Ex parte Wood

• Decision Date: 13 March 1998
• Citation: 715 So.2d 819
• Parties: Ex parte Holly WOOD. (Re Holly Wood v. State). 1960659.
• Court: Alabama Supreme Court

Page 819

715 So.2d 819

Ex parte Holly WOOD (Re Holly Wood v. State).

1960659.

Supreme Court of Alabama.

March 13, 1998.

Rehearing Denied May 22, 1998.

Ellen L. Wiesner, Montgomery; Frank Ralph of Cervera & Ralph, Troy; and Cary Dozier, Troy, for petitioner.

Bill Pryor, atty. gen., and Tracy M. Daniel, asst. atty. gen., for respondent.

ALMON, Justice. ^*

A jury convicted Holly Wood of murder made capital because it was committed during the course of burglary in the first degree. See Ala.Code 1975, § 13A-5-40(a)(4). The jury, by a 10-2 vote, recommended the death sentence. The circuit court accepted the recommendation and imposed the death penalty. The Court of Criminal Appeals affirmed Wood's conviction and sentence. Wood v. State, 715 So.2d 812 (Ala.Crim.App.1996).

In his petition for the writ of certiorari, Wood has raised 26 issues for this Court's review; many of these were not presented to the Court of Criminal Appeals. This Court has reviewed each of the arguments presented by Wood and has searched the record for plain error not raised; it has found no error that would support a reversal of the judgment. We have found only one issue that warrants discussion: whether the circuit court plainly erred during the sentencing phase of Wood's trial by charging the jury that it "may" consider mitigating circumstances.

Before the jury began deliberations in the sentencing phase of Wood's trial, the circuit court gave general instructions regarding the jury's duty to consider aggravating circumstances and mitigating circumstances in rendering its advisory verdict either for capital punishment or for life imprisonment without parole. The court's jury instructions included this statement:

"The law of this state provides a list of some of the mitigating circumstances which you may consider. But that list is not a complete list of the mitigating circumstances you may consider. I will now read to you a list of some of the mitigating circumstances that you may consider."

(Emphasis added.)

Wood argues that this portion of the court's sentencing-phase jury charge was erroneous and misleading because, he says, it is contrary to Ala.Code 1975, § 13A-5-51. That section, which sets out a list of mitigating circumstances to be considered in the sentencing phase of a capital case, states that "[m]itigating circumstances shall include, but not be limited to, the following...." (Emphasis added.) Focusing on the mandatory language of § 13A-5-51, Wood contends that the circuit court erred by not instructing the jury that it must consider the mitigating circumstances contained in the statute.

Wood contends that the circuit court made the jury's consideration of mitigating circumstances permissive rather than mandatory, and he argues that he was therefore deprived of the reliable and individualized sentencing procedure required in capital cases. Specifically, Wood points to Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), in which the United States Supreme Court held:

"[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S. , at 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."

428 U.S. at 304, 96 S.Ct. at 2991, 49 L.Ed.2d at 961. The Woodson Court further stated:

"Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."

428 U.S. at 305, 96 S.Ct. at 2991, 49 L.Ed.2d at 961.

Initially, we note that Wood's reliance on the United States Supreme Court's holding in Woodson has been largely undermined by that Court's recent decision in Buchanan v. Angelone, --- U.S. ----, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998). Writing for a six-member majority in Buchanan, Chief Justice Rehnquist held that the Eighth and Fourteenth Amendments of the United States Constitution do not mandate that a trial court give any instruction to a capital jury concerning mitigating circumstances. According to Buchanan, all that is constitutionally required in a capital sentencing-phase instruction is that a jury not be precluded from considering mitigating circumstances. Thus, while a trial court cannot instruct a capital jury in such a way that it is prevented from considering mitigating circumstances, Buchanan does not require a trial court to give any instructions whatever regarding either the concept of mitigation generally or particular statutory mitigating circumstances.

