Opinion
No. CR-95-1775.
Decided July 8, 2005.
Appeal from Conecuh Circuit Court (CC-94-064).
On Return to Remand
By order dated October 15, 2003, the Court of Criminal Appeals appointed Judge Patterson to sit specially on this case pursuant to — 12-18-7(b), Ala. Code 1975.
The appellant, James William McGowan, was convicted of two counts of capital murder for murdering Hiram E. Johnson and Mamie Lucille Johnson during one act or pursuant to one course of conduct, and for murdering Hiram Johnson during the course of a robbery, violations of — 13A-5-40(a)(10) and 13A-5-40(a)(2), Ala. Code 1975. The jury, by a vote of 5 to 7, recommended that McGowan be sentenced to life imprisonment without the possibility of parole. The circuit court overrode the jury's recommendation and sentenced McGowan to death.
On direct appeal we remanded this case for the circuit court to correct its sentencing order to comply with — 13A-5-47(d), Ala. Code 1975, by making specific findings about the existence or nonexistence of each aggravating circumstance set out in — 13A-5-49, Ala. Code 1975, and to make specific findings as to the aggravating circumstance that it found to exist — that the murders were especially heinous, atrocious, or cruel as compared to other capital murders. See McGowan v. State, [Ms. CR-95-1775, December 12, 2003] ___ So.2d ___ (Ala.Crim.App. 2003). We further instructed the circuit court to set out the reasons it chose not to follow the jury's recommendation but instead sentenced McGowan to death. The circuit court has complied with our instructions and has forwarded an amended sentencing order to this court. In our original opinion we upheld the circuit court's admission of evidence of McGowan's involvement in an unrelated capital-murder case in Escambia County. Circuit court records show that in December 1996 McGowan pleaded guilty to the lesser-included offense of murder in exchange for a sentence of life in the penitentiary for killing Barry Harper.
I.
The circuit court specifically found the existence of two aggravating circumstances — that the murders were committed during the course of robbing Hiram Johnson and that the murders were especially heinous, atrocious, or cruel as compared to other capital murders. See — 13A-5-49(4) and 13A-5-49(8), Ala. Code 1975. The aggravating circumstance that the murders were committed during the course of a robbery was found by the jury to exist beyond a reasonable doubt by its verdict in the guilt phase. The circuit court stated the following concerning the aggravating circumstance that the murders were especially heinous, atrocious, or cruel:
"This court specifically finds that the death of Hiram Johnson, an elderly man, by repeated blows to the head with a hammer, beginning while he was upright, and continuing while he was on his hands and knees would have caused great pain and appreciable suffering beyond that of other capital murder cases. The use of many blows is atrocious. The infliction of great pain is heinously cruel. The decedent would not have been able to maintain a posture on his hands and knees if he were not conscious. The death of his elderly wife, Mamie Johnson, was caused by repeated hammer blows to the head while she was in her bed. She was in a position to see the killing of her husband and was attempting to get out of bed when she was killed. She was forced to see the manner of her own death before being killed in the same manner as her husband. This was torturous and must have caused her great fear, anguish, and psychological pain prior to her own death.
". . . .
"The Court finds beyond a reasonable doubt and to a moral certainty that the murder was committed under the aggravating circumstance set out in — 13A-5-49(8) Code of Alabama, 1975, and that it fits in that category of murders which are `conscienceless or pitiless homicides which are unnecessarily tortuous to the victim.' Ex parte Kyzer, 399 So.2d 330 (Ala. 1981) wherein the Alabama Supreme Court defined this aggravating circumstances as delineated in — 13-11-6(8), the predecessor to the current statute setting forth aggravating circumstances. The Court finds that this aggravating circumstance exists."
When evaluating whether a murder was especially heinous, atrocious, or cruel, we apply the standard set out by the Alabama Supreme Court in Ex parte Kyzer, 399 So.2d 330 (Ala. 1981) — was the murder unnecessarily torturous to the victim. 399 So.2d at 334.
In Norris v. State, 793 So.2d 847 (Ala.Crim.App. 1999), we set out three factors that are relevant when determining whether a murder is especially heinous, atrocious, or cruel as compared to other capital murders: (1) Was the physical violence beyond that necessarily or sufficient to cause death? (2) Did the victim experience appreciable suffering after a swift assault that ultimately resulted in death? and (3) Was there any psychological torture?
