Opinion
No. CR-98-0967.
Decided February 1, 2002.
Appeal from Montgomery Circuit Court (CC-97-2541; CC-97-2542; and CC-97-2543).
On Return to Remand
On October 26, 2001, we remanded this case to the trial court for it to correct a deficiency in its capital sentencing order. Specifically, we held that the trial court had failed to comply with the requirement in § 13A-5-47(d), Ala. Code 1975, that it "enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49 [and] each mitigating circumstance enumerated in Section 13A-5-51." We remanded the case for the trial court to amend its sentencing order to comply with § 13A-5-47(d) and, if necessary, to reweigh the aggravating circumstances and the mitigating circumstances and to resentence McNabb. The trial court has complied with our instructions. On December 12, 2001, the trial court, on return to remand, submitted an amended sentencing order that satisfies the statutory requirements.
In our opinion remanding the case to the trial court, we addressed all of the issues raised by McNabb regarding the guilt phase of his trial, and we reviewed the record of the guilt phase for plain error. We found no error, plain or otherwise, in the guilt phase of the proceedings and we affirmed McNabb's convictions for two counts of capital murder and two counts of attempted murder. In addition, we addressed in our original opinion all but one of the issues raised by McNabb regarding the sentencing phase of his trial, and we affirmed McNabb's sentences for the two attempted-murder convictions. We pretermitted discussion of one of McNabb's sentencing issues and of our plain-error review of McNabb's death sentence. Now, having the trial court's amended sentencing order before us, we address those issues.
I.
McNabb contends that the trial court improperly "rejected, failed to consider, or failed to accord proper status" to his cocaine intoxication at the time of the offense as a nonstatutory mitigating circumstance. (McNabb's brief at p. 88.)
In Reeves v. State, [Ms. CR-98-0777, October 27, 2000] ___ So.2d ___ (Ala.Crim.App. 2000), this Court stated:
"`In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Supreme Court held that a death penalty statute cannot constitutionally preclude consideration of relevant mitigating factors. However, Lockett does not require that all evidence offered as mitigating evidence be found to be mitigating. Lockett provides that a state may not exclude evidence that the defendant claims is mitigating. This does not mean that all evidence offered by the defendant as mitigating must be found to be mitigating and considered as such in the sentencing process.'
"Ex parte Hart, 612 So.2d 536, 542 (Ala. 1992), cert. denied, 508 U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993). `"While Lockett and its progeny require consideration of all evidence submitted as mitigation, whether the evidence is actually found to be mitigating is in the discretion of the sentencing authority."' Ex parte Slaton, 680 So.2d 909, 924 (Ala. 1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997), quoting Bankhead v. State, 585 So.2d 97, 108 (Ala.Crim.App. 1989), remanded on other grounds, 585 So.2d 112 (Ala. 1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Crim.App. 1992), rev'd, 625 So.2d 1146 (Ala. 1993). `Merely because an accused proffers evidence of a mitigating circumstance does not require the judge or the jury to find the existence of that fact.' Harrell v. State, 470 So.2d 1303, 1308 (Ala.Crim.App. 1984), aff'd, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985).
"`"A sentencer in a capital case may not refuse to consider or be `precluded from considering' mitigating factors. Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978)). The defendant in a capital case generally must be allowed to introduce any relevant mitigating evidence regarding the defendant's character or record and any of the circumstances of the offense, and consideration of that evidence is a constitutionally indispensable part of the process of inflicting the penalty of death. California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987); Ex parte Henderson, 616 So.2d 348 (Ala. 1992); Haney v. State, 603 So.2d 368 (Ala.Cr.App. 1991), aff'd, 603 So.2d 412 (Ala. 1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). Although the trial court is required to consider all mitigating circumstances, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Carroll v. State, 599 So.2d 1253 (Ala.Cr.App. 1992), aff'd, 627 So.2d 874 (Ala. 1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994). See also Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985). Moreover, the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating. Morrison v. State, 500 So.2d 36 (Ala.Cr.App. 1985), aff'd, 500 So.2d 57 (Ala. 1986), cert. denied, 481 U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987)."'
"Wilson v. State, 777 So.2d 856, 892 (Ala.Crim.App. 1999), quoting Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App. 1996), aff'd, 710 So.2d 1350 (Ala. 1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998). The fact that the trial court does not list and make findings in its sentencing order as to each alleged nonstatutory mitigating circumstance offered by a defendant indicates that the trial court found some of the offered evidence not to be mitigating, not that the trial court did not consider this evidence. See, e.g., Ingram v. State, 779 So.2d 1225 (Ala.Crim.App. 1999)."
___ So.2d at ___. See also Waldrop v. State, [Ms. CR-98-2316, December 1, 2000] ___ So.2d ___ (Ala.Crim.App. 2000).
The sentencing order in this case shows that the trial court considered all of the mitigating evidence offered by McNabb. Although the trial court did not find McNabb's cocaine intoxication to be a nonstatutory mitigating circumstance, it did find it to be a statutory mitigating circumstance. In its amended sentencing order, the trial court specifically found that the capital offense was committed while McNabb was "under the influence of extreme mental or emotional disturbance," § 13A-5-51(2), Ala. Code 1975, due to his ingestion of cocaine the morning of the crime and the resulting "cocaine paranoia." In addition, to the extent that McNabb is arguing that the trial court should have found his cocaine intoxication to be a nonstatutory mitigating circumstance as well as a statutory mitigating circumstance, McNabb has cited no cases, and we have found none, that require a trial court to find a particular piece of mitigating evidence to constitute both a statutory mitigating circumstance and a nonstatutory mitigating circumstance.
