Opinion
No. CR-04-2570.
Decided February 27, 2009.
Appeal from Jefferson Circuit Court (CC-04-4129; CC-04-4130; CC-04-4131; CC-04-4132; CC-04-4383)
On Return to Remand
On April 4, 2008, this Court affirmed Kerry Spencer's convictions for four counts of capital murder for the shooting deaths of Birmingham police officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett, and for the attempted murder of Officer Michael Collins; however, we remanded this case for the trial court "to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and judicial override of the jury's recommendation of life imprisonment without parole," see § 13A-5-52 and § 13A-5-47(d), Ala. Code 1975, and to reweigh the aggravating circumstances and the mitigating circumstances and to resentence Spencer. Spencer v. State, [Ms. CR-04-2570, April 4, 2008] ___ So. 2d ___, ___ (Ala.Crim.App. 2008). The trial court has complied with our instructions and has submitted on remand an amended sentencing order, again sentencing Spencer to death.
I.
Citing Ex parte Taylor, 808 So. 2d 1215 (Ala. 2001), and Ex parte Carroll, 852 So. 2d 833 (Ala. 2002), Spencer argues on return to remand that the trial court could not override the jury's recommendation of life imprisonment without the possibility of parole absent reliance on some evidence or facts unknown to the jury that impacted the factual basis for the jury's sentencing recommendation. However, as the State argues in its brief on return to remand, this Court has considered and rejected that interpretation of Ex parte Taylor and Ex parte Carroll in prior opinions. In Sneed v. State, [Ms. CR-05-2033, Dec. 21, 2007] ___ So. 2d ___ (Ala.Crim.App. 2007), this Court addressed a similar issue; after discussing the Supreme Court's holdings inTaylor and Carroll, this Court stated:
"In Ex parte Carroll, the supreme court held that a jury's recommendation of imprisonment for life without the possibility of parole must be considered as a mitigating circumstance. Although the supreme court also stated that a jury recommendation could be overridden based on information that was not known to the jury, it did not state that that was the only circumstance in which a jury recommendation could be overridden.
"In this case, the trial court considered the jury's recommendation as a nonstatutory mitigating circumstance and gave it moderate weight. It then stated specific reasons for giving the jury's recommendation the consideration it gave it, including the appellant's participation in the robbery-murder and the jury's vote. Therefore, we conclude that the circuit court complied with both Ex parte Taylor and Ex parte Carroll in overriding the jury's recommendation."
___ So. 2d at ___.
Here, the trial court considered the jury's recommendation as a mitigating circumstance and assigned it moderate weight. The trial court then stated specific reasons for giving the jury's recommendation the consideration it gave it. Thus, as in Sneed, we conclude that the trial court did comply with the principles espoused in Ex parte Taylor and Ex parte Carroll in overriding the jury's recommendation. Therefore, Spencer's claim is without merit.
II.
Spencer further argues that the trial court's amended sentencing order improperly states (a) that the only evidence offered as nonstatutory mitigation evidence was Spencer's testimony at the sentencing hearing, (b) that there was no evidence presented that Spencer's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was substantially impaired during the commission of this offense, and (c) that the undisputed evidence indicated that it would have been impossible for Officer Bennett to have moved after being paralyzed by the first gunshot he sustained.
A.
In discussing nonstatutory mitigating circumstances, the trial court's amended sentencing order states:
"The defense called [Spencer] to the stand to testify in the penalty phase before the jury. [Spencer] also testified before the Court in the sentencing phase before the Court. [Spencer] testified about his education, having completed the tenth grade. He also testified that he obtained a GED in the job corps as well as an electrician trade, but felt it was more profitable to sell drugs. He then went on to relate his version of the events that led to the shooting of these officers. During the sentencing hearing before the Court, [Spencer] testified that he was sorry for what he had done and apologized to the families of the victims. This was the sum total of the non-statutory mitigating evidence offered by [Spencer]. This Court did not consider this as mitigating evidence. Although [Spencer] offered an apology for his actions, it is in direct contradiction with the undisputed facts of the case nor his statement to police after his arrest, or his testimony before the jury in the penalty phase. His attitude in both was one of entitlement or justification. He was untruthful because the undisputed physical evidence contradicts his testimony."
