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BUSH v. STATE12/1/1995
.Ed.2d 284 (1990) to support his contention. However, his reliance on Freeman is misplaced. While the Freeman court correctly held that juvenile adjudications are not convictions or criminal in nature and cannot be considered to negate the statutory mitigating circumstance that a defendant has no significant history of prior criminal activity, § 13A-5-51(1), it did not address aggravating circumstances. In finding that this mitigating circumstance did not exist, the trial court did not rely on the juvenile adjudications, but rather correctly found that the appellant had a significant history of prior criminal activity in that he had been previously convicted of robbery. (The presentence report shows that the appellant also had prior convictions for larceny and for a violation of the federal firearms act.)
A trial court may consider only those aggravating circumstances listed in § 13A-5-49 in fixing the death penalty. Clisby v. State, 456 So.2d 99 (Ala.Cr.App. 1983); Berard v. State, 402 So.2d 1044 (Ala. Cr. App. 1981). In this case, the trial court found the existence of three statutory aggravating circumstances: (1) that the defendant had previously been convicted of the offense of robbery in March 1970; (2) that the capital offense was committed while the defendant was engaged in or was an accomplice in the commission of a robbery; and (3) that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses. There is nothing in the record or in the sentencing order from which one could even infer that the trial court considered the appellant's juvenile record, as shown in the presentence report, as nonstatutory aggravating evidence. We, thus, find no merit to the appellant's contention. In the absence of some evidence to the contrary, we must presume that the trial court knew the law and that it correctly applied it in making its decision. Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); Hutcherson v. State, 677 So.2d 1174 (Ala. Cr. App. 1994).
We are convinced after reviewing the record that the trial court's use of the presentence report in determining the appellant's sentence was consistent with § 13A-5-45(d), which states:
"Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama."
The appellant also contends that the presentence report includes "damaging" statements made by him during an "unwarned, uncounseled presentence interview" with the probation officer who prepared the report. He does not identify which statements he considers damaging. The cases of Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989), and Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), relied upon by the appellant, are not applicable to this presentence report. In those cases, the Court held that a capital defendant's Fifth Amendment right against compelled self-incrimination precluded the state from subjecting him to a psychiatric examination concerning future dangerousness without first informing him (1) that he has a right to remain silent and (2) that anything he says can be used against him at a sentencing proceeding, and further that once a capital defendant is formerly charged, the Sixth Amendment right to counsel precludes
such a psychiatric examination without first notifying counsel tha
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