Ex parte McNabb

• Decision Date: 05 March 2004
• Citation: 887 So.2d 998
• Parties: Ex parte Torrey Twane McNABB. (In re Torrey Twane McNabb v. State of Alabama).
• Court: Alabama Supreme Court

887 So.2d 998

Ex parte Torrey Twane McNABB.

(In re Torrey Twane McNabb v. State of Alabama).

1021364.

Supreme Court of Alabama.

March 5, 2004.

Rehearing Denied April 30, 2004.

Morris S. Dees, Montgomery; and Thomas M. Goggans, Montgomery, for petitioner.

William H. Pryor, Jr., atty. gen.; Nathan A. Forrester and Margaret Mary Fullmer, deputy attys. gen.; and J. Clayton Crenshaw, asst. atty. gen., for respondent.

WOODALL, Justice.

Torrey Twane McNabb sought certiorari review of the judgment of the Court of Criminal Appeals affirming his convictions and sentence for capital murder and attempted murder. We granted his petition to review whether the trial court erred in giving the jury instructions in the sentencing phase of his capital-murder trial. We affirm.

The underlying facts of this case are fully set forth in the opinion of the Court of Criminal Appeals, McNabb v. State, [Ms. CR-98-0967, October 26, 2001] 887 So.2d 929, 939 (Ala.Crim.App.2001), and need not be repeated. McNabb was convicted on January 8, 1999, in the Montgomery Circuit Court on two counts of capital murder for the murder of Montgomery Police Officer Anderson Gordon. The murder was made capital by Ala.Code 1975, § 13A-5-40(a)(5), which makes capital the "[m]urder of any police officer ... while such officer... is on duty, regardless of whether the defendant knew or should have known the victim was an officer ... on duty, or because of some official or job-related act or performance of such officer," and § 13A-5-40(a)(17), which makes capital "[m]urder committed by or through the use of a deadly weapon while the victim is in a vehicle."

By a vote of 10 to 2, the jury recommended a sentence of death. The trial court accepted the jury's recommendation, and sentenced McNabb to death. The Court of Criminal Appeals affirmed the convictions and sentence.

McNabb challenges the jury instructions given during the sentencing phase of his trial. The court bifurcated the jury charge at the sentencing phase, giving instructions both before the presentation of evidence and after closing arguments. McNabb did not object to the timing or the content of the instructions.

The court gave the following pertinent instructions at the beginning of the sentencing phase:

"The law of this state provides that the punishment for the capital offenses for which you have convicted this defendant, is either death by electrocution or life imprisonment without the eligibility of parole. The law also provides that which of those two punishments should be imposed upon the defendant depends on whether any aggravating circumstances exist; and if so, whether the aggravating circumstances outweigh the mitigating circumstances.

"An aggravating circumstance is a circumstance specified by law which indicates or tends to indicate that the defendant should be sentenced to death. A mitigating circumstance is any circumstance that indicates or tends to indicate that the defendant should be sentenced to life imprisonment without parole instead of death. The issue of this sentence hearing concerns circumstances of aggravation and circumstances of mitigation that you should consider and weigh against each other in deciding what the proper punishment is in this case.

"In making your recommendation concerning what the punishment should be, you must determine whether any aggravating circumstance exists; and if so, you must determine whether any mitigating circumstance of circumstances exist.... The law of this state provides a list of aggravating circumstances which may be considered by the jury recommending punishment if the jury is convinced beyond a reasonable doubt from the evidence that one or any of such aggravating circumstances exist in this case. The same instructions that I gave to you during the guilt phase concerning reasonable doubt [apply] to this matter also.

"If the jury is not convinced beyond a reasonable doubt based upon the evidence that one or more aggravating circumstances exist, then the jury must recommend that the defendant's punishment be life imprisonment without parole regardless of whether there are any mitigating circumstances in the case. Of the list of aggravating circumstances provided by law, there are three circumstances which you may consider in this case if you are convinced beyond a reasonable doubt based on the evidence that such circumstances do exist. The fact that I instructed you on such aggravating circumstances or defined them for you does not mean that the circumstances or any other aggravating circumstances have been proven beyond a reasonable doubt in this matter. Whether any aggravating circumstance which I've instructed you on or have defined for you have been proven beyond a reasonable doubt ... is for you the jury, alone, to determine.

