Stewart v. State

• Citation: 730 So.2d 1203
• Parties: Charles Randall STEWART v. STATE.
• Decision Date: 22 March 1996
• Court: Alabama Court of Criminal Appeals

730 So.2d 1203

Charles Randall STEWART v. STATE.

CR-90-0415.

Court of Criminal Appeals of Alabama.

Opinion on Second Return to Remand March 22, 1996.

Opinion on Third Return to Remand September 26, 1997.

Rehearing Denied November 14, 1997.

Randall S. Susskind, Montgomery (on return to remand; appeared May 9, 1995); and Steve Giddens, Talladega (appointed May 2, 1996), for appellant.

Jeff Sessions and Bill Pryor, attys. gen.; Sandra Stewart, deputy atty. gen.; and Gail Ingram Hampton and Lindy Beale, asst. attys. gen., for appellee (on return to remand).

On Second Return to Remand

TAYLOR, Presiding Judge.

The appellant, Charles Randall Stewart, was convicted of murder, made capital because the murder was committed during the course of a burglary and a kidnapping, see § 13A-5-40(1) and § 13A-5-40(4), Code of Alabama 1975. By a vote of 10 to 2, the jury recommended that the appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution. On appeal, we initially remanded this case to the Circuit Court for Talladega County so that that court could vacate four of the counts of capital murder and hold a hearing on the appellant's allegations concerning one of the jurors. See Stewart v. State, 601 So.2d 491 (Ala.Cr.App.1992). The trial court complied with our directions, vacated four counts, and found no juror bias. We affirmed the conviction and the sentence of death on return to remand. Stewart v. State, 659 So.2d 120 (Ala.Cr.App.1992). The Alabama Supreme Court affirmed the appellant's conviction but vacated the sentence and ordered a new penalty phase hearing. Ex parte Stewart, 659 So.2d 122 (Ala.1993). After remand from the Alabama Supreme Court, we remanded the case to the Circuit Court for Talladega County so that that court could hold a new sentencing hearing. Stewart v. State, 659 So.2d 129 (Ala.Cr.App.1994). This case is now on return to remand to this court after the penalty phase hearing was held in response to our instruction.

I

The appellant initially contends that the trial court's instructions to the jury in the penalty phase were flawed and that giving those instructions was reversible error because they failed to instruct the jury that the aggravating circumstances had to outweigh the mitigating circumstances before it could vote to impose the death penalty. Initially, we note that there was no objection to this issue raised to the trial court. However, because this is a case involving the death penalty, this court is obliged by Rule 45A, Ala.R.App.P., to apply the plain error doctrine. This rule states:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

The trial court gave the following instructions to the jury at the penalty phase:

"The law of this state provides that the punishment for a capital offense for which this defendant has been convicted is either death by electrocution or life imprisonment without eligibility for parole. The law also provides that which of these two punishments should be imposed upon the Defendant depends upon whether any aggravating circumstances exist. And I will tell you at this time the State has already proved aggravating circumstances by the verdict in the case. So, we are not concerned with that point of law.

"As a matter of fact, the trial jury convicted the Defendant of two offenses which constitute aggravating circumstances. One was murder while committing burglary in the first degree, and murder while committing kidnapping in the first degree. So, the State has already proven two aggravating circumstances in this case.

"[It has] offered proof of another aggravating circumstance, which [it has] to prove beyond a reasonable doubt and to a moral certainty, and that's the other offense. But these two were proven by the verdict in the case.

"A mitigating circumstance is any circumstance that indicates or tends to indicate that the Defendant should be sentenced to life imprisonment without parole instead of death.

"The issue at this sentence hearing then concerns circumstances of aggravation and circumstances of mitigation, and you can consider and weigh [them] against each other in deciding what the proper punishment in this case is to be.

