Ex parte Hart

• Decision Date: 25 November 1992
• Citation: 612 So.2d 536
• Parties: Ex parte Gary Davis HART. (Re Gary Davis Hart II v. State). * 1910849.
• Court: Alabama Supreme Court

Page 536

612 So.2d 536

Ex parte Gary Davis HART (Re Gary Davis Hart II v. State). ^*

1910849.

Supreme Court of Alabama.

Nov. 25, 1992.

Rehearing Denied Jan. 8, 1993.

Ruth E. Friedman, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Melissa G. Math and P. David Bjurberg, Asst. Attys. Gen., for appellee.

KENNEDY, Justice.

Gary Davis Hart II was convicted of the capital offense of murder during a robbery in the first degree; § 13A-5-40(a)(2), Ala.Code 1975. Hart was given a bifurcated trial, in accordance with § 13A-5-43. After the punishment phase of the trial, the jury returned its advisory verdict recommending death, with 11 votes "for death" and 1 vote "for life without the possibility of parole." The trial court found that one statutory aggravating circumstance and two statutory mitigating circumstances were present in this case. The trial court found that no nonstatutory mitigating circumstances existed. The trial court accepted the jury's recommendation and sentenced Hart to death by electrocution.

The Court of Criminal Appeals affirmed the conviction and the sentence. Hart v. State, 612 So.2d 520 (Ala.Cr.App.1992). The Court of Criminal Appeals set out the facts in its opinion. However, we feel it necessary to recite the facts as stated by that court in order to better present the issues in this case.

"The evidence presented at trial tended to show the following: On August 12, 1989, [Hart, age 16 years and 11 months] and his accomplice, ¹ who were each armed with a handgun, entered the rear door of the L & N Seafood restaurant in Mobile, Alabama. Standing near the rear door was the restaurant's bartender, Steve Mason. Upon entering the restaurant, [Hart] grabbed Steve Mason by the shirt, prodded him in the back with a .38 caliber pistol, and announced 'this is a hold up, take me to the safe.' Mr. Mason led [Hart] to the office where the victim, Todd Evans, was working. Mr. Mason then informed the victim that they were being robbed and that [Hart] wanted money. The victim did not reply but met the demand for money with a look of surprise. [Hart] then shouted, 'This ain't no bullshit,' and brought the pistol within two feet of the victim's head and fired. The bullet entered the left side of the victim's face, traveled through his brain, and then lodged under the scalp on the right side of his head.

"Immediately following the shooting, Steve Mason retrieved a cash drawer from a filing cabinet in the victim's office and gave it to [Hart]. [Hart] and his partner then fled the scene on foot. They were spotted at a nearby hotel and after a brief chase were apprehended. During the chase, [Hart] discarded a .38 caliber pistol, which was later identified as the murder weapon. At the time of [Hart]'s arrest, he was in possession of $499 in cash."

In reviewing a death penalty case, this Court "may notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court," Rule 39(k), A.R.App.P.; Ex parte Bankhead, 585 So.2d 112 (Ala.1991). This Court may "take appropriate appellate action" whenever the plain error "has or probably has adversely affected the substantial rights of the petitioner." Rule 39(k); see also Rule 45A, A.R.App.P. Therefore, this Court is not barred from reviewing any issues that were not raised by objection in the trial court. However, the failure to object will weigh against any claim of prejudice. Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985).

In his petition to this Court, Hart has raised the same issues that he presented to the Court of Criminal Appeals. The Court of Criminal Appeals issued a detailed opinion on all the issues raised by Hart. We have thoroughly reviewed the record before us as to issues raised, as well as for plain error. Having done so, we affirm the Court of Criminal Appeals as to issues I through XI and as to issue XIV discussed in its opinion. However, we will address the following three issues.

I.

Did the Court of Criminal Appeals err in holding that the trial court correctly rejected an improper verdict in this case?

At the punishment phase of the trial, the trial court instructed the jury as follows:

"The law says that in addition to making that decision, you must tell us what your vote is. It would require a vote of at least ten of your number to sentence the Defendant to death. And it would require a vote of at least seven of your number to sentence the Defendant to life without the possibility of parole."

(R.T. 460.)

