Clark v. State

• Decision Date: 01 December 2000
• Citation: 896 So.2d 584
• Parties: Charles Gregory CLARK v. STATE.
• Court: Alabama Court of Criminal Appeals

896 So.2d 584

Charles Gregory CLARK v. STATE.

CR-99-1062.

Court of Criminal Appeals of Alabama.

December 1, 2000.

Opinion on Return to Remand and Overruling of Rehearing June 27, 2003.

Certiorari Denied October 1, 2004.

Stephen A. Strickland, Birmingham, for appellant.

William H. Pryor, Jr., atty. gen., and James R. Houts, asst. atty. gen., for appellee.

William H. Pryor, Jr., atty. gen., and James R. Houts and Anne C. Adams, asst. attys. gen., for appellee (on remand).

Alabama Supreme Court 1021773.

FRY, Judge.

The appellant, Charles Gregory Clark, was convicted of murder committed during a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975. He was sentenced to death by electrocution.

Our review of the record indicates that the trial court did not comply with the requirements of § 13A-5-47(d), Ala.Code 1975, which states:

"Based upon the evidence presented at trial, the evidence presented during the sentence hearing, and the pre-sentence investigation report and any evidence submitted in connection with it, the trial court shall enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, each mitigating circumstance enumerated in Section 13A-5-51, and any additional mitigating circumstances offered pursuant to Section 13A-5-52. The trial court shall also enter written findings of facts summarizing the crime and the defendant's participation in it."

(Emphasis added.)

The record reveals that in its sentencing order the trial court omitted certain written findings, as required by § 13A-5-47(d). The sentencing order does not contain findings of fact and does not state specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Ala.Code 1975. "`Without knowing what the trial judge did, we are unable to properly review his sentencing decision.'" Coral v. State, 585 So.2d 248, 248-49 (Ala.Crim.App.1991), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994), quoting Ex parte Cochran, 500 So.2d 1179, 1187 (Ala.1985).

Because we must remand this case for the trial court to enter specific written findings of fact, we request that the trial court correct any additional errors, although they may be considered harmless, in its sentencing order.

We recognize that the omission of specific written findings concerning the existence or nonexistence of each aggravating circumstance may be harmless error. Stewart v. State, 730 So.2d 1203, 1219 (Ala.Crim.App.1996), aff'd, 730 So.2d 1246 (Ala.1999), cert. denied, 528 U.S. 846, 120 S.Ct. 119, 145 L.Ed.2d 101 (1999), citing Fortenberry v. State, 545 So.2d 129, 144 (Ala.Crim.App.1988). However, we direct the trial court to make specific written findings concerning the existence or nonexistence of each aggravating circumstance.

Moreover, we note that in determining that the capital offense was especially heinous, atrocious, or cruel as compared to other capital offenses, see § 13A-5-49(8), Ala.Code 1975, the trial court based its decision that this aggravating circumstance existed in part on the "status and person of the victim".

"`In Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981), this Court held that the standard applicable to the "especially heinous, atrocious, or cruel" aggravating circumstance under § 13A-5-49(8) is that for a crime to fit within that section it must be one of "those conscienceless or pitiless homicides which are unnecessarily torturous to the victim."

"`....

"`This Court has decided upon an approach for the purposes of § 13A-5-49(8). In comparing capital offenses for the purposes of determining whether a capital offense was "especially heinous, atrocious or cruel," the court uses the Kyzer standard. Capital offenses failing under § 13A-5-49(8) are pursuant to the Kyzer standard, those "conscienceless or pitiless homicides which are unnecessarily torturous to the victim." Kyzer, 399 So.2d at 334.'

"Ex parte Bankhead, 585 So.2d 112, 124-125 (Ala.1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Cr.App.1992), rev'd on other grounds, 625 So.2d 1146 (Ala.1993)."

Hutcherson v. State, 727 So.2d 846, 859 (Ala.Crim.App.1997), aff'd, 727 So.2d 861 (Ala.1998), cert. denied, 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). Factors indicative of an offense's being "especially heinous, atrocious, or cruel" include, but are not limited to, whether the infliction on the victim of physical violence was beyond that necessary to cause death, whether a victim experienced appreciable suffering after a swift assault that ultimately resulted in death, whether the victim suffered psychological torture. Norris v. State, 793 So.2d 847 (Ala.Crim.App.1999). In Norris, the Court emphasized that "the period of suffering must be prolonged enough to separate the crime from `ordinary' murders for which the death penalty is not appropriate." 793 So.2d at 861.

