Opinion
No. CR-02-0347.
Decided May 27, 2005.
Appeal from Jefferson Circuit Court (CC-2000-840, CC-2000-841, and CC-2000-842).
On Return to Remand
On February 25, 2005, we remanded this case for the trial court to amend its sentencing order to comply with the requirements of § 13A-5-47(d), Ala. Code 1975, and to correct several errors in the order. On remand, the trial court submitted a detailed sentencing order that complied with our instructions. We now address the propriety of Willie Earl Scott's convictions and his sentence of death.
Scott argues that, upon review of the proportionality of the sentence in this case pursuant to its duty under § 13A-5-53(b)(2), Ala. Code 1975, this Court should remand the case for the imposition of a sentence of life imprisonment without the possibility of parole. Scott contends that there is no evidence indicating that he is beyond rehabilitation and that this case "does not fit into the category of the most aggravated and unmitigated of most serious crimes." (Scott's brief at p. 38.) Scott did not raise this claim in the trial court. Nonetheless, we will address the propriety of the sentence pursuant to our mandatory review.
Section 13A-5-53(b) requires that, in analyzing whether death is the proper sentence, we 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 and 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 Scott of the capital offenses charged in the indictment — murder during the course of a rape or an attempt thereof and murder of a victim under the age of 14 years — a separate sentencing hearing was held before the jury in accordance with §§ 13A-5-45 and 13A-5-46, Ala. Code 1975. The jury heard the evidence concerning the aggravating circumstances and the mitigating circumstances. The trial court properly instructed it as to its role regarding the finding of any aggravating circumstance or circumstances and any mitigating circumstance or circumstances, the weighing of the aggravating and mitigating circumstances it found to exist, and the return of an advisory verdict. By a vote of 10-2, the jury recommended a sentence of death.
Thereafter, in accordance with § 13A-5-47, Ala. Code 1975, the trial court held another hearing to aid it in determining the appropriate sentence for Scott. Scott testified on his own behalf at this hearing. The trial court ordered and received a written presentence investigation report, as required by § 13A-5-47(b), Ala. Code 1975, for its consideration in determining the proper sentence. The trial court entered a thorough sentencing order on remand. That order included findings of fact summarizing the evidence presented at trial, specific findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Ala. Code 1975, each statutory mitigating circumstance enumerated in § 13A-5-51, Ala. Code 1975, and the nonstatutory mitigating circumstances it found to exist pursuant to § 13A-5-52, Ala. Code 1975.
The trial court found three statutory aggravating circumstances: that Scott had previously been convicted of a felony involving the use or threat of violence, § 13A-5-49(2), Ala. Code 1975; that the capital offense was committed while Scott was engaged in the commission of a rape or an attempted rape, § 13A-5-49(4), Ala. Code 1975; and that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses, § 13A-5-48(8), Ala. Code 1975. The trial court included specific fact findings to support the § 13A-5-48(8) aggravating circumstance. The trial court found one statutory mitigating circumstance — Scott's age, § 13A-5-51(7), Ala. Code 1975. The court found as nonstatutory mitigating circumstances all of the circumstances offered by Scott, including his mother's alcoholism and her inability to offer him the love he needed as a child, his loving relationship with his grandmother, the death of his younger sister, his artistic talent, and the fact that he had had sexual relationships with women of his own age.
The trial court found that the aggravating circumstances outweighed the mitigating circumstances and that death was the appropriate sentence. 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. As required by § 13A-5-53(b)(3), Ala. Code 1975, we must determine whether Scott's sentence was disproportionate or excessive when compared to the penalty imposed in similar cases. We find that it is not disproportionate or excessive. Scott committed a murder of a child under the age of 14 during the course of a rape or an attempted rape. Similar crimes have been punished by death throughout this State. E.g., Broadnax v. State, 825 So.2d 134 (Ala.Crim.App. 2000), aff'd, 825 So.2d 233 (Ala. 2001) (murder of child under 14 years old); Lewis v. State, 889 So.2d 623 (Ala.Crim.App. 2003) (murder during course of a rape).
