Opinion
No. CR-00-1987.
Decided June 27, 2003.
Appeal from Mobile Circuit Court (CC-00-2891)
On Return to Remand
William John Ziegler was convicted of capital murder for murdering Russell Allen Baker during the course of a kidnapping. Following the jury's recommendation, by a vote of 11-1, that Ziegler be sentenced to death, the trial court imposed the death sentence. On February 28, 2003, we affirmed Ziegler's conviction and remanded the cause for compliance with § 13A-5-47(d), Ala. Code 1975, which requires the trial court to enter specific written findings concerning the existence of aggravating circumstances and mitigating circumstances. The trial court has complied with our directions on remand, and the case is now before this Court for completion of our review.
I.
In its amended sentencing order filed on April 14, 2003, the trial court found the following aggravating circumstances to exist: that the offense was committed while the defendant was under a sentence of imprisonment, § 13A-5-49(1), Ala. Code 1975; that the offense was committed during the course of a kidnapping, § 13A-5-49(4), Ala. Code 1975; and that the offense was especially heinous, atrocious or cruel when compared to other capital offenses, § 13A-5-49(8), Ala. Code 1975. The trial court found the following statutory mitigating circumstances to exist: that the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance, § 13A-5-51(2), Ala. Code 1975; and the age of the defendant at the time of the crime, § 13A-5-51(7), Ala. Code 1975. The trial court found as nonstatutory mitigating circumstances that Ziegler would provide comfort and support for his family and others if he were sentenced to life imprisonment without parole, and that Ziegler's childhood was difficult and deprived. The trial court stated in its amended sentencing order: "The Court finds that its original determination that the aggravating circumstances outweighed the mitigating circumstances and that the recommendation of the jury was due to be followed is correct. It is not necessary to reweigh the aggravating and mitigating circumstances." (Order on remand, p. 3.)
The State has filed a supplemental brief on return to remand and notes that in its amended sentencing order the trial court has included an additional aggravating circumstance finding that it did not make in the original sentencing order — that Ziegler was under a sentence of imprisonment at the time of the crime. It is not entirely clear to this Court that the trial judge found an additional aggravating circumstance in its amended sentencing order that it did not find to exist in its original sentencing order. First, the trial court's failure to make specific factual findings in its sentencing order as to each aggravating circumstances and mitigating circumstance created an ambiguity that necessitated our remand for clarification of the trial court's findings. Second, evidence from the record suggests that the trial court might have found the aggravating circumstance in § 13A-5-49(1) to exist. The State introduced evidence demonstrating that Ziegler was on probation when he committed the kidnap-murder and it argued to the jury at the sentencing hearing that it had established the aggravating circumstance that Ziegler was under a sentence of imprisonment. The trial court charged the jury that the State attempted to prove three aggravating circumstances, including the circumstance that Ziegler was "under sentence of imprisonment" when he committed the offense. In its original sentencing order, the trial court did not indicate that it found this aggravating circumstance, but it stated, "Although lack of a significant criminal history is not advanced as a mitigating circumstance, the Court notes that Defendant was on probation for a felony offense at the time of the murder and this circumstance does not exist." (C. 290). Due to the ambiguity in the court's original sentencing order and the lack of complete findings as to each aggravating circumstance and mitigating circumstance, the cause was remanded for compliance with § 13A-5-47(d), Ala. Code 1975, so that each aggravating and mitigating circumstance could be addressed. In its amended order, the trial court stated with regard to the § 13A-5-49(1) aggravating circumstance, "This aggravating circumstance exists. As noted in the original sentencing order Defendant was at the time of the commission of the capital offense, on probation for Receiving Stolen Property First Degree." (Order on remand, p. 1.) Because it appears that the trial court did not find an "additional" aggravating circumstance, as the State suggests, no further discussion regarding the ambiguity created by the trial court's initial lack of compliance with § 13A-5-47(d), Ala. Code 1975, is necessary. The sentencing order before us fully complies with the statute, and we can proceed with our review of the sentence.
Although the trial court's order is styled "Amended Sentencing Order," it is actually more in the form of a supplement to the original sentencing order because it addresses only aggravating circumstances and mitigating circumstances. Therefore, we consider the sentencing order submitted on remand as a substitute for section in the original order that addresses the aggravating-and mitigating-circumstance findings. The order on remand and the remaining portions of the original order thus constitute the entire sentencing order in this case, and it is that entire order that we review.
II.
While this case was pending on review, the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002), which potentially impacted sentencing proceedings in death-penalty cases in Alabama. The Supreme Court in Ring applied its earlier holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), to death-penalty cases and held that "[c]apital defendants . . . are entitled to a jury determination on any fact on which the legislature conditions an increase in their maximum punishment." Ring, 536 U.S. at 589. We asked the parties to address whether Ring impacted Ziegler's death sentence, and the parties filed supplemental briefs with this Court.
