 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Smith v. State12/22/2000
to that specific statutory mitigating circumstance. However, many of the mitigating factors enumerated in fact touched on the one omitted, so the jury, following the trial court's instructions, considered the evidence relevant to the appellant's impaired capacity. Because the jury included this evidence in considering the enumerated circumstances and the "catchall" instruction and because the weighing process in § 13A-5- 48 is not a "tallying of aggravating and mitigating circumstances for the purpose of numerical comparison," it did not matter that the jury did not numerically include one more mitigating circumstance (if in fact it would have found such a circumstance to exist): it considered the evidence and was provided reliable means, by the instructions, of giving mitigating effect to that evidence.
Moreover, there is an additional reason that a specific instruction on § 13A-5-51(6) would have had no meaningful effect: given all the evidence, it is highly unlikely that the jury would have found the existence of this mitigating circumstance had it been instructed specifically on § 13A-5-51(6). The appellant's actions preceding and following the offense indicate that he appreciated the criminality of his conduct and that he had the ability to conform his conduct to the law. Even if the jury had been so instructed and had found the circumstance to exist, it is highly unlikely that it would have given § 13A-5-51(6) much weight in determining which sentence to recommend. We conclude that the failure to instruct on this circumstance did not prejudice the appellant and had no effect on the outcome of the case. Thus, we find no plain error here.
XI.
The appellant contends that the trial court erroneously charged the jury on, and subsequently found the existence of, the aggravating circumstance that he knowingly created a great risk of death to many persons, § 13A-5-49(3). He argues that this aggravating circumstance "contemplates actions in which lives are threatened other than those that form the basis of the capital offense" (appellant's brief, p. 38) and that its application to these facts is unconstitutionally overbroad and vague.
The attorney general requests that we hold in abeyance our review of the trial court's finding of this circumstance until the trial court submits an amended sentencing order. He admits that the trial court's explanation of its finding of this circumstance is subject to the interpretation that its finding was based solely on the jury's verdict of guilty, which, the attorney general agrees, would have been improper. Thus, at this time, we address only the appellant's contention that this aggravating circumstance should not have been submitted to the jury for its consideration. We review this contention for plain error, because the appellant made no objection to the jury's consideration of this aggravating circumstance. In fact, defense counsel, in his opening remarks in the sentencing phase, stated that the defense assumed that it was true that the appellant "created a great risk of deadly harm to many people" (R. 1972) and, in his closing, again admitted that " pose the weight of injuring a lot of people ... nytime you go into some place with a gun and start shooting around" (R. 2076).
We find that this aggravating circumstance was properly submitted to the jury. Alabama courts have approved of including the capital murder victims and intended, but surviving, victims in determining whether the facts support the finding of the aggravating circumstance of § 13A-5-49(3). See Ex parte Giles, 632 So. 2d 577, 583 (Ala. 1993) ("It would be anomalous to hold that [§ 13A-5-49(3),] § 13-11-6(3) allows sentence enhancement where the defend
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 Alabama DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|