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BUSH v. STATE12/1/1995
w this issue under the plain error rule.
The trial court's sentencing order in reference to matters of mitigation is as follows:
"1. The Court finds from the evidence that William Bush does have a significant history of prior criminal activity in that he has been previously convicted of Robbery.
"2. The Defendant contends in a written statement that he was under the influence of narcotics at the time of the capital offense. The Court does not find from the evidence that the Defendant was under the influence of extreme mental or emotional disturbance.
"3. The Court finds that the victim, Larry Dominguez, was not a participant in Mr. Bush's conduct and did not consent to the act.
"4. The evidence establishes that the Defendant was a major participant in the capital offense and that the shootings were done by him. The evidence establishes that the Defendant shot with his own pistol the victims, Dominguez, Adams and Holmes.
"5. The Court finds from the evidence that Mr. Bush did not act under extreme duress or under the substantial domination of another person.
"6. The Court finds that the capacity of Mr. Bush to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired. The Court finds from the evidence that the Defendant, William Bush, knew full well what he was doing
and that what he was doing was wrong. He stated to a witness that he shot the victims so that there would be no eyewitness to him criminality.
"7. The evidence establishes that the Defendant was thirty-one years of age at the time of the capital offense.
"8. In addition to the above enumerated mitigating circumstances the Defendant, at the sentence hearing conducted by the Court, was given an opportunity to present any other evidence of mitigating circumstances and to make any statement of mitigating circumstances. The Court heard testimony from family members that William Bush was a productive member of society and that while in prison he has shown remorse for his crime and that the life of William Bush is of value, which the Court finds to be a mitigating circumstance.
"9. The Court considers as a mitigating circumstance the evidence that William Bush has made a spiritual conversion during the last two years that has made a difference in his life. Defendant while in prison has done artwork which reflects his worth as a human being.
"10. The Court considers the advisory vote of the jury of twelve for life without parole and zero for death to be a mitigating circumstance."
After reviewing the record, we conclude that the trial court considered all matters offered in mitigation by the appellant and did not restrict the appellant in any manner in his presentation of evidence in mitigation. Although the trial court failed to find the existence of any enumerated statutory mitigating circumstance, it found the existence of several nonstatutory mitigating circumstances: that the appellant was a productive member of society, that he showed remorse for his crime while in prison, that his life is of value, that he had made a spiritual conversion during the last two years that has made a difference in his life, that he has done artwork while in prison that reflects his worth as a human being, and that the jury recommended a sentence of life imprisonment without the possibility of parole by a unanimous vote.
A sentencer in a capital case may not refuse to consider or be "precluded from considering" mitigating factors. Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (quoting L
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