Opinion
CR-13-0623
07-13-2018
Cedric Jerome Floyd v. State of Alabama
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. Appeal from Escambia Circuit Court
(CC-11-247)
On Return to Remand
KELLUM, Judge.
On July 7, 2017, this Court remanded this case to the trial court for it to correct a deficiency in its order sentencing Cedric Jerome Floyd to death. We held that the trial court had failed to comply with the requirement in former § 13A-5-47(d), Ala. Code 1975, that it "enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49" because it had failed to make findings of fact regarding the aggravating circumstance that the murder of Tina Jones was especially heinous, atrocious, or cruel when compared to other capital offenses. We directed the trial court to correct its sentencing order to include those findings and, if necessary, to reweigh the aggravating circumstances and the mitigating circumstances and to resentence Floyd. On January 29, 2018, the trial court issued an amendment to its sentencing order that complies with the statutory requirements, and we permitted the parties to file supplemental briefs on return to remand.
Sections 13A-5-45, 13A-5-46, and 13A-5-47 were amended by Act No. 2017-131, Ala. Acts 2017, to eliminate judicial override and to place the final sentencing decision in the hands of the jury. The amendment to § 13A-5-47 removed the requirement that the trial court make written findings. However, that Act does not apply retroactively to Floyd. See § 2, Act No. 2017-131, Ala. Acts 2017, codified at § 13A-5-47.1, Ala. Code 1975. --------
In our opinion remanding this case to the trial court, we addressed all the issues raised by Floyd regarding the guilt phase of his trial and the penalty phase of his trial, and we reviewed the record of the guilt phase for plain error. We found no plain error or defect in the guilt phase of the proceedings, and we affirmed Floyd's conviction for murder made capital because it was committed during the course of a burglary. See § 13A-5-40(a)(4), Ala. Code 1975. We pretermitted discussion of Floyd's remaining issues and our plain-error review of Floyd's death sentence. We now address those issues, as well as the issues Floyd raises in his supplemental brief on return to remand.
I.
Floyd contends that the trial court's findings in its sentencing order regarding mitigating circumstances were erroneous in three respects. (Issue X in Floyd's initial brief; Issue III in Floyd's brief on return to remand.) Floyd did not present these claims to the trial court; therefore, we review them under the plain-error rule. See Rule 45A, Ala. R. App. P.
First, Floyd argues that the trial court did not mention in its sentencing order the following mitigating evidence he presented at the sentencing hearing: that he was sexually abused when he was a child; that he suffered multiple head traumas during his life that may have resulted in frontal lobe damage; and that his IQ dropped from 109 as a child to 82 as an adult. According to Floyd, the trial court's failure to mention this evidence in its sentencing order indicates that the court failed to consider the evidence. We disagree.
"A sentencer in a capital case may not refuse to consider or be 'precluded from considering' mitigating factors." Williams v. State, 710 So. 2d 1276, 1347 (Ala. Crim. App. 1996), aff'd, 710 So. 2d 1350 (Ala. 1997) (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)). "[T]he United States Supreme Court has held that a sentencing authority must consider all evidence offered as mitigating, that is, 'any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Woodward v. State, 123 So. 3d 989, 1033 (Ala. Crim. App. 2011) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). "'While Lockett[ v. Ohio, 438 U.S. 586 (1978),] and its progeny require consideration of all evidence submitted as mitigation, whether the evidence is actually found to be mitigating is in the discretion of the sentencing authority.'" Ex parte Slaton, 680 So. 2d 909, 924 (Ala. 1996) (quoting Bankhead v. State, 585 So. 2d 97, 108 (Ala. Crim. App. 1989), remanded on other grounds, 585 So. 2d 112 (Ala. 1991), aff'd on return to remand, 625 So. 2d 1141 (Ala. Crim. App. 1992), rev'd, 625 So. 2d 1146 (Ala. 1993)). "The fact that the trial court does not list and make findings in its sentencing order as to each alleged nonstatutory mitigating circumstance offered by a defendant indicates that the trial court found some of the offered evidence not to be mitigating, not that the trial court did not consider this evidence." Reeves v. State, 807 So. 2d 18, 48 (Ala. Crim. App. 2000). It is "settled law that 'the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating.'" Ex parte Ferguson, 814 So. 2d 970, 979 (Ala. 2001) (quoting Williams, supra, at 1347).
