McNABB v. STATE, CR-98-0967 (Ala.Crim.App. 4-25-2003)

SHAW, Judge.

The appellant, Torrey Twane McNabb, was convicted of two counts of capital murder for the murder of Montgomery Police Officer Anderson Gordon. The murder was made capital because Officer Gordon was on duty at the time of his death, see § 13A-5-40(a)(5), Ala. Code 1975, and because Officer Gordon was in his patrol car at the time of his death, see § 13A-5-40(a)(17), Ala. Code 1975. The jury, by a vote of 10-2, recommended that McNabb be sentenced to death. The trial court accepted the jury's recommendation and sentenced McNabb to death. On October 26, 2001, this Court affirmed McNabb's two capital-murder convictions, but remanded the case for the trial court to correct a deficiency in its capital-sentencing order. See McNabb v. State, [Ms. CR-98-0967, October 26, 2001] ___ So.2d ___ (Ala.Crim.App. 2001). The trial court complied with our instructions, and, on February 1, 2002, this Court affirmed McNabb's death sentence. See McNabb v. State, [Ms. CR-98-0967, February 1, 2002] ___ So.2d ___ (opinion on return to remand).

While this case was pending on rehearing, the United States Supreme Court issued its opinion in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002). We then gave McNabb and the State an opportunity to file supplemental briefs addressing the impact of Ring on this case. All but one of McNabb's arguments regarding Ring have been decided adversely to him in previous cases. See Ex parte Waldrop, [Ms. 1001194, November 22, 2002] ___ So.2d ___ (Ala. 2002); Duke v. State, [Ms. CR-98-1218, May 31, 2002; March 21, 2003] ___ So.2d ___ (Ala.Crim.App. 2002) (opinion on return to remand); Clark v. State, [Ms. CR-99-1062, December 1, 2000; February 28, 2003] ___ So.2d ___ (Ala.Crim.App. 2000) (opinion on return to remand); Stallworth v. State, [Ms. CR-98-0366, September 28, 2001; March 1, 2002; January 31, 2003] ___ So.2d ___ (Ala.Crim.App. 2001) (opinion on return to second remand); Turner v. State, [Ms. CR-99-1568, November 22, 2002] ___ So.2d ___ (Ala.Crim.App. 2002); and Tomlin v. State, [Ms. CR-98-2126, November 22, 2002] ___ So.2d ___ (Ala.Crim.App. 2002) (opinion on rehearing). We need not address those arguments again here.

However, one argument unique to this case must be addressed. McNabb argues that the two counts of capital murder for which he was convicted — murder of a police officer and murder of a person in a vehicle — have no corresponding aggravating circumstances in § 13A-5-49, Ala. Code 1975, and that it cannot be determined from the record which, if any, aggravating circumstances the jury unanimously found to exist beyond a reasonable doubt. Because the record does not indicate that the jury unanimously found an aggravating circumstance to exist beyond a reasonable doubt, McNabb concludes, his sentence of death was imposed in violation of Ring. In response, the State argues that the jury's guilt-phase verdict finding McNabb guilty of the capital murder of a police officer necessarily included a finding of two aggravating circumstances — that "[t]he capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody," § 13A-5-49(5), and that "[t]he capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws," § 13A-5-49(7). Because the jury unanimously found the existence of two aggravating circumstances by virtue of its guilt-phase verdict, the State says, Ring was not violated.

We agree with McNabb that the jury's guilt-phase verdict finding him guilty of the capital murder of a police officer did not include a finding of any of the aggravating circumstances in § 13A-5-49. In Ex parte Waldrop, supra, the Alabama Supreme Court recognized that "[m]any capital offenses listed in Ala. Code 1975, § 13A-5-40, include conduct that clearly corresponds to certain aggravating circumstances found in § 13A-5-49." ___ So.2d at ___. In those cases in which the capital offense includes conduct that corresponds to an aggravating circumstance, the jury's guilt-phase verdict necessarily includes a finding of the corresponding aggravating circumstance, see § 13A-5-45(e), and Ring's requirement that the jury determine the existence of the "aggravating circumstance necessary for imposition of the death penalty," has been fulfilled. Ring, 536 U.S. at ___, 122 S.Ct. at 2443.

