SMITH v. STATE, CR-97-1258 (Ala.Crim.App. 3-30-2001)

No. CR-97-1258.Court of Criminal Appeals of Alabama.
Decided March 30, 2001.

Appeal from Houston Circuit Court (CC-97-270).

On Return To Remand
PATTERSON, Retired Appellate Judge.

On original submission of this case, we affirmed the conviction of the appellant, Jerry Jerome Smith, for the capital offense of “[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct,” § 13A-5-40(a)(10), Ala. Code 1975. Smith v. State, [Ms. CR-97-1258, December 22, 2000] ___ So.2d ___ (Ala.Crim.App. 2000). However, we could not review the appellant’s sentence of death at that time, because of ambiguities pertaining to the sentencing by the trial court and also because of deficiencies and possible errors in the trial court’s sentencing order. We remanded this case for the trial court to enter a new sentencing order in compliance with § 13A-5-47(d) and with our specific directions set out in Parts IX, X, XI, and XXIX of our opinion. The trial court has submitted a written order on its return to our remand in which it addresses our directives in Parts IX and X only. We are again compelled to remand.

We find that some of the deficiencies noted below would have been avoided had the trial court entered “a new sentencing order that fully complies with § 13A-5-47(d),” as we requested. ___ So.2d at ___. We intended that the requested order not merely supplement the trial court’s first sentencing order, but that it be all inclusive. To piecemeal a final sentencing order together raises additional problems, as is the case here.

Until we are able to clearly discern the trial court’s findings as to the aggravating, statutory mitigating, and nonstatutory mitigating circumstances, we cannot carry out our statutory duty of review. See
§ 13A-5-53 (requiring that we first determine whether the trial court’s findings concerning the aggravating circumstances and the mitigating circumstances were supported by the evidence and then that we independently weigh those circumstances to determine whether death was the proper sentence).

“In capital cases, it is the duty of this court to independently determine whether the sentence of death is appropriate in a particular case. In order to reach this conclusion, we must reweigh the aggravating circumstances and the mitigating circumstances as found by the trial court.”

Roberts v. State, 735 So.2d 1244, 1269 (Ala.Crim.App. 1997), aff’d, 735 So.2d 1270 (Ala. 1999) (emphasis added).

Accordingly, we direct that the trial court’s sentencing order on return to our second remand include within its four corners all necessary findings. Therefore, we tailor this remand order to the pertinent provisions of § 13A-5-47(d), which are as follows:

“[T]he 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 shall also enter written findings of facts summarizing the crime and the defendant’s participation in it.”

(Emphasis added.)

Summary of the Crime and the Defendant’s Participation in It
We direct the trial court to correct two errors: (1) the record shows that the indictment was returned February 20, 1997, not November 20, 1996, as stated in its first order; and (2) the first order states that David Lee Bennett died on October 10, 1996, but the date of the crime was October 19, 1996.

Aggravating Circumstances
In Part XI of our original opinion, we noted the attorney general’s express concern for the trial court’s explanation for its finding of the aggravating circumstance that the appellant knowingly created a great risk of death to many persons, § 13A-5-49(3).[1]

The attorney general asked us to hold in abeyance our review of the trial court’s finding in regard to this circumstance until the trial court submitted an amended sentencing order in this regard. We shared his concern; therefore, we granted his request and instructed the trial court to address this concern in its order on return to remand. The trial court did not do so. In fact, its second order did not address any aggravating circumstance. Thus, we must again hold our review in abeyance until the trial court files a proper and complete order specifically addressing this concern. In that order, the trial court is to set out its factual basis for finding the existence of this aggravating circumstance, if it finds that it does indeed exist, without basing its finding on the jury’s verdict in the guilt phase. Any finding in regard to this aggravating circumstance must be based on the trial court’s own analysis of the evidence, not on the jury’s verdict. See, e.g., Ponder v. State, 688 So.2d 280, 283-85 (Ala.Crim.App. 1996). Further, if it finds the existence of § 13A-5-49(3), it should declare that its finding does not automatically flow from the jury’s verdict.

We further call to the trial court’s attention a discrepancy in the number of aggravating circumstances it found. Although the court stated that the evidence proved the existence of four aggravating circumstances, its order lists its findings as to only two. We think that this discrepancy is probably a clerical error, but due to the fact that this is a capital case and the fact that this case must again be remanded, we direct the trial court to follow the better practice of listing each of the eight aggravating circumstances enumerated in §13A-5-49 and making a specific finding as to the existence or nonexistence of each one. See, e.g., Taylor v. State, 666 So.2d 36, 71
(Ala.Crim.App. 1994), aff’d, 666 So.2d 73 (Ala. 1995). Compare Stewartv. State, 730 So.2d 1203, 1218-19 (Ala.Crim.App. 1996) (the trial court’s failure to enter specific written findings concerning the existence of each aggravating circumstance, as required by statute and recognized to be the safer practice, was harmless; there was nothing to indicate that the trial court had refused or had failed to consider any aggravating circumstance, and the appellate court had before it sufficient basis for reviewing the defendant’s sentence), aff’d, 730 So.2d 1246 (Ala. 1999).

