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BUSH v. STATE12/1/1995
ockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978)). The capital defendant generally must be allowed to introduce any relevant mitigating evidence regarding the defendant's character or record and any of the circumstances of the offense, and consideration of that evidence is a constitutionally indispensable part of the process of inflicting the penalty of death. California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987); Ex parte Henderson, 616 So.2d 348 (Ala. 1992); Haney v. State, 603 So.2d 368 (Ala. Cr. App. 1991), aff'd, 603 So.2d 412 (Ala. 1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). Although the trial court is required to consider of all mitigating circumstances, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Carroll v. State, 599 So.2d 1253 (Ala. Cr. App. 1992), aff'd, 627 So.2d 874 (Ala. 1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994). See also Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985). Moreover, 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. Morrison v. State, 500 So.2d 36 (Ala. Cr. App. 1985), aff'd, 500 So.2d 57 (Ala. 1986), cert. denied, 481 U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987). Thus the trial court's failure to list and to make findings in its sentencing order as to all of the alleged nonstatutory mitigating circumstances offered by the appellant indicates only that it found the evidence not mentioned to be not mitigating, not that the evidence was not considered.
In more specific regard to the appellant's argument that the trial court refused and/or failed to consider as a mitigation that he was "significantly impaired and disturbed" at the time of the commission of the charged offense because of his use of "mind-altering"
drugs, we do not agree that the trial court refused or failed to consider the possibility that the appellant was using drugs at the time he committed the offense. The sentencing order shows that the trial court considered the appellant's contention that he was under the influence of narcotics at the time of the offense. From the trial court's findings that the appellant was not under the influence of extreme mental or emotional disturbance at the time of the commission of the offense, that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired, and that he knew "full well what he was doing and [that] what he was doing was wrong," it is obvious that the trial court considered the appellant's alleged use of drugs at the time of the offense and found that the evidence did not support a finding that it constituted a mitigating circumstance. We agree with this finding. The confessions of the appellant clearly show that he knew what he was doing and that he knew that it was wrong. Even assuming as true his allegations of his "shooting up" a "couple" of times that night on "speed" or "bam," the evidence was insufficient to show that he was so intoxicated or affected by the drugs that he was incapable of appreciating and controlling his conduct. He indicated that he was not a regular drug user. His rendition of the events of that evening is clear and concise. Moreover, he did not give drugs as the reason for the shootings. His reasons were to eliminate the possibility of witnesses and to "try to keep them from getting to a phone so [the appellant] could get away."
In more specific regard to the ap
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