McGriff v. State

Decision Date31 August 2001
Docket Number97-0179
PartiesDennis Demetrius McGriff v. State of Alabama
CourtAlabama Court of Criminal Appeals

Appeal from Houston Circuit Court (CC-97-267)


WISE, Judge. 1

This case was originally assigned to another member of this court. It was reassigned to Judge Wise on January 16, 2000. The appellant, Dennis Demetrius McGriff, was convicted of capital murder and was sentenced to death by electrocution. This Court affirmed his conviction but remanded the case for the trial court to amend its sentencing order to comply with § 13A-5-47(d), Ala. Code 1975. See McGriff v. State, [Ms. CR-97-0179, September 29, 2000] ___ So. 2d ___ (Ala.Crim.App. 2000). The trial court has complied with our directions and has filed its amended sentencing order with this Court.

We now address the issues raised in the penalty phase of the proceedings.


McGriff argues that the statute under which he was convicted, § 13A-5-40(a)(18), 2 which makes capital a murder committed by firing a deadly weapon from within a vehicle, is unconstitutional because it allows "disproportional and arbitrary" application of the death penalty. (Appellant's brief to this Court at p. 121.)

Alabama has not had occasion to address the constitutional claims raised in this case. However, we have addressed the constitutionality of § 13A-5-40(a)(17) -- a statute similar to § 13A-5-40(a)(18) and a statute that was also added to the list of capital offenses by Act No. 94-649. Section 13A-5-40(a)(17) makes a capital offense the intentional murder of a person while the person is in a vehicle. These two statutes are similar -- the only distinction is the location of the defendant or the victim. In § 13A-5-40(a)(17), the victim is in a vehicle; in § 13A-5-40(a)(18), the defendant is in a vehicle. "The recent increase in drive-by shootings, carjackings, and other random acts of violence involving vehicles could have led the legislature to enact [these] statute[s]." Farrior v. State, 728 So. 2d 691 (Ala.Crim.App. 1998).

In upholding § 13A-5-40(a)(17), against similar constitutional claims we stated:

"The appellant ... argues that § 13A-5-40(a)(17) is unconstitutional because it mandates a cruel and unusual sentence of death or life imprisonment without the possibility of parole. He contends that the legislature placed a `disproportionate emphasis on the location of the victim as the sole criteria for the sentence of death or life without parole.' (Appellant's Brief at p. 23.) Essentially, the appellant argues that there is no rational basis for distinguishing an intentional killing of a person who is inside a vehicle from an intentional killing of a person who is not inside a vehicle. For the reasons stated above, we adhere to our holding in May [v. State, 710 So. 2d 1362 (Ala.Crim.App. 1997)] that the statute is constitutional and properly elevates the murder of a person in a vehicle through the use of a deadly weapon to a capital offense.

"Furthermore, the sentencing procedure for a person convicted of violating § 13A-5-40(a)(17), Ala.Code 1975, is constitutionally sound.

"`"A capital sentencing scheme must ... provide a `"meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not."' [Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 85 (1976)], quoting Furman v. Georgia, [408 U.s. 238, 313, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)] (White, J., concurring).

"`"This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty."

"`Godfrey v. Georgia, 446 U.S. 420, 427-428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398, 406 (1980).'

"[Ex parte] Woodard, 631 So. 2d [1065] at 1069 [(Ala.Crim.App. 1993), cert. denied, 662 So. 2d 929 (Ala.), cert. denied, 513 U.S. 869, 115 S.Ct. 190, 130 L.Ed.2d 123 (1994)].

"`Although the appellant argues that this statute violates the Eighth Amendment's ban on cruel and unusual punishment because the punishment is disproportionate to the crime, the United States Supreme Court has indicated that the death penalty is not cruel and unusual in all murder cases. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Moreover, the Court has indicated that the death penalty is a constitutional punishment for intentional murder. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).'

"Hadley v. State, 575 So. 2d 145, 152 (Ala.Cr.App. 1990). Not every death of a victim in a vehicle will constitute capital murder. Section 13A-5-40(a)(17) requires that, to constitute a capital offense, the murder must be intentional. Therefore, the statute is not inconsistent with the United States Supreme Court's holding in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In addition, a conviction under this statute does not automatically result in a mandatory death sentence. Instead, `"[u]pon conviction of a defendant for a capital offense, the trial court [conducts] a separate sentencing hearing to determine whether the defendant shall be sentenced to life imprisonment without parole or to death."' Hadley, 575 So. 2d at 152, quoting § 13A-5-45(a), Ala.Code 1975.

