FOR IMMEDIATE RELEASE
NEWS ADVISORY
June 17, 2016
For More Information, contact:
Luther Strange
Mike Lewis (334) 353-2199
Alabama Attorney General
Joy Patterson (334) 242-7491
Page 1 of 1
ALABAMA APPEALS COURT VACATES JEFFERSON COUNTY CIRCUIT COURT
ORDER HOLDING ALABAMA’S DEATH PENALTY SENTENCING SCHEME TO BE
UNCONSTITUTIONAL
Appeals Court Holds Alabama Capital Murder Sentencing is Constitutional under Hurst
(MONTGOMERY) – Attorney General Luther Strange announced the Alabama Court of
Criminal Appeals has granted the State of Alabama’s request to vacate a Jefferson County trial
court’s order declaring Alabama’s “capital sentencing scheme” to be facially unconstitutional.
“Today’s decision by the Alabama Court of Criminal Appeals is the first case to affirm under
Hurst that Alabama’s capital sentencing is constitutional,” said Attorney General Strange. “The
Appeals Court vacated the Jefferson County Court’s March order and thereby held that Alabama
can continue to seek the death penalty in capital murder prosecutions.”
In its March 10, 2016, filing the State of Alabama pointed out that the lower trial court had no
power to prevent the state from seeking the death penalty for four offenders.
Today the Alabama Court of Criminal Appeals granted the state’s petition for mandamus in
each of the four capital murder cases of Kenneth Eugene Billups, Stanley Brent Chapman,
Terrell Corey McMullin and Benjamin Todd Acton.
A copy of the court’s order is attached
–30–
501 Washington Avenue * Montgomery, AL 36104 * (334) 242-7300
www.ago.alabama.gov REL: 06/17/2016
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2015-2016
CR-15-0619
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama v. Kenneth Eugene Billups)
Appeal from Jefferson Circuit Court
(CC-05-1755)
CR-15-0622
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama v. Stanley Brent Chapman)CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Appeal from Jefferson Circuit Court
(CC-14-3011 and CC-14-3012)
CR-15-0623
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama v. Terrell Corey McMullin)
Appeal from Jefferson Circuit Court
(CC-14-3015 and CC-14-3016)
CR-15-0624
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama v. Benjamin Todd Acton)
Appeal from Jefferson Circuit Court
(CC-12-1194 and CC-12-1195)
KELLUM, Judge.
The State of Alabama has filed four petitions for a writ
of mandamus asking this Court to direct the Jefferson Circuit
Court to vacate its order declaring Alabama’s “capital-
sentencing scheme” unconstitutional and barring the State from
2CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
seeking the death penalty in capital-murder prosecutions.
Because these petitions address the same issue, we consolidate
them for the purpose of writing a single opinion. We grant
the petitions and issue the writs.
Facts and Procedural History
Kenneth Eugene Billups, Stanley Brent Chapman, Terrell
Corey McMullin, and Benjamin Todd Acton (hereinafter
collectively referred to as “respondents”) were indicted for
various counts of capital murder. Billups and Acton were each
indicted for one count of murder made capital because it was
committed during the course of a robbery, see ß 13A-5-
1
40(a)(2), Ala. Code 1975. Chapman and McMullin were each
indicted for one count of the murder of two or more persons
pursuant to one act or one scheme or course of conduct, see ß
13A-5-40(a)(10), Ala. Code 1975, for two counts of murder made
capital because it was committed during the course of a
robbery, see ß 13A-5-40(a)(2), Ala. Code 1975, and for two
counts of murder made capital because it was committed during
1
The charges against Billups and Acton are based on
unrelated offenses.
3CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the course of a burglary, see ß 13A-5-40(a)(4), Ala. Code
2
Before trial, the respondents each filed a motion to bar
imposition of the death penalty in their cases and to hold
Alabama’s capital-sentencing scheme unconstitutional based on
the United States Supreme Court’s recent decision in Hurst v.
