BUSH v. STATE12/1/1995
responded that he did not intend to rely on that aggravating circumstance. The trial court did not rule on the appellant's motion.
The following exchange occurred at the beginning of the sentencing hearing before the jury:
"THE COURT: I think there are just really three possible aggravating circumstances.
"MR. BELSER [prosecutor]: As one of the aggravating circumstances we intend to offer certified copies of a prior 1970 robbery conviction.
"THE COURT: You've got that one; and you've got the commission of murder during a robbery, and you've got another, heinous and atrocious —
"MR. GLASSROTH [defense counsel]: Of course, the defense is going to object and wants to make a record on heinous, atrocious, and cruel.
"THE COURT: Well, you asked for instruction on it.
"MR. GLASSROTH: That's if the Court is going to charge on heinous, atrocious and cruel. We object but without waiving the objection we will submit a charge, if the Court is of mind.
"THE COURT: You've already submitted a charge.
"MR. GLASSROTH: Yes, sir. I will withdraw it if the Court is not going to — if my withdrawal would result in the Court not charging on it."
At no time did the appellant object to the consideration and finding of these aggravating circumstances on the ground that he had not received notice of the state's intention to rely upon them. In fact, no objection of any kind was raised in the trial court as to the aggravating circumstances in § 13A-5-49(2).
Because no objection was lodged on the ground of lack of notice, we must review this issue under the plain error rule. In considering what constitutes plain error in a capital case, we have adhered to the interpretation of the term "plain error" adopted by the Alabama Supreme Court, which follows the interpretation given that term by the federal courts. See Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985); Ex parte Womack, 435 So.2d 766 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983). See also Hooks v. State, 534 So.2d 329 (Ala. Cr. App. 1987), aff'd, 534 So.2d 371 (Ala. 1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989). Plain error is error that has or probably has adversely affected a substantial right of the appellant, Ala.R.App.P. 45A, or is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Womack. The failure to object at trial weighs against any claim of prejudice an appellant may make. Kuenzel v. State, 577 So.2d 474 (Ala. Cr. App. 1990), aff'd, 577 So.2d 531 (Ala. 1991).
The aggravating circumstances enumerated in § 13A-5-49 that may lead to the imposition of the death penalty in a capital case are not elements of the offense and are not required to be set forth in the indictment. Dobard v. State, 435 So.2d 1338, 1347 (Ala. Cr. App. 1982), aff'd, 435 So.2d 1351 (Ala. 1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984). A defendant has no right to advance notice of the state's intention to rely on any of the aggravating circumstances. Clark v. Dugger, 834 F.2d 1561, 1566 (11th Cir. 1987), cert. denied, 485 U.S. 982, 108 S.Ct. 1282, 99 L.Ed.2d 493 (1988); Knotts v. State, 686 So.2d 431 (Ala. Cr. App. 1985); Ruffin v. State, 397 So.2d 277, 282 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981). The list of aggravating circumstances in § 13A-5-49 is exclusive and puts the defendant charged with a capital felony on notice of those circumstances against which the defendant may be required to defend. This st
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