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BUSH v. STATE12/1/1995
t the examination will encompass an assessment of future dangerousness. It is apparent from the presentence report that the appellant was interviewed by the preparer of the report and that the information given was of a general background nature typically found of presentence reports. The presentence report shows that no psychological reports were considered, and it is readily apparent that no questions were asked by the interviewer and no responses made by the appellant that would bear in any way upon the question of the appellant's future dangerousness. The report is silent in this regard. It can only be concluded that future dangerousness was not a subject of the interview. We note that in the interview the appellant denied his guilt.
In conclusion, we have searched the presentence report and we find no improper information in it and certainly no damaging statements of the type referred to by the appellant and discussed in the cases cited. It meets the requirements of the applicable statutes and rule.
The appellant did not object to the presentence report when he was afforded an opportunity to do so at trial; he raises these objections for the first time on appeal. We have, therefore, reviewed his contentions under the plain error rule. We find no merit in these contentions, and certainly no plain error.
VI.
The appellant contends that § 13A-5-47(e), which provides as follows, is unconstitutional on its face.
"In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to section 13A-5-46(a) or 13A-5-46(g). While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court."
He argues that the statute does not contain adequate standards or safeguards to guide the trial court in exercising its authority to override the recommendation of the jury and that because of this deficiency, it was unconstitutionally applied in this case.
The appellant's contention that the override provision of § 13A-5-47(e) is facially unconstitutional is without merit. The United States Supreme Court, as well as the courts of this state, have consistently upheld the validity of the judicial override of advisory jury verdicts. See, e.g., Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995); Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Ex parte Jones, 456 So.2d 380 (Ala. 1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985); Freeman v. State, 555 So.2d 196 (Ala. Cr. App. 1988), aff'd, 555 So.2d 215 (Ala. 1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284 (1990). In this state, the recommendation of the jury is advisory only and is not binding upon the trial court. Ex parte Jones. The trial court, not the jury, is the sentencing authority. Freeman v. State.
Section 13A-5-47(e) prescribes the following standard of review for jury override, which standard meets constitutional requirements: "The whole catalog of aggravating circumstances must outweigh mitigating circumstances before a trial court may opt to impose the death penalty by overriding the jury's recommendation." Ex parte Jones, 456 So.2d at 382. The appellant's argument that the Alabama Death Penalty Act permits a trial court to impose a death sentence without any standards to guide its discretion is s
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