However, contrary to the State's contention, the capital murder of a police officer under § 13A-5-40(a)(5) does not necessarily include conduct that corresponds with the aggravating circumstances in § 13A-5-49(5) and (7). Section 13A-5-40(a)(5) provides, in pertinent part, that the "[m]urder of any police officer . . . while such officer . . . is on duty, regardless of whether the defendant knew or should have known the victim was an officer . . . on duty, or because of some official or job-related act or performance of such officer . . . ." is a capital crime. The murder of a police officer does not have to be "for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody," § 13A-5-49(5), or "to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws," § 13A-5-49(7), for the murder to be capital under § 13A-5-40(a)(5). Therefore, a jury's verdict finding a defendant guilty of capital murder under § 13A-5-40(a)(5) does not include a finding of either of the aggravating circumstances in § 13A-5-49(5) or (7). Although in this case, the evidence presented by the State during the guilt phase of the trial was sufficient to establish that the murder in this particular case was, in fact, committed for the purpose of avoiding or preventing a lawful arrest and to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws, because the jury was not required during the guilt-phase to even consider those factors we cannot consider its guilt-phase verdict to include a finding as to those factors.

However, merely because the jury's guilt-phase verdict did not include a finding of an aggravating circumstance does not mean that the jury did not unanimously find the existence of an aggravating circumstance. The jury recommended, by a vote of 10-2, that McNabb be sentenced to death. During the sentencing phase of the trial, the jury was instructed on three aggravating circumstances: (1) that McNabb knowingly created a great risk of death to many persons, see § 13A-5-49(3); (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest, see § 13A-5-49(5); and (3) that the murder was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws, see § 13A-5-49(7). With respect to the finding of any of the three aggravating circumstances, the trial court instructed the jury, in pertinent part, as follows:

"Now, as I stated to you before, the burden of proof is on the State toconvince each of you beyond a reasonable doubt as to the existence of any aggravating circumstance considered by you in determining what punishment is to be recommended in this case. This means that before you can even consider recommending that the defendant's punishment should be death,each and every one of you must be convinced beyond a reasonable doubt based on the evidence that at least one or more of the aggravating circumstances exist. In deciding whether the State has proven beyond a reasonable doubt the existence of any given aggravating circumstance, you should bear in mind, and I will repeat again, the definition I gave to you as to reasonable doubt.

"The evidence upon which a reasonable doubt about an aggravating circumstance may be based — is both the evidence you heard in the guilt stage of this trial and the evidence you have heard in this sentencing hearing. The defendant does not have to disprove anything about an aggravating circumstance. The burden is wholly upon the State to prove such a circumstance beyond a reasonable doubt. A reasonable doubt about an aggravating circumstance may arise from all of the evidence, from any part of the evidence, or from a lack or failure of the evidence. You may not consider any aggravating circumstance other than the three aggravating circumstances upon which I have instructed you. Andyou may not consider an aggravating circumstance unless you are convinced beyond a reasonable doubt of the existence of that aggravating circumstance in this case."

(R. 2599-2601.) (Emphasis added.) These instructions are materially identical to those set out in the Proposed Pattern Jury Instructions for Use in the Sentence Stage of Capital Cases Tried Under Act No. 81-178.

When read as a whole in conjunction with the other instructions given by the trial court at the sentencing phase, these instructions were sufficient to convey to the jury that it must unanimously find the existence of any aggravating circumstance beyond a reasonable doubt before it could consider that circumstance in determining what sentence to recommend. As this Court noted in Moody v. State, [Ms. CR-96-0994, April 18, 2003] ___ So.2d ___ (Ala.Crim.App. 2003):

"The fact that the jury's deliberations yielded a vote whether to impose the death penalty — where the jury had been instructed that it could not proceed to a vote unless it first unanimously found the existence of at least one aggravating circumstance — establishes that the jury unanimously found that at least one aggravating circumstance existed. For purposes of Ring, the jury's unanimous finding of at least one aggravating circumstance — regardless of which aggravating circumstance that was — rendered Moody eligible for a sentence of death. In this context, the fact of the jury's vote, rather than the actual vote tally following the jury's weighing process, is the telling circumstance. As the State asserts in its supplemental brief:

"'Whether all twelve jurors find that the aggravating circumstances outweigh the mitigating circumstances or only one juror does, it is the vote itself by the jury on the relative weight of these circumstances that makes the trial court aware whether the jury has unanimously found beyond a reasonable doubt that an aggravating circumstance exists.'

"(State's supplemental brief at pp. 18-19.)"

