The trial court held a sentencing hearing. After reviewing the aggravating and mitigating factors, the trial court overrode the jury's recommendation and sentenced Thompson to death by electrocution. The Alabama courts affirmed Thompson's convictions and sentence on direct appeal. See Thompson v. State, 542 So.2d 1286 (Ala.Crim.App. 1988), aff'd, 542 So.2d 1300 (Ala. 1989). The United States Supreme Court denied certiorari and Thompson's petition for rehearing. Thompson v. Alabama, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989); Thompson v. Alabama, 493 U.S. 986, 110 S.Ct. 528, 107 L.Ed.2d 527 (1989).
Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). See Thompson v. State, 542 So.2d 1286 (Ala.Cr.App. 1988), affirmed, 542 So.2d 1300 (Ala. 1989), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989) (wherein the indictment charged that the defendant caused the victim's death "by striking her with his fist and by dragging her behind an automobile, either or both of which acts resulted in the aspiration of stomach contents and suffocation"). See also Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965) (wherein the court found counts of the indictment that "charge in the alternative the means by which the offense was committed," i.e., that the victim "died as a result of bullet wounds inflicted by a pistol or pistols or by a gun or guns, or as a result of cuts inflicted by use of a knife or other sharp instrument," were proper).
This is because the identity of the weapon used by Carruth was not an essential element of the offense. See Thompson v. State, 542 So.2d 1286, 1292 (Ala.Crim.App.1988), aff'd sub nom. Ex parte Thompson, 542 So.2d 1300 (Ala. 1989). Even if the broad language used in the court's jury instructions amounted to a variance, see supra note 24, it was not prejudicial.
The third question is whether the death sentence in this case "is excessive or disproportionate to the penalty imposed in similar cases." It is not. See Freeman v. State, 555 So.2d 196 (Ala.Crim.App. 1988), cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284 (1990); Bradley v. State, 494 So.2d 750 (Ala.Crim.App. 1985), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987); Dunkins v. State, 437 So.2d 1349 (Ala.Crim.App. 1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984); Thompson v.State, 542 So.2d 1286 (Ala.Crim.App. 1988), affirmed, 542 So.2d 1300 (Ala.), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989); Barbour v. State, 673 So.2d 461 (Ala.Crim.App. 1994). OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
[ Giles v. State, 261 Ark. 413, 549 S.W.2d 479, 483 cert. denied, 434 U.S. 894, 98 S.Ct. 272, 54 L.Ed.2d 180 (1977).] The Maryland Court of Appeals has held that "the mitigating circumstance of youthful age is not measured solely by chronological age," Stebbing v. State, 299 Md. 331, 473 A.2d 903, 921, cert. denied, 469 U.S. 900, 105 S.Ct. 276, 83 L.Ed.2d 212 (1984), but rather encompasses such factors as prior criminal conduct, home environment, and degree of maturity, Johnson v. State, 303 Md. 487, 495 A.2d 1, 19 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868,88 L.Ed.2d 907 (1986); see also Thompson v. State, 542 So.2d 1286, 1297 (Ala.Crim.App. 1988) (upholding trial court's finding that twenty-year-old defendant did not establish age mitigating factor because he "was mature enough to plot, plan and scheme before, during and after the criminal activities"), aff'd, 542 So.2d 1300 (Ala.), cert. denied, 493 U.S. 874, 110 S.Ct. 208,107 L.Ed.2d 161 (1989); State v. Walton, 159 Ariz. 571, 589, 769 P.2d 1017, 1035 (1989) ("When the judge considers age in mitigation, he weighs evidence of experience and maturity."), aff'd, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); State v. Dixon, 283 So.2d 1, 10 (Fla. 1973) (noting that jury may consider "the inexperience of the defendant" in assessing the age mitigating factor), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974); State v. Oliver, 309 N.C. 326, 307 S.E.2d 304, 333 (1983) (following Giles,supra).