"The aggravating circumstances which you may consider in this case if you find from the evidence that they have been proven beyond a reasonable doubt are as follows:

"Aggravating Circumstances. [One, t]he defendant knowingly created a great risk of death to many persons. Two, the capital offense was committed for the purpose of avoiding or preventing a lawful arrest. Three, the capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

"Now, as I stated to you before, the burden of proof is on the State to convince each of you beyond a reasonable doubt as to the existence of any aggravating circumstance considered by you in determining what punishment is to be recommended in this case. This means that before you can even consider recommending that the defendant's punishment should be death, each and every one of you must be convinced beyond a reasonable doubt based on the evidence that at least one or more of the aggravating circumstances exist....

"... You may not consider any aggravating circumstance other than the three aggravating circumstances upon which I have instructed you. And you may not consider an aggravating circumstance unless you are convinced by the evidence beyond a reasonable doubt of the existence of that aggravating circumstance in this case. If you should find that no aggravating circumstance has been proved beyond a reasonable doubt to exist in this case, then you must return a verdict recommending that the defendant's punishment be life imprisonment without parole. In that event, you need not concern yourself with the mitigating circumstances in this case. If you find beyond a reasonable doubt that one or more of the aggravating circumstances on which I instructed you does exist in this case, then you must proceed to consider and determine the mitigating circumstances....

"....

"Now, ladies and gentlemen, if, after a full and fair consideration of all of the evidence in the case, you are convinced beyond a reasonable doubt that at least one aggravating circumstance does exist and you are convinced that the aggravating circumstance outweighs the mitigating circumstances, then your verdict would be: `We, the jury, recommend that the defendant be punished by death, and the vote is as follows.... However, if after a full and fair consideration of all of the evidence in the case, you determine that the mitigating circumstances outweigh any aggravating circumstance or circumstances that exist, or you are not convinced beyond a reasonable doubt that at least one aggravating circumstance does exist, your verdict should be to recommend the punishment of life imprisonment without parole...."

(Emphasis added.)

After the presentation of evidence and closing arguments, the trial court gave a "supplemental" jury charge, stating, in pertinent part:

"I charge you, also, unlike aggravation, you are not required to unanimously agree in order to consider evidence mitigating. Instead, each of you must independently consider any evidence or mitigating circumstance and determine the weight that is to be accorded. You may not exclude mitigating circumstances from your consideration simply because as a jury, you do not unanimously agree about one circumstance or a combination of circumstances."

Because McNabb did not object to the instructions, they are reviewed for "plain error," that is, an error "`that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."'" Ex parte Davis, 718 So.2d 1166, 1173-74 (Ala.1998) (quoting Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), quoting in turn United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)).

McNabb challenges the jury instructions on three grounds. First, he argues that they "ran afoul of Ala.Code § 13A-5-46 as interpreted ... in Ex parte Bryant, [Ms. 1990901, June 21, 2002] ___ So.2d ___ (Ala.2002)," by erroneously suggesting to the jury that it could not recommend life imprisonment as a sentence "unless the mitigating circumstances outweighed the aggravating circumstances." McNabb's brief, at 30 (emphasis added). Second, he contends that the instructions did not ensure that all 12 jurors found the existence of any one of the three aggravating factors on which the trial court based its sentence. Consequently, he insists, the sentence did not comply with Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Third, he argues that it was plain error to bifurcate the jury instructions by charging the jury both before and after the presentation of evidence and closing arguments. We first address the manner in which the jury was instructed to weigh the aggravating and mitigating circumstances.

I. Weighing the Aggravating and Mitigating Circumstances

McNabb contends that the court's instructions did not ensure that the jury weighed the aggravating circumstances and the mitigating circumstances in a manner consistent with § 13A-5-46, as recently interpreted in Bryant. Bryant, however, is distinguishable.

In that case, the Court explained:

"Section 13A-5-46, Ala.Code 1975, requires the jury to find that

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