Opinion
No. CR-03-0226.
Decided January 28, 2005.
Appeal from Houston Circuit Court (CC-00-863), Larry K. Anderson, J.
On Return to Remand.
Charles David Decker, Dothan, for Appellant.
Troy King, atty. gen., and Stephen Shows, asst. atty. gen., for Appellee.
The appellant, James Earl Walker, was convicted of capital murder for the killing of Bessie Lee Thweatt. The murder was made capital because the appellant committed it during the course of a first-degree burglary. See § 13A-5-40(a)(4), Ala. Code 1975. The jury unanimously recommended that he be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death. The appellant filed a motion for a new trial, which the trial court denied after conducting a hearing. The appellant appealed his conviction and sentence to this court.
On October 1, 2004, this court affirmed the appellant's conviction. However, we remanded the case with instructions that the trial court amend its sentencing order to comply with the requirements of § 13A-5-47(d), Ala. Code 1975; Ex parte Kyzer, 399 So.2d 330 (Ala. 1981); and Ex parte Burgess, 811 So.2d 617 (Ala. 2000). On November 10, 2004, and on December 8, 2004, the trial court submitted its amended sentencing orders on return to remand, in compliance with our instructions.
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 first-degree burglary. See § 13A-5-40(a)(4), 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 two aggravating circumstances — 1) the appellant committed the capital offense while he was engaged in the commission of a first-degree burglary, see § 13A-5-49(4), Ala. Code 1975, and 2) the capital 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 three statutory mitigating circumstances existed — 1) the appellant did not have a significant history of prior criminal activity, see § 13A-5-51(1), Ala. Code 1975; 2) the appellant acted under the domination of another person, see § 13A-5-51(5), Ala. Code 1975; and 3) the appellant was 20 years old at the time of the offense, see § 13A-5-51(7), Ala. Code 1975. It also made the following findings as to nonstatutory mitigating circumstances:
"The Defendant was reared in a single parent home with little relationship with his father. His mother was rarely home. When the mother was home she would bring different men with her. Defendant Walker often saw his mother being beaten by different men. His mother was married five to seven different times. He had an uncle who would mistreat him. Walker was also diagnosed with a brain tumor wrapped around his brain stem, according to his sister. Defendant was a good father to his daughter and a loving father. His daughter loved him.
"There were altercations between co-defendant Beckworth and Walker. Beckworth was larger and more dominant. The Defendant gave a confession and showed law enforcement officers the crime scene."
(C.R. 354.) The sentencing order and the amended sentencing orders show that the trial court weighed the aggravating 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 killed the victim while he was engaged in the commission of a burglary. Similar crimes are being punished by death throughout this state. See Wynn v. State, 804 So.2d 1122 (Ala.Crim.App. 2000); White v. State, 587 So.2d 1218 (Ala.Crim.App. 1990), aff'd, 587 So.2d 1236 (Ala. 1991); Thomas v. State, 539 So.2d 375 (Ala.Crim.App.), aff'd, 539 So.2d 399 (Ala. 1988). 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 sentence.
AFFIRMED.
McMillan, P.J., and Cobb, Shaw, and Wise, JJ., concur.