" 779 So. 2d at 1244. Thompson v. State, 542 So. 2d 1286, 1297 (Ala. Crim. App. 1988), affirmed, 542 So. 2d 1300 (Ala.), cert. denied, Thompson v. Alabama, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989) (affirming the trial court's finding that ‘while the age of a criminal defendant is an important consideration, it is not "solely determinative of the existence of a mitigating circumstance" ’; Thompson was 20 at the time of the offense and, under the facts of the case, this mitigating circumstance was properly not found to exist).
779 So.2d at 1244.Thompson v. State, 542 So.2d 1286, 1297 (Ala.Crim.App.1988), affirmed, 542 So.2d 1300 (Ala.), cert. denied, Thompson v. Alabama, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989) (affirming the trial court's finding that “while the age of a criminal defendant is an important consideration, it is not ‘solely determinative of the existence of a mitigating circumstance’ ”; Thompson was 20 at the time of the offense and, under the facts of the case, this mitigating circumstance was properly not found to exist). See McMillan v. State, [Ms. CR–08–1954, November 5, 2010] ––– So.3d –––– (Ala.Crim.App.2010) (finding that trial court's determination that the mitigating circumstance of age, where McMillan was 18 years old at time of offense, was to be accorded little weight was not improper based on the facts and circumstances of the case).
779 So. 2d at 1244. Thompson v. State, 542 So. 2d 1286, 1297 (Ala. Crim. App. 1988), affirmed, 542 So. 2d 1300 (Ala.), cert. denied, Thompson v. Alabama, 493 U.S. 874 (1989) (affirming the trial court's finding that "while the age of a criminal defendant is an important consideration, it is not 'solely determinative of the existence of a mitigating circumstance'; Thompson was 20 at the time of the offense and, under the facts of the case, this mitigating circumstance was properly not found to exist). See McMillan v. State, [Ms. CR-08-1954, November 5, 2010] ___ So. 3d ___ (Ala. Crim. App. 2010) (finding that trial court's determination that the mitigating circumstance of age, where McMillan was 18 years old at time of offense, was to be accorded little weight was not improper based on the facts and circumstances of the case).But see Burgess v. State, 962 So. 2d 272, 277 (Ala. Crim. App. 2005) (finding Burgess's age of 26 at the time of the offense to be a mitigating circumstance; however, the facts indicated that Burgess tried to commit suicide following the offense, leaving a note that stated "' [t
Flowers v. State, 922 So.2d 938, 957 (Ala.Crim.App. 2005) quoting Allen v. State, 683 So.2d 38, 41 (Ala.Crim.App. 1996), quoting in turn McCain v. State, 611 So.2d 1123, 1124 (Ala.Crim.App. 1992). We addressed a similar issue in Thompson v. State, 542 So.2d 1286 (Ala.Crim.App. 1988), aff'd, 542 So.2d 1300 (Ala.), cert. denied, 493 U.S. 986, 110 S.Ct. 528, 107 L.Ed.2d 527 (1989), and stated: "'[N]o variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.'
We further note that the Court has rejected this argument on numerous occasions. See, e.g., Scott v. State, 728 So.2d 164, 171 (Ala.Crim.App. 1997), aff'd, 728 So.2d 172 (Ala. 1998), cert. denied, 528 U.S. 831, 120 S.Ct. 87, 145 L.Ed.2d 74 (1999); Stephens v. State, 580 So.2d 11, 26 (Ala.Crim.App. 1990), aff'd, 580 So.2d 26 (Ala.), cert. denied, 502 U.S. 859, 112 S.Ct. 176, 116 L.Ed.2d 138 (1991); and Thompson v. State, 542 So.2d 1286 (Ala.Crim.App. 1988), aff'd, 542 So.2d 1300 (Ala.), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989). We further note the passage of Act No. 2002-492, Ala. Acts 2002, which provides for lethal injection as an alternate means of execution.