The jury returned a verdict of 9 votes "for death" and 3 votes "for life without the possibility of parole." The State objected to the verdict, stating that the verdict was improper under § 13A-5-46.

Section 13A-5-46(f) provides:

"The decision of the jury to return an advisory verdict recommending a sentence of life without parole must be based on a vote of a majority of the jurors. The decision of the jury to recommend a sentence of death must be based on a vote of at least ten jurors. The verdict of the jury must be in writing and must specify the vote."

(Emphasis added).

The trial court then instructed the jury as follows:

"[T]he law says that upon the vote as it now stands, that I cannot accept your verdict. The law says that [a recommendation of] life without the possibility of parole must be based upon a vote of a majority of the jurors. That would require a vote of at least seven jurors. And for death it must be based upon a vote of at least ten jurors. Do I make myself clear? So I'm going to have to ask that you retire and reconsider your verdict. See if you can reach a verdict. It will take at least seven of your number to recommend life and at least ten of your number to recommend death."

After further deliberations, the jury returned a verdict of 11 votes "for death" and 1 vote "for life without parole."

In Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.1991), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991), the jury returned a verdict that was improper under § 13A-5-46(f). Although the record did not indicate the jury's vote, the defendant alleged that the vote was 8 "for death" and 4 "for life without parole." The Court of Criminal Appeals held that the verdict was not responsive to the trial court's instructions and that the verdict did not meet the statutory requirements.

" 'Nothing seems better settled than that it is the duty of the court to look after the form and substance of the verdict of the jury, so as to prevent an unintelligible or insufficient verdict from passing into the records of the court.' Martin v. State, 29 Ala.App. 395, 396, 196 So. 753, 753-54 (1940). Accord, Bentley v. State, 20 Ala.App. 635, 104 So. 679 (1925). The instructions of the trial judge sending the jury back for further deliberations did not constitute a directed verdict or deprive the defendant of the 'leniency of the jury.' United States v. Walker, 456 F.2d 1037, 1039 (5th Cir.1972). Where the verdict of the jury is not responsive to the instructions of the trial judge and the requirements of the law, the trial judge has a duty to reject that improper verdict and require the jury to resume its deliberations. Doughty v. State, 228 Ala. 568, 570, 154 So. 778, 779-80 (1934)."

Kuenzel, 577 So.2d at 524.

In the case at bar, it is clear that the jury's initial return was not proper under the requirements of the law. In asking the jury to deliberate further, the trial court did not indicate which punishment the jury should vote for. We see absolutely no evidence that the trial court coerced the jury into returning its verdict. Therefore, we see no error in regard to this issue.

II.

Did the Court of Criminal Appeals err in holding that the trial court properly admitted a presentence report that included a portion of a psychological evaluation performed on Hart?

Before Hart's trial, the State moved to have Hart transferred from the juvenile court to the circuit court to stand trial as an adult. In order to rule on that motion, the court ordered a youthful offender report on Hart, pursuant to § 12-15-34(e), Ala.Code 1975. Included in that report was a psychological evaluation performed by a licensed psychologist.

After the jury recommended a sentence of death, the trial court ordered a presentence investigation on Hart, pursuant to § 13A-5-47(b). In the presentence report, Hart's probation/parole officer included portions of the psychological evaluation performed on Hart for the youthful offender report.

Hart objected to the use of the portions of the psychological evaluation because he was not given Miranda ² warnings before he was interviewed for the psychological report, and in support of his objection he cited Bearfoot v. Texas. (R.T. 478). (After reviewing the record from the sentencing hearing, we find it apparent that Hart was relying on a case from Texas, Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).) The trial court did not rule on Hart's objections at that time.

At the outset, we note that the purpose of a presentence report is to aid the trial judge and that it is never viewed by the jury. Also, the trial judge in this case had already seen the entire psychological report on Hart (contained in the youthful offender report), because the trial judge was the same judge who had denied Hart's petition for youthful offender status.

Section 13A-5-47(b) provides:

"Before making the sentence determination, the trial court shall order and receive a written pre-sentence investigation report. The report shall contain the information prescribed by law or court rule for felony cases generally and any additional information specified by the trial court. No part of the report shall be kept confidential, and the parties shall have the right to respond to it and to present evidence to the court about any part of the report which is the...