Pierce v. State

• Decision Date: 23 August 1991
• Docket Number: 4 Div. 406
• Citation: 586 So.2d 1005
• Court: Alabama Court of Criminal Appeals
• Parties: Andy Dwight PIERCE v. STATE.

Page 1005

586 So.2d 1005

Andy Dwight PIERCE v. STATE.

4 Div. 406.

Court of Criminal Appeals of Alabama.

Aug. 23, 1991.

W. Phil Etheridge, Hartford, for appellant.

Don Siegelman, Atty. Gen., and William D. Little and Beth Jackson Hughes, Asst. Attys. Gen., for appellee.

ON RETURN TO REMAND

TYSON, Judge.

On August 3, 1990, this court, 576 So.2d 236, remanded this case to the trial court with directions that the trial court resentence the appellant without considering the victim impact statement made by the victim's daughter, which was contained in the presentence report, and to issue new written findings. Although the trial judge did not state that he specifically considered the victim impact statement when he initially sentenced the appellant, he did state that he considered the presentence report, which contained the victim impact statement. Because the information contained in the victim impact statement in this case closely paralleled that contained in the victim impact statement which was condemned in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) ¹, we, in an abundance of caution, remanded the case to the trial court for resentencing.

The trial court has filed a return to remand with this court, which reads, in part, as follows:

"This cause being remanded by the Court of Criminal Appeals to this Court with instructions that the Court resentence the defendant without consideration of the Victim's Impact Statement contained in the presentence report and the Court having considered the Order on Remand, the Court further finds as follows:

"The personal characteristics of the victim of a crime; the emotional impact of the crime upon the family of the victim and the family members' opinion of the crime and of the defendant is irrelevant to determining the sentence in a capital case.

"The sentence in a capital case should be an individualized determination of whether the defendant should be executed based on the character of the defendant, his background and record and the particular circumstances of the crime in accordance with the provisions and guidelines as set out in Section 13A-5-40 and 13A-5-59 Code of Alabama, 1975 as amended.

"The Court further adopts all of the written findings as set out in the order of February 22, 1989, which is on file in this cause and which is attached hereto and made a part hereof as if set out in full and in detail. Except, that the Court has not considered the Victim's Impact Statement or any information contained in the presentence report concerning the personal characteristics of the victim or the impact on the family of the victim in the presentence report and any such information should be excised from the presentence report and the record."

We find that the trial court has complied with our directions in its return to remand. We shall not address the propriety of the appellant's sentence because we find that this cause must be remanded to the trial court again in light of the United States Supreme Court's opinion in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), and the Alabama Supreme Court's opinions in Ex parte Bankhead, 585 So.2d 112 (Ala.1991), Ex parte Gordon, 587 So.2d 434 (Ala.1991), and Ex parte Bird and Warner, [Ms. 89-1061 and 89- 1062, June 14, 1991), 1991 WL 114762 (Ala.1991). ^*

In Powers the United States Supreme Court held that a white defendant has standing to challenge the state's use of its peremptory strikes to remove black jurors from the jury. On original appeal and in his brief on return to remand, the appellant contends that the state used its peremptory strikes to remove black jurors from the jury panel in a racially discriminatory manner. ² Thus, based on the decisions of the United States Supreme Court, the Alabama Supreme Court, and this court, we must remand this cause to the circuit court for a hearing to determine whether the prosecution can provide racially neutral reasons for the use of its peremptory challenges against black venire members. If the prosecution fails to do so, the appellant shall receive a new trial. The trial court shall take all necessary action within a sufficient period to allow a return to remand to be filed with this court within 60 days...