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BUSH v. STATE12/1/1995
that he was not under the influence of alcohol during the interrogation. The reasons given by the appellant for making the statements were plausible. The tape-recorded statements themselves reflect spontaneity, cooperation by the appellant, and voluntariness.
We addressed the admissibility of the statements in Bush II and found that the appellant did not assert his right to remain silent, that the statements were not obtained by physical force or threats thereof or by psychological coercion, and that his statements were knowingly and voluntarily made with proper Miranda warnings and, thus, that they were admissible into evidence. Bush II, 523 So.2d at 549-57. We have reviewed the record of the suppression hearings, have again viewed the post-interrogation photographs of the appellant, and have listened to the two tape-recorded statements, and we reaffirm and adopt our previous holding that the statements were knowingly and voluntarily made after proper Miranda warnings. The allegations in the appellant's brief that his statements were obtained by threats and abuse are not supported by the record. Bush II, 523 So.2d at 549-557. The trial court properly denied the motion to suppress the appellant's statements.
I.
The appellant contends that the trial court relied on an incorrect legal standard in finding the existence of the aggravating circumstance that the charged capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses, § 13A-5-49(8), and that the court based its finding on insufficient evidence. He argues that the trial court improperly considered this circumstance in overriding the jury's recommendation of life imprisonment without the possibility of parole. The appellant argues this aggravating circumstance applies only to those murders where the assailant purposely causes an unusual and unnecessary amount of pain or torture to the victim before death. He cites in support of his argument Ex parte Kyzer, 399 So.2d 330, 334 (Ala. 1981), in which the Alabama Supreme Court held that for the crime to fit within the especially heinous, atrocious, or cruel circumstance, it must be one of "those conscienceless or pitiless homicides which are unnecessarily torturous to the victim." He argues
that because Dominguez died almost instantly in an execution-type killing and allegedly did not suffer unnecessary pain and torture, it was improper for the trial court to find the existence of this aggravating circumstance.
We first note that the trial court rendered the sentence of death with its consideration of this aggravating circumstance and, in the alternative, without consideration of this circumstance. The trial court, as reflected by its sentencing order, found the existence of two additional aggravating circumstances: the appellant was previously convicted of the offense of robbery in March 1970 (§ 13A-5-49(2)); and the charged capital offense was committed while the appellant was engaged in or was an accomplice in the commission of a robbery (§ 13A-5-49(4)). The trial court stated in its sentencing order that "even without the inclusion of the aggravating circumstance that the crime was especially heinous, atrocious, or cruel compared to other capital offenses, the remaining aggravating circumstances outweighed the mitigating circumstances."
While the appellant correctly points out that we have upheld findings of the existence of the aggravating circumstance that the crime was especially heinous, atrocious, or cruel in cases where the victim suffered unnecessary torture, he ignores the line of cases holding that execution-type slayings evincing a cold, calculated design to kill fall into the category of espec
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