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Smith v. State12/22/2000
e either (1) in the erroneous belief that, as a matter of law, § 13A-5-51(6) could be considered only if the defendant had pleaded at the guilt phase not guilty because of mental disease or defect, or (2) in the erroneous belief that the necessary proof for a finding of the mitigating circumstance at § 13-5-51(6) must present a mental disease or defect of such magnitude as to constitute a defense to the offense. Although the following authority discusses the interplay between the defense of intoxication and § 13A-5-51(6), we find it persuasive here, not only as to the appellant's assertion of intoxication, but also as to his assertion of substantially impaired capacity:
"A mitigating circumstance should not rise to the level of a defense to the crime. If the evidence does show intoxication sufficient to constitute a defense [under § 13A-3-2(c)], a guilty verdict should not be rendered. Although evidence of incapacity may be insufficient to establish a defense to a particular crime, it may be sufficient to constitute a mitigating circumstance to be considered in determining the appropriate penalty. Arizona has a comparable provision that clarifies this point by listing a mitigating circumstance that `defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirement of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.'" Joseph A. Colquitt, "The Death Penalty Laws of Alabama," 33 Ala. L. Rev. 213, 305 (1982) (footnotes omitted). The court in Ivery v. State, 686 So. 2d 495, 503 (Ala. Crim. App. 1996), addressed § 13A-5-51(6) specifically, as follows:
"During the sentencing phase of a capital proceeding, a defendant's burden of proof regarding the mitigating circumstance found in § 13A-5-51(6) is substantially less than his burden during the guilt phase, of proving the defense of not guilty by reason of mental disease or defect. See Lewis v. State, 380 So. 2d 970, 977 (Ala.Cr.App. 1979) (`the extent of sub-normal mental capacity [shown in support of this mitigating factor] does not have to measure up to the applicable test necessary to show ... insanity that makes one incapable of committing a crime'), cert. denied, 370 So. 2d 1106 (Ala. 1979); Whisenhant v. State, 370 So. 2d 1080, 1095-96 (Ala.Cr.App.) cert. denied, 370 So.2d 1106 (1979) (a finding that a diminished capacity mitigating circumstance exists `may be based on evidence of a lesser standard that is necessary to find insanity')."
We further find, in addition to its erroneous interpretation of the interplay between the defense of mental disease or defect and § 13A-5- 51(6), that the trial court improperly rejected § 13A-5-51(6) as a mitigating circumstance solely on its finding that the appellant intended to kill the victims. The converse to the trial court's exclusion of § 13A-5-51(6) on its finding of an intent to kill is that the mitigating circumstance is present only if the intent to kill is absent; if that were so, the defendant would be entitled to an acquittal because he did not have the intent to kill. A capital murderer can have the intent to kill, but still have substantial impairment of his capacity to appreciate the criminality of his actions or to conform his conduct to the requirements of the law. The two -- intent to kill and substantially impaired capacity -- are not mutually exclusive. Because of the ambiguity of the trial court's interpretation of § 13A-5-51(6), the trial court, in reviewing or reconsidering the appropriate punishment for the appellant on remand, is to consider all evidence relevant to that mitigating circumstance. It is to do so without operation of any incorrect belief that such evidence cannot be conside
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