Opinion
No. CR-04-2570.
Decided May 1, 2009.
Appeal from Jefferson Circuit Court (CC-04-4129; CC-04-4130; CC-04-4131; CC-04-4132; CC-04-4383)
On Return to Second Remand
Kerry Spencer's convictions for four counts of capital murder for the death of Birmingham Police Officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett, and for the attempted murder of Michael Collins were affirmed by this court on April 4, 2008. We remanded the case to the trial court to clarify its findings concerning the nonstatutory mitigating circumstances and the judicial override of the jury's advisory verdict of life imprisonment without parole. § 13A-5-52 and § 13A-5-47(d), Ala. Code 1975. The trial court was also instructed to reweigh the aggravating circumstances and the mitigating circumstances in resentencing Spencer. Spencer v. State, [Ms. CR-04-2570, April 4, 2008] ___ So. 3d ___ (Ala. Crim App. 2008). The trial court filed an amended sentencing order with this court, and on February 27, 2009, we again remanded this cause to the trial court with instructions that it amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and the judicial override of the jury's recommendation of life imprisonment without parole. The trial court was directed to reweigh the aggravating circumstances and the mitigating circumstances in resentencing Spencer.Spencer v. State, [Ms. CR-04-2570, Feb. 27, 2009] ___ So.3d ___ (Ala.Crim.App. 2008). The trial court, on return to second remand, has submitted an amended sentencing order and has again sentenced Spencer to death.
Spencer was convicted of one count of capital murder for the murder of each officer and one count because he killed two or more persons pursuant to one scheme or course of conduct, § 13A-5-40(a)(10), Ala. Code 1975.
As to the trial court's findings concerning the nonstatutory mitigating circumstances, in his second amended sentencing order the trial court states that Spencer presented evidence indicating that he was sorry for these crimes and he apologized to the victims' families. Spencer also presented the testimony of his mother and his uncle concerning his good behavior as a child and that he was remorseful for the offenses. The trial court however did not consider this to be mitigating evidence because his specific apology directly contradicted the evidence presented, including his statement to police following his arrest and his testimony to the jury during the sentencing phase of his trial.
"It is not required that the evidence submitted by the accused as a non-statutory mitigating circumstance be weighed as a mitigating circumstance by the sentencer, in this case, the trial court; although consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Cochran v. State, 500 So. 2d 1161 (Ala.Crim.App. 1984), aff'd in pertinent part, remanded on other part, 500 So. 2d 1179 (Ala. 1985), aff'd on return to remand, 500 So. 2d 1188 (Ala.Cr.App.), aff'd 500 So. 2d 1064 (Ala. 1986), cert. denied, 481 U. S. 1033, 107 S. Ct. 1965, 95 L. Ed 2d 537 (1987)."
Haney v. State, 603 So. 2d 368, 389 (Ala.Crim.App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992). See also Lewis v. State, [Ms. CR-03-0480, April 28, 2006] ___ So. 3d ___, ___, (Ala.Crim.App. 2006); Yeomans v. State, 898 So. 2d 878, 904 905 (Ala.Crim.App. 2004).
Before reweighing the aggravating and mitigating circumstances in his amended sentencing order on return to second remand, the trial judge clearly stated that he had determined that the evidence concerning the testimony of Spencer's mother and uncle did not constitute mitigating evidence, nor did Spencer's proclamation of remorse and his apology to the victims' families. The trial court did consider the jury's recommendation of life imprisonment without parole as a mitigating circumstance, assigning this factor moderate weight because the vote was not consistent among the capital murder cases against Spencer. The trial court noted:
"In CC-04-4129 the jury's recommendation was nine (9) for life without parole and three (3) for death. In CC-04-4130 the count was ten (10) for life without parole and two (2) for death. In CC-04-4383 the count was seven (7) for life without parole and five (5) for death."
In CC-04-4131, the record indicates that the jury's recommendation was 9 for life without parole and 3 for death.
The trial court's consideration of the jury's verdict as a mitigating circumstance and his decision to accord it moderate weight for the reasons stated was proper, as determined by this Court in the opinion issued on return to our original remand order. Spencer v. State, [Ms. CR-04-2570, February 27, 2009] ___ So. 3d ___, ___ (Ala.Crim.App. 2008).