___ So.2d at ___.

As in Moody, the fact that the jury voted on whether to recommend the death penalty indicates that it unanimously found the existence of at least one aggravating circumstance beyond a reasonable doubt. Because the jury did, in fact, unanimously find the existence of an aggravating circumstance beyond a reasonable doubt, Ring was complied with in this case.

McNabb also presents an additional argument in his supplemental brief that does not involve Ring and that was not presented in his initial brief on appeal or in his application for rehearing: citing Ex parte Bryant, [Ms. 1990901, June 21, 2002] ___ So.2d ___ (Ala. 2002), he argues that the trial court's sentencing-phase instructions improperly suggested to the jury that it "could not recommend a sentence of life without the possibility of parole instead of death unless the mitigating circumstances outweighed the aggravating circumstances." (McNabb's supplemental brief at p. 23.) In our opinion on return to remand, we reviewed the sentencing phase of McNabb's trial and found no plain error, that is, no error adversely affecting his substantial rights. However, because that review was conducted before the Alabama Supreme Court's opinion in Ex parte Bryant, out of an abundance of caution, we have again reviewed the sentencing phase, including the trial court's instructions, and we again conclude that no plain error occurred.

The trial court's instructions in this case did not contain the egregious improprieties that the instructions in Ex parte Bryant did, and we conclude that this case is controlled by Ex parte Trawick, 698 So.2d 162 (Ala. 1997), which the Supreme Court distinguished in Ex parte Bryant. We have reviewed the record in Ex parte Trawick, and we find that the instructions that were specifically approved by the Supreme Court in that case, and that were reaffirmed by the Supreme Court in Ex parte Bryant, are materially identical to the instructions given in this case. Based on the Supreme Court's opinion in Ex parte Trawick upholding identical instructions, we find no plain error in the instructions in this case; taken as a whole, the instructions in this case did not improperly suggest to the jury "that the death penalty [was] appropriate even if the aggravating circumstances [did] not outweigh the mitigating circumstances so long as the mitigating circumstances [did] not outweigh the aggravating circumstances." Ex parte Bryant, ___ So.2d at ___ (emphasis omitted).

Based on the foregoing, we find no reason to disturb our earlier holding affirming McNabb's capital-murder convictions and his sentence of death. Therefore, McNabb's application for rehearing is overruled.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. COBB, J. concurs specially, with opinion.

COBB, Judge, concurring specially.

I concur with the majority's denial of McNabb's application for rehearing in this case. I write specially only to comment on the jury instructions regarding the finding of aggravating circumstances — Issue I of the opinion on application for rehearing. I believe that the instructions quoted in the opinion are minimally sufficient. The jury was told that the burden of proof was on the State "to convince each of you beyond a reasonable doubt as to the existence of any aggravating circumstance considered by you . . . ." Although the instructions did not use the term "unanimous," which is a term laymen can readily understand, I believe that the instructions conveyed to the jurors that they were required to unanimously find the existence of any aggravating circumstance beyond a reasonable doubt before they could consider that circumstance in determining the sentencing recommendation. Therefore, the instructions complied with Ring v. Arizona, 536 U.S. 584 (2002).

However, a better jury instruction could have been given — an instruction that more clearly articulated the requirement that the jurors unanimously find the existence of an aggravating circumstance before they consider that circumstance in their sentencing determination. A more complete jury instruction was quoted by this Court in Moody v. State, [Ms. CR-96-0994, April 18, 2003] ___ So.2d ___ (Ala.Crim.App. 2003). That jury charge included the following instruction:

"'In order to consider an aggravating circumstance, it is necessary that the jury unanimously agree upon its existence. All twelve jurors must be convinced beyond a reasonable doubt and to a moral certainty that an aggravating circumstance exists in order for any of you to consider that aggravating circumstance in determining what the sentence should be.'"

___ So.2d at ___.

The addition of the foregoing instruction to the pattern jury instruction on aggravating circumstance findings would, I believe, more clearly define the unanimity requirement discussed in Ring, and would diminish the concerns regarding juror unanimity.

This special writing is in no way intended to criticize the able trial judge in this case. The judge charged the jury in accordance with the pattern jury instructions for capital cases as recommended by the Alabama Supreme Court. However, in light of Ring, the Alabama Supreme Court could modify the pattern jury instructions with regard to the unanimity requirement to clarify that portion of the instruction for jurors, and ensure that Alabama's jury instructions in capital cases fully comply with Ring.