Ziegler argued that the jury's 11-1 recommendation that the death sentence be imposed violated Apprendi and Ring, and that the determination to impose the death sentence had to be unanimous and had to be made by the jury and not the judge. Ziegler's arguments have been decided adversely to him by the Alabama Supreme Court in Ex parte Waldrop, [Ms. 1001194, Nov. 22, 2002] ___ So.2d ___, ___ (Ala. 2002):
"Because the jury convicted Waldrop of two counts of murder during a robbery in the first degree, a violation of Ala. Code 1975, § 13A-5-40(a)(2), the statutory aggravating circumstance of committing a capital offense while engaged in the commission of a robbery, Ala. Code 1975, § 13A-5-49(4), was `proven beyond a reasonable doubt.' Ala. Code 1975, § 13A-5-45(e); Ala. Code 1975, § 13A-5-50. Only one aggravating circumstance must exist in order to impose a sentence of death. Ala. Code 1975, § 13A-5-45(f). Thus, in Waldrop's case, the jury, and not the trial judge, determined the existence of the `aggravating circumstance necessary for imposition of the death penalty.' Ring, 536 U.S. at 585, 122 S.Ct. at 2443. Therefore, the findings reflected in the jury's verdict alone exposed Waldrop to a range of punishment that had as its maximum the death penalty. This is all Ring and Apprendi require."
The jury here convicted Ziegler of a murder made capital because it was committed during the course of a kidnapping; therefore, each juror necessarily found beyond a reasonable doubt that the aggravating circumstance in § 13A-5-49(4) existed. Upon conviction of the kidnap-murder of Russell Baker, Ziegler was exposed to the death sentence. The fact that the trial court found additional aggravating circumstances did not violate the principles of Ring or Apprendi.
III.
In accordance with Rule 45A, Ala.R.App.P., we have examined the record for any plain error with respect to Ziegler's capital-murder conviction and death sentence, and we have found no plain error or defect that has, or probably has, adversely affected any substantial right of Ziegler's.
We have also reviewed Ziegler's death sentence in accordance with § 13A-5-53, Ala. Code 1975, which requires that, in addition to reviewing the case for any error involving Ziegler's capital-murder conviction, we shall also review the propriety of the death sentence. This statutory review includes our determination of the following: (1) whether any error adversely affecting Ziegler's rights occurred in the sentence proceedings; (2) whether the trial court's findings concerning the aggravating circumstances and the mitigating circumstances were supported by the evidence; and (3) whether the death sentence is proper in the case. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we must consider: (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether an independent weighing by this Court of the aggravating circumstances and the mitigating circumstances indicates that death is the proper sentence; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. After the jury convicted Ziegler of this kidnap-murder, a separate sentencing hearing was held before the jury in accordance with §§ 13A-5-45 and -46, Ala. Code 1975. After hearing evidence concerning the aggravating and mitigating circumstances and after being properly instructed by the trial court as to the applicable law, the jury recommended a sentence of death by a vote of 11-1.
The trial court held another hearing, in accordance with § 13A-5-47, Ala. Code 1975, to aid it in determining whether a death sentence as recommended by the jury was proper or whether Ziegler should be sentenced to life imprisonment without parole. The trial court ordered and received a written presentence investigation report, as required by § 13A-5-47(b), Ala. Code 1975. In its sentencing order, the trial court entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Ala. Code 1975; each mitigating circumstance enumerated in § 13A-5-51, Ala. Code 1975; nonstatutory mitigating circumstances as provided in § 13A-5-52, Ala. Code 1975; and written findings of fact summarizing the offense and Ziegler's participation in it. We have discussed the court's fact findings in Part I of this opinion.
The trial court's sentencing order reflects that after considering all the evidence presented, the arguments of counsel, the presentence report, and the advisory verdict of the jury, and after weighing the aggravating circumstances against the mitigating circumstances, the trial court found that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the trial court sentenced Ziegler to death. The trial court's findings concerning the aggravating circumstances and the mitigating circumstances are supported by the evidence. We find no plain error or defect in the sentencing phase of the proceedings.
Ziegler was convicted of the offense of murder committed during the course of a kidnapping. This offense is defined by statute as a capital offense. See § 13A-5-40(a)(1), Ala. Code 1975. Similar crimes have been punished capitally throughout the State. Smith v. State, 838 So.2d 413 (Ala.Crim.App. 2002); Ex parte Broadnax, 825 So.2d 233 (Ala. 2001); Ex parte Grayson, 824 So.2d 844 (Ala. 2001).
After carefully reviewing the record, as we are required by § 13A-5-53(b), Ala. Code 1975, to do, we have found no evidence that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. The trial court's findings are fully supported by the evidence presented. We have independently weighed the aggravating circumstances against the statutory and nonstatutory mitigating circumstances, and we believe that the trial court correctly determined that the aggravating circumstances outweigh the mitigating circumstances, and we agree that death is the appropriate sentence in this case. We find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.
Having complied with our statutorily mandated review of the proceedings below, including review for plain error, and having reviewed the imposition of the death sentence, we have concluded that Ziegler's death sentence is due to be, and is now, affirmed.
AFFIRMED AS TO SENTENCE.
McMillan, P.J., and Baschab, Shaw, and Wise, JJ., concur.