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BUSH v. STATE12/1/1995
the proceedings," either in the guilt phase or in the sentencing phases of the trial.
We have also reviewed the appellant's sentence pursuant to § 13A-5-53, which requires that, in addition to reviewing the case for any error involving the conviction, we also review the propriety of the death sentence. This review shall include a determination of the following: (1) whether any error adversely affecting the rights of the appellant was made in the sentence proceedings; (2) whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence; and (3) whether death is the appropriate sentence in the case. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we must determine: (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether an independent weighing by this court of the aggravating and mitigating circumstances indicates that death is the proper sentence; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the appellant.
After the appellant was convicted of the capital offense charged in the indictment, a separate sentence hearing was held before the jury in accordance with §§ 13A-5-45 and -46. After hearing evidence concerning the aggravating and the mitigating circumstances, after being properly instructed by the trial court as to the applicable law, and after being correctly advised as to its function in finding aggravating and mitigating circumstances and in weighing those circumstances, if appropriate, and as to its responsibility in reference to the return of an advisory verdict, the jury, by a unanimous vote, returned a verdict recommending that the appellant be sentenced to life imprisonment without the possibility of parole.
Thereafter, the trial court held another hearing, in accordance with § 13A-5-47, to determine whether it would sentence the appellant to death or follow the jury's recommendation and sentence him to life imprisonment without the possibility of parole. The trial court ordered, received, and considered a written presentence investigation report, as required by § 13A-5-47(b). After the hearing, the trial court entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49 and the existence or nonexistence of each mitigating circumstances specified in § 13A-5-51. The trial court also made specific written findings concerning mitigating circumstances that it found to exist in accordance with § 13A-5-52. It also made specific written findings of fact summarizing the crime and the appellant's participation in it as required by § 13A-5-47(d). In its findings of fact, the trial court found the existence of the following aggravating circumstances: (1) that the capital offense was committed while the appellant was engaged in or was an accomplice in the commission of a robbery (§ 13A-5-49(4) and § 13A-5-50); (2) that the appellant
was previously been convicted of the offense of robbery, a felony involving the use or threat of violence to the person, in March 1970 (§ 13A-5-49(2)); and (3) that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses (§ 13A-5-49(8)). The trial court examined the evidence for mitigating circumstances, pursuant to §§ 13A-5-51 and -52. It did not find the existence of any of the mitigating circumstances specified in § 13A-5-51, but did find, under § 13A-5-52, the existence of the following mitigating circumstances: (1) that the appellant is a productive member of s
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