It is clear from our review of the record that the trial court understood its duty to consider all the evidence McNabb presented in mitigation, that the trial court did in fact consider all such evidence, and that the trial court's findings concerning the mitigating circumstances are supported by the record. Therefore, we find no error on the trial court's part in finding McNabb's cocaine intoxication to be a statutory mitigating circumstance rather than a nonstatutory mitigating circumstance.
II.
As stated above, in our original opinion, in accordance with Rule 45A, Ala.R.App.P., we examined the record for any plain error or defect with respect to the guilt-phase of McNabb's trial; we found no plain error or defect in the guilt-phase proceedings, and we affirmed McNabb's convictions for two counts of capital murder and two counts of attempted murder.
We have now also reviewed McNabb's sentence in accordance with § 13A-5-53, Ala. Code 1975, which requires that, in addition to reviewing the case for any error involving McNabb's capital-murder conviction, we shall also 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 sentence 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. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we must determine: (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether an independent weighing by this Court 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 McNabb of the capital offenses charged in the indictment, a separate sentencing hearing was held before the jury in accordance with §§ 13A-5-45 and -46, Ala. Code 1975. After hearing evidence concerning the aggravating and mitigating circumstances, after being properly instructed by the trial court as to the applicable law, and after being correctly advised as to its function in reference to the finding of any aggravating and mitigating circumstances, the weighing of those circumstances, if appropriate, and its responsibility in reference to the return of an advisory verdict, the jury recommended a sentence of death by a vote of 10-2.
Thereafter, the trial court held another hearing, in accordance with § 13A-5-47, Ala. Code 1975, to aid it in determining whether it would sentence McNabb to life imprisonment without parole or follow the jury's recommendation and sentence him to death. The trial court ordered and received a written presentence investigation report, as required by § 13A-5-47(b). In its amended sentencing order, the trial court entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Ala. Code 1975, each mitigating circumstance enumerated in § 13A-5-51, Ala. Code 1975, and any mitigating circumstance found to exist under § 13A-5-52, Ala. Code 1975, as well as written findings of fact summarizing the offense.
In its amended order, the trial court found the existence of three statutory aggravating circumstances: (1) that McNabb knowingly created a great risk of death to many persons, see § 13A-5-49(3), Ala. Code 1975; (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, see § 13A-5-49(5), Ala. Code 1975; and (3) that the murder was committed to disrupt or to hinder the lawful exercise of any governmental function or the enforcement of laws, see § 13A-5-49(7), Ala. Code 1975. The trial court found two statutory mitigating circumstances to exist: (1) that the murder was committed while McNabb was under the influence of extreme mental or emotional disturbance, see § 13A-5-51(2), Ala. Code 1975, and (2) that McNabb was 20 years old at the time of the crime, see § 13A-5-51(7), Ala. Code 1975. The trial court also found two nonstatutory mitigating circumstances to exist under § 13A-5-52, Ala. Code 1975: (1) McNabb's family background, and (2) McNabb's lack of a violent criminal history.
The trial court's sentencing order reflects that after considering all the evidence presented, the arguments of counsel, the presentence report, and the advisory verdict of the jury, and after weighing the aggravating circumstances against the statutory and nonstatutory mitigating circumstances in the case, the trial court found that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the trial court sentenced McNabb to death. The trial court's findings concerning the aggravating circumstances and the mitigating circumstances are supported by the evidence, and we find no plain error or defect in the sentencing phase of the proceedings.
McNabb was convicted of one count of murder of a law-enforcement officer who was on duty at the time of his death and one count of murder of a person who was in a vehicle at the time of his death. These offenses are defined by statute as capital offenses. See §§ 13A-5-40(a)(5) and 13A-5-40(a)(17), Ala. Code 1975. We take judicial notice that similar crimes have been punished capitally throughout the state. See, e.g.,Johnson v. State, [Ms. CR-98-0391, June 29, 2001] ___ So.2d ___ (Ala.Crim.App. 2001); Sibley v. State, 775 So.2d 235 (Ala.Crim.App. 1997), aff'd, 775 So.2d 246 (Ala. 2000); Madison v. State, 718 So.2d 90 (Ala.Crim.App. 1997), aff'd, 718 So.2d 104 (Ala.), cert. denied, 525 U.S. 1006 (1998); Clemons v. State, 720 So.2d 961 (Ala.Crim.App. 1996), aff'd, 720 So.2d 985 (Ala. 1998), cert. denied, 525 U.S. 1124 (1999); Block v. State, 744 So.2d 404 (Ala.Crim.App. 1997); Carr v. State, 640 So.2d 1064 (Ala.Crim.App. 1994); and Harrell v. State, 470 So.2d 1303 (Ala.Crim.App. 1984), aff'd, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935 (1985). See also Barksdale v. State, 788 So.2d 898 (Ala.Crim.App.), cert. denied, 788 So.2d 915 (Ala. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 2200 (2001); and Flowers v. State, 799 So.2d 966 (Ala.Crim.App. 1999), cert. denied, ___ U.S. ___, 122 S.Ct. 230 (2001).
After carefully reviewing the record of the guilt phase and the sentencing phase of McNabb's trial, we find no evidence that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. We conclude that the findings and conclusions of the trial court are amply supported by the evidence. We have independently weighed the aggravating circumstances against the statutory and nonstatutory mitigating circumstances, and we concur in the trial court's judgment that the aggravating circumstances outweigh the mitigating circumstances, and that death is the appropriate sentence in this case. Considering McNabb and the crime he committed, we find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.
Therefore, McNabb's sentence of death is affirmed.
AFFIRMED.
McMillan, P.J., and Cobb, Baschab, and Wise, JJ., concur.