In his amended sentencing order on return to second remand, the trial court has clarified its findings concerning the mitigating circumstance in § 13A-5-51 (Ala. Code 1975), as to whether Spencer was capable of appreciating the criminality of his conduct or whether his ability to conform his conduct to the requirement of the law was substantially impaired during the commission of the offenses. In his amended sentencing order on return to our first remand, the trial court found that this mitigating circumstance was not present; it determined that Spencer presented no evidence to support this mitigating circumstance. However, in our first opinion remanding this case, this Court had noted that there was evidence at trial that Spencer had ingested cocaine, Seraquel, and alcohol on the morning of the shootings, and that the State had requested a jury instruction as to the level of intoxication required to negate specific intent to kill. The trial court had given the jury such an instruction. In his amended sentencing order on return to second remand, the trial court now states as follows:
"There was evidence during the guilty phase of trial that [Spencer] had ingested cocaine the night before the shooting of these officers. Between 9:00 o'clock and 10:00 o'clock the next morning he drank one beer, he took one Seraquil [sic] and possibly a very small amount of powder cocaine. The defendant then went to sleep and slept until the officers arrived around 1:00 p.m. that afternoon. The record clearly shows that more than sufficient time had elapsed between the time the last drugs or alcohol was ingested and the shooting."
Thus, the trial court clearly considered this evidence presented by Spencer when determining that this mitigating circumstance did not exist.
The trial court has also clarified in this return to second remand its findings and consideration concerning evidence indicating that Spencer shot Officer Bennett a second time through the head only as a reaction to Officer Bennett's having allegedly touched Spencer's leg. The trial court had found in its amended sentencing order on return to the first remand that, because the first shot had paralyzed Officer Bennett, he would have been unable to touch Spencer's leg and provoke the second shot. Spencer had argued in his brief on return to remand that Dr. Gary Simmons testified at trial that, as he was dying, Officer Bennett may have experienced seizures or jerking, resulting in the possibility of Officer Bennett's having touched Spencer. The trial court has clarified its findings in this regard, stating:
"In addition, Dr. Simmons testified at trial that Officer Bennett, who was found dead at the front door of the apartment, was shot multiple times. It was Dr. 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 that as he lay dying, the defendant shot Officer Bennett point blank in the face, the bullet passing through his brain. This undisputed physical evidence contradicts the testimony of the defendant who testified that he fired 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 the defendant's leg. The defendant testified that he shot Officer Bennett in the face when Officer Bennett touched his leg. Dr. Gary Simmons testified at trial as follows:
"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 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 when I pick up this paper clip or whatever, you have just random contractions, seizures if you would. So it's possible. You know, that occasionally happens. Other times people just die. They don't have seizures at all. More times than not they don't, but sometimes they do.'
"This Court finds that the defendant's story that he shot Officer Bennett out of a mere reaction to his touching his leg defies logic and common sense. The evidence from trial showed that the defendant ran out the back door of the apartment as he fired at Officer Collins as he took cover behind his patrol car. Officer Bennett's body was found at the front door of the apartment. It is highly unlikely that the defendant walked up to the body as he lay dying on the ground knowing that there was another live officer somewhere behind him, that he had attempted to kill. This Court puts no weight on this proffered theory by the defense."
Thus, the trial court considered the evidence presented by Spencer but accorded it no weight.
"[T]he weight to attach to [a] known mitigating circumstance is within the discretion of the trial court. See Bush v. State, 695 So. 2d 70 (Ala. Crim App. 1995), aff'd 695 So. 2d 138 (Ala.), cert. denied, 522 U. S. 969, 118 S. Ct. 418, 139 L. Ed. 2d 320 (1997)." Hodges v. State, 856 So. 2d 875, 893 (Ala.Crim.App. 2001), aff'd 856 So. 2d 936 (Ala. 2003).
"The circuit court must consider evidence offered in mitigation, but it is not obliged to find that the evidence constitutes a mitigating circumstance. As the Alabama Supreme Court has stated:
"`See Lockett v. Ohio, 438 U. S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); Ex parte Hart, 612 So. 2d 536, 542 (Ala. 1992) ("Lockett does not require that all evidence offered as mitigating evidence be found to be mitigating."), cert. denied, 508 U. S. 953, 113 S. Ct. 2450, 124 L. Ed 2d 666 (1993); and Ex parte Slaton, 680 So. 2d. 909, 924 (1996) ("`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.'") (quoting Bankhead v. State, 585 So. 2d 97, 108 (Ala.Crim.App. 1989),
"Ex parte Ferguson, 814 So. 2d 970, 976 (Ala. 2001)."
Calhoun v. State, 932 So. 2d 923, 975 (Ala.Crim.App. 2005), cert. denied, 548 U. S. 926 (2006).