Alabama appellate courts have repeatedly held that severe beatings that result in death are beyond the violence necessary to inflict death; therefore; that manner of homicide is especially heinous, atrocious, or cruel as compared to other capital murders. See Barber v. State, [Ms. CR-03-0737, May 27, 2005] ___ So.2d ___ (Ala.Crim.App. 2005); Brooks v. State, 695 So.2d 176 (Ala.Crim.App. 1996), aff'd, 695 So.2d 184 (Ala. 1997); Minor v. State, [Ms. CR-00-1300, August 27, 2004] ___ So.2d ___ (Ala.Crim.App. 2004); Smith v. State, 795 So.2d 788 (Ala.Crim.App. 2000); Ex parte Hutcherson, 727 So.2d 861 (Ala. 1998); Ashley v. State, 651 So.2d 1096 (Ala.Crim.App. 1994); McGahee v. State, 632 So.2d 976 (Ala.Crim.App.), aff'd, 632 So.2d 981 (Ala. 1993).
Here, there was evidence indicating that Mrs. Johnson had a clear view of her husband's attack and that she was getting off the bed when she was struck by a hammer and fell backward onto the bed. The coroner, Dr. James C.U. Downs, testified that both victims died of multiple injuries to the head and skull fractures that were consistent with injuries caused by a hammer. Downs testified that Hiram Johnson suffered 15 lacerations to his head and that Mamie Johnson suffered 11 lacerations to her head. There was also blood-splatter evidence that was consistent with Hiram Johnson's kneeling during a part of his brutal attack. The Johnsons were viciously bludgeoned to death with a hammer. Seventy-nine-year-old Mamie Johnson watched as her 82-year-old husband was repeatedly beaten about the head with a hammer. Certainly, Mrs. Johnson knew that the same fate awaited her. As we stated in Norris v. State: "Alabama courts have recognized that the psychological torture inflicted by a victim's witnessing the death of a family member can be a factor making his subsequent death especially heinous, atrocious, or cruel." 793 So.2d at 860.
By any definition, the murders in this case were especially heinous, atrocious, or cruel as compared to other capital murders.
We further remanded this case for the circuit court to set out its reasons for not following the jury's recommendation and for that court to consider the jury's recommendation as a mitigating circumstance. The circuit court explained its decision:
"The Court finds that the aggravating circumstance, `The capital murder was committed while the defendant was engaged or was an accomplice in the commission of, . . . robbery' adduced pursuant to — 13A-5-49(4), Code of Alabama 1975, is entitled to great weight.
"The Court finds that the aggravating circumstances, `The capital offense was especially heinous, atrocious, or cruel compared to other capital offenses,' adduced pursuant to — 13A-5-49(8), Code of Alabama 1975, is entitled to great weight.
"The Court finds that the mitigating circumstances adduced pursuant to — 13A-5-51(1), Code of Alabama 1975, `The defendant has no significant history of prior criminal activity' is entitled to little weight.
"The Court finds that the mitigating circumstances adduced pursuant to — 13A-5-52 Code of Alabama 1975, substantially consisting of evidence regarding the Defendant's character, childhood, psychological history and condition, his educational history and condition, and his record of work and family achievement, and the jury's recommendation of a sentence of life imprisonment without parole by a vote of seven for life without parole and five for death, is entitled to moderate weight.
"The Court finds that the mitigating circumstances adduced pursuant to — 13A-5-52, Code of Alabama 1975, substantially consisting of evidence regarding the Defendant's character, childhood, psychological history and condition, his educational history and condition, and his record of work and family achievement, is entitled to moderate weight.
"The Court has carefully and soberly weighed the aggravating circumstances against the mitigating circumstances and it is the decision of this Court that the aggravating circumstances substantially outweigh the mitigating circumstances in this case. The advisory verdict of the jury was considered as a mitigating factor. There was no evidence that the jury acted in a capricious or arbitrary fashion; however, this Court did have an independent duty to weigh the evidence of aggravating circumstances and mitigating circumstances and simply found that the weight to be given to the aggravating circumstances and the weight to be given to the mitigating circumstances was different than that which must have been given by seven members of the jury. This court has considered that five of the jurors did find that the aggravating factors outweighed the mitigating factors. This court has no way of knowing what mitigating factors were found to exist by the jury, nor which aggravating circumstances were found to exist by the jury, nor what weight was given by each individual juror to those aggravating or mitigating circumstances when that juror decided how his or her vote would be reported in the advisory verdict."
The Alabama Supreme Court in Ex parte Taylor, 808 So.2d 1215 (Ala. 2001), held that when a circuit court declines to follow a jury's recommendation of life imprisonment without parole, the circuit court must set out specific findings as to why it overrode the jury's recommendation and sentenced a convicted capital murderer to death. The next year in Ex parte Carroll, 852 So.2d 833 (Ala. 2002), the Supreme Court held that the circuit court must consider a jury's recommendation of life imprisonment without parole as a mitigating circumstance. The Supreme Court in Ex parte Carroll stated:
"We take this opportunity to further explain the effect of a jury's recommendation of life imprisonment without the possibility of parole. Such a recommendation is to be treated as a mitigating circumstance. The weight to be given that mitigating circumstance should depend upon the number of jurors recommending a sentence of life imprisonment without parole, and also upon the strength of the factual basis for such a recommendation in the form of information known to the jury, such as conflicting evidence concerning the identity of the `triggerman' or a recommendation of leniency by the victim's family; the jury's recommendation may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance."
