. The Court specifically finds that this circumstance did not exist.
"7. He was traumatized by forced separation from his sister. The Court specifically finds that this circumstance did not exist.
"8. He never had a normal family life and felt he had no home. The Court specifically finds that this circumstance did not exist.
"9. He got a high school diploma with good grades even though his education was repeatedly interrupted by moves. The Court specifically finds that this circumstance did not exist.
"10. He had to move repeatedly against his will from state to state. The Court specifically finds that this circumstance did not exist.
"11. He was an active church member serving as an usher and a choir member. The Court specifically finds that this circumstance did not exist.
"12. He has had a seizure disorder and has been deprived at time of appropriate medication. The Court finds specifically that this circumstance did not exist.
"13. He has suffered malnourishment. The Court specifically finds that this circumstance did not exist.
"14. To certain people he is loving, kind, well-mannered, respectful, creative and helpful. The Court specifically finds that this circumstance did not exist.
"15. He gave up the right to remain silent when questioned by police officers. The Court specifically finds that this circumstance did not exist.
"16. He expressed remorse at a point after the killing. The Court specifically finds that this circumstance does not exist.
"17. He behaved appropriately during his trial. The Court specifically finds that this circumstance does not exist.
"18. He has a support system which will continue while he is in prison. The Court specifically finds that this circumstance does not exist.
"19. That society would be protected by defendant's serving a life sentence. The Court specifically finds that this circumstance does not exist.
"20. The defendant is a human being. Without question the defendant is a human being but the Court specifically finds that this is not an appropriate mitigating circumstance."
(A.C.R. 6-8.) The sentencing order shows that the trial court weighed the aggravating and mitigating circumstances and correctly sentenced the appellant to death. The record supports its decision, and we agree with its findings.
Section 13A-5-53(b)(2), Ala. Code 1975, requires us to weigh the aggravating and mitigating circumstances independently to determine the propriety of the appellant's sentence of death. After independently weighing the aggravating and mitigating circumstances, we find that the death sentence is appropriate.
As required by § 13A-5-53(b)(3), Ala. Code 1975, we must determine whether the appellant's sentence was disproportionate or excessive when compared to the penalty imposed in similar cases. The appellant committed the murder during the course of a robbery. Similar crimes are being punished by death throughout this state. See Gaddy v. State, 698 So.2d 1100 (Ala.Crim.App. 1995), aff'd, 698 So.2d 1150 (Ala. 1997); Brooks v. State, 695 So.2d 176 (Ala.Crim.App. 1996), aff'd, 695 So.2d 184 (Ala. 1997); Bush v. State, 695 So.2d 70 (Ala.Crim.App. 1995), aff'd, 695 So.2d 138 (Ala. 1997); Peoples v. State, 510 So.2d 554 (Ala.Crim.App. 1986), aff'd, 510 So.2d 574 (Ala. 1987). Therefore, we find that the sentence was neither disproportionate nor excessive.
Finally, we have searched the entire record for any error that may have adversely affected the appellant's substantial rights, and we have not found any. See Rule 45A, Ala. R. App. P.
Accordingly, we affirm the appellant's conviction and sentence.
AFFIRMED.
McMillan, P.J., and Cobb, Shaw, and Wise, JJ., concur.