We are concerned that the trial court's basing the finding in part on the "status and person of the victim" and not solely on the circumstances of the murder may exceed the narrow interpretation of this aggravating circumstance that was adopted in Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981), and that its judgment would not withstand the years of appellate review given a case in which the sentence is death. We do not mean to be understood as saying that the trial court's finding that the offense was especially heinous, atrocious, or cruel as compared to other capital offenses cannot be supported by the record. However, as we stated in Norris, "it is imperative that we continue to use a `consistent and narrow interpretation' of this aggravating circumstance" in order to maintain the constitutionality of its application. 793 So.2d at 853. See also Ex parte Clark, 728 So.2d 1126 (Ala.1998). Therefore, we direct the trial court to consider only the narrow interpretation defining "especially heinous, atrocious or cruel" to include only "those conscienceless or pitiless homicides which are unnecessarily torturous to the victim" as mandated by Ex parte Kyzer, when determining the existence or nonexistence of this aggravating circumstance.

Furthermore, we note that, when analyzing the mitigating circumstances, the trial court stated that the statutory mitigating circumstance that Clark had "no significant history of prior criminal activity" did not exist. In support of its determination, the trial court indicated that Clark had a prior conviction for possession of a controlled substance, and that he had been arrested for several other offenses. "`[O]nly convictions can be used to negate the statutory mitigating circumstance of no significant history of prior criminal activity.'" Parker v. State, 587 So.2d 1072, 1098 (Ala.Crim.App.1991), aff'd, 610 So.2d 1181 (Ala.1992), cert. denied, 509 U.S. 929, 113 S.Ct. 3053, 125 L.Ed.2d 737 (1993), quoting Hallford v. State, 548 So.2d 526, 544 (Ala.Crim.App.1988). See also Apicella v. State, 809 So.2d 841, 863 (Ala.Crim.App.2000). We recognize that, without regard to Clark's prior arrests, the evidence of Clark's felony conviction for possession of a controlled substance precludes the trial court from finding that he had "no significant history of prior criminal activity." Thus, the consideration of Clark's prior arrests by the trial court may be considered harmless. See Ex parte Davis, 718 So.2d 1166, 1178 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999)(trial court's consideration of prior juvenile adjudications held harmless where defendant had a prior felony conviction for robbery as an adult); Madison v. State, 718 So.2d 90, 98 (Ala.Crim.App.1997), aff'd, 718 So.2d 104 (Ala.1998), cert. denied, 525 U.S. 1006, 119 S.Ct. 521, 142 L.Ed.2d 432 (1998)(trial court's consideration of prior juvenile adjudications held harmless where defendant had history of prior felony convictions as an adult). However, because remand is required, we recommend that, in its revised sentencing order, the trial court correct this discrepancy.

Due to the deficiencies in the sentencing order, we remand this cause with directions that the trial court enter written findings of facts summarizing the offense and Clark's participation in it. Additionally, the trial court should enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, each mitigating circumstance enumerated in § 13A-5-51, and any additional nonstatutory mitigating circumstances offered pursuant to § 13A-5-52, and, once again, decide the appropriate punishment by reweighing the aggravating circumstances against any mitigating circumstances. No new sentencing hearing is required. However, the trial court is granted the authority to resentence Clark in the event the trial court determines that death is not the appropriate sentence. See Parker v. State, supra. A return should be made to this Court within 35 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

LONG, P.J., and McMILLAN and COBB, JJ., concur; BASCHAB, J., recuses herself.

On Return to Remand and On Application for Rehearing

SHAW, Judge.¹

The opinion of February 28, 2003, is withdrawn and the following opinion is substituted therefor.

Charles Gregory Clark was convicted of murder made capital because it was committed during the course of a robbery in the first degree. See § 13A-5-40(a)(2), Ala.Code 1975. By a vote of 11-1, the jury recommended that Clark be sentenced to death. The trial court accepted the jury's recommendation and sentenced Clark to death. On December 1, 2000, this Court remanded this case to the trial court for it to correct several deficiencies in its sentencing order. See Clark v. State, 896 So.2d 584 (Ala.Crim.App.2000). The trial court has complied with our instructions and, on return to remand, has submitted an amended sentencing...