Ex Parte Bryant

• Decision Date: 21 June 2002
• Docket Number: 1990901.
• Citation: 951 So.2d 724
• Parties: Ex parte Jerry Devane BRYANT. (In re Jerry Devane Bryant v. State).
• Court: Alabama Supreme Court

951 So.2d 724

Ex parte Jerry Devane BRYANT.

(In re Jerry Devane Bryant v. State).

1990901.

Supreme Court of Alabama.

June 21, 2002.

Rehearing Denied January 31, 2003.

Michael Crespi, Dothan; and Deanna S. Higginbotham, Dothan, for petitioner.

William H. Pryor, Jr., atty. gen., Thomas F. Parker IV, asst. atty. gen., for respondent.

JOHNSTONE, Justice.

Jerry Devane Bryant was indicted for, tried for, and convicted of the murder of Donald Hollis made capital because it occurred during a kidnapping in the first degree, 13A-5-40(a)(1), Ala.Code 1975. The jury which found Bryant guilty recommended a sentence of death by a vote of 11-1, and the trial court sentenced Bryant to death. The Court of Criminal Appeals affirmed his conviction and death sentence. Bryant v. State, 951 So.2d 702 (Ala.Crim. App.1999). Bryant petitioned this Court for certiorari review as a matter of right pursuant to the then existing Rule 39(k), Ala. R.App. P., and we granted his petition as we were obliged to do.

Bryant argues nine issues. The Court of Criminal Appeals addressed all nine in its opinion. Id. Our review of the record, the briefs, the law, and the opinion of the Court of Criminal Appeals reveals that three issues warrant discussion or reservation by this Court and that one of those three issues requires a reversal of the defendant's death sentence. The adjudication of guilt will be affirmed. We will explain.

A. The Jury Instructions on Weighing Mitigating and Aggravating Circumstances

Bryant claims that the penalty-phase jury instructions by the trial court violated § 13A-5-46, Ala.Code 1975, by implying that the jury could not recommend a penalty of life in prison without parole instead of death unless the mitigating circumstances outweighed, rather than just equaled, the aggravating circumstances. This claim is addressed as Issue III both in Bryant's brief and in the opinion by the Court of Criminal Appeals.

During the penalty phase, before the opening arguments and the presentation of witnesses, the trial court instructed the jury:

"Later you will hear argued to you possibly and later on I will explain to you that your consideration will be: Do the aggravating circumstances, that is those matters put on by the State in support of the death penalty, outweigh the mitigating circumstances, that is those matters put on by the defense opposing the death penalty, or not?"

(R. 1005.) (Emphasis added.) After closing arguments and at the beginning of the main jury charge for the penalty phase, the trial court instructed the jury:

"The law provides further that whether life without parole or the death penalty is imposed depends on whether the State proves beyond a reasonable doubt one or more aggravating circumstances to exist. And if so, that those — that that aggravating circumstance or circumstances outweigh the mitigating circumstances.

(R. 1094-95.) (Emphasis added.) Thereafter, however, the trial court instructed the jury:

"In recommending punishment, you must determine whether any aggravating circumstances exist in the first place. If you determine that one or more aggravating circumstances exist, then you must consider whether those aggravating circumstances are outweighed by the mitigating circumstances.

"....

"In this case, the State has raised two aggravating circumstances for you to consider from that list of statutory ones. And if you find that one or more of them does exist, then you would consider whether the mitigating circumstances outweigh those that are — those aggravating circumstances raised by the State.

"....

"Now, the two aggravating circumstances that the State has raised and offered up to prove to you are, number one, that in this case there was a murder while a kidnapping occurred....

"They have also raised for your consideration the sixth aggravating circumstance that is available. That is, that the capital murder was convicted — was committed, rather, for pecuniary gain....

"Now, before you would even consider recommending the death penalty, each and every one of you would have to be convinced beyond a reasonable doubt that the State has proved at least one of the aggravating circumstances which I have listed for you.

"....

"If you find that the State has failed to prove any of these aggravating circumstances beyond a reasonable doubt, then your verdict would be life without parole. In that event, you would not even consider the mitigating circumstances.

