Opinion
No. CR-06-0454.
Decided September 30, 2011.
Appeal from Marion Circuit Court (CC-2005-142)
On Return to Remand
Christopher ("Chris") Dewayne Revis was convicted of two counts of capital murder for the intentional murder of Jerry Stidham by shooting him with a .22 caliber rifle during the course of committing a first-degree robbery of money (count I) and drugs (count II). See § 13A-5-40(a)(2), Ala. Code 1975. The jury recommended, by a vote of 11-1, that Revis be sentenced to death. The trial court sentenced Revis to death. This Court affirmed one of Revis's convictions and sentences for capital murder for killing Stidham during the commission of a robbery. Revis v. State, [Ms. CR-06-0454, Jan. 13, 2011] ___ So. 3d ____ (Ala. Crim. App. 2011). This Court, however, remanded this case for the trial court to vacate one of the convictions and sentences entered against Revis. Specifically, this Court held that "the two counts of murder during robbery in the present case charged Revis with committing the same offense [and] the fact that the sentences would have been served concurrently does not obviate the harm resulting from the unlawful conviction." Revis, ___ So. 3d at ___. The trial court, on return to remand, has complied with our instruction and vacated Revis's conviction for capital murder for intentionally murdering Stidham during the course of committing a first-degree robbery of money (count I) and the death sentence associated with that conviction.
We previously remanded this case by order.
In our opinion on original submission, because we were remanding the case for the vacation of one of Revis's convictions and sentences, we pretermitted our statutorily-required analysis of the propriety of Revis's death sentence.Revis, ___ So. 3d at ___. Because the trial court has complied with this Court's direction on return to remand and has vacated one of Revis's convictions and sentences for murder during a first-degree robbery, in accordance with § 13A-5-53, Ala. Code 1975, we must address the propriety of Revis's death sentence. Revis was convicted of murdering Jerry Stidham during the course of a first-degree robbery, an offense defined as capital by § 13A-5-40(a)(2), Ala. Code 1975. The record reflects that Revis's sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor.See § 13A-5-53 (b) (1), Ala. Code 1975.
The trial court found the existence of one aggravating circumstance — that the murder was committed during a robbery, § 13A-5-49(a) (4), Ala. Code 1975, and that the aggravating circumstance outweighed the one mitigating circumstance argued — that Revis had no significant criminal history, § 13A-5-51(1), Ala. Code 1975. We held in our original opinion of January 13, 2011, that the trial court's findings as to the statutory aggravating circumstance and statutory mitigating circumstance were proper.
Section 13A-5-53(b) (2), Ala. Code 1975, requires this Court to weigh the aggravating circumstances and the mitigating circumstances independently to determine the propriety of Revis's sentence of death. Section 13A-5-48, Ala. Code 1975, provides:
"The process described in Sections 13A-5-46(e)(2), 13A-5-46(e)(3) and Section 13A-5-47(e) of weighing the aggravating and mitigating circumstances to determine the sentence shall not be defined to mean a mere tallying of aggravating and mitigating circumstances for the purpose of numerical comparison. Instead, it shall be defined to mean a process by which circumstances relevant to sentence are marshalled [sic] and considered in an organized fashion for the purpose of determining whether the proper sentence in view of all the relevant circumstances in an individual case is life imprisonment without parole or death."
"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." Ex parte Clisby, 456 So. 2d 105, 108-09 (Ala. 1984). "[W]hile 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." Lawhorn v. State, 581 So. 2d 1159, 1171 (Ala. Crim. App. 1990). Clearly, the trial court gave the mitigating circumstance little weight in light of the aggravating circumstance present in this case. "The weight to be attached to the aggravating and the mitigating evidence is strictly within the discretion of the sentencing authority."Smith v. State, 908 So. 2d 273, 298 (Ala. Crim. App. 2000). We agree with the trial court's findings. An independent weighing of the aggravating circumstance and the mitigating circumstance indicates that death is the proper sentence.
As required by § 13A-5-53 (b)(3), Ala. Code 1975, this Court must determine whether Revis's sentence was disproportionate or excessive when compared to penalties imposed in similar cases. The sentence of death in this case is neither excessive nor disproportionate to the penalties imposed in similar cases, considering the crime and Revis. See, e.g., Stanley v. State, [Ms. CR-06-2236, April 29, 2011] ___ So. 3d ____, ____ (Ala. Crim. App. 2011);McMillan v. State, [Ms. CR-08-1954, Nov. 5, 2010] ___ So. 3d ____ (Ala. Crim. App. 2010);Yancey v. State, [Ms. CR-04-1171, Oct. 9, 2009] ___ So. 3d ____ (Ala. Crim. App. 2009) (opinion on return to remand); Floyd v. State, [Ms. CR-05-0935, Aug. 29, 2008] ___ So. 3d ____ (Ala. Crim. App. 2007) (opinion on return to remand); Gamble v. State, 791 So. 2d 409 (Ala. Crim. App. 2000); Gaddy v. State, 698 So. 2d 1100 (Ala. Crim. App. 1995) (all cases involving the offense of murder committed during the course of a robbery).
Having searched the entire record for any error that may have adversely affected Revis's substantial rights and given that the trial court complied with our remand instruction and vacated one of Revis's convictions and sentences, we now affirm the trial court's judgment.
AFFIRMED.
Welch, P.J., and Windom, Kellum, and Burke, JJ., concur.