Ex parte Borden

• Citation: 769 So.2d 950
• Parties: Ex parte James Henry BORDEN, Jr. (Re James Henry Borden, Jr. v. State).
• Decision Date: 04 February 2000
• Court: Supreme Court of Alabama

769 So.2d 950

Ex parte James Henry BORDEN, Jr.

(Re James Henry Borden, Jr. v. State).

1972037.

Supreme Court of Alabama.

February 4, 2000.

Rehearing Denied April 21, 2000.

Bryan A. Stevenson and Ellen L. Wiesner of Equal Justice Initiative of Alabama, Montgomery, for petitioner.

Bill Pryor, atty. gen.; and Michael B. Billingsley and A. Vernon Barnett IV, asst. attys. gen., for respondent.

ENGLAND, Justice.¹

James Henry Borden, Jr., was convicted of murder made capital because he had been convicted of another murder within the 20 years preceding this offense, see § 13A-5-40(a)(13), Ala.Code 1975. The jury, by a vote of 10-2, recommended that he be sentenced to death. The trial court accepted this recommendation and sentenced Borden to death by electrocution. On appeal, the Court of Criminal Appeals held that the trial court's written sentencing order was deficient in that it failed to comply with the requirement of § 13A-5-47(d), Ala.Code 1975, that the trial court enter specific written findings concerning the existence or non-existence of each aggravating circumstance enumerated in § 13A-5-51, and any additional mitigating circumstances offered pursuant to § 13A-5-52. Borden v. State, 769 So.2d 935 (Ala. Crim.App.1997). Accordingly, the Court of Criminal Appeals remanded the cause for the trial court to 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 non-statutory mitigating circumstances offered pursuant to § 13A-5-52.

On the circuit court's return to that remand order, the Court of Criminal Appeals, on May 29, 1998, wrote another opinion, stating that the amended sentencing order indicated that the trial court had found the existence of two statutory aggravating circumstances: (1) that Borden, in September 1975, had been convicted of a felony involving the use of violence to the person (specifically, second-degree murder) see § 13A-5-49(2); and (2) that the capital offense was committed while Borden was engaged in an attempt to commit a kidnapping and a rape, see § 13A-5-49(4). The amended order further indicated that the trial court, after making specific written findings as to each circumstance, found that none of the statutory mitigating circumstances enumerated in § 13A-5-51 had been proven to exist. The Court of Criminal Appeals affirmed Borden's conviction and his sentence of death. See opinion on return to remand, 769 So.2d at 945.

The facts of this case are stated in the original opinion of the Court of Criminal Appeals as follows:

"On the morning of September 5, 1993, the appellant [Borden], accompanied by two male companions, drove to the residence of 61-year-old Nellie Ledbetter near Moulton in Lawrence County. While his companions remained in the automobile, the appellant got out and began talking to Ledbetter, who was sitting on the front porch with her two young grandchildren. When Ledbetter's husband appeared on the porch a short time later, the appellant and his two companions left. Approximately 45 minutes later, the appellant returned, this time without his companions. Ledbetter's husband had gone to run an errand. The appellant approached Ledbetter, who was still sitting on the porch with her grandchildren, placed a knife to her throat and told her to come with him. When Ledbetter refused, the appellant began stabbing her with the knife, fatally wounding her. The appellant then fled in his car.

"Early the next morning, after law enforcement officers obtained a warrant, the appellant was arrested at an apartment in Decatur in Morgan County and was transported to the Lawrence County jail. DNA testing performed on blood found on clothing the appellant was wearing when he was arrested indicated that the blood was not his, that it could have come from Ledbetter, and that only one out of every 1400 Caucasians had a DNA structure similar to that found in the blood.

"At trial, Ledbetter's husband and her two grandchildren identified the appellant as the man they had seen at the Ledbetter house on the day of the murder. They also identified the appellant's maroon Oldsmobile sedan as the vehicle the appellant was in that day. Ledbetter's 11-year-old grandson, Josh, positively identified the appellant as the man he had seen hold a knife to his grandmother's throat and then stab her in the stomach when she refused to go with him. Josh specifically testified that the appellant told his grandmother, `You better come with me,' before stabbing her. Medical testimony presented at trial indicated that Ledbetter died as a result of receiving two stab wounds, one to the chest and one to the abdomen.