"On the other hand, if you find that the State has proved an aggravating circumstance beyond a reasonable doubt, then you would consider whether the mitigating circumstances outweigh them.

"....

"Alabama law recognizes that it is possible that in at least some situations one or a few aggravating circumstances may outweigh a greater number of mitigating circumstances. Our law also recognizes that one or more mitigating circumstances might outweigh a larger number of aggravating circumstances.

"....

"I charge you, members of the jury, that if you do not find that an alleged aggravating circumstance was proved, that does not automatically or necessarily mean that you should sentence Mr. Bryant to death by electrocution, instead such a finding only means that you must consider other factors, more specifically mitigating circumstances, before deciding whether a sentence of life in prison or death by electrocution is present."

(R. 1096-1103.) (Emphasis added.) Bryant concedes, and the opinion of the Court of Criminal Appeals recognizes, that Bryant did not object to any of these instructions at trial. Therefore, we must determine whether these instructions constitute plain error.

"`"Plain error" arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" Ex parte Womack, 435 So.2d 766, 769 (Ala. 1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981)). See also Ex parte Woodall, 730 So.2d 652 (Ala. 1998). "`In other words, the plain-error exception to the contemporaneous objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." '" Ex parte Land, 678 So.2d 224, 232 (Ala.1996) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982))). "To rise to the level of plain error, the claimed error must not only seriously affect a defendant's `substantial rights,' but it must also have an unfair prejudicial impact on the jury's deliberations." Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001) (emphasis added). This Court may take appropriate action when the error "has or probably has adversely affected the substantial rights of the appellant." Rule 45(A), Ala. R.App. P. "[A] failure to object at trial, while not precluding our review, will weigh against any claim of prejudice." Ex parte Woodall, 730 So.2d at 657 (citing Kuenzel v. State, 577 So.2d 474 (Ala.Crim. App.1990), aff'd, 577 So.2d 531 (Ala.1991)).

Section 13A-5-46, Ala.Code 1975, requires the jury to find that the aggravating circumstances outweigh the mitigating circumstances before the jury can recommend a sentence of death:

"(d) After hearing the evidence and the arguments of both parties at the sentence hearing, the jury shall be instructed on its function and on the relevant law by the trial judge. The jury shall then retire to deliberate concerning the advisory verdict it is to return.

"(e) After deliberation, the jury shall return an advisory verdict as follows:

"....

"(2) If the jury determines that one or more aggravating circumstances as defined in Section 13A-5-49 exist but do not outweigh the mitigating circumstances, it shall return an advisory verdict recommending to the trial court that the penalty be life imprisonment without parole;

"(3) If the jury determines that one or more aggravating circumstances as defined in Section 13A-5-49 exist and that they outweigh the mitigating circumstances, if any, it shall return an advisory verdict recommending to the trial court that the penalty be death." (Emphasis added.)

This statutory law entitles a defendant to a recommendation of life imprisonment without parole even if the mitigating circumstances do not outweigh the aggravating circumstances, if the mitigating circumstances at least equal the aggravating circumstances. In other words, of the three possibilities — that the mitigating circumstances outweigh the aggravating circumstances, that the mitigating circumstances only equal the aggravating circumstances in weight, or that the aggravating circumstances outweigh the mitigating circumstances — only the third — that the aggravating circumstances outweigh the mitigating circumstances — will allow a death penalty recommendation.

Three of our cases address the issue raised by Bryant. The first is Ex parte Trawick, 698 So.2d 162 (Ala.1997):

"Trawick next argues that during the penalty phase of the trial the court failed to instruct the jurors as to how they were to weigh the aggravating and mitigating circumstances of Trawick's case. The trial court instructed the jury that, if it found that the mitigating circumstances outweighed the aggravating circumstances, it was required to recommend a sentence of life imprisonment without parole. However, Trawick points out that the trial court did not further instruct the jury that if the aggravating and mitigating circumstances were equally balanced, the jury was likewise required to recommend a sentence of life imprisonment. Trawick concludes that, because Alabama law requires that aggravating circumstances must outweigh mitigating circumstances in order for a jury to recommend the death sentence, the trial court's instructions misstated Alabama law and...