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BUSH v. STATE12/1/1995
imply not true and ignores the requirements of the override provision.
The appellant argues that we should follow the Florida standard for jury override prescribed in Tedder v. State, 322 So.2d 908 (Fla. 1975). Tedder provides that, in order for a trial court to reject a jury's recommendation of a sentence of life imprisonment without parole, "the facts suggesting a sentence of death [must be] so clear and convincing that virtually no reasonable person
could differ." Id. at 910. The Tedder standard is not constitutionally mandated, Harris v. Alabama; Ex parte Jones, and we have chosen not to read the Tedder standard into our death penalty statute.
What we do require is that, before sentencing a defendant to death, the trial court consider all the available evidence; hear arguments on aggravating and mitigating circumstances; enter written findings of fact summarizing the crime and the defendant's participation in it; make specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, each mitigating circumstance enumerated in § 13A-5-51, and any additional mitigating circumstance offered pursuant to § 13A-5-52; consider and weigh the advisory verdict of the jury; consider and weigh the presentence investigation report; consider and weigh the mitigating and aggravating circumstances; and determine that the aggravating circumstances outweigh the mitigating circumstances. We believe that this scheme adequately channels the trial court's discretion so as to prevent arbitrary results. The Eighth Amendment does not require the state to define the weight the sentencing judge must accord an advisory verdict. Harris v. Alabama.
" he sentencing authority in Alabama, the trial judge, has unlimited discretion to consider any perceived mitigating circumstances, and he can assign appropriate weight to particular mitigating circumstances. The United States Constitution does not require that specific weights be assigned to different aggravating and mitigating circumstances. Murry v. State, 455 So.2d 53 (Ala. Cr. App. 1983), rev'd on other grounds, 455 So.2d 72 (Ala. 1984). Therefore, the trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balkcom, 716 F.2d 1511 (11th Cir. 1983). The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation."
Clisby v. State, 456 So.2d 99, 102 (Ala. Cr. App. 1983). We are convinced, after reviewing the record in this case, that the trial court complied with the sentencing scheme of Alabama's death penalty statute and that the sentence that it imposed, overriding the jury's verdict, met constitutional requirements and was not arbitrary, discriminatory, or fundamentally unfair.
VII.
The appellant contends that the trial judge erroneously denied the appellant's motion to recuse himself because the judge had presided over the appellant's previous two trials in which he ultimately sentenced the appellant to death. He asserts that because the trial judge had already sentenced the appellant to death twice, it was a foregone conclusion that the judge would again sentence the appellant to death despite the jury's unanimous advisory verdict recommending life imprisonment without the possibility of parole. This contention is not supported by the record.
" 'A judge should not act "if he has any interest, the probable and natural tendency of which is to create a bias in the mind of the jud
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