3
Florida, 577 U.S. , 136 S.Ct. 616 (2016). The circuit court consolidated the motions and, after conducting a hearing, entered an order in all four cases concluding that “the capital sentencing scheme as provided by the Alabama Criminal Code is unconstitutional and is this day barred from enactment.” (Petitions, Appendix A, p. 28.) Standard of Review “Before a writ of mandamus may issue, the petitioner must show (1) a clear legal right in the petitioner to the relief sought; (2) an imperative 2 The charges against Chapman and McMullin are based on the same murders. 3 In 2006, Billups was convicted of capital murder as charged in his indictment and was sentenced to death. This Court affirmed Billups’s conviction and sentence on direct appeal, but the Alabama Supreme Court reversed this Court’s judgment and remanded the cause for a new trial. See Billups v. State, 86 So. 3d 1032 (Ala. Crim. App. 2009), rev’d, 86 So. 3d 1079 (Ala. 2010), after remand, 86 So. 3d 1087 (Ala. Crim. App. 2011). Billups filed his motion before his retrial. 4CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624 duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court.” State v. Reynolds, 819 So. 2d 72, 79 (Ala. Crim. App. 1999). “A writ of mandamus is a drastic and extraordinary writ and will not be issued unless the petitioner has a clear and undisputable right to a particular result.” Ex parte Springer, 619 So. 2d 1267, 1258 (Ala. 1992). “‘A writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner.'” Ex parte Hutcherson, 847 So. 2d 386, 388 (Ala. 2002) (quoting Ex parte Southland Bank, 514 So. 2d 954, 955 (Ala. 1987)). Analysis I. As a threshold matter, we must determine whether mandamus is the proper avenue by which the State can seek review of the circuit court’s order. The State argues that mandamus is appropriate because, it says, it has no other avenue to seek review of the court’s order and the order, which prohibits the State from seeking the death penalty in capital-murder prosecutions, represents “an extraordinary disruption in the administration of criminal justice.” (Petition, p. 19.) The 5CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624 respondents argue, on the other hand, that the State has a right to appeal the circuit court’s ruling pursuant to ß 12- 22-91, Ala. Code 1975, and that, therefore, mandamus is not appropriate. Although ß 12-22-91 gives the State the right to appeal a lower court’s order holding unconstitutional the statute “under which the indictment or information is preferred,” as the State correctly argues the circuit court in this case did not hold unconstitutional the statute under which the respondents’ indictments were preferred — ß 13A-5-40, Ala. Code 1975. Rather, the circuit court held unconstitutional Alabama’s “capital-sentencing scheme,” i.e., those statutes setting forth the procedures for imposing the death penalty in Alabama, see ßß 13A-5-44 through -52, Ala. Code 1975. “All statutes that authorize appeals are to be strictly construed,” Dixon v. City of Mobile, 859 So. 2d 462, 463 (Ala. Crim. App. 2003), and “may not be enlarged or extended by judicial construction.” State v. Gautney, 344 So. 2d 232, 234 (Ala. Crim. App. 1977). Under the plain language of ß 12-22-91, the State could not appeal the circuit court’s order in this case because the circuit court did not hold unconstitutional ß 13A- 6CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624 5-40, Ala. Code 1975, the statute under which the indictments 4 were preferred. This Court “has jurisdiction not only to issue all writs necessary or appropriate in aid of [our] appellate jurisdiction, but also has authority to issue such remedial and original writs as are necessary to give [us] a general superintendence and control of jurisdictions inferior to [us] in criminal matters.” Ex parte Nice, 407 So. 2d 874, 877 (Ala. 1981). “[I]t is fairly well settled that notwithstanding the fact that the State has a restricted right in criminal cases to prosecute an appeal, the actions of a trial judge as to certain rulings in criminal cases may be reviewed by mandamus proceedings under appropriate circumstances.” Id. at 878. Indeed, “a writ of mandamus is a supervisory order; thus, an appellate court may issue this writ in any situation, within recognized limits, where this 4 We note that Rule 15.7(a), Ala. R. Crim. P., permits the State to appeal a lower court’s order suppressing evidence, dismissing an indictment, or quashing an arrest or search warrant; that ß 12-12-70(c), Ala. Code 1975, permits the State to appeal a district court’s order holding a statute or ordinance invalid; and that ß 12-22-90(b), Ala. Code 1975, permits the State to appeal an adverse ruling on a petition for a writ of habeas corpus. These cases do not fall into any of those categories. 7CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624 writ is necessary to protect the proper judicial administration of the courts.” Ex parte Sullivan, 779 So. 2d 1157, 1161 (Ala. 2000). Although generally “[m]andamus cannot be used as a substitute for appeal, when no appeal is authorized by law or court rule, [it] can be used to prevent a gross disruption in the administration of criminal justice.” Ex parte Nice, 407 So. 2d at 879. Mandamus may also “be used by the government in aid of its lawful rights in the prosecution of criminal cases,” id. at 879, and “in exceptional circumstances which amount to judicial usurpation of power.” Id. at 878. “[O]nly the rarest of circumstances merit an intervention in a criminal case by mandamus; nevertheless, circumstances can arise which present a compelling need for the issuance of the mandamus to further important countervailing public interests.” Id. at 880. These four cases present just the type of rare and exceptional circumstance that merits intervention by mandamus to prevent a gross disruption in the administration of criminal justice. Therefore, mandamus is the appropriate avenue for the State to seek review of the circuit court’s order. 8CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624 II. The State contends that the circuit court erred in holding that Hurst v. Florida, 577 U.S. , 136 S.Ct. 616
(2016), rendered Alabama’s capital-sentencing scheme
unconstitutional. The State argues that Alabama’s capital-
sentencing scheme is constitutional under Hurst because the
statutory scheme requires the jury, not the trial court, to
make the findings necessary for imposition of the death
penalty, during either the guilt phase or the penalty phase of
the trial, and that it has a clear legal right to seek the
death penalty in capital-murder prosecutions under Alabama’s
statutory scheme. In its order, the circuit court found that
“capital defendants in Alabama are subject to having the
‘maximum authorized punishment … increased by a judge’s own
factfinding'” and that, therefore, “[i]n light of the ruling
in Hurst, Alabama’s capital-sentencing scheme, ‘under which an
advisory jury makes a recommendation to a judge, and the judge
makes the critical findings needed for the imposition of a
death sentence, violates the Sixth Amendment right to trial by
jury.'” (Petitions, Appendix A, pp. 26-27; citations omitted.)
9CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Initially, we point out that “statutes are presumed to be
constitutional,” State v. Adams, 91 So. 3d 724, 732 (Ala.
Crim. App. 2010), and courts “should be very reluctant to hold
any act unconstitutional.” Ex parte Boyd, 796 So. 2d 1092,
1094 (Ala. 2001). In reviewing the constitutionality of a
statute, courts “‘must afford the Legislature the highest
degree of deference, and construe its acts as constitutional
if their language so permits.'” Adams, 91 So. 3d at 732
(quoting Monroe v. Harco, Inc., 762 So. 2d 828, 831 (Ala.
2000)). “‘[I]n passing upon the constitutionality of a
legislative act, the courts uniformly approach the question
with every presumption and intendment in favor of its
validity, and seek to sustain rather than strike down the
enactment of a coordinate branch of government.'” Herring v.
State, 100 So. 3d 616, 620 (Ala. Crim. App. 2011) (quoting
Alabama State Fed. of Labor v. McAdory, 246 Ala. 1, 9, 18
So.2d 810, 815 (1944)). “It is the duty of a court to sustain
an act unless [the court] is convinced beyond a reasonable
doubt of [the act’s] unconstitutionality.” Handley v. City of
Montgomery, 401 So. 2d 171, 180 (Ala. Crim. App. 1981). With
respect to Alabama’s capital-sentencing scheme, ß 13A-5-58,
10CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Ala. Code 1975, specifically directs: “This article shall be
interpreted, and if necessary reinterpreted, to be
constitutional.”
Before examining the opinion in Hurst, we first reexamine
the opinions on which Hurst was based: Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584
5
(2002). In Apprendi, the United States Supreme Court held
that, “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proven
beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added).
The Court stated that pursuant to the Sixth Amendment to the
United States Constitution, made applicable to the states
through the Fourteenth Amendment, “it is unconstitutional for
a legislature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which a
criminal defendant is exposed. It is equally clear that such
facts must be established by proof beyond a reasonable doubt.”
5
Although both this Court and the Alabama Supreme Court
have already exhaustively examined both Apprendi and Ring, it
is important that we do so again here to understand the
context in which Hurst was decided.
11CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Id. (quoting Jones v. United States, 526 U.S. 227, 252 (1999)
(Stevens, J., concurring)). In determining whether a
sentencing statute is constitutional in this respect, the
Court said, “the relevant inquiry is one not of form but of
effect — does the required finding expose the defendant to a
greater punishment than that authorized by the jury’s guilty
verdict?” Id. at 494 (emphasis added). The Court noted,
however, that it is permissible “for judges to exercise
discretion — taking into consideration various factors
relating both to offense and offender — in imposing judgment
within the range prescribed by statute” and that “judges in
this country have long exercised discretion of this nature in
imposing sentence within statutory limits in the individual
case.” Id. at 481 (emphasis in original).
In Ring, the United States Supreme Court applied its
holding in Apprendi to capital sentencing and held Arizona’s
capital-sentencing scheme unconstitutional. Under Arizona’s
6
capital-sentencing scheme as it then existed, the maximum
sentence authorized by a jury verdict finding a defendant
6
Arizona amended its capital-sentencing scheme after Ring
was decided.
12CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
guilty of first-degree murder was life imprisonment without
the possibility of parole; the defendant became eligible for
the death penalty only if the trial court, sitting without a
jury, found the existence of an aggravating circumstance and
found that there were no mitigating circumstances sufficiently
substantial to call for leniency. The Court held that
“[c]apital defendants, no less than noncapital defendants, …
are entitled to a jury determination of any fact on which the
legislature conditions an increase in their maximum
punishment.” 536 U.S. at 589 (emphasis added). The Court
reiterated the principle from Apprendi that “[a] defendant may
not be ‘expose[d] … to a penalty exceeding the maximum he
would receive if punished according to the facts reflected in
the jury verdict alone.'” Ring, 536 U.S. at 602 (quoting
Apprendi, 530 U.S. at 483 (some emphasis added)). Because a
sentence of death exceeded the maximum punishment authorized
for a conviction of first-degree murder in Arizona, the Court
concluded, the fact necessary to expose a defendant to the
death penalty — the existence of an aggravating circumstance
— must be found by a jury. The Court in Ring overruled its
previous opinion in Walton v. Arizona, 497 U.S. 639 (1990),
13CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
upholding as constitutional Arizona’s capital-sentencing
scheme “to the extent that it allows a sentencing judge,
sitting without a jury, to find an aggravating circumstance
necessary for imposition of the death penalty.” Ring, 536 U.S.
at 609 (emphasis added).
In Hurst, the United States Supreme Court held Florida’s
capital-sentencing scheme unconstitutional. The Court noted
that “[t]he analysis the Ring Court applied to Arizona’s
sentencing scheme applies equally to Florida’s.” Hurst, 577
U.S. at , 136 S.Ct. at 621-22. Florida’s capital- 7 sentencing scheme as it then existed was similar to Arizona’s in that the maximum sentence authorized by a jury verdict finding a defendant guilty of first-degree murder was life imprisonment without the possibility of parole; the defendant became eligible for the death penalty only if the trial court found the existence of an aggravating circumstance and found that there were insufficient mitigating circumstances to outweigh the aggravating circumstances. Although Florida’s procedure, unlike Arizona’s, included an advisory verdict by 7 Florida amended its capital-sentencing scheme after Hurst was decided. 14CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624 a jury recommending a sentence, the Court found this distinction “immaterial” because a Florida jury “‘does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge[; therefore, a] Florida trial court no more has the assistance of a jury’s findings of fact with respect to sentencing issues than does a trial judge in Arizona.'” Hurst, 577 U.S. at , 136 S.Ct. at 622
(quoting Walton, 497 U.S. at 648). The Court reiterated that
“any fact that ‘expose[s] the defendant to a greater
punishment than that authorized by the jury’s guilty verdict’
… must be submitted to a jury,” Hurst, 577 U.S. at , 136 S.Ct. at 621 (emphasis added), and concluded that Florida’s procedure was unconstitutional because “the Florida sentencing statute does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death,'” Hurst, 577 U.S. at , 136 S.Ct. at 622 (quoting
former Fla. Stat. ß 785.082(1)(a)); “[t]he trial court alone
must find ‘the facts … [t]hat sufficient aggravating
circumstances exist’ and ‘[t]hat there are insufficient
mitigating circumstances to outweigh the aggravating
15CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