It is well settled that a trial court need not specify "`in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating.'" 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 (emphasis omitted). Thus, it is permissible for a trial court to discuss some or even none of the nonstatutory mitigating evidence offered by a defendant and its reasons for concluding that that evidence was not mitigating. Here, however, the circuit court listed Spencer's own testimony and then expressly stated that that testimony was the "sum total of the non-statutory mitigating evidenceoffered by the defendant." (Emphasis added.) As Spencer correctly argues, there was additional nonstatutory mitigating evidenceoffered by the defense; Spencer's mother and uncle testified at the sentencing hearing about Spencer's upbringing and demeanor. Certainly, there may be a rational explanation for the trial court's statements that would bring the sentencing order, as amended, within the constitutional and statutory requirements. Further, it would have been well within the trial court's discretion to conclude that none of the evidence offered by the defense was mitigating. Finally, we cannot say that the trial court would have been in error to have determined that the additional evidence was mitigating but still to have concluded that the imposition of the death penalty was proper. However, given that the statement in the amended sentencing order that Spencer's testimony was the only nonstatutory evidence offered is factually inaccurate, we conclude that a remand for the trial court to clarify its sentencing order is the more appropriate action, given the many levels of judicial scrutiny that occur when a defendant has been convicted of a capital offense and sentenced to death.
B.
In addressing the statutory mitigating offenses, the trial court's amended sentencing order states:
"There was no evidence presented that Kerry Spencer's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was substantially impaired during the commission of this offense; therefore, mitigating circumstance § 13A-5-51(6) was not present."
However, as Spencer argues in his brief on return to remand, there was evidence presented at trial that Spencer had ingested cocaine, Seraquel, and alcohol on the morning of the shootings. Spencer further notes that the State even requested a jury instruction on the level of intoxication necessary to negate a specific intent to kill and thus the trial court so instructed the jury. Although the evidence in the record supports the trial court's conclusion that the mitigating circumstance in § 13A-5-51(6), Ala. Code 1975, was not present, we question the propriety of the assertion that "[t]here was no evidence presented that Kerry Spencer's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was substantially impaired during the commission of this offense." (Emphasis added.) In light of the many levels of judicial scrutiny ahead in this case, we conclude it proper to again remand for the trial court to clarify its sentencing order on this point.
C.
With regard to Spencer's third allegation, the amended sentencing order states:
"In addition, Dr. [Gary] Simmons testified at trial that Officer Bennett, who was found dead at the front door of the apartment was shot multiple times. It was Doctor Simmons' opinion that the first shot to Officer Bennett struck his torso severing his spine which would have made it impossible for him to move and, as he lay dying, [Spencer] shot Officer Bennett point blank in the face, the bullet passing through his brain. This undisputed physical evidence contradicts the testimony of [Spencer] who testified he fire[d] the rifle merely as a reaction to Officer Bennett touching his leg. At that point, Officer Bennett was paralyzed and would not have been able to move to touch his leg."
However, as Spencer notes in his brief on return to remand, Dr Simmons's testimony left open the possibility that Officer Bennett, even if only as merely an involuntary reaction, could have had random, irregular muscle contractions or twitches even after sustaining the gunshot wound to the torso. On direct examination, Dr. Simmons's testified as follows: "[I]t's likely — in my opinion, you can't say absolutely, but it's likely he would have been immobilized right when he sustained [the gunshot wound to the torso]." (R. 1415.) On cross-examination, the following exchange occurred:
"[Defense counsel]: If somebody received gunshot wound B to the chest, would there be a short period of time afterward when myoclonic jerk could have been a factor?
"[Dr. Simmons]: Jerking is caused by the fact that during the dying process you have random disorganized discharge of neurons in the brain cells and the spinal cord. They are irritated. They are dying, and so you have this random discharge and so instead of having a coordinated movement like I have when I pick up this paper clip or whatever, you have just random contractions, a seizure if you [w]ould. So it's possible. You know, that occasionally happens. Other times people just die and they don't have any seizures at all. More times than not they don't, but sometimes they do."
(R. 1430.) Spencer's testimony regarding the close-range gunshot to Officer Bennett's head was that he was standing next to where Officer Bennett was lying on the ground, that Officer Bennett's hand "jumped and touched [him]" and that he fired the SKS assault rifle in an "automatic reflex." (R. 1689.) As with the two above-discussed portions of the amended sentencing order, what weight and credibility to assign the evidence rests with the trial court. However, in light of the many levels of judicial scrutiny ahead in this case, we conclude it proper to ask the trial court to clarify its sentencing order as to this point on remand.
For these reasons, we must again remand this case for the trial court to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and judicial override of the jury's recommendation of life imprisonment without parole. On remand, the trial court should reweigh the aggravating circumstances and the mitigating circumstances and resentence Spencer accordingly. The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. We again pretermit our plain-error review of Spencer's death sentence pending the trial court's return to remand.
The foregoing opinion was prepared by Retired Appellate Judge H.W. "Bucky" McMillan while serving on active-duty status as a judge of this court under the provisions of § 12-18-10(e), Ala. Code 1975.
REMANDED WITH DIRECTIONS.
Welch and Kellum, JJ., concur. Wise, P.J., and Windom, J., concur in the result.