Giles v. State

• Decision Date: 30 September 1992
• Docket Number: 6 Div. 86
• Citation: 632 So.2d 568
• Parties: Arthur Lee GILES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 568

632 So.2d 568

Arthur Lee GILES v. STATE.

6 Div. 86.

Court of Criminal Appeals of Alabama.

Sept. 30, 1992.

Rehearing Denied Nov. 25, 1992.

Thomas B. Prickett II, Oneonta, and Herbert B. Sparks, Jr., Birmingham, and Bernard E. Harcourt, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Ed Carnes, Thomas R. Allison and Melissa Math, Asst. Attys. Gen., for appellee.

On Return to Remand

McMILLAN, Judge.

This cause was remanded to the trial court in order to conduct a new sentencing hearing, after the Alabama Supreme Court determined that the trial court improperly gave the deadlocked jury a charge pursuant to Allen v. United States, 164 U.S. 492, 17 S.Ct. 152, 41 L.Ed. 528 (1896); during the sentencing phase, Ex parte Giles, 554 So.2d 1089 (Ala.1987). In his last appeal, Giles v. State, 554 So.2d 1073 (Ala.Cr.App.1984), affirmed in part, reversed in part, Ex parte Giles, 554 So.2d 1089 (Ala.1987), the appellant did not challenge the sufficiency of the evidence; therefore, testimony was presented during the sentencing hearing on remand for the jury's evaluation of the aggravating and mitigating circumstances.

I

The appellant argues that the trial court's override of the jury's advisory verdict of life imprisonment without parole was erroneous. In the present case, the jury informed the court that it was deadlocked, with 11 jurors voting for the death penalty, and 1 juror voting for life imprisonment without parole. ¹ The trial court thereafter determined that further deliberations would be useless and dismissed the jury. A jury recommendation of life imprisonment without parole was then entered, but following a separate sentencing hearing before the trial court, this recommendation was considered and rejected by the trial court. The appellant argues that this override was improper; that Ex parte Hays, 518 So.2d 768 (Ala.1986), cert. denied, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 262 (1988), was incorrectly decided and should not be applied to this case; and that the trial court's reference to the new death penalty statute in its sentencing order constituted plain error.

Under the evidence presented and the circumstances of this offense, it is clear that the trial court's override of the jury's advisory verdict was proper. White v. State, 587 So.2d 1218 (Ala.Cr.App.1990), affirmed, 587 So.2d 1236 (Ala.1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992); Parker v. State, 587 So.2d 1072 (Ala.Cr.App.1991); Williams v. State, 627 So.2d 985 (Ala.Cr.App.1991); Duncan v. State, 575 So.2d 1198 (Ala.Cr.App.1990), cert. denied, 575 So.2d 1208 (Ala.1991). Moreover, although this offense occurred before July 1, 1981, the effective date of the death penalty statute now in force, the Alabama Supreme Court has clearly held that the trial court could properly override a jury's recommended verdict on a capital offense still governed by § 13-11-1 et seq., Code of Alabama 1975. Ex parte Hays, 518 So.2d 768 (Ala.1986), cert. denied, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 262 (1988). The Alabama Supreme Court in Ex parte Hays further determined that this holding did not violate the ban on ex post facto laws. See also Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Despite the appellant's arguments that the Alabama Supreme Court's holding in Ex parte Hays, supra, was erroneous and violated Beck v. State, 396 So.2d 645 (Ala.1980), this court is bound by the holdings of the Alabama Supreme Court and, thus, the holding in Ex parte Hays, supra. See § 12-3-16, Code of Alabama 1975 ("[t]he decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals....").

The appellant also argues that the trial judge's reference in his sentencing order to the new death penalty provisions constituted reversible error. The record indicates that the trial judge stated that he had considered and applied the aggravating and mitigating circumstances contained in the new Criminal Code, specifically § 13A-5-49 and § 13A-5-51, Code of Alabama 1975. However, while the trial court's reference to the new statute was erroneous, the error was harmless because the statutory definitions in the old and new statutes are substantially identical. Rule 45, A.R.App.P.