circumstances.'” Hurst, 577 U.S. at , 136 S.Ct. at 622 (quoting former Fla. Stat. ß 921.141(3).) As in Ring, in which the Court overruled its previous decision in Walton upholding Arizona’s capital-sentencing scheme, the Court in Hurst overruled its previous decisions in Hildwin v. Florida, 490 U.S. 638 (1989), and Spaziano v. Florida, 468 U.S. 447 (1984), upholding as constitutional Florida’s capital- sentencing scheme to the extent “they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of the death penalty.” Hurst, U.S. at , 136 S.Ct. at 624 (emphasis added). We first point out what the Supreme Court in Hurst did not hold: The Court in Hurst did not hold, as the respondents argue, that judicial override of a jury’s capital-sentencing recommendation is unconstitutional. The issue of judicial override was not even before the Court when it decided Hurst because the trial court in Hurst did not override the jury’s sentencing recommendation; the trial court in Hurst followed the jury’s recommendation of death. The Court in Hurst also did not hold, as the respondents argue, that judicial 16CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624 sentencing in capital cases is unconstitutional or that it is unconstitutional to allow a trial court, in determining the appropriate sentence in a capital case, to consider evidence that was not presented to the jury. Although the Court in Hurst found that a jury’s capital-sentencing recommendation alone was not sufficient to establish that the jury found the facts necessary for imposition of the death penalty under Florida’s capital-sentencing scheme, the Court did not state, or even imply, that it is constitutionally required that a jury, and not a judge, make the ultimate decision whether to sentence a defendant to death or to life imprisonment without the possibility of parole. Indeed, in reaching its decision in Hurst, the Court relied on its holdings in Apprendi and Ring, and, as noted above, the Court in Apprendi specifically found that it was permissible “for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing judgment within the range prescribed by statute.” Apprendi, 530 U.S. at 481. Simply put, the Court in Hurst did not, as the respondents argue, hold unconstitutional the broad overall 17CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624 structure of Florida’s capital-sentencing scheme — a hybrid scheme beginning with a bifurcated capital trial during which the jury first determines whether the defendant is guilty of the capital offense and then recommends a sentence, followed by the trial court making the ultimate decision as to the appropriate sentence. Rather, the Court held that Florida’s capital-sentencing scheme was unconstitutional to the extent that it specifically conditioned a capital defendant’s eligibility for the death penalty on findings made by the trial court and not on findings made by the jury, which contravened the holding in Ring. The Court emphasized several times in its opinion that Florida’s capital-sentencing statutes did not make a capital defendant eligible for the death penalty until the trial court made certain findings. See Former Fla. Stat. ß 775.082(1)(a) (2010) (“[A] person who has been convicted of a capital felony shall be punished by death” only “if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.” (emphasis 18CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624 added)). And the Court held only that “Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.” Hurst, 577 U.S. at , 136 S.Ct. at 624.
The Court in Hurst did nothing more than apply its
previous holdings in Apprendi and Ring to Florida’s capital-
sentencing scheme. The Court did not announce a new rule of
constitutional law, nor did it expand its holdings in Apprendi
and Ring. As the State correctly argues, “Hurst did not add
anything of substance to Ring.” (Petitions, p. 6.) The
Alabama Supreme Court has repeatedly construed Alabama’s
capital-sentencing scheme as constitutional under Ring. See,
e.g., Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2002); Ex parte
Hodges, 856 So. 2d 936 (Ala. 2003); Ex parte Martin, 931 So.
2d 759 (Ala. 2004); Ex parte McNabb, 887 So. 2d 998 (Ala.
2004); and Ex parte McGriff, 908 So. 2d 1024 (Ala. 2004). For
the reasons explained below, these authorities establish that
Alabama’s capital-sentencing scheme is constitutional under
Apprendi, Ring, and Hurst and that the State is entitled to
the relief it seeks.
19CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
In Alabama, a capital trial is bifurcated into two
phases. See ß 13A-5-43, Ala. Code 1975. In the first phase
of the trial, often referred to as the guilt phase, the jury
must determine whether the defendant is guilty of the capital
8
offense with which he or she is charged. See ß 13A-5-40(a),
Ala. Code 1975 (defining the capital offenses in Alabama). If
the jury finds the defendant guilty of the capital offense,
the second phase of the trial, delineated by statute as a
sentence hearing but often referred to in caselaw as the
9
penalty phase or sentencing phase, begins. At the penalty
phase, the parties present to the jury any evidence relevant
to sentencing, particularly relating to aggravating
circumstances as listed in ß 13A-5-49, Ala. Code 1975, and
mitigating circumstances as listed in ßß 13A-5-51 and 13A-5-
52, Ala. Code 1975. See ßß 13A-5-45 and 13A-5-46, Ala. Code 1976.
