Opinion
No. CR-99-1568.
Decided April 25, 2003.
Appeal from Limestone Circuit Court (CC-99-318; CC-96-568) On Return to Remand.
The appellant, Darryl D. Turner, was convicted of two counts of capital murder for murdering Barbara Wilson during the course of a rape and a robbery. See §§ 13A-5-40(a)(3) and 13A-5-40(a)(2), Ala. Code 1975. Turner was also convicted of robbery, theft, burglary, and rape. We remanded this case so that the trial court could vacate the convictions for robbery, theft, and rape, because those convictions were encompassed in the greater capital offenses. This Court further directed the trial court to correct certain omissions and deficiencies in its sentencing order. See Turner v. State, [Ms. CR-99-1568, November 22, 2002] ___ So.2d ___ (Ala.Crim.App. 2002). The trial court has, in part, complied with our directions and has set aside the robbery, theft, and rape convictions and has corrected many of the cited deficiencies in its sentencing order.
I.
We first directed the trial court that it could not consider a prior conviction of assault based on a nolo contendere plea to establish the aggravating circumstance contained in § 13A-5-49(2) — a prior history of criminal activity. The trial court has complied with our directions and has made the following findings concerning this aggravating circumstance:
"The pre-sentence investigation reveals that the defendant had a prior arrest on February 23, 1996, for Assault, 1st, and Theft by Unlawful Taking, and that the defendant subsequently pled guilty to Assault, 2nd, and received a seven (7) year prison sentence. The Court has received into evidence a certified copy of the August 30, 1996, Jefferson Circuit Court conviction of Assault, 2nd, and verification of a seven (7) year prison sentence. This conviction was entered pursuant to a nolo contendere plea. A nolo contendere plea can not be used to establish the aggravating circumstance contained in § 13A-5-49(2), McNair v. State, 653 So.2d 320 (Ala.Crim.App. 1992), affirmed, 653 So.2d 353 (Ala. 1994).
"This Court determines that the State has not proven beyond a reasonable doubt the existence of this aggravating circumstance."
Also, in regards to the nolo contendere plea, we stated that the trial court could not consider the nolo contendere plea when determining whether the mitigating circumstance of no significant history of prior criminal activity was present. The trial court has complied with our directions and has made the following finding:
"A nolo contendere plea can not be used to establish the aggravating circumstance contained in § 13A-5-49(2), [Ala. Code 1975;] McNair v. State, 653 So.2d 320 (Ala.Crim.App. 1992), affirmed 653 So.2d 353 (Ala. 1994). It is the finding of this Court that the defendant has no significant history of prior criminal activity, and this is proven to be a mitigating circumstance herein."
II.
We further directed the trial court to make more detailed findings of fact concerning the aggravating circumstance that the murder was especially heinous, atrocious, or cruel as compared to other capital murders. The trial court has complied with our directions; it amended its sentencing order to state:
"The law has provided definitions for the terms heinous, atrocious or cruel as compared to other capital offenses. The term heinous means extremely wicked or shockingly evil. The term atrocious means outrageously wicked and violent. The term cruel means designed to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of others. For a capital offense to be especially cruel, it must be a [conscienceless] or pitiless crime which is unnecessarily tortuous to the victim. All capital offenses are heinous, atrocious and cruel to some extent. What is intended to be included in this aggravating circumstance are those cases where the actual commission of the capital offense is accompanied by such additional acts as to set this crime apart from the norm of capital offenses. This aggravating circumstance pertains only to those cases in which the degree of heinousness, atrociousness or cruelty exceeds that which will always exist when a capital offense is committed. Courts have given specific emphasis to the manner of the killings involved in such cases and emphasis to the pain, suffering and fear of the victims.
"The facts herein would show that the victim, Barbara Wilson, was babysitting her grandchild on February 21, 1996. The victim, at this time, lived with L.T. Southard. Greg Coleman, the defendant's uncle and roommate, was a coworker with Southard at Stinnett Construction. Southard and Coleman were called away for work in the early morning hours of January 21, 1996. This Defendant, Darryl D. Turner, developed the idea and plan to go to the victim's home along with two codefendants to engage in a theft and robbery, (`to get a lick') as described by Turner and a witness who had been solicited to help Turner that morning. Darryl Turner knew that Southard would not be in the victim's home on the day in question since he left with Greg Coleman to go to Birmingham to work. There is evidence that Turner recruited the two codefendants to accomplish these crimes. Turner went with the two co-defendants to accomplish these crimes. Turner went with the two codefendants to the Wilson home and was actively involved or aided and abetted in the commission of the crimes herein. The victim was found murdered and lying nude on a bed, not in her own bedroom. The victim had been tied up with a phone cord jerked from the wall telephone, gagged and suffocated to death by the use of a pillow over the face of the victim. The victim had also been raped. DNA evidence clearly excluded L.T. Southard and the other two codefendants as the potential sources for the sperm found in the vagina of the victim, Barbara Ann Wilson. DNA evidence and testimony could not exclude the Defendant, Darryl D. Turner, as the source for said sperm. A knife was found lying on a bedside table close to the victim. The victim had defensive type wounds on her hands. Blood was discovered at the scene of the murder which matched the victim's. The condition of the body showed that the victim was clearly not a willing participant to the events that ultimately led to her death.
