Opinion
No. CR-05-2371.
Decided December 19, 2008.
Appeal from Madison Circuit Court (CC-99-2473)
On Return to Remand
On August 29, 2008, we remanded this case with instructions that the trial court amend its sentencing order to comply with the requirements of § 13A-5-47(d), Ala. Code 1975. On remand, the trial court complied with our instructions. We now address the remaining issue the appellant raises and the propriety of his conviction and sentence of death.
I.
The appellant argues that the trial court did not properly consider the mitigating circumstance that he was under the influence of extreme mental or emotional disturbance at the time of the offense. Specifically, he appears to contend that the trial court did not give due consideration to expert testimony about "the extreme mental disturbance that [he] was under due to the abuse he suffered as a child." (Appellant's brief at p. 33.) Because he raises this argument for the first time on appeal, we review it for plain error.See Rule 45A, Ala. R. App. P.
"The [trial] court must consider evidence offered in mitigation, but it is not obliged to find that the evidence constitutes a mitigating circumstance," Calhoun v. State, 932 So. 2d 923, 975 (Ala.Crim.App. 2005), even if that evidence is from an expert.
"`[A] factfinder is not bound by expert testimony "even if all of the witnesses are presented by only one side."' Ellis v. State, 570 So. 2d 744, 752 (Ala.Cr.App. 1990). `In Alabama, opinion testimony of an expert witness is binding upon a jury only when such testimony concerns a subject which is exclusively within the knowledge of experts and the testimony is uncontroverted.' Jefferson County v. Sulzby, 468 So. 2d 112, 116 (Ala. 1985). `An expert's opinion, however, is not conclusive on the trial court, even though uncontroverted. See Kroger Co. v. Millsap, 280 Ala. 531, 196 So. 2d 380 (1967). Rather, a trial court must look to the entire evidence and its own observations in deciding factual issues.' Williams v. City of Northport, 557 So. 2d 1272, 1273 (Ala.Civ.App. 1989), cert. denied, 498 U.S. 822, 111 S. Ct. 71, 112 L. Ed. 2d 45 (1990). `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.Cr.App. 1984), affirmed, 470 So. 2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985)."
Carroll v. State, 599 So. 2d 1253, 1272 (Ala.Crim.App. 1992). "`WhileLockett 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.' Bankhead v. State, 585 So. 2d 97, 108 (Ala.Cr.App. 1989)." Ex parte Slaton, 680 So. 2d 909, 924 (Ala. 1996). Finally, although the trial court must consider all mitigating circumstances, it has discretion in determining whether a particular mitigating circumstance is proven and the weight it will give that circumstance. See Williams v. State, 710 So. 2d 1276 (Ala.Crim.App. 1996), aff'd, 710 So. 2d 1350 (Ala. 1997).
Regarding the mitigating circumstance set forth in § 13A-5-51(2), Ala. Code 1975, the trial court stated:
"In regard to the mitigating circumstance enumerated in Section 13A-5-51(2), the Defendant did not present any evidence of this mitigating circumstance, nor did the court find any evidence to show that this mitigating circumstance existed in this case."
(Order on remand.) However, it also stated that it considered as nonstatutory mitigating evidence
"all aspects of the Defendant's character and record. Specifically, the Court considered the Defendant's childhood, including but not limited to his stepmother's and his sister's testimony that at a very young age he and both of his siblings were essentially abandoned by his mother and that he was abused and neglected by his mother and her various boyfriends and husbands. The Defendant also witnessed his mother being abused by these boyfriends and husbands."
(C.R. 449.) These excerpts show that the trial court complied withLockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), and its progeny in considering evidence about abuse the appellant suffered as a child. The trial court was not required to find the existence of the statutory mitigating circumstance that the appellant was under the influence of extreme mental or emotional disturbance at the time of the offense. Therefore, we do not find that there was any error, much less plain error, in this regard.
II.
Pursuant to § 13A-5-53, Ala. Code 1975, we are required to address the propriety of the appellant's conviction and sentence of death. The appellant was indicted for and convicted of capital murder because he committed the murder during the course of a rape or an attempted rape.See § 13A-5-40(a)(3), Ala. Code 1975.
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.
The trial court found that the aggravating circumstances outweighed the mitigating circumstances. It found that the State proved the existence of two aggravating circumstances: 1) the appellant committed the capital offense while he was engaged in or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit, a rape, see § 13A-5-49(4), Ala. Code 1975, and 2) the offense was especially heinous, atrocious, or cruel compared to other capital offenses, see § 13A-5-49(8), Ala. Code 1975. The trial court found that there were two statutory mitigating circumstances — 1) the appellant did not have a significant history of prior criminal activity, see § 13A-5-51(1), Ala. Code 1975, and 2) the appellant's age at the time of the crime, see § 13A-5-51(7), Ala. Code 1975. With regard to nonstatutory mitigating circumstances, the trial court made the following findings:
"The Court has considered all aspects of the Defendant's character and record. Specifically, the Court has considered the Defendant's childhood, including but not limited to his stepmother's and his sister's testimony that at a very young age he and both of his siblings were essentially abandoned by his mother and that he was abused and neglected by his mother and her various boyfriends and husbands. The Defendant also witnessed his mother being abused by these boyfriends and husbands. In addition, the Court considered the fact that the Defendant was married at the time that the offense was committed and had a two-year old daughter."
(C.R. 449.) The sentencing order shows that the trial court weighed the aggravating circumstances and mitigating circumstances and correctly sentenced the appellant to death. The record supports its decision, and we agree with its findings.
Section 13A-5-53(b)(2), Ala. Code 1975, requires us to weigh the aggravating and mitigating circumstances independently to determine the propriety of the appellant's sentence of death. After independently weighing the aggravating and mitigating circumstances, we find that the death sentence is appropriate.
As required by § 13A-5-53(b)(3), Ala. Code 1975, we must determine whether the appellant's sentence was disproportionate or excessive when compared to the penalty imposed in similar cases. The appellant committed the murder during the course of a rape. Similar crimes are being punished by death throughout this state. See Lewis v. State, 889 So. 2d 623 (Ala.Crim.App. 2003); Williams v. State, 795 So.2d 753 (Ala.Crim.App. 1999), aff'd, 795 So. 2d 785 (Ala. 2001); Barbour v. State, 673 So. 2d 461 (Ala.Crim.App. 1994), aff'd, 673 So. 2d 473 (Ala. 1995). Therefore, we find that the sentence was neither disproportionate nor excessive.
Finally, we have searched the entire record for any error that may have adversely affected the appellant's substantial rights, and we have not found any. See Rule 45A, Ala. R. App. P.
Accordingly, we affirm the appellant's conviction and sentence of death.
AFFIRMED.
McMillan, Shaw, Wise, and Welch, JJ., concur.