852 So.2d at 836 (footnote omitted).
Here, the circuit court treated the jury's recommendation as a mitigating circumstance, and it gave it moderate weight. The circuit court also noted that 5 of the 12 jurors recommended that McGowan be sentenced to death. Here, there was no conflicting evidence about who committed the murders, nor did the victims' family ask that McGowan be sentenced to life imprisonment without parole. The circuit court's findings as set out above are sufficient to comply with the dictates of Taylor and Carroll. See Hodges v. State, 856 So.2d 875 (Ala.Crim.App. 2001).
II.
As required by — 13A-5-53, Ala. Code 1975, we address the propriety of McGowan's conviction and sentence to death. The record reflects that McGowan's sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. Section 13A-5-53(b)(1), Ala. Code 1975.
McGowan was indicted for, and convicted of, killing two or more people pursuant to one act or course of conduct and for killing Hiram Johnson during the course of a robbery, violations of — 13A-5-40(a)(10) and 13A-5-40(a)(2), Ala. Code 1975. McGowan's capital-murder conviction is punishable by death.
The circuit court's sentencing order reflects that that court correctly weighed the aggravating circumstances and the mitigating circumstances and found that death was the appropriate sentence for McGowan's conduct. The circuit court found as aggravating circumstances that the murders occurred during the course of a robbery and that the murders were especially heinous, atrocious, or cruel as compared to other capital murders. As we stated in Part I of this opinion, the circuit court correctly found that the murders were especially heinous, atrocious, or cruel, see — 13A-5-49(8), Ala. Code 1975, and the jury determined beyond a reasonable doubt that the murders occurred during the course of a robbery.
The circuit court found as statutory mitigating circumstances that McGowan had no significant history of prior criminal activity and that the murders were committed while McGowan was under the influence of extreme mental or emotional disturbance because McGowan had voluntarily ingested cocaine shortly before he murdered the Johnsons. The circuit court also found the following nonstatutory mitigating evidence:
"The Court has considered, pursuant to — 13A-5-52, Code of Alabama 1975, the evidence adduced by the Defendant during the penalty phase of the trial regarding his character and record, particularly his history, his family life, psychological condition, intelligence, and the emotional and physical abuse suffered by the Defendant during his early childhood. The Court has considered the love of his family for him.
"The Court has considered those matters presented during the sentencing hearing held on this date, the arguments of counsel, and has considered the pre-sentence report filed by the probation officer and admitted into evidence during the sentencing hearing on this date, and the response of the Defendant to the court's allocution."
The circuit court carefully weighed the aggravating and the mitigating circumstances, considered the jury's recommendation as a mitigating circumstance, and sentenced McGowan to death. According to — 13A-5-53(b)(2), Ala. Code 1975, we have independently weighed the aggravating circumstances and the mitigating circumstances to determine the propriety of McGowan's sentence to death. In a calculated and premeditated manner McGowan brutally bludgeoned to death an elderly couple in their home. After completing the weighing process this Court concurs in the findings of the circuit court that the aggravating circumstances substantially outweigh the mitigating circumstances and is convinced that death is the appropriate sentence in this case.
Neither is McGowan's death sentence disproportionate to the sentences imposed in similar cases. See Daniels v. State, 534 So.2d 628 (Ala.Crim.App. 1985), aff'd, 534 So.2d 656 (Ala. 1986). "`In fact, two-thirds of the death sentences imposed in Alabama involve cases of robbery/murder.'" Smith v. State, 795 So.2d 788, 842 (Ala.Crim.App. 2000), quoting McWhorter v. State, 781 So.2d 257, 330 (Ala.Crim.App. 1999). At the time of the murders, killing two or more people during one course of conduct was not an aggravating circumstance. Section 13A-5-49(9), Ala. Code 1975, was added effective September 1, 1999, to make killing two or more people during one course of conduct an aggravating circumstance that would support a sentence of death.
Last, we have searched the record for any error that may have adversely affected McGowan's substantial rights and have found none. See Rule 45A, Ala.R.App.P.
McGowan's conviction and sentence to death are due to be, and are hereby, affirmed.
AFFIRMED.
McMillan, P.J., and Baschab, Shaw, and Wise, JJ., concur; Cobb, J., recuses herself.