653 So. 2d 343 | Ala. Crim. App. | 1993
On July 24, 1992, this Court remanded this cause for new sentence proceedings before the jury and before the trial court because we determined that evidence of the appellant's prior Florida conviction based upon a plea of nolo contendere had been improperly admitted and considered in the original sentence proceedings.
The appellant raises four issues challenging the new sentencing proceedings that were held on remand.
At the resentencing hearing before the jury, the jury was permitted to hear a tape-recorded statement by the appellant that made reference to "a little bit [of trouble] down in Florida." R. 412. That statement did not mention any prior conviction. Although it appears that defense counsel had previously heard the tape recording, objection was not made until after the tape had been played.
In denying the request for a mistrial the trial judge stated: "I don't think it's any major damaging thing. . . . I just don't think it's damaging enough for a mistrial." R. 411. The trial court also instructed the jury as follows:
"Ladies and gentlemen, the latter statement made on that tape made reference to this testimony, 'Have you ever been in any trouble before, yes, sir, a little bit down in Florida,' you are to disregard any testimony from that tape about being in trouble a little bit down in Florida. That has nothing to do with this case at all. You should totally disregard that, and that should not be any evidence that you would consider in this case. It's irrelevant to this case, and has no bearing on your considerations in any fashion." R. 412.
Both of the appellant's defense counsel indicated that they was satisfied with those instructions.
"A mistrial is a drastic remedy, to be used only sparingly and only to prevent manifest injustice, and the decision of whether to *345
grant a motion for a mistrial rests within the sound discretion of the trial court. . . . Under certain circumstances prejudicial testimony may be eradicated by curative instructions by the trial court." Ex parte Thomas,
Garrett v. State,"There is a prima facie presumption against error when the trial court immediately charges the jury to disregard improper remarks or answers. Desimer v. State,
535 So.2d 238 (Ala.Crim.App. 1988); Dixon v. State,476 So.2d 1236 (Ala.Crim.App. 1985); Elmore v. State,414 So.2d 175 (Ala.Crim.App. 1982). 'A motion for mistrial implies a miscarriage of justice and should only be granted where it is apparent that justice cannot be afforded.' Dixon at 1240; Young v. State,416 So.2d 1109 (Ala.Crim.App. 1982). 'A trial judge is allowed broad discretion in determining whether a mistrial should be declared, because he is in the best position to observe the scenario, to determine its effect upon the jury, and to determine whether the mistrial should be granted.' Dixon at 1240; Elmore. A mistrial is an extreme measure and should be denied when the prejudicial quality of the comment can be eradicated by curative instructions. Dixon; Young; Elmore."
"According to the appellant, his conviction is due to be reversed because of Prospective Juror Lane's comment that 'I just know he's in and out of trouble all of the time.' Contrary to the appellant's position, however, the prospective juror's response on voir dire was not 'per se prejudicial' to the appellant. For this reason, the trial court's denial of the request for a mistrial was proper. Thomas v. State,
49 Ala. App. 537 ,539 ,274 So.2d 93 ,95 (1973)."
Here, it cannot be argued that the appellant was prejudiced or that the jury was improperly influenced by the comment that the appellant had been in "a little bit of trouble" in Florida because the recommendation of the jury was that the appellant be sentenced to imprisonment for life without parole. SeeGiles v. State,
We also reject the appellant's argument that the trial judge was improperly influenced by this statement. Initially, we note that the trial judge was the same trial judge who presided over the appellant's trial and the original sentence hearings. This comment did not provide the judge with any "new" information. Furthermore, we assume that the trial judge did not consider this matter in sentencing the appellant to death. "[I]t is presumed that a trial judge will follow his own instructions."Ex parte Harrell,
Although we do not approve of the prosecutor's conduct in this regard, we specifically reject the appellant's argument that "the playing of this portion of the tape was an effort to circumvent the earlier ruling of this Court." Appellant's brief at 11.
Defense counsel made no objection to any of these remarks. We find that no single remark constituted plain error; neither did the cumulative effect of all three comments constitute plain error. See Kuenzel v. State,
"The Court finds this offense was especially heinous, atrocious or cruel. The Defendant having worked for the victim prior to the crime, would have had knowledge that she was not only elderly, but that she was a widow and lived alone. He was much younger and larger than her being able to subdue her easily. During the struggle, Mrs. Riley received not only two deep knife cuts to the throat but also incurred numerous bruises to the throat and facial area, and had the inner boney structure of her throat or windpipe fractured or crushed causing a degree of strangulation." C.R. 88.
The finding that the offense was especially heinus, atrocious, or cruel is highly questionable if it is based on the reasons stated by the trial court in its order.
"In Ex parte Kyzer,
Therefore, this cause is remanded for a second time to the trial court. On remand, the trial court shall do all of the following:
1. Reconsider its sentence determination and enter a new sentencing order.
2. Make specific written findings on the existence of each statutory aggravating and mitigating circumstance, and any additional nonstatutory mitigating circumstances.
a. In this regard, the trial court shall enter a specific written finding concerning the mitigating circumstance defined in §
13A-5-51 (1): "The defendant has no significant history of prior criminal activity."b. The trial court shall reconsider the finding of the aggravating circumstance that the offense was "especially heinous, atrocious, or cruel," §
13A-5-49 (8), under the standard of Ex parte Kyzer,399 So.2d 330 ,334 (Ala. 1981), and determine whether this crime is one of "those conscienceless or pitiless homicides which are unnecessarily torturous to the victim."3. State the reasons why any aggravating circumstance or circumstances outweigh the mitigating circumstances;
4. Supplement the record on appeal with the presentence report.
On remand, no additional hearings are anticipated and the presence of the appellant is not required. See Ex parte Pierce,
The trial court shall comply with these instructions and file the appropriate documents in this Court within 21 days from the date of this opinion.
OPINION EXTENDED;
REMANDED WITH DIRECTIONS.
All Judges concur.