The trial court's findings are fully supported by the evidence presented. Scott argues that the trial court erred when it found the aggravating circumstance listed in § 13A-5-49(8), Ala. Code 1975, to exist. He did not raise this claim at trial, so we review it for plain error and in light of the applicable legal principles set forth in Part V of our opinion on original submission, ___ So.2d at ___. The trial court entered specific findings of fact in support of its determination that the crime was especially heinous, atrocious, or cruel. The court found as follows in its order on return to remand:
"The capital offenses were especially heinous, atrocious or cruel compared to other capital offenses. Evidence presented in these cases was sufficient to prove that the ten-year (10) old victim was murdered `during' the commission of a rape or an attempt thereof. The word `during', as used in the definition of capital offenses means `in the course of or in connection with the commission of, or in immediate flight from the commission of the underlying felony or an attempt thereof'. Code of Alabama, 1975, § 13A-5-39(2). Although the autopsy of the victim revealed no evidence of trauma in the genitalia area, the evidence was sufficient to show that the element of ` forcible compulsion' was present during the commission of the rape and/or the attempt thereof. As pointed out by the coroner, in his testimony, the victim had evidence of contusion, or bruising, to the lower lip. She had evidence in the whites of the eyes of petechiae, or small hemorrhages — which can be a part of asphyxia, lack of oxygen. On her neck, there was an abrasion, or scratch, and beneath that, deeper, on the internal examination, she had evidence of extensive hemorrhage beneath the vocal cords; her larynx, her voice box. Additionally, she had probable hemorrhage in the mastoid areas — the little bumpy areas behind the ears. She also had swelling of the brain. The coroner went on to explain that when one stops venous return from the head, swelling of the brain is the result, and then there is a series of — a ` cycle' that is lethal. He further testified that all of his findings would support his opinion that the victim died of asphyxia, from manual strangulation, and possibly also suffocation, as a mechanism. The totality of all of the circumstances provides ample evidence to support a finding of ` forcible compulsion' as defined by law: `Physical force that overcomes earnest resistance or it is a threat, express or implied that places a person in fear of immediate death or serious physical injury to himself or another person.' Code of Alabama, 1975 § 13A-6-60(8). The Court is aware that this aggravating circumstance was intended to apply to only those conscienceless or pitiless homicides which are unnecessarily torturous to the victim, and that torture maybe [sic] found where the victim is subjected to serious physical, sexual, or psychological abuse before death. Further, the Court is aware that rape is considered to be a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. It is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. There is no doubt that the victim in these cases was murdered in such a way as to cause her great suffering before she died. This victim was not an adult, but a ten-year (10) old child, who was four feet five inches tall (4'5") and weighed only sixty-four (64) pounds. Her assailant, on the other hand, a much larger and stronger nineteen-year-old (19) male, had been living in her home for at least one (1) month prior to the commission of these offenses. The evidence presented at trial showed that the child was physically abused and strangled to death during the course of, or in connection with, the commission of a rape or an attempt thereof. The nature of this vile and outrageously inhumane offense, without question involved fear and torture to this young child. Taking into consideration the timeframe within which these crimes must have occurred, which without a doubt, was not `instantaneous', the evidence presented supports the reasonable conclusion that, while the child was being strangled to death, she suffered greatly; (i.e., she had to be alive long enough for her brain to swell while being deprived of oxygen, and she had to feel the defendant's hands squeezing and crushing her throat while this was happening to her). She had to be alive long enough for the hemorrhaging to occur in her eyes and for the extensive hemorrhaging to occur in her neck, during which time she had to feel what was happening to her and experience intense fear. She certainly had to be alive when she received the injury and swelling to her lip, as noted by the coroner, because it is a medically proven fact that bruising or swelling will not occur postmortem. The coroner also stated that the trauma the child received to her lip was not due to strangulation. Therefore, this Court finds that this aggravating circumstance is not only warranted, but is fully justified in these cases."
We reject Scott's assertion that the court erred when it found the aggravating circumstance that the offense was especially heinous, atrocious, or cruel to exist. The evidence presented at trial, as set forth in the trial court's detailed findings, fully satisfied the standard set forth in Ex parte Kyzer, 399 So.2d 330 (Ala. 1981), and its progeny. No plain error occurred, and Scott is not entitled to any relief on this claim.
We have independently weighed the aggravating circumstances against the statutory and nonstatutory mitigating circumstances, and we believe that the trial court correctly determined that the aggravating circumstances outweigh the mitigating circumstances, and we agree that death is the appropriate sentence in this case. In accordance with the mandate set forth in Rule 45A, Ala. R. App. P., we have searched the record for any error that may have affected Scott's substantial rights, and we have found none. Having performed our statutorily mandated review of the proceedings below, including our review for plain error and our review of the propriety of the death sentence, we conclude that Scott's convictions for capital murder and his sentence of death are due to be, and are now, affirmed.
AFFIRMED.
McMillan, P.J., and Baschab, Shaw, and Wise, JJ., concur.