McNair v. State

• Decision Date: 21 January 1994
• Citation: 653 So.2d 351
• Parties: Willie McNAIR v. STATE. CR 90-1556.
• Court: Alabama Court of Criminal Appeals

Page 351

653 So.2d 351

Willie McNAIR v. STATE.

CR 90-1556.

Court of Criminal Appeals of Alabama.

Jan. 21, 1994.

Rehearing Denied March 25, 1994.

Eugene P. Spencer, Dothan, for appellant.

James H. Evans, Atty. Gen., and Melissa G. Math, Asst. Atty. Gen., for appellee.

ON THIRD RETURN TO REMAND

BOWEN, Presiding Judge.

On September 30, 1993, this Court remanded this case for a third time and instructed the trial court to:

"1. Carefully and conscientiously examine and reconsider its determination that death is a proper sentence in this case and that the recommendation of the jury should be rejected.

"2. Carefully and conscientiously reweigh the aggravating and mitigating circumstances the trial court finds applicable in this case.

"3. Enter a new, independent, self-sufficient, and complete sentencing order which contains no reference to its prior sentencing orders.

"4. Set forth in that sentencing order specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, each mitigating circumstance offered pursuant to § 13A-5-51, and any additional mitigating circumstances offered pursuant to § 13A-5-52.

In determining the existence or nonexistence of the aggravating circumstance defined in Ala.Code 1975, § 13A-5-49(1), and the mitigating circumstance found in Ala.Code 1975, § 13A-5-51(1), the trial court may consider evidence of only those convictions recognizable under Alabama law.

"5. State the reasons why any aggravating circumstance or circumstances outweigh the mitigating circumstance(s)." (Emphasis in original.)

The case was resubmitted on return to remand on October 14, 1993. Although the appellant requested and was given additional time to file a brief after the return to remand was filed, no brief has been filed and no issues have been presented.

I

In its sentencing order dated October 6, 1993, the trial court found the existence of two statutory aggravating circumstances: 1) that the appellant committed a capital murder while engaged in the commission of robbery in the first degree, and 2) that the offense was especially heinous, atrocious or cruel when compared to other capital offenses. The trial court found the existence of one statutory mitigating circumstances: that the appellant did not have a significant history of prior criminal activity. The trial court also found the existence of nonstatutory mitigating circumstances: 1) The appellant's father died when he was very young and he is the oldest of seven children born to his mother. He was involved in sports at Abbeville High School until he was expelled for selling drugs upon the school grounds during his junior year in high school. 2) The appellant "has been a cooperative prisoner and has caused no problems at the Henry County Jail."

The trial court then reweighed the aggravating and mitigating circumstances in sentencing the appellant to death:

"The Court has reconsidered and re-evaluated the aggravating and mitigating circumstances presented in this case and reconsidered the jury's advisory verdict of life imprisonment. In this case the victim was an elderly woman known by the Defendant to be living alone in her home. The Defendant and another...