Statutory Mitigating Circumstances
In Part XXIX of our original opinion, we stated:

“In its sentencing order, the trial court stated the following in reference to the statutory mitigating circumstances: `I have considered all of the statutory mitigating circumstances and find that some
of them exist.’ (Emphasis added.) However, the trial court addressed only one: § 13A-5-51(6). (The court addressed this one even though it had not submitted this circumstance to the jury for its consideration, yet did not address the two it did submit to the jury, §§ 13A-5-51(2) and (3).) In sentencing a defendant in a capital case, the trial court is required, among other things, to enter specific written findings concerning the existence or nonexistence of each mitigating circumstance enumerated in § 13A-5-51. Clearly, a finding by the trial court that `some’ of the statutory mitigating circumstances exist, without identifying them, is insufficient.”

___ So.2d at ___ (citations omitted).

The trial court’s order on return to remand does not correct this deficiency. In fact, the trial court did not refer to any specific statutory mitigating circumstance except by its mere mention of §13A-5-51(6). Without an express finding by the trial court on each
statutory mitigating circumstance, we cannot perform our mandated duty. On the court’s return to our second remand, its order should list each statutory mitigating circumstance and reflect the trial court’s finding of the existence or nonexistence of each circumstance.

In Part X of our original opinion, we found the trial court’s comments regarding the interpretation and application of § 13A-5-51(6), the statutory mitigating circumstance that “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired,” ambiguous. As to its finding on the mitigating circumstance, we specifically stated:

“We cannot ascertain from the trial court’s order[2]
whether the court disregarded all evidence relevant to § 13A-5-51(6), and if it did so, whether it dismissed the evidence either (1) in the erroneous belief that, as a matter of law, § 13A-5-51(6) could be considered only if the defendant had pleaded at the guilt phase not guilty because of mental disease or defect, or (2) in the erroneous belief that the necessary proof for a finding of the mitigating circumstance at § 13A-5-51(6) must present a mental disease or defect of such magnitude as to constitute a defense to the offense. . . .

“. . . .

“We further find, in addition to its erroneous interpretation of the interplay between the defense of mental disease or defect and § 13A-5-51(6), that the trial court improperly rejected § 13A-5-51(6) as a mitigating circumstance solely on its finding that the appellant intended to kill the victims. The converse to the trial court’s exclusion of § 13A-5-51(6) on its finding of an intent to kill is that the mitigating circumstance is present only if the intent to kill is absent; if that were so, the defendant would be entitled to an acquittal because he did not have the intent to kill. A capital murderer can have the intent to kill, but still have substantial impairment of his capacity to appreciate the criminality of his actions or to conform his conduct to the requirements of the law. . . .
“Because of the ambiguity of the trial court’s interpretation of § 13A-5-51(6), the trial court, in reviewing or reconsidering the appropriate punishment for the appellant on remand, is to consider all evidence relevant to that mitigating circumstance. It is to do so without operation of any incorrect belief that such evidence cannot be considered unless the appellant pleaded not guilty by reason of a mental disease or defect, that the evidence of substantially impaired capacity must rise to the level of a mental disease or defect, or that the circumstance is negated solely by evidence of intent to kill.”

___ So.2d at ___.

In its order submitted on return to remand, the trial court stated, in pertinent part:

“There were many factors that were considered by this Court, as were alluded by this Court in its original Order, regarding the Appellant and his past behavior and relationship with other family members. These factors are listed as follows:

“. . . .

“The Court considers all of the above mitigating evidence in regard to whether Appellant had a substantially impaired capacity, and finds that the aggravating circumstances presented at trial outweigh the mitigating circumstances.”

The trial court’s second order reflects that it considered most of the alleged facts proposed by the appellant to be relevant to the mitigating circumstance listed in § 13A-5-51(6). In our original opinion, we set out the mitigating factors the appellant claimed were supported by the evidence and pertinent to § 13A-5-51(6). However, in its order on return to remand, the trial court did not refer to those factors, but instead found to exist 12 of the 17 factors it had listed in its first order as being the factors it considered. Those 12 overlap the factors we set out in our opinion. Those not mentioned in the trial court’s 12, but included in our opinion as having been asserted by the appellant are: the appellant’s IQ, his low frustration tolerance and poor impulse control, the dysfunction of his childhood home, and the fact that he acted as a 12-year-old with regard to the capacity to form the intent to commit the crime. Unless the trial court indicates otherwise in its return to second remand, we will assume that it considered those and found that they were not relevant to § 13A-5-51(6) and/or that they were disproved by a preponderance of the evidence, § 13A-5-45(g). Cf. Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App. 1996) (the trial court is not required to specify, in its sentencing order, each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating), aff’d, 710 So.2d 1350 (Ala. 1997).

