Rutledge v. State, 5 Div. 610

• Decision Date: 28 April 1987
• Docket Number: 5 Div. 610
• Citation: 523 So.2d 1087
• Parties: Mitchell RUTLEDGE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1087

523 So.2d 1087

Mitchell RUTLEDGE v. STATE.

5 Div. 610.

Court of Criminal Appeals of Alabama.

April 28, 1987.

Rehearing Denied May 26, 1987.

Dennis N. Balske, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Rivard Melson, and William W. Whatley, Jr., Asst. Attys. Gen., for appellee.

ON RETURN TO REMAND

PATTERSON, Judge.

This case was remanded to the Circuit Court of Lee County, Alabama, on January 22, 1985, for a new sentencing hearing. Appellant, Mitchell Rutledge, had previously been convicted on June 3, 1981, of the capital offense of robbery when the victim is intentionally killed, in violation of § 13A-5-31(a)(2), Code of Alabama (Supp.1978) (repealed July 1, 1981), ¹ and sentenced to death. The crime for which he was convicted was committed on December 23, 1980. On appeal, this court affirmed appellant's conviction and sentence with opinion on August 16, 1983. Rutledge v. State, 482 So.2d 1250 (Ala.Cr.App.1983). The facts of the case are set out in that opinion. Id. at 1252-53. The Alabama Supreme Court issued a writ of certiorari pursuant to A.R.A.P. 39(c) and, on September 7, 1984, affirmed appellant's conviction, but reversed our affirmance of appellant's sentence and remanded the case to this court with directions that we remand for a new sentencing hearing. (Rehearing denied, November 30, 1984.) Ex parte Rutledge, 482 So.2d 1262 (Ala.1984). The reversal was predicated on the prosecutor's improper argument during the sentencing hearing to the effect that life without parole does not necessarily mean life without parole. Our supreme court condemned this argument as being contrary to law, and not a reply in kind, as had been held by the trial court and this court. On January 22, 1985, on authority of Ex parte Rutledge, we remanded the case to the trial court for a new sentencing hearing and directed that, upon completion of the new sentencing hearing, due return thereof be made to this court. Rutledge v. State, 482 So.2d 1269 (Ala.Cr.App.1985).

The Circuit Court of Lee County conducted a new sentencing hearing in conformity with our directive and has made due return to this court. The circuit court has filed with this court a record of the complete sentencing proceedings. The record reflects that a new jury was empaneled on October 23, 1985, and after the hearing, the jury returned a verdict on October 24 recommending the punishment of death. Thereafter, the trial court conducted another

hearing, and on November 7, 1985, accepted the death penalty recommended by the jury and sentenced appellant to death. The record further reflects that appellant and his counsel were present in court throughout all of the sentencing proceedings. From these proceedings, this appeal followed

Appellant has filed a brief wherein he raises eight issues, each of which he claims constitutes reversible error. We will address these issues in the order in which they are presented in brief.

I

Appellant first contends that his constitutional rights were violated when the trial court, over the objection of the defense, permitted the victim's widow to testify at the new penalty phase hearing and, also, permitted the prosecution to refer to her in its closing argument to the jury.

A

During the State's presentation of a synopsis of the facts and circumstances of the crime for the new jury's benefit, the victim's wife, Virginia Love, testified briefly. She testified that she was married to the victim at the time of his death; that they had a twelve-year-old son; that on the evening of his death, her husband left home early, in his van; that she never saw him alive again; and that, after contacting the police, she furnished some documents displaying his fingerprints to aid in identification.

We find nothing improper in the admission of this testimony. Clearly, this testimony was properly admissible in the guilt phase. Thus, it was properly admissible in this sentencing phase as a part of the brief synopsis of the crime, for had the same jury been seated for both the guilt and sentencing phases, it could have considered such testimony. It is the jury's responsibility to make an individualized determination of sentence on the basis of the character of the individual and the circumstances of the crime. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Love's testimony aided the jury in understanding what happened, and its subject matter was within the realm of circumstances of the crime. The subject most relevant to the choice of punishment is the broad class of information about the defendant, his character, and the circumstances of his offense made known to the jury throughout the trial. Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3337, 92 L.Ed.2d 742 (1986). Consideration of these factors is made necessary by the Eighth Amendment's requirement that capital sentencing be individualized. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). With few exceptions, any information about the individual defendant and his offense may be properly considered by the jury. Brooks v. Kemp.

