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BUSH v. STATE12/1/1995
atutory notice satisfies constitutional requirements.
In this case, because the aggravating circumstances that the crime was especially heinous, atrocious, or cruel, and that the appellant had previously been convicted of a felony involving the use or threat of violence to the person were relied upon and found to exist in the appellant's two previous trials, it certainly came as no surprise to the appellant that the trial court would instruct the jury to consider them and also that it would consider and find them in this third trial. The fact that the appellant had submitted a requested written instruction to the trial court on the aggravating circumstance that the crime was especially heinous, atrocious, or cruel shows that he anticipated and expected the consideration and possible finding of such aggravating circumstance.
The question does arise as to whether the prosecutor's representation before the
trial that the state would not rely on the aggravating circumstance that the crime was especially heinous, atrocious, or cruel misled the appellant to his prejudice. Under the facts and circumstances here, we do not think so. Reliance by the appellant on the prosecutor's statement in the absence of a ruling or an understanding of the trial court would have been unreasonable. The appellant was aware at the beginning of the sentencing proceedings that the trial court would consider and instruct the jury on the aggravating circumstance in question. When the trial court indicated that it would consider the aggravating circumstance, the appellant did not seek a recess or a continuance or make any showing of what he would have expected to present had he been given any better notice. The appellant does allege in brief that he could have possibly presented expert testimony that the victim was dispatched quickly without pain to show that the crime was not especially heinous, atrocious, or cruel. However, such testimony would have been of little benefit to him in view of our holding in Part I that an execution-type killing is itself especially heinous, atrocious, or cruel as compared to other capital offenses.
We find no error, certainly no plain error.
III.
The appellant contends that the trial court erred in refusing and/or failing to consider "significant" mitigating evidence, both statutory and nonstatutory, in overriding the jury's unanimous recommendation that he be sentenced to life imprisonment without the possibility of parole and in sentencing him to death. He lists this alleged evidence as follows: The fact that he was "significantly impaired and disturbed" at the time he shot and killed Dominguez due to his use of "narcotic drugs"; his "minimal" education and "unusually low intelligence"; his confession to the police and his expressed remorse for the killing; his difficult childhood; his study of technical subjects that enabled him to be gainfully employed for several years; his "model" behavior during his years on death row; his spiritual conversion while on death row; his artwork; his family relationships; his worth as a human being; and the fact that his codefendant received a sentence of life imprisonment without parole sentence while the appellant received a death sentence. He contends that because of the trial court's failure or refusal to consider these mitigating circumstances, he is entitled to a new sentencing hearing before the trial court where the allegedly mitigating circumstances will be properly considered and weighed.
The appellant failed to raise any objection in the trial court to that court's sentencing order concerning its consideration and findings in reference to mitigating circumstances. Thus, we must revie
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