Similarly, in Giles v. State, 554 So.2d 1073, 1088 (Ala.Cr.App.1984), affirmed in part, reversed in part, 554 So.2d 1089 (Ala.1987), this court stated:

"The trial court should have referred to those aggravating circumstances as set out in § 13-11-6, Code of Alabama (1975) (now repealed). The language of § 13-11-6(3) which establishes 'a great risk of death to many persons,' the aggravating circumstance referred to in the trial court's order, as an 'aggravating circumstance' in capital cases was identical to the language in § 13A-5-49(3), Code of Alabama (1975). The order on remand also made reference to the aggravating circumstances set out in § 13-11-6(4), Code of Alabama (1975), which is virtually identical to the present § 13A-5-49(4), Code of Alabama (1975); see Lynn v. State, 477 So.2d 1365, 1380 (Ala.Cr.App.1984), rev'd on other grounds, 477 So.2d 1385 (Ala.1985). The 'technical errors' were errors without any injury to the appellant."

In the present case, the trial court found the existence of three aggravating circumstances: "that the defendant knowingly created a great risk of death to many persons"; "that this offense was committed while the defendant was engaged, or was an accomplice, in the commission of an attempt to commit, or flight after committing, or attempting to commit, a robbery"; and "that the capital offense in this case was specially [sic] heinous, atrocious or cruel as compared to other capital offenses." Although the statutory definition of this latter aggravating was changed in the new Criminal Code to add the language "compared to other capital offenses," this additional language actually benefitted the appellant by making the State's burden greater, and by providing a better guideline for evaluation and narrower construction of this circumstance. Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir.1989).

As to the mitigating circumstances, although the trial court again referred to the new code's definitions of the two mitigating circumstances that it found properly applied to the case, this error was harmless, because the language in those subsections is identical to the language found in their statutory predecessors. The trial court found that the appellant had no significant history of prior criminal activity, pursuant to § 13A-5-51(1), rather than § 13-11-7(1), and that the defendant's age at the time of the crime was a mitigating circumstance. § 13A-5-51(7) and its predecessor § 13-11-7(7). As with the aggravating circumstances, this error was harmless. Rule 45, A.R.App.P.

The appellant argues that the trial court erred by failing to consider evidence of a number of mitigating circumstances and by failing to have found that these circumstances existed. The trial court found the existence of two statutory mitigating circumstances: the appellant's age, and the lack of a significant history of prior criminal activity. Thereafter, in reference to the evidence offered by the appellant as nonstatutory mitigation, the trial court stated in its sentencing order:

"H. In addition to the mitigating circumstance listed under § 13A-5-51, the defendant has argued as mitigating circumstance the fact that a long time has lapsed since the commission of the capital offense and this date. And the Court does find that a long time has elapsed between those two times, but does not find that it is a mitigating circumstance or that it is entitled to any weight.

"I. As far as the remorse of the defendant is concerned, this has not necessarily been proved to the Court's satisfaction although there was at least one witness who testified to the change in attitude of the defendant. The Court does not find that this has been sufficiently established.

"J. As to cooperation of the defendant with the authorities after the crime by giving a statement, it might be and is noted by the Court that at the time the statement was given the defendant already realized that four of the victims of the crime had survived and were able to identify him.

"Having considered all of the statutory aggravating circumstances and the statutory mitigating circumstances and the additional mitigating circumstances and evidence offered by the defendant, the court now finds and is convinced beyond a reasonable doubt that the aggravating circumstances as heretofore stated and brought before this Court outweigh any mitigating circumstances as presented by the evidence."

Moreover, during the sentencing hearing before the jury, the trial court had read to the jurors an extensive list of nonstatutory mitigating factors urged by the appellant for their consideration.

Although the appellant argues that the trial court should have considered and found a number of nonstatutory mitigating circumstances, including that he has adjusted well to prison life, that he attends religious services, that he has expressed remorse, that he was a good student and a helpful family member, that he came from a deprived background, and that he could contribute to society by aiding thousands of prisoners in their moral development, the decision as to whether a particular mitigating circumstance is sufficiently proven by the evidence and the weight to be accorded to it rests with the trial court. See Haney v. State, 603 So.2d 368 (Ala.Cr.App.1991), affirmed, 603 So.2d 412 (Ala.1992).

" ' "Although consideration of all mitigating circumstances is required by the United States Constitution, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the decision of whether a particular mitigating circumstance in sentencing is proven and the weight to be given it rests with the judge and jury. Lucas v. State, 376 So.2d 1149 (Fla.1979)." Smith v....