"`"[T]he [United States Supreme] Court has imposed two general requirements on the capital sentencing process. First, a state must channel the sentencer's discretion in order to `genuinely narrow the class of persons eligible for the death penalty and ... [thus] reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' Second, the State may not limit the sentencer's consideration of any relevant evidence that might lead the sentencer to decline to impose the death penalty.

"`"The required narrowing of the class of death-eligible defendants may occur at either the guilt or the sentencing phase of a capital trial. When narrowing is accomplished during the sentencing phase, the sentencer determines whether certain characteristics of the crime, known as aggravating circumstances, distinguish the gravity of the offense so as to justify the imposition of the death penalty."'

"Woodard, 631 So. 2d at 1070 (citations omitted).

"`Under our current statutory scheme, a "capital offense" is "[a]n offense for which a defendant shall be punished by a sentence of death or life imprisonment without parole according to the provisions of ... [A]rticle [2 of Chapter 5 of Title 13A]." § 13A-5-39(1) (emphasis added [in Woodard]). The specific forms of conduct that the legislature has declared to be "capital offenses" are set forth in § 13A-5-40 (Supp. 1993). Each of these offenses consists of an intentional murder coupled with some other element.'


"`[T]he legislature has clearly classified certain crimes as "capital offenses," § 13A-5-40, and it has set the minimum punishment for such crimes as imprisonment for life without parole, see §§ 13A-5-45(f); 13A-5-46(e)(1). This is no different from the legislature's classifying other offenses for purposes of punishment and establishing minimum and maximum punishments for each classification. See §§ 13A-5-53; 13A-5-6; 13A-5-7. A greater punishment -- death -- may be imposed on a defendant convicted of a capital offense, but only if one or more of the aggravating circumstances enumerated in § 13A-5-49 is found to exist and that aggravating circumstance(s) outweighs any mitigating circumstance(s) that may exist.'

"...`[T]he defendant does not become death eligible until the State proves an aggravating circumstance in the punishment phase.'

"631 So. 2d at 1071 (emphasis in original). Thus, for a defendant to be sentenced to death upon conviction for violating § 13A-5-40(a)(17), the defendant must be guilty of the intentional murder committed through the use of a deadly weapon while the victim is in a vehicle `and the sentencer must find the existence of at least one of the aggravating circumstances enumerated in § 13A-5-49, thereby narrowing the class of "death-eligible" defendants.' Woodard, 631 So. 2d at 1070.

"`"[W]hen, in the opinion of the legislature, a class of victims require[s] special protection and the statutory scheme provides a meaningful method of narrowing the class of defendants who are death eligible, the statute is not constitutionally infirm."'

"Woodard, 631 So. 2d at 1072 (citation omitted). Alabama's capital sentencing scheme delineates a precise procedure to determine whether a defendant convicted under this statute will be sentenced to death or to life imprisonment without the possibility of parole. Furthermore, it narrows the class of `death-eligible' defendants. Accordingly, the procedure for sentencing a person convicted of violating § 13A-5-40(a)(17) withstands the appellant's challenges."

Farrior, 728 So. 2d at 701-03. See also Merrill v. State, 741 So. 2d 1099 (Ala.Crim.App. 1997); May v. State, 710 So. 2d 1362 (Ala.Crim.App. 1997).

Not every shooting from a vehicle that results in the death of a victim is a capital offense. Only those shootings that are intentional can be capital. Moreover, not every intentional killing by firing a deadly weapon from a vehicle will subject the defendant to the death penalty. Only in those situations where one or more of the aggravating circumstances enumerated in § 13A-5-49(1) through (10) are established, will a defendant face a possible death sentence. Here, the aggravating circumstance charged and proven was that the defendant "knowingly created a great risk of death to many persons" by "firing a powerful handgun 3 times towards not only the victim but towards a crowd of 30 to 40 people." (Trial court's order sentencing McGriff to death.) See § 13A-5-49(3). Section 13A-5-40(a)(18) does not result in the arbitrary or disproportionate imposition of the death penalty. II.

McGriff argues that Alabama's capital...

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