Hodges v. State

• Citation: 856 So.2d 875
• Parties: Melvin Gene HODGES v. STATE.
• Decision Date: 30 March 2001
• Court: Alabama Court of Criminal Appeals

856 So.2d 875

Melvin Gene HODGES v. STATE.

CR-98-1988.

Court of Criminal Appeals of Alabama.

March 30, 2001.

Opinion on Return to Remand October 26, 2001.

Rehearing Denied December 14, 2001.

Floyd L. Likins, Jr., Opelika, for appellant.

William H. Pryor, Jr., atty. gen., and James R. Houts and A. Vernon Barnett IV, asst. attys. gen., for appellee.

COBB, Judge.

Melvin Gene Hodges was convicted of murdering Beth Seaton during the course of a robbery, a violation of § 13A-5-40(a)(2), Ala.Code 1975. The jury, by a vote of 8 to 4, recommended that Hodges be sentenced to life imprisonment without the possibility of parole. The trial court did not follow the jury's recommendation; it sentenced Hodges to death by electrocution. See § 13A-5-47(e), Ala.Code 1975.¹

Because we are remanding this case based on errors in the trial court's sentencing order, we will not address in this opinion most of the issues Hodges raises on appeal.

The State conceded, both in brief and during oral argument before this Court, that this case must be remanded to the trial court for that court to correct its sentencing order. The trial court, in determining the aggravating circumstances that were presented by the facts in this case, erroneously applied as an aggravating circumstance that the murder was committed for pecuniary gain. We will also take this opportunity to address other deficiencies in the trial court's sentencing order. If the trial court on remand, after weighing the mitigating circumstances and the aggravating circumstances, determines that a sentence of life without parole is appropriate, then this Court need not apply a plain-error review to the issues raised on appeal.

The sentencing order reads as follows:

"Pursuant to the requirements of Code of Alabama Section 13A-5-47, the Court makes the following specific findings of fact relating to the aggravating circumstances set forth in Section 13A-5-49:

"(1) The capital offense was not committed by a person under sentence of imprisonment;

"(2) The defendant was not previously convicted of another capital offense or a felony involving the use or threat of violence to the person;

"(3) The defendant did not knowingly create a great risk of death to many persons;

"(4) The capital offense was committed while the defendant was engaged, or was an accomplice in, the commission of a robbery and a kidnapping;

"(5) The capital offense was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;

"(6) The capital offense was committed for pecuniary gain;

"(7) The capital offense was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws;

"(8) The capital offense was especially heinous, atrocious, and cruel compared to other capital offenses.

"Pursuant to the requirements of Code of Alabama Section 13A-5-47, the Court makes the following findings with respect to the statutory mitigating circumstances set forth in Section 13A-5-51:

"(1) The evidence indicates and the Court finds that the defendant has a significant history of prior criminal activity.

"(2) The capital offense was not committed while the defendant was under the influence of extreme mental or emotional disturbance.

"(3) The victim was not a participant in the defendant's conduct or consented to it.

"(4) The defendant was an accomplice in the capital offense committed by the defendant and another person but his participation was not relatively minor.

"(5) The defendant did not act under duress or under the substantial domination of another person.

"(6) The capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired.

"(7) The court finds that the evidence indicates that the defendant was approximately 29 years of age at the time of this crime.

"In addition to the above-enumerated mitigating circumstances, the defendant has been given the opportunity to present any other evidence of mitigating circumstances. The Court does not find that there were any other significant mitigating circumstances presented by the defendant."

(R. 877-78.)

The trial court found, as aggravating circumstances, that the murder was committed during the course of a robbery and a kidnapping, that the murder was committed for pecuniary gain, and that the murder was especially heinous, atrocious, or cruel as compared to other capital offenses. The trial court found no statutory mitigating circumstances and no "significant" nonstatutory mitigating circumstances.