"Larry Joe Peoples, who, along with Donald Suddieth, accompanied the appellant on his first visit to the Ledbetters' residence on the day of the murder, testified that the appellant left Ledbetter's porch and returned to his car when Ledbetter's husband appeared. According to Peoples, as they drove away from the house, Suddieth told the appellant that the appellant was `just trying to get... some of that old lady's pussy,' and the appellant had replied, `Yeah, I probably could if the old man hadn't come up.'

"Larry Smith, the circuit clerk for Lawrence County, presented into evidence at trial a certified copy of the appellant's record showing that the appellant had previously been convicted of murder in the second degree on September 5, 1975."

769 So.2d at 937-38. (Citations omitted.)

I.

Borden first argues that his conviction and death sentence are void, because, he says, the trial judge failed to swear in the petit jury which ultimately convicted him of capital murder. The administration of the oath to the petit jury is required by § 12-16-170, Ala.Code 1975, as well as by Rule 18.5, Ala. R.Crim. P. Foshee v. State, 672 So.2d 1387 (Ala.Crim. App.1995).

On November 28, 1994, at the Lawrence County Courthouse in Moulton, the trial judge welcomed the initial panel of prospective jurors; it then had them stand and state their names, addresses, and occupation. The trial judge administered the oath to the prospective jurors as follows:

"THE COURT: All right, ladies and gentlemen, let me ask that you all stand and raise your right hand and let me administer an oath to you at this time. If you would raise your right hand. Do you and each of you solemnly swear or affirm that you will true answer make to the questions propounded you by the Court touching your qualifications and competency as jurors, so help you God? If you do, say `I do.'

"THE VENIRE: I do."

(C.R. 112-13).

After questioning and excusing some members of the venire for cause, the trial judge asked those remaining to stand and take their oath as a juror for the week. The trial judge swore them in as follows:

"THE COURT: Do you solemnly swear or affirm that you will well and truly try all issues and execute all writs of inquiry which may be submitted to you during the present session, and true verdicts render according to the evidence, so help you God? If you do, say, `I do.'

"THE VENIRE: I do."

(C.R. 152.)

While the voir dire examination of the prospective jurors was in progress, the trial judge had his staff call in other persons for jury service. On November 29, 1994, the trial judge organized a second venire and administered the oath to them:

"THE COURT: At this time, if you would stand and raise your right hand, please. Do you swear or affirm that you will true answer make to the questions propounded you touching your qualification and competency as jurors, so help you God? If you do say `I do.'

"THE PROSPECTIVE JURORS: I do."

(C.R. 406.) After voir dire examination by attorneys for the State and for the defense, the trial judge stated:

"THE COURT: ... All right, ladies and gentlemen, it is the opinion of the Court that those of you that are here are qualified. I'm going to ask that you stand at this point in time and take the general oath to be a juror. Those of you that I've talked to I will give you an opportunity to come back and I will talk to you about your particular problems in a moment. But at this time I ask that all of you stand and raise your right hand and take the oath for jury service. Thank you. Do you solemnly swear or affirm that you will well and truly try all issues and execute all writs of inquiry which may be submitted to you during the present session; and true verdicts render according to the evidence, so help you God? If you do say `I do.'

"THE VENIRE: I do."

(C.R. 434.)

Borden's jury was made up of persons from both venires. A check of the names of the members of the jury against those who were sworn on the two venires, shows that each member was sworn, according to the oath set forth in § 12-16-170, Ala. Code 1975. They were not sworn a second time, and they were not reminded of their earlier oath.

This Court stated in Ex parte Deramus, 721 So.2d 242 (Ala.1998):

"The fact that the record is silent as to whether the trial court reminded the petit jurors that they were still under oath or administered another oath would be reversible error only if [the defendant] had objected to that defect `during the progress of the trial.' Ala.Code 1975, § 12-16-173."

Here, the record does not reflect that Borden's counsel objected during the course of the trial. The absence of an objection does not preclude this Court from reviewing Borden's claim, however, because Borden has been sentenced to death. "In all cases in which the death penalty has been imposed," Rule 39(k), Ala. R.App. P., requires that this Court "notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." See Ex parte Myers, 699 So.2d 1285, 1290 (Ala.1997). The absence of...