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Smith v. State5/26/2000
object to any of the alleged errors he now argues occurred in the trial court's sentencing order. We are confined to reviewing these allegations for plain error. Rule 45A, Ala.R.App.P.
A.
Smith contends that the trial court erroneously relied upon the sentencing recommendation of the victim's family. The record reflects that included in the presentence report is a victim-impact statement from the victim's family -- his parents, sisters, and sons. The statement relates that the victim's family "upholds the verdict made by the jury" and that Smith should never be allowed to enter society.
The trial court stated that it had read and was familiar with the presentence report -- the court also stated the following before imposing sentence:
"The law requires that the Court weigh the statutorily enumerated aggravating circumstances against both the statutory enumerated mitigating circumstances, as well as any other factor which might reasonably be considered in mitigation." (R. 19, sentencing hearing before the judge.)
Also, the sentencing order reflects that the trial court considered only what the law allows in determining whether to impose the death penalty. The record reflects that the trial court did not consider any sentencing recommendations of the victim's family when imposing sentence. No plain error occurred here. Ex parte Land, 678 So. 2d 224 (Ala.), cert. denied, 519 U.S. 933 (1996); Burgess v. State, 723 So. 2d 742 (Ala.Cr.App. 1997), aff'd, 723 So. 2d 7770 (Ala. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1360 (1999).
B.
Smith argues that the trial court erred in failing to find several mitigating circumstances.
First, Smith argues that the trial court should have found as a mitigating circumstance that Smith committed the act while he was "under the influence of extreme mental or emotional disturbance." § 13A-5- 51(2), Code of Alabama 1975. Specifically, he states that the psychologist testified that Smith had an array of mental problems and that he was borderline retarded.
The trial court, when evaluating this statutory mitigating circumstance, stated the following in its order:
"The capital offense was committed while the Defendant was under the influence of extreme mental or emotional disturbance. The Court has carefully reviewed and weighed both the report and testimony of Doctor James Chudy, a clinical psychologist, in the context of the facts underlying the offense charged and proven.
"The value of human life mandates that the Defendant's troubled history and array of psychological disorders -- not psychosis -- be balanced against Dr. Chudy's conclusions that the Defendant could appreciate the wrongfulness of his acts and was competent and in control at the time of the crime.
"The conclusion is fortified by the Defendant's conduct on November 23, 1997, and thereafter. The robbery and murder of Durk Van Dam were calculated, intentional acts. The Defendant possessed the presence of mind to hide the victim's tools which he directed Russell Harmon to retrieve. He had the guile to attempt to minimize his participation in the crime in his initial statement of investigators on November 25, 1997, and in his subsequent confession he demonstrated the presence of mind to admit he `F____Up." The Court concludes that the Defendant was not mentally or emotionally disturbed neither to an extreme extent, nor to the extent this mitigating circumstance exists." (R. 188.)
We have stated, "`merely because an accused proffers evidence of a mitigating circumstance does not require the judge or the jury to find the existence of that fact. Mikenas
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