A review of the trial court's order shows that the court failed to make specific findings concerning each aggravating circumstance, each statutory mitigating circumstance, and any nonstatutory mitigating circumstances. Such findings are mandated by § 13A-5-47(d), and are necessary for this court to review the sufficiency of the trial court's order fixing Hodges's sentence at death. Slaton v. State, 680 So.2d 879 (Ala.Crim.App.1995), aff'd, 680 So.2d 909 (Ala.1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997). Section 13A-5-47(d) states, in part:

"Based upon the evidence presented at trial, the evidence presented during the sentence hearing, and the pre-sentence investigation report and any evidence submitted in connection with it, the trial court shall enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, each mitigating circumstance enumerated in Section 13A-5-51, and any additional mitigating circumstances pursuant to Section 13A-5-52."

This section directs the trial court to make specific findings concerning the evidence it relied on in determining the aggravating circumstances and the mitigating circumstances. These findings are critical in a case such as this one, where the trial court chose to override the jury's recommendation of life imprisonment and sentenced the convicted capital offender to death. To aid the trial court in correcting its sentencing order we will address some of the arguments Hodges makes in his brief to this Court.

I.

Hodges argues that the trial court could not lawfully apply the aggravating circumstance found in § 13A-5-49(4)—the capital offense was committed during the course of a rape, robbery, burglary, or kidnapping—twice to the facts in this case, that is, the court could not count robbery and kidnapping as two aggravating circumstances. This Court has held otherwise. If the actions committed during the course of the murder support the finding that more than one of the enumerated underlying felonies was committed, then a trial court may apply § 13A-5-49(4) more than once. As we stated in Stewart v. State, 730 So.2d 1203 (Ala.Crim.App.1997), aff'd, 730 So.2d 1246 (Ala.), cert. denied, 528 U.S. 846, 120 S.Ct. 119, 145 L.Ed.2d 101 (1999):

"We hold that the aggravating circumstance enumerated in § 13A-5-49(4) may apply more than once if the accused murders another while committing any variation of the four enumerated felonies contained in § 13A-5-49(4), Code of Alabama 1975. The appellant committed the murder during the course of committing two felonies: burglary and kidnapping. The fact that § 13A-5-49(4) lists four different felonies under the single heading of aggravating circumstances does not mean that this circumstance could be applied only once in any given case. To hold otherwise would be to say that a person could commit a murder during the course of committing any number of the felonies enumerated in § 13A-5-49(4) and face no additional consequences at the penalty phase and in fact be considered to have committed only one of the felonies contained in this section. This was not the intent of the legislature. The legislature's use of the words or in the above section supports this holding.

"Furthermore, § 13A-5-48 states:

"`The process described in Sections 13A-5-46(e)(2), 13A-5-46(e)(3) and Section 13A-5-47(e) of weighing the aggravating and mitigating circumstances to determine the sentence shall not be defined to mean a mere tallying of aggravating and mitigating circumstances for the purpose of numerical comparison. Instead, it shall be defined to mean a process by which circumstances relevant to sentence are marshalled and considered in an organized fashion for the purpose of determining whether the proper sentence in view of all the relevant circumstances in an individual case is life imprisonment without parole or death.'

"(Emphasis added [in Stewart].) Our conclusion is further supported by the above Code section, which states that the weighing of the aggravating and the mitigating circumstances is not a mere tallying of numerical numbers and comparing those numbers to see which is greater."

730 So.2d at 1212.

A. Robbery as Aggravating Circumstance

The trial court found that the murder was committed during the course of a robbery. This aggravating circumstance was proven beyond a reasonable doubt based on the jury's verdict that found Hodges guilty of robbery-murder. Although robbery is an element of the capital offense, the application of this felony as an aggravating circumstance is specifically provided for in § 13A-5-50 and has been approved by this Court. This section states:

"The fact that a particular capital offense as defined in Section 13A-5-40(a) necessarily includes one or more aggravating circumstances as specified in Section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence."

See also Smith v. State, 756 So.2d 892 (Ala.Crim.App.1998), aff'd, 756 So.2d 957 (Ala.), cert. denied, 531 U.S. 830, 121 S.Ct. 82, 148 L.Ed.2d 44 (2000).

However, the trial court is directed to state its findings concerning this aggravating circumstance.

B. Kidnapping as Aggravating Circumstance

The trial court also found that the murder was...