Ex parte Freeman

• Decision Date: 10 March 2000
• Citation: 776 So.2d 203
• Parties: Ex parte David FREEMAN. (In re David Freeman v. State.)
• Court: Alabama Supreme Court

776 So.2d 203

Ex parte David FREEMAN.

(In re David Freeman v. State.)

1981565.

Supreme Court of Alabama.

March 10, 2000.

Opinion on Denial of Rehearing May 26, 2000.

Thomas M. Goggans, Montgomery, for petitioner.

Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for respondent.

LYONS, Justice.

David Freeman was convicted of six counts of capital murder, all six counts related to the murders of Sylvia Gordon and Mary Gordon. Count one charged Freeman with the murder of two or more persons by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Ala.Code 1975. Counts two and three charged Freeman with murder during a burglary in the first degree. See § 13A-5-40(a)(4). Counts four and five charged Freeman with murder during a robbery in the first degree. See § 13A-5-40(a)(2). Count six charged Freeman with the murder of Mary Gordon during a rape in the first degree. See § 13A-5-40(a)(3). In August 1989, a jury found Freeman guilty on all six counts of capital murder and recommended, by a vote of 11-1, that the trial court sentence Freeman to death; the court did sentence him to death. However, on direct appeal, the Court of Criminal Appeals reversed Freeman's convictions and remanded the cause for a new trial, holding that the prosecution had used its peremptory strikes discriminatorily, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Freeman v. State, 651 So.2d 573 (Ala. Crim.App.1992),rev'd on return to remand, 651 So.2d 576 (Ala.Crim.App.1994)

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In his second trial, Freeman did not deny that he murdered Mary and Sylvia Gordon, but, instead, alleged that he had been unable to conform his conduct to the requirements of the law because of a mental disease or defect. Freeman was again convicted on all six counts, and the jury recommended the death penalty, by a vote of 11-1. The trial court, after weighing the aggravating and mitigating factors, accepted the jury's recommendation and sentenced Freeman to death by electrocution. The Court of Criminal Appeals affirmed the convictions and the sentence. See Freeman v. State, 776 So.2d 160 (Ala.Crim. App.1999). This Court granted Freeman's petition for certiorari review and heard oral arguments. We affirm the judgment of the Court of Criminal Appeals.

On March 11, 1988, Deborah Gordon picked up her 17-year-old sister Sylvia from school and they returned home. Freeman was waiting on the porch when the two girls arrived. He had arrived at the house after an hour-long bicycle ride. He had recently met the Gordon family and had developed a romantic interest in Sylvia. After eating her lunch, Deborah went to work and left her sister Sylvia and Freeman sitting on the couch.

Later that afternoon, Freeman gave Sylvia a note stating that he loved her and did not want to lose her. Sylvia, in return, gave Freeman a note stating that she viewed their relationship as a friendship and that she did not want to have a serious relationship with him. Deborah testified at trial that Sylvia had planned to tell Freeman that day that she did not wish to see him anymore.

Around 1:00 a.m. the next morning, Deborah Gordon returned to find that her sister Sylvia and her mother, Mary, had been killed. Sylvia's body was found on her bed; the only clothes on her body were a T-shirt and socks. Her jeans and underwear had been cut off her body and she had been stabbed 22 times. An autopsy determined that she had bled to death as a result of her stab wounds, although none of the stab wounds would have been, by itself, fatal. Experts testified that she had remained conscious for approximately eight minutes after the first wounds were inflicted and that some of her wounds were defensive in nature. Mary Gordon's body was found on her bedroom floor. Her jeans and underwear had been cut from her body. She had been raped and stabbed 14 times; two of the stab wounds would have been fatal.

Upon leaving the Gordon home, Freeman took the Gordons' automobile and drove around for some time. He abandoned the car in a parking lot near his apartment; he then changed clothes and telephone for a taxi to take him to the truck stop where he worked. The next morning, Freeman was questioned by the police and arrested.

Initially, Freeman denied any knowledge of the killings, but he later gave a statement admitting to stabbing the mother. However, Freeman declared that he "got dizzy" and blacked out during the course of the killings and could not remember specific details.

In late 1988 and early 1989, Freeman was given a mental evaluation by the staff at Taylor Hardin Secure Medical Facility. Three psychologists, working independently, found that Freeman did not suffer from any mental disease or defect that would cause him to lack the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. In 1995, he was evaluated by Dr. Guy Renfro, a forensic psychologist, who agreed with the earlier assessment of Freeman's mental state.

Freeman raises the same issues in his certiorari petition that he raised before the Court of Criminal Appeals. The opinion of the Court of Criminal Appeals provides a thorough treatment of the facts of this case, and it correctly disposes of each issue raised by Freeman in his petition.

Because this is a death-penalty case, this Court must, under Rule 39(k), Ala. R.App. P., review the record for plain error, i.e., any "error [that] has or probably has adversely affected the substantial rights" of the defendant.

"Our review of a death penalty case requires us to address any plain error or defect found in the proceeding under review, even if the error was not brought to the attention of the trial court. Rule 39(k), Ala. R.App. P. `"`Plain error' only arises 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)], cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). This Court will take appropriate action when the error `has or probably has' substantially prejudiced the defendant. Rule 39(k), Ala. R.App. P."

Ex parte Jackson, 672 So.2d 810, 811 (Ala. 1995), cert. denied, 517 U.S. 1247, 116 S.Ct. 2505, 135 L.Ed.2d 195 (1996). We have reviewed the proceedings for plain error and have found none.

As required by § 13A-5-53(a), Ala. Code 1975, we have "review[ed] the propriety of the death sentence" in this case. Our review convinces us (1) that the sentence imposed upon Freeman was not "imposed under the influence of passion, prejudice, or any other arbitrary factor"; (2) that "an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence"; and (3) that Freeman's sentence of death is not "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." § 13A-5-53(b)(1), (2), and (3). See Ex parte Maples, 758 So.2d 81 (Ala.1999) (murder made capital because two or more persons were murdered pursuant to one scheme or course of conduct); Ex parte Roberts, 735 So.2d 1270 (Ala.1999) (murder made capital because it occurred during a robbery); Neal v. State, 731 So.2d 609 (Ala.Crim. App.1997), aff'd, 731 So.2d 621 (Ala.1999) (murder made capital because it occurred during a burglary); Brooks v. State, 695 So.2d 176 (Ala.Crim.App.1996), aff'd, 695 So.2d 184 (Ala.1997), cert. denied, 522 U.S. 893, 118 S.Ct. 233, 139 L.Ed.2d 164 (1997) (murder made capital because it occurred during a rape).

Having considered the record, together with the petition and the briefs and the arguments of counsel, this Court concludes that the judgment of the Court of Criminal Appeals must be affirmed.

AFFIRMED.

HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and ENGLAND, JJ., concur.

JOHNSTONE, J., concurs in part and dissents in part.

JOHNSTONE, Justice (concurring in part and ...