George v. State

• Decision Date: 21 March 1997
• Docket Number: CR-94-0387
• Citation: 717 So.2d 849
• Parties: Larry Donald GEORGE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 849

717 So.2d 849

Larry Donald GEORGE v. STATE.

CR-94-0387.

Court of Criminal Appeals of Alabama.

March 21, 1997.

Rehearing Denied May 23, 1997.

Steve Giddens, Talladega; and Jeb Fannin, Talladega, for appellant.

Jeff Sessions and Bill Pryor, attys. gen.; Beth Hughes, asst. atty. gen.; and Tracy Daniel, deputy atty. gen., for appellee.

ON REMAND FROM THE ALABAMA SUPREME COURT

BASCHAB, Judge.

The appellant, Larry Donald George, was convicted of two counts of capital murder, under § 13A-5-40(a)(10), Ala.Code 1975, because two people were killed as the result of one course of conduct, and under § 13A-5-40(a)(4), Ala.Code 1975, because the murders occurred during the course of a burglary. The appellant was also convicted of attempted murder, under § 13A-4-2 and § 13A6-2, Ala.Code 1975. We affirmed the appellant's convictions by an opinion issued on April 19, 1996, but remanded the case with instructions that the trial court hold a new penalty phase hearing and re-evaluate its imposition of a sentence of death. George v. State, 717 So.2d 827 (Ala.Cr.App.1996). The Supreme Court of Alabama, in George v. State, 717 So.2d 844 (Ala.1996), reversed this Court's judgment and remanded with instructions that the sentence of death be reinstated. The Supreme Court held that the trial court properly admitted video evidence of the appellant's living conditions in the woods. George, 717 So.2d at 847.

Because we have fully addressed the issues raised by the appellant regarding the guilt phase of his trial in George v. State, we now address the remaining issues the appellant raises regarding the penalty phase of the trial.

I

The appellant argues that the trial court coerced the jury into reaching a guilty verdict. This issue was not preserved for review on appeal. However, because this case involves the death penalty, this Court is obliged to apply the plain error rule.

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

Rule 45A, Ala.R.App.P.

"The Alabama Supreme Court has adopted federal case law defining plain error, holding that ' "[p]lain 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.), 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))."

Haney v. State, 603 So.2d 368, 392 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). To find plain error, an appellate court must find that "the claimed error not only seriously affected 'substantial rights,' but that it had an unfair prejudicial impact on the jury's deliberations." United States v. Young, 470 U.S. 1, 16-17 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1, 13 n. 14 (1985).

During the penalty phase of the trial, the following occurred:

"The Court: Do not start deliberating until you have received the verdict forms, which I am going to send back to you, the exhibits, and also you can select another foreperson or continue the same foreperson, whatever you deem appropriate when you get back there.

"(Whereupon, jury out for deliberation.)

"(Whereupon, the following proceedings were had outside the hearing and presence of the jury. And inside the presence of the Defendant and his counsel, along with counsel for the State.)

"The Court: Y'all lawyers come up here just a minute, please. Let you look that over. Y'all read that.

"Mr. Rumsey [prosecutor]: Don't see any way you can deny that. They want to rest tonight.

"The Court: What I thought I would do is write back in there and ask them if they felt like they could go a reasonable length of time longer. If they say they can, that will probably take care of that. If they say they don't want to, we will do what they request. Is that all right?

"Mr. Rumsey: Yes, sir, anything is fine with me.

"Mr. Giddens [defense counsel]: That's fine.

"The Court: It is just 9:30. It is not too late. All right. On my request of them is that I would appreciate you deliberating for further reasonable time before we recess for tonight. You have only been deliberating for 50 minutes at this time. Consider this request, and if this is okay, continue deliberating. Is that all right with the State? All right with the Defendant?

"Mr. Giddens: Yes, sir.

"The Court: State?

"Mr. Rumsey: Yes, sir.

"The Court: Okay.

"(Whereupon, jury continued to deliberate.)"