"All of these heinous, cruel and inhuman activities occurred while the victim was babysitting her two-year-old grandchild. This grandchild was left unattended and found wandering in the area the next day. The Defendant, Darryl D. Turner, confessed to the police that he was involved in Wilson's murder. A 19-inch television and a 1993 Cadillac automobile were stolen from the victim. A witness in the trial, Travaris McCurley, testified that he was recruited to be an accomplice in this crime. McCurley testified that later in that day Turner came back to the house and told him to look out the window. McCurley looked out and saw Wilson's (the victim) Cadillac parked in front of the house. McCurley testified that Turner told him that he had `killed the bitch.' He told McCurley that he had killed her because he did not want her to tell police what they had done. The defendant was the only one of the three codefendants that took anything of value from the victim. Turner was seen in the victim's car and he personally pawned the victim's television. Turner's actions, both before and after the crime, showed that he was an active participant in said crime. Following the defendant pawning the television in Athens, Alabama, he drove the Cadillac to Louisville, Kentucky, where he was later apprehended.
"It is the finding of this Court that the use of force and an obvious fear from the victim were very present and obvious from all the evidence. Darryl D. Turner, the defendant, in his interview with Officer Heath Emerson related how the victim had begged the defendants to cease their behavior. There was evidence of defensive type knife wounds on both hands of the victim. The victim was gagged, suffocated to death, raped and left lying on her bed. All this was committed while the victim's two year old grandchild was present in the house. The child was left there as this defendant stole the victim's television and automobile."
We have held that this aggravating circumstance may lawfully be applied if psychological or physical torture were inflicted on the victim. SeeHodges v. State, [Ms. CR-98-1988, October 26, 2001] ___ So.2d ___ (Ala.Crim.App. 2001) (opinion on return to remand). Factors that tend to prove this aggravating circumstance include: (1) physical violence beyond that necessary to cause death; (2) appreciable suffering after the assault; and (3) psychological torture. Norris v. State, 793 So.2d 847 (Ala.Crim.App. 1999).
Here, the above facts clearly show that the murder was especially heinous, atrocious, or cruel when compared to other capital murders. Not only was the victim subjected to great physical suffering but she was subjected to great psychological suffering as well. Certainly, the victim was aware that her death was imminent and she feared not only for her life but for the life of her grandchild. We agree that this aggravating circumstance was correctly applied in this case.
III.
We further directed the trial court to state whether it had found that Turner's age was a mitigating circumstance. The trial court stated:
"This defendant was twenty-one years of age at the time of the offense. The Court does not find the defendant's age to be a mitigating circumstance in this case."
IV.
To a great extent the trial court complied with our directions; however, it is necessary to again remand this case so that the trial court can comply with § 13A-5-47(d), Ala. Code 1975, by making specific findings as to the applicability or nonapplicability of every statutory aggravating circumstance enumerated in § 13A-5-49, Ala. Code 1975, every mitigating circumstance enumerated in § 13A-5-51, Ala. Code 1975, and any nonstatutory mitigating circumstances that it found were present in the case. Section 13A-5-47(d), states, in part:
"(d) Based upon the evidence presented at trial, the evidence presented during the sentence hearing, and the pre-sentence investigation report and any evidence submitted in connection with it, the trial court shall enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, each mitigating circumstance enumerated in Section 13A-5-51, and any additional mitigating circumstances offered pursuant to Section 13A-5-52."
The trial court's order is deficient because it fails to specifically state each and every aggravating and mitigating circumstance enumerated in the above statutes — whether or not it found those circumstances to apply to the present case. Moreover, though the nonstatutory mitigating circumstances the trial court considered are detailed in the order, the organization of the trial court's order makes it appear that the court considered those nonstatutory mitigating circumstances as statutory mitigating circumstances. These discrepancies must be corrected before we can proceed any further with this appeal.
Therefore, it is necessary to again remand this case to the Circuit Court of Limestone County for that court to correct its sentencing order to comply with § 13A-5-47(d), Ala. Code 1975. The trial court is further directed to reweigh the aggravating and the mitigating circumstances once it has complied with the directions in this opinion. Due return should be filed in this Court no later than 42 days from the date of this opinion.
REMANDED WITH DIRECTIONS.
McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.