"In making your recommendation to the Court what the punishment should be, you must determine whether any aggravating circumstances exist. And, if so, you must determine whether any mitigating circumstances exist. In making your determination concerning the existence of aggravating and mitigating circumstances, you should consider the evidence at this sentence hearing that we have just had.

"The law of the state provides a list of the aggravating circumstances which may be considered by a jury in recommending punishment, if the jury is convinced beyond a reasonable doubt and to a moral certainty from the evidence that one or more or any of the ... aggravating circumstances exist in this case. The same definition I gave you concerning reasonable doubt applies in this matter. But I told you it is a matter of law in this case that they've already proved two aggravating circumstances.

"If the jury is not convinced beyond a reasonable doubt based upon the evidence that one or more such aggravating circumstances exist, then the jury must recommend punishment of life imprisonment without parole. We are not concerned with that because aggravating circumstances have already been proven in this case.

"The law provides a list of aggravating circumstances, and that list has eight statutory aggravating circumstances. And I have explained to you the two that have already been proven in this case. That's the killing while committing a burglary in the first degree and killing while kidnapping.

"Now, we go to the question of mitigating circumstances. The law has set them out as follows, and I will just read them out of the Code rather than off my old charge....

"The defendant does not have to disprove anything about an aggravating circumstance.

The burden is solely upon the State to prove such circumstances beyond a reasonable doubt, and I have explained to you what a reasonable doubt is. The reasonable doubt about an aggravating circumstance may arise from all of the evidence or from any part of the evidence.

"You may not consider any aggravating circumstances other than the circumstances that you have been instructed about, and you may not consider an aggravating circumstance unless you are convinced beyond a reasonable doubt by the evidence in the case [of] the existence of the aggravating circumstance.

"Now, the law of this State provides a list of some of the mitigating circumstances that I have just read to you, and I have read the whole list of them to you. In this case there was no accomplice designated. So as I told you, we are not concerned with that.

"A mitigating circumstance does not have to be included in the list that I have read to you in order for it to be considered by you. In addition, the mitigating circumstances that I have listed for you, enumerated previously and specified, mitigating circumstances shall include any aspect of a defendant's character or record or any of the circumstances of the offense that the defendant offers as a basis for a sentence of life. A mitigating circumstance considered by you would be based on the evidence you have heard from the witness stand here.

"When the factual existence of an offered mitigating circumstance is in dispute, the State shall have the burden of disproving the facts or existence of the circumstances by a preponderance of the evidence. The burden of disproving it by a preponderance of the evidence means that you are to consider that the mitigating circumstance does exist unless, taking the evidence as a whole, it is more likely than not that the mitigating circumstance does not exist.

"Therefore, if there is a factual dispute over the existence of a mitigating circumstance, then you would find and consider that the mitigating circumstance exists, unless you find the evidence is such that it is more likely than not that the mitigating circumstance does not exist. Only the aggravating circumstance must be beyond a reasonable doubt, and as I have stated many times, the burden is on the state to convince you from the evidence beyond a reasonable doubt and to a moral certainty that an aggravating circumstance did exist.

"In reaching your findings concerning the aggravating and mitigating circumstances in this case and in determining what to recommend that the punishment in this case should be, you must avoid any influence of passion, prejudice, or any other arbitrary factor. Your deliberation of the verdict should be based upon the evidence that you have seen and heard and the law in which I am instructing you at this time. There is no room for influence of passion, prejudice, or other arbitrary factors....

"The process of weighing mitigating and aggravating circumstances against each other to determine the proper punishment is not a mechanical process. Your weighing of the circumstances against each other should not consist of merely adding up the number of aggravating circumstances and comparing that number to the total number mitigating circumstances.

"The law of this state recognizes that it is possible in at least some situations that one or a few aggravating circumstances might outweigh a large number of mitigating circumstances.

"The law of this state also recognizes that it is possible in at least some situations that a larger number of aggravating circumstances may be outweighed by one or a few mitigating circumstances.

"In other words, the law contemplates that

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