In Buchanan, the United States Supreme Court found no reversible error in a Virginia trial court's sentencing-phase jury instructions, even though mitigating circumstances were not mentioned at all during the charge. In light of this holding, it would seem that the sentencing-phase instruction in Wood's case--which, Wood argues, made the jury's consideration of mitigating circumstances permissive--would not be held deficient on federal constitutional grounds. In fact, the Buchanan decision indicates that Wood never had a federal constitutional right to an instruction on mitigating circumstances at all, so long as the jury in his case was not precluded in some way from being able to consider mitigating circumstances.

However, nothing in Buchanan changes the fact that Alabama law does entitle capital defendants to a sentencing-phase instruction on mitigating circumstances. It is well settled that "every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility." Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978), citing Burns v. State, 229 Ala. 68, 155 So. 561 (1934). Although this maxim has been used most frequently to grant defendants jury charges on lesser-included offenses and affirmative defenses, it is equally applicable to entitle capital defendants to a jury instruction on mitigating circumstances, so long as some evidence has been presented to support a finding of mitigating circumstances. Therefore, because Wood presented some evidence of mitigating circumstances, he was entitled to an appropriate jury instruction on mitigating circumstances.

In addition to being entitled to a jury instruction on mitigating circumstances, Wood was also entitled to have the jury given a charge that was not misleading. See Page v. State, 487 So.2d 999, 1008 (Ala.Crim.App.1986). In that regard, Wood correctly asserts that the portion of the jury instructions excerpted above is an incorrect statement of law. While that instruction stated that Wood's jury "may" consider mitigating circumstances, Ala.Code 1975, § 13A-5-51, requires that the jury consider mitigating circumstances.

Nonetheless, despite the fact that one segment of the circuit court's jury instructions contained some ambiguity, the law does not necessarily require a reversal of Wood's sentence. In reviewing jury instructions to determine if they correctly set forth the applicable law, a reviewing court must consider the entire charge. Volkswagen of America, Inc. v. Marinelli, 628 So.2d 378, 384-85 (Ala.1993).

We note that, in addition to being given that portion of the charge highlighted by Wood, the jury was also given this instruction:

"It is the duty of the jury to weigh the mitigating and aggravating circumstances in its decision. The jury is not free to arbitrarily ignore any factor, positive or negative, in arriving at the correct sentence."

The circuit court also gave the jury this instruction:

"[I]f there is a factual dispute over the existence of a mitigating circumstance then you should find to [sic] consider that mitigating circumstance, unless you find the evidence is such that it is more likely than not that the mitigating circumstance did not exist."

In light of these additional sentencing-phase instructions, we hold that the jury was sufficiently charged that it must consider mitigating circumstances in rendering its advisory verdict. A reasonable reading of the circuit court's entire charge makes it clear that the judge told the jury that it had a duty to weigh the aggravating circumstances and the mitigating circumstances.

Moreover, the fact that the circuit court, in a certain part of its jury charge, used the phrase "may consider" could have properly referred to a capital defendant's burden of proving mitigating circumstances. See Ala.Code 1975, § 13A-5-45(g). In many cases, the defendant fails to establish, by the measure of proof required, the existence of mitigating circumstances. In other words, the jury may consider the circumstance if it is properly proved. In fact, it was likely that Wood did not properly prove the existence of mitigating circumstances; we have reviewed the record of the sentencing phase of Wood's trial, and we have found only scant evidence of mitigating circumstances. ¹

Because the jury was sufficiently instructed that it had a duty to consider mitigating circumstances, and because Wood presented little evidence of mitigating circumstances, we find no indication that the jury or the trial judge disregarded any potential mitigating circumstances that were adequately supported by proof.

We also note that, in response to Wood's argument for a reversal of his sentence, the State has asserted that the circuit court could not have erred in charging the jury that it "may" consider mitigating circumstances because that instruction mirrored the pattern charge for mitigating circumstances that is set forth in Alabama Pattern Jury Instructions (Criminal) for use in the...