The case of People v. Ramirez, 98 Ill.2d 439, 75 Ill.Dec. 241, 457 N.E.2d 31 (1983), cited by appellant, is distinguishable from the instant case, for in the case before us, the evidence that the victim left a widow and child was elicited incidentally and was not highlighted to the jury as material evidence. Here, this evidence was not presented in such a manner by the State as to cause the jury to believe that the information was material to its deliberations in arriving at a proper sentence. Nor do we believe that the jury considered it as material. Within the context of this case and in light of the other evidence presented, the testimony of the widow was so brief and insignificant that we cannot conclude that it injected prejudice or irrelevant facts into the jury's decision.

B

In closing argument before the jury, the prosecuting attorney stated, as follows:

"Talk about people caring for the defendant, I'm sure that they do. How about people caring for Virginia Holloway, and her son, Gable Holloway's son. Virginia Holloway didn't come in here and testify, and expect you to extend to her sympathy. She doesn't want sympathy for her son, she is just asking for one thing,

justice. That's all she's asking for. She knows better than any of us what this case has meant to her and her family; she is just looking for justice, that's all, nothing more."

In reviewing allegedly improper prosecutorial argument, it first must be determined if the argument was, in fact, improper. If determined to be improper, the test for reviewing improper argument must be applied. This test is not whether the comments did influence the jury, but whether they might have influenced the jury in arriving at its verdict. Ex parte Ward, 497 So.2d 575, 575-76 (Ala.1986); Ex parte Beecher, 294 Ala. 674, 320 So.2d 727 (1975). As our supreme court explained in Ex parte Beecher, 294 Ala. at 682, 320 So.2d at 734:

"It has long been held regarding the introduction of illegal evidence, such as coerced confessions, that the test is not whether the illegal evidence did influence the jury, but whether it might have influenced it in arriving at the verdict. Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968), vacated in part, 408 U.S. 934 [92 S.Ct. 2851, 33 L.Ed.2d 747] ... (1972). See also Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ], and Fahy v. Connecticut, 375 U.S. 85 [84 S.Ct. 229, 11 L.Ed.2d 171] ... (1963). Under Const. of Ala. of 1901, § 6, there is no valid basis for using a different test for improper prosecutorial comment. Thus we hold today that where there is the possibility that a prosecutor's comment could be understood by the jury as reference to failure of defendant to testify, § 6 is violated."

In the instant case, we do not believe that this brief mention of the victim's family was intended by the prosecutor to inject prejudicial or irrelevant material into the sentencing decision, nor do we believe that it had that effect, particularly when considered in the light of the State's long summation as a whole. As we have held, the incidental fact that the victim left a widow and child was properly before the jury. We also view the comments as a way of rebutting the defense argument based on possible sympathy for appellant's family. Brooks v. Kemp. In addition, the more reasonable interpretation of the argument is that it was a call for justice, not sympathy, and, thus, within the latitude allowed prosecutors in their exhortation to the jury to discharge its duties. Ex parte Waldrop, 459 So.2d 959 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985). We finally note that there was no timely objection to this portion of the argument. In the absence of a contemporaneous objection, only prosecutorial misconduct that constitutes plain error may require reversal. A.R.A.P. 45A. See also Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). The fact that appellant did not see fit to object to this argument when made weighs against any possible claim of prejudice necessary for plain error. Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985).

In support of his claim of reversible error, appellant relies on Lowman v. State, 38 Ala.App. 612, 91 So.2d 697, cert. denied, 265 Ala. 698, 91 So.2d 700 (1956), wherein the court reversed a conviction because of the prosecutor's reference to the "widow and a bunch of little children being left to raise" and "[the victim's] wife and six kids left and hungry." 38 Ala.App. at 614, 91 So.2d 699. Lowman is clearly distinguishable from the instant case. In Lowman, the prosecutor made a direct appeal for the jury to have...