611 So. 2d 426 | Ala. Crim. App. | 1992
The appellant, Karla Gay Dumas, was charged with the capital offenses defined in Ala. Code 1975, §
The presentence report, authorized by Ala. Code 1975, §
Rule 26.6(b)(2), A.R.Crim.P., provides that at the sentence hearing:
"Evidence may be presented by both the state and the defendant as to any matter that the court deems probative on the issue of sentence. Such matters may include, but are not limited to, the nature and circumstances of the offense, the defendant's character, background, mental and physical condition, and history, the gain derived by the defendant or the loss suffered by the victim as a result of defendant's commission of the offense, and any other facts in aggravation or in mitigation of the penalty. Any evidence that the court deems to have probative value may be received, regardless of its admissibility under the rules of evidence."
(Emphasis added.)
In a capital case, Ala. Code 1975, §
Ex parte Davis,"The entire [presentence] report itself is an out-of-court statement and is entirely hearsay: however, it is admissible under Ala. Code 1975, §
13A-5-47 . Thompson v. State, [503 So.2d 871 (Ala.Cr.App. 1986), affirmed,503 So.2d 887 (Ala. 1987), cert. denied,484 U.S. 872 ,108 S.Ct. 204 ,98 L.Ed.2d 155 (1987)]. The trial court is not obligated to do more than provide a fair opportunity for rebuttal; where the record indicates that the defendant was given sufficient opportunity to rebut any hearsay statements made at the sentencing hearing, there is no error."
Contrary to the appellant's argument, the evidence does support a conclusion that Mr. Dumas was executed. His body was discovered in bed and he had been shot in the head with a .22 caliber rifle. In addition, at the sentencing hearing, when the prosecutor attempted to question Kay Smalley about the $948 the appellant allegedly stole from her, the trial court, on its own motion, "sustain[ed] any objection and exclude[d] that statement." R. 29.
We find the appellant's argument that the sentence was excessive because the trial judge considered improper evidence to be without merit.
"1. That the sentence imposed was unnecessarily harsh considering the Defendant's lack of a prior criminal record.
"2. That the sentence imposed was unnecessarily harsh considering the fact that the Defendant is the mother of two small children who have lost their father and are now losing their mother.
"3. That the sentence imposed failed to consider the goal of sentencing equality and the need to avoid unwarranted disparities in sentencing different defendant[s] as set forth in Rule 26.8 of the Alabama Rules of Criminal Procedure." CR. 57.
We note that in Harmelin v. Michigan, ___ U.S. ___,
The appellant does not argue that her sentence is unconstitutionality disproportionate. *429 Instead, she contends that the trial court abused its discretion by imposing an allegedly "unnecessarily" harsh sentence. The appellant's argument is directed more toward compassion and mercy than a sentence to which she is entitled as a matter of law. While this Court is not insensitive to the appellant's plea, we find that the trial court did not abuse its discretion in imposing the 60-year sentence.
The appellant stood charged with two capital offenses for which, if convicted, she faced the possibility of being sentenced to death. Pursuant to a plea agreement, the appellant, maintaining her innocence, pleaded guilty to murder, and the State made no recommendation regarding sentence. The punishment for murder ranges from imprisonment "for life or not more than 99 years or less than 10 years." §
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.