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Smith v. State5/26/2000
t did not rely on this finding as an non-statutory aggravating circumstance. See Burgess v. State, [Ms. CR-93-2054, November 20, 1998] ___ So. 2d ___ (Ala.Cr.App. 1998).
XXI.
Last, as required by § 13A-5-53, Ala.Code 1975, we will address the propriety of Smith's conviction for capital murder and the sentence to death by electrocution. Smith was indicted and convicted of murdering Durk Van Dam during the course of a robbery, an offense defined as capital in § 13A-5-40(a)(2).
The record reflects that Smith's sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. Section 13A-5-53(b)(1).
The trial court correctly found that the aggravating circumstances outweighed the mitigating circumstances and mandated that Smith be sentenced to death. The trial court found no statutory mitigating circumstances. The trial court made the following findings about the non-statutory mitigating circumstances:
"The testimony of Doctor Chudy and the Defendant's mother give rise to a duty to consider the non-statutory mitigating circumstances.
"The potential existence of non-statutory mitigating circumstances come from further consideration of Doctor Chudy's testimony and that of his mother. It is irrefutable that this Defendant is the produce of an abusive environment woefully lacking in nurturance and emotional support. These factors, though regrettable, are not a license for violence, nor do they justify any act of senseless rage directed at an innocent human being. Were this the case every person from a deprived background could explode at will without fear of consequence.
"Likewise, the Defendant's lack of intelligence is not an excuse for murder, especially in the context of this case. The Defendant knew he had `F_____Up' and while in control as he savagely attacked Durk Van Dam.
"Therefore, these non-statutory circumstances though thoughtfully considered and applied, do not merit significant consideration." (R. 190).
The trial court found the existence of three aggravating circumstances, §§ 13A-5-49(1), 13A-5-49(4) and 13A-5-49(8): that Smith was under a term of imprisonment for two burglaries convictions and one receiving stolen property conviction at the time of the robbery-murder; that the murder of Van Dam occurred during the course of a robbery; and that the murder was especially heinous, atrocious, or cruel as compared to other capital offenses. We agree with the trial court's findings.
Section 13A-5-53(b)(2) provides that we must independently weigh the aggravating circumstances and the mitigating circumstances to determine the propriety of Smith's sentence of death. After an independent weighing, we are convinced, as was the trial court, that death is the appropriate sentence for Smith's conduct.
Section 13A-5-53(b)(3) provides that we must address whether Smith's sentence is disproportionate or excessive to other penalties imposed in similar capital cases. Smith's conviction is neither. "In fact, two-thirds of the death sentences imposed in Alabama involve cases of robbery/murder." McWhorter v. State, [Ms. CR-93-1448, August 27, 1998] ___ So. 2d ___ (Ala.Cr.App. 1998).
Last, we have searched the entire record for any error that may have adversely affected Smith's substantial rights and have found none. Rule 45A, Ala.R.App.P.
Smith's conviction and sentence to death by electrocution are due to be, and are hereby, affirmed.
AFFIRMED.
Long, P.J., and McMillan, Cobb, Baschab, and Fry, JJ., concur.
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