In further regard of § 13A-5-51(6), we point out that the trial court failed to indicate whether it found this mitigating circumstance to exist; failed to expressly indicate that it was not imposing the erroneous burden of proof it espoused at the sentencing hearing; and failed to expressly negate its initial declaration that a finding of intent forecloses a finding of the existence of the mitigating circumstance found at § 13A-5-51(6). While these latter declarations are certainly not required in the usual case, in the interest of clarity and judicial economy, we find that they are required here. Because the trial court’s order as to this mitigating circumstance is still ambiguous, until that ambiguity is eliminated by explicit expression of the correct interpretation of § 13A-5-51(6) and until we have an explicit finding that the mitigating circumstance found at § 13A-5-51(6) does or does not exist in this case, we cannot exercise our statutory responsibilities.

Nonstatutory Mitigating Circumstances
In Part IX of our original opinion, we noted that the trial court ruled, during the sentencing phase, that it would allow no mitigating evidence concerning “anything that happened to anybody other than the defendant.” This ruling was made in regard to proposed evidence of the appellant’s family circumstances that would show, the appellant argued, that he “grew up in a markedly dysfunctional family,” which maximized his own deficiencies. (Appellant’s brief, p. 34.) We expressed concern that the trial court’s comments during the discussion pertinent to that ruling strongly indicated that the trial court, in determining the appellant’s sentence, did not consider the evidence that happened to include something regarding one of the appellant’s family members and, thus, it failed to consider how the appellant’s life had been affected by his experiences, with and the deficiencies of, his family members. The trial court’s sentencing order submitted on return to remand shows that the court complied with our instructions in this regard: the court set out the evidence offered in mitigation that happened to also pertain to the appellant’s family members and his life with them, declared that it had considered that evidence, and made a finding in regard to that evidence, stating that that evidence did not mitigate the appellant’s crime or punishment.

In Part XXIX of our original opinion, we also directed the trial court to make findings in regard to 17 proposed nonstatutory circumstances that it had listed in its original order as having considered. In its order on return to remand, it found 12 of those 17 proposed nonstatutory circumstances to be mitigating evidence “in regard to whether the Appellant had a substantially impaired capacity.” While we will not argue with whether each of those 12 is or is not relevant to that particular statutory mitigating circumstance, we point out that the trial court’s consideration of each of the 12 should not have been limited strictly to the context of that statutory circumstance. In other words, the trial court should have also considered each in regard to whether it independently was or was not a nonstatutory mitigating circumstance.

“In addition to the mitigating circumstances specified in Section 13A-5-51, mitigating circumstances shall include any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death, and any other relevant mitigating circumstance which the defendant offers as a basis for a sentence of life imprisonment without parole.”

Section 13A-5-52. Thus, we direct the court on return to remand to so consider all evidence offered by the appellant.

By again considering all of the evidence offered and the nonstatutory mitigating circumstances proposed and issuing one all-inclusive sentencing order, the following inconsistencies in the two orders presently under review will be alleviated. As noted above, in the first sentencing order, the trial court listed 17 proposed nonstatutory mitigating circumstances, but did not make findings in regard to all of them. However, two that it did find, in the first order, to exist were not mentioned in its second order as among those it found to be mitigating.[3] Are we to assume that, on second reflection of the appellant’s sentence, the court found them not to exist, or are we to assume that the court stands by its first determination? The trial court’s return to second remand should resolve these inconsistencies. In addition, in its first order, the court stated, “I find no credible evidence that [the appellant’s] use of drugs was a result of his mental or emotional disturbances.” Yet, in its second order, it found the following to be “mitigating evidence in regard to whether the Appellant had a substantially impaired capacity”: “The Defendant’s use or misuse or abuse of drugs was a result of his mental or emotional disturbance.” (Emphasis omitted.)

Finally, we note that, in the second order, the trial court stated that it had weighed the aggravating circumstances against the mitigating circumstances, but neglected to state that it also considered, as required by § 13A-5-47(e), the jury’s recommendation in its advisory verdict. The Alabama Supreme Court recently observed in Ex parte Taylor, [Ms. 1991307, March 9, 2001] ___ So.2d ___, ___ (Ala. 2001), that “the trial judge must state specific reasons for giving the jury’s recommendation the consideration he gave it.”

Conclusion
Based on the foregoing, we must again remand. The trial court is to again determine the appellant’s sentence in light of our discussions above and in Parts X, XI, and XXIX of our opinion on original submission. On return to second remand, the court is to submit a new sentencing order that is all-encompassing.

By remanding this case again, we are not intimating any view, at this point, of the proper sentence for the appellant. We simply cannot make that determination until we have a new sentencing order setting out the findings of the trial court in regard to the aggravating, mitigating, and nonstatutory mitigating circumstances and until the above-noted ambiguities are resolved.

The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time within 28 days of the release of this opinion.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e).

REMANDED WITH DIRECTIONS AS TO SENTENCING.

McMillan, P.J., and Cobb, Baschab, and Wise, JJ., concur; Shaw, J., recuses himself.