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Smith v. State12/22/2000
red unless the appellant pleaded not guilty by reason of a mental disease or defect, that the evidence of substantially impaired capacity must rise to the level of a mental disease or defect, or that the circumstance is negated solely by evidence of intent to kill.
In our plain-error review, we have considered the issue whether the trial court committed plain error in failing to instruct the jury on the mitigating circumstance set out in § 13A-5-51(6), as it said it would. A capital defendant is entitled to jury instructions on mitigating circumstances "'which would not be misleading, which correctly state the law ..., and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.'" Ex parte Wood, 715 So. 2d 819, 822 (Ala. 1998) (quoting Chavers v. State, 361 So. 2d 1106, 1107 (Ala. 1978)). Under the facts here, the trial court had a duty to instruct the jury on the following statutory mitigating circumstances, because there was some evidence relevant to each: § 13A-5-51(6); § 13A- 5-51(2) (" he capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance"); and § 13A-5-51(5) (" he defendant acted under extreme duress or under the substantial domination of another person"). It instructed on the latter two, but failed to instruct on § 13A-5-51(6). As we have previously noted, the trial court agreed, upon request of the appellant, to instruct the jury that it could consider the substantially-impaired- capacity statutory mitigating circumstance. However, the trial court inadvertently failed to so instruct the jury.
The appellant did not object, and he thus failed to preserve the issue whether the trial court erred in failing to instruct on § 13A-5- 51(6). See Phillips v. State, 726 So. 2d 292, 293-94 (Ala. Crim. App. 1998); Ala.R.Crim.Proc. 21.3. He also failed to raise this issue on appeal. Nevertheless, we deem the issue sufficiently important to notice it pursuant to the requirement that we search the record for plain error in a capital case, whether or not brought to our attention. Ala.R.App.P. 45A.
In considering what constitutes plain error in a capital case, we have adhered to the interpretation of "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. 1985); Ex parte Womack, 435 So. 2d 766 (Ala. 1983). See also Hooks v. State, 534 So. 2d 329 (Ala. Crim. App. 1987), aff'd, 534 So. 2d 371 (Ala. 1988). Plain error is error that has or probably has adversely affected a substantial right of the appellant, Ala.R.App.P. 45A, or error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Womack. For an error to affect substantial rights, it must have been prejudicial and it must have affected the outcome of the proceeding. United States v. Olano, 507 U.S. 725, 734 (1993). To determine whether an error affects the substantial rights of a defendant, a court must analyze the alleged error in the context of the entire record. United States v. Young, 475 U.S. 1, 16 (1985). The failure to object at trial weighs against any claim of prejudice an appellant may make. Kuenzel v. State, 577 So. 2d 474 (Ala. Crim. App. 1990), aff'd, 577 So. 2d 531 (Ala. 1991).
While the court should have instructed the jury on the substantially-impaired-capacity statutory mitigating circumstance, the instructions given to the jury for its consideration of mitigating circumstances required the jury to consider all evidence relevant to mitigation, including any evidence relevant to impaired capacity, and to give effect to suc
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