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Smith v. State12/22/2000
Moreover, the trial court lists 16 proposed non-statutory mitigating circumstances with the preface: "I have made the following findings of fact with regard to some of the mitigating circumstances." However, most are listed without any findings, including whether the trial court found each proposed mitigating circumstance to, in fact, mitigate the offense.
"In capital cases, it is the duty of this court to independently determine whether the sentence of death is appropriate in a particular case. In order to reach this conclusion, we must reweigh the aggravating circumstances and the mitigating circumstances as found by the trial court." Roberts v. State, 735 So. 2d 1244, 1269 (Ala. Crim. App. 1997), aff'd, 735 So. 2d 1270 (Ala. 1999). Without a proper sentencing order, whereby we can discern the trial court's finding on each statutory mitigating circumstance and without a listing of each non-statutory mitigating circumstance the trial court found to exist, we cannot perform our function of reviewing the judgment of the trial court sentencing the appellant to death.
In accordance with the above, we affirm the judgment of conviction, and we remand this case to the trial court for that court's review and/or reconsideration of its sentence in light of our discussions in Parts IX, X, and XI, supra, and for it to enter a new sentencing order that fully complies with § 13A-5-47(d).
The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time within 42 days of the release of this opinion. The return to remand shall include a transcript of the sentencing proceedings conducted by the court.
The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala. Code 1975. AFFIRMED AS TO CONVICTION; REMANDED WITH DIRECTIONS AS TO SENTENCING.
Long, P.J., and McMillan, Baschab, and Fry, JJ., concur; Cobb, J., concurs in part and dissents in part.
COBB, Judge, concurring in part and dissenting in part.
The majority in this case has offered a finely written opinion, but it reaches certain conclusions of law with which I cannot agree. Therefore, I must respectfully dissent from the portions of the opinion containing those conclusions.
There are several guilt-phase issues that cause me concern, but I agree with the majority that these issues do not require reversal. Nevertheless, the record contains several examples of misconduct on the part of the prosecutor, specifically when he continually questioned witnesses in a manner that injected into the trial facts that were not in evidence. The trial court permitted the prosecutor essentially to testify, even though such conduct is unacceptable. E.g., Tomlin v. State, 591 So. 2d 550, 558 (Ala. Crim. App. 1991)(prosecutor erroneously permitted to ask questions not supported by the evidence). Although this practice by the prosecutor is unacceptable, I am not convinced that in this case the error is reversible in light of the ample evidence presented at trial indicating that the appellant went on a shooting rampage and intentionally murdered three people. Consequently, I agree with the majority's affirmance of the conviction.
However, I disagree with this Court's conclusion that the sentencing phase was free from reversible error. The trustworthiness and appropriateness of the jury's recommendation of the death penalty can be seriously undermined by the trial court's failure to admit evidence of mitigating circumstances. Lockett v. Ohio, 438 U.S. 586, 603-604 (1978); Eddings v. Oklahoma,
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