The trial court did not suggest to the jury which way its verdict should be returned. The trial court merely urged the jury to continue its deliberations because the jury had been deliberating for less than an hour.

"As this court stated in McMorris v. State, 394 So.2d 392 (Ala.Cr.App.1980), writ denied, 394 So.2d 404 (Ala.1981), cert. denied, 452 U.S. 972, 101 S.Ct. 3127, 69 L.Ed.2d 983 (1981), 'The general rule in Alabama has been that it is not improper for the trial court to urge upon the jury the duty of attempting to reach an agreement or verdict as long as the judge does not suggest which way the verdict should be returned.' 394 So.2d at 403."

King v. State, 574 So.2d 921, 927-28 (Ala.Cr.App.1990). " '[A] trial judge may urge a jury to resume deliberations and cultivate a spirit of harmony so as to reach a verdict, as long as the court does not suggest which way the verdict should be returned and no duress or coercion is used.' Showers v. State, 407 So.2d 169, 171 (Ala.1981)." Ex parte Giles, 554 So.2d 1089, 1093 (Ala.1987). See also Miller v. State, 645 So.2d 363 (Ala.Cr.App.1994).

The trial court did not err suggesting to the jury that it continue its deliberations.

II

The appellant contends that the State engaged in numerous acts of prosecutorial misconduct during the penalty phase that cumulatively denied him a fair trial. The appellant complains that the State improperly 1) argued nonstatutory aggravating circumstances to the jury, 2) referred to the appellant's flight after the crime, 3) encouraged the jury to consider one victim's injuries when determining its sentencing recommendation, 4) hinted that the jury's recommendation did not matter because the judge would sentence the appellant to death anyway, 5) suggested that capital punishment is this country's means of self-defense, and 6) commented that the purpose of the trial was for vindication of the victim's rights. We note that none of these alleged instances of misconduct were objected to at trial. Thus, any reversal would have to be predicated upon plain error. See, Rule 45A, 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.), 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)).

A

The first allegedly improper remark by the State was made during the opening statement of the penalty phase:

"Then I think the Judge will charge you that basically what the law says that you weigh. You take this aggravating circumstance or the aggravating circumstances and mitigating circumstances, and it is not a question where you just go up on the board and add them up one, two, three; one, two, three or whatever the case may be. But is actually a weighing of them. You take the facts and circumstances of this case, and you take the defendant's conduct in this case. And then you take those--you take all the facts that we have proved in the guilt stage, and you take the aggravation and you take the mitigation and you weigh to see which one weighs the most. Which one--is it the aggravating that weighs more in the facts of this case or is it the mitigating that weighs more."

(Emphasis added.)

The appellant claims that the remark concerning his conduct is improper because it implied to the jury that, even if the mitigating factors outweigh the statutory aggravating factors, the jury could still recommend a sentence of death by considering nonstatutory factors such as the appellant's conduct.

The State is allowed to rebut any evidence the appellant offers as a mitigating circumstance. Section 13A-5-45(g), Ala.Code 1975 states:

"The defendant shall be allowed to offer any mitigating circumstance defined in Sections 13A-5-51 and 13A-5-52. When the factual existence of an offered mitigating circumstance is in dispute, the defendant shall have the burden of interjecting the issue, but once it is interjected the state shall have the burden of disproving the factual existence of that circumstance by a preponderance of the evidence."

The appellant argued, as a mitigating factor, that the offense occurred while the appellant was under the influence of extreme mental or emotional disturbance, pursuant to § 13A-5-51(2). To rebut this mitigating circumstance, the State offered evidence of the appellant's conduct of fleeing the state immediately after the offense to show that the appellant was not suffering under the influence of extreme mental or emotional disturbance at the time of the murders.

Ironically, counsel for the appellant commented positively about the State's alleged improper statement.

"[A]s the defense attorney, we [sic] will present evidence to you of what are called mitigating circumstances. Mr. Rumsey [the prosecutor] explained the law to you and [has] done a very good job with that. I don't have much more to say about that. What he says is a correct statement of law on mitigating and aggravating circumstances."

(Emphasis added.)

The State's...