After hearing the evidence during the penalty phase of
8
Even when the defendant pleads guilty to a capital
offense, the State must prove the defendant’s guilt to a jury
beyond a reasonable doubt if it is seeking the death penalty.
ß 13A-5-42, Ala. Code 1975.
9
If a jury finds the defendant not guilty of the capital
offense, or if the defendant waives his right to jury
participation in sentencing, the jury portion of the
proceedings end. See ßß 13A-5-43(b), 13A-5-43(c) and 13A-5-
44(c), Ala. Code 1975.
20CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the trial, the jury then returns an advisory verdict
recommending a sentence of either life imprisonment without
the possibility of parole or death. See ß 13A-5-46, Ala. Code 1977
Section 13A-5-46(e) provides specific guidance to the
jury in recommending a sentence. If the jury finds that no
aggravating circumstance in ß 13A-5-49 exists, the jury must
recommend a sentence of life imprisonment without the
possibility of parole. See ß 13A-5-46(e)(1). If the jury
unanimously finds that one or more aggravating circumstances
in ß 13A-5-49 exist, but finds that they do not outweigh any
mitigating circumstances in ß 13A-5-51 and ß 13A-5-52, the
jury must recommend a sentence of life imprisonment without
the possibility of parole. See ß 13A-5-46(e)(2). If the jury
unanimously finds that one or more aggravating circumstances
exist and finds that they outweigh any mitigating
circumstances, the jury must recommend a sentence of death.
10
See ß 13A-5-46(e)(2).
10
Section 13A-5-45(g), Ala. Code 1975, provides: “The
defendant shall be allowed to offer any mitigating
circumstance defined in Sections 13A-5-51 and 13A-5-52. When
the factual existence of an offered mitigating circumstance is
in dispute, the defendant shall have the burden of
21CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
After the jury makes its sentencing recommendation, the
trial court “shall proceed to determine the sentence.” ß 13A-
5-47(a), Ala. Code 1975. In determining the appropriate
sentence in a capital case, the trial court must order a
presentence-investigation report, see ß 13A-5-47(b); must
conduct another sentencing hearing before the trial court
alone, see ß 13A-5-47(c); must issue a sentencing order
interjecting the issue, but once it is interjected the state
shall have the burden of disproving the factual existence of
that circumstance by a preponderance of the evidence.” The
jury need not unanimously agree on the existence of mitigating
circumstances. See, e.g., Scott v. State, 163 So. 3d 389,
458-59 (Ala. Crim. App. 2012). The jury must unanimously
agree only on the existence of an aggravating circumstance.
Once the jury unanimously finds the existence of an
aggravating circumstance, each juror must then individually
determine whether or not he or she believes any mitigating
circumstances exist and whether the aggravating circumstance
the jury has unanimously found to exist outweighs the
mitigating circumstance or circumstances that juror has found
to exist. If a juror concludes that the aggravating
circumstance that the jury has unanimously found to exist
outweighs the mitigating circumstance or circumstances that
juror has found to exist, that juror should vote to recommend
the death penalty. If, on the other hand, a juror concludes
that the aggravating circumstance that the jury has
unanimously found to exist does not outweigh the mitigating
circumstance or circumstances that juror has found to exist,
the juror should vote to recommend a sentence of life
imprisonment without the possibility of parole. The number of
jurors who voted for the death penalty and the number of
jurors who voted for life imprisonment without the possibility
of parole is reflected on the penalty-phase verdict form.
22CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
containing “specific written findings concerning the existence
or nonexistence of each aggravating circumstance enumerated in
Section 13A-5-49, each mitigating circumstance enumerated in
Section 13A-5-51, and any additional mitigating circumstances
offered pursuant to Section 13A-5-52 … [and] summarizing the
crime and the defendant’s participation in it,” ß 13A-5-47(d);
and must “determine whether the aggravating circumstances it
finds to exist outweigh the mitigating circumstances it finds
to exist, and in doing so … [must] consider the
recommendation of the jury contained in its advisory verdict.”
ß 13A-5-47(e).
A jury’s advisory verdict recommending a sentence of life
imprisonment without the possibility of parole pursuant to ß
13A-5-46(e)(1) based on the jury’s fin