This court previously pretermitted a plain-error review of Spencer's sentencing proceeding, pending the trial court's return to our remand order. Because the trial court has complied with the requirements of our remand concerning its sentencing order, Spencer's sentencing will now be reviewed pursuant to Rule 45A, Ala. R. App. P. As required pursuant to that rule, we have searched the entire proceedings and found no plain error or defect that has or probably has adversely affected any of Spencer's substantial rights. We have also reviewed the propriety of the sentence of death as required by § 13A-5-53(a), Ala. Code 1975. It is the finding of this Court that there is no error in the sentencing that adversely affected Spencer's rights.
The trial court found the existence of four aggravating circumstances: that Spencer knowingly created a great risk of death to many persons in the commission of this crime, § 13A-5-49(3), Ala. Code 1975; that the capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, § 13A-5-49(5), Ala. Code 1975; that the capital offense was committed to disrupt or hinder the lawful exercise of a government function or the enforcement of laws, § 13A-5-49(7), Ala. Code 1975; and that Spencer intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct, § 13A-5-49(9), Alabama Code 1975. The trial court further found the existence of two statutory mitigating circumstances: Spencer's age, pursuant to § 13A-5-51(7) Ala. Code 1975, which was 24 at the time of the events; and the lack of significant history of prior criminal activity, § 13A-5-51(1), Ala. Code 1975. As to the former, the trial court found that Spencer's age of 24 at the time of the offense was young but not so young as to carry great weight. Moreover, the trial court attached little weight to Spencer's lack of significant history of prior criminal activity. As to other mitigating evidence, the trial court found that the evidence showing that Spencer had obtained a GED and was an electrician by trade did not carry any significant weight. Finally, the trial court considered as a mitigating circumstance the jury's punishment recommendation. The trial court considered this evidence to be a nonstatutory mitigating circumstance entitled to moderate weight considering the jury's vote, which in one case was 10 for life imprisonment without parole and 2 for death, and in two of the cases was 9 for life imprisonment without parole and 3 for death, and in the final case was 7 for life imprisonment without parole and 5 for death. The trial court cited several reasons for overriding the jury's recommendation.
In weighing the aggravating circumstances against the mitigating circumstances, the trial court accorded great weight to the aggravating circumstance of § 13A-5-49(5), Ala. Code 1975, noting that the officers were acting as agents of the court in their attempt to duly serve warrants, and that two of the three officers were gunned down from behind without any opportunity to draw their weapons. The trial court also placed great weight on the aggravating circumstance contained in § 13A-5-49(7), Ala. Code 1975, that the capital offense was committed to disrupt or hinder the lawful exercise of a government function. Stating in his amended sentencing order on return to second remand that "[i]f we are to have law and order in a civilized society, then officers like these, who were gunned down while trying to perform a government function or enforce the law must mean something." The trial court further noted that Spencer showed no remorse in his statement to the police following the murders or in his testimony; rather, the trial court felt that Spencer seemed to indicate that he was justified in killing these officers. In his second amended sentencing order, the trial court stated: "This is the most brutal and violent attack on law enforcement officers this Court has seen in its combined thirty years as a prosecutor, defense lawyer, and as a judge." The trial court's findings concerning the aggravating and mitigating circumstances is supported by the record.
It is the finding of this court that death is the proper sentence in this case. There is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. Section 13A-5-53(b)(2), Ala. Code 1975, requires this court to weigh the aggravating and mitigating circumstances independently to determine the propriety of the Spencer's sentence of death. An independent weighing of the aggravating and mitigating circumstances indicates that death is the proper sentence. As required by § 13A-5-53(b)(3), Ala. Code 1975, this Court must determine whether Spencer's sentence was disproportionate or excessive when compared to the 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 both the crime and Spencer. See, e.g., Harris v. State, [Ms. CR-04-2363, December 21, 2007] ___ So. 3d ___ (Ala.Crim.App. 2007) (death penalty imposed upon conviction of capital murder for the killing of two or more persons pursuant to one course of conduct or a series of acts);Woods v. State, [Ms. CR-05-0448, August 31, 2007] ___ So. 3d ___ (Ala.Crim.App. 2007) (death penalty imposed upon conviction of capital murder in the shooting deaths of four Birmingham police officers);McNabb v. State, 887 So. 2d 929 (Ala.Crim.App. 2001), aff'd 887 So. 2d 998 (Ala. 2004) (death penalty imposed upon conviction of capital murder for the killing of a Montgomery police officer).
For the reasons expressed here, in our February 27, 2009, opinion, and in our April 4, 2008 opinion, we affirm Spencer's convictions and sentences.
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.
AFFIRMED.
Wise, P.J., and Welch, Windom, and Kellum, JJ., concur.