In this case, it is clear from the record that the trial court properly considered all the evidence Floyd presented in mitigation. The trial court did not limit or restrict Floyd as to the evidence he presented or the arguments he made regarding mitigating circumstances. In its sentencing order, the trial court addressed each statutory mitigating circumstance listed in § 13A-5-51, Ala. Code 1975, and it determined that none of those circumstances existed under the evidence presented. The trial court also stated that it had considered the testimony of the four witnesses Floyd called to testify at the sentencing hearing and that it had reviewed the multiple exhibits that Floyd had introduced into evidence, and it concluded that no nonstatutory mitigating circumstances existed under § 13A-5-52, Ala. Code 1975. Although the trial court did not mention each nonstatutory mitigating circumstance offered by Floyd, it was not required to do so, and the trial court's not mentioning each nonstatutory mitigating circumstance offered by Floyd indicates only that the trial court found the offered evidence not to be mitigating, not, as Floyd argues, that the trial court did not consider the evidence.
Second, Floyd argues that the trial court erred in not finding as nonstatutory mitigating circumstances that he had a difficult childhood and that he struggled with substance abuse. According to Floyd, once he interjected his difficult childhood and substance abuse as mitigating circumstances, and those circumstances went unrefuted by the State, the trial court was required to find their existence. We disagree. "[A]lthough a trial court is required to consider all evidence proffered as mitigation, a trial court is not required to find that a mitigating circumstance exists simply because evidence is proffered to the trial court in support of that circumstance." Phillips v. State, [Ms. CR-12-0197, December 18, 2015] ___ So. 3d ___, ___ (Ala. Crim. App. 2015) (opinion on return to remand) (emphasis added). As this Court explained in Largin v. State, 233 So. 3d 374 (Ala. Crim. App. 2015):
"Section 13A-5-45(g), Ala. Code 1975, provides that, '[w]hen the factual existence of an offered mitigating circumstance is in dispute, the defendant shall have the burden of 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 United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), held that a circuit court must consider all evidence offered in mitigation when determining a capital defendant's sentence. However, a defendant's proffer of evidence in support of a mitigating circumstance does not require the trial court to find that the mitigating circumstance exists. Rather, the trial court, after considering all proffered mitigating evidence, has the discretion to determine whether a particular mitigating
circumstance has been proven. E.g., Carroll v. State, 215 So. 3d 1135 (Ala. Crim. App. 2015); Albarran v. State, 96 So. 3d 131, 213 (Ala. Crim. App. 2011).233 So. 3d at 424.
In its sentencing order, the trial court thoroughly explained why it found that Floyd's difficult childhood and his struggles with substance abuse were not mitigating:
"The Court has paid close attention to this allegation that [Floyd] had a bad childhood and the apparent suggestion that such situation should carry weight with this Court's decision. The testimony of [Floyd's] grandmother, Ms. Alma Rose, has given the Court the best understanding about [Floyd's] childhood and upbringing. [Floyd's] mother did not raise him nor did he, until after his arrest in this case, have any contact with his biological father. He was raised by his grandmother who had custody of him after his mother's inability to parent became apparent to the Conecuh County, Alabama, Department of Human Resources. The grandmother was apparently given legal custody of [Floyd] when he was less than a year old. The grandmother testified very strongly. [Floyd] did not grow up rich, as in money. However, [Floyd's] grandmother did not put up with wrongdoing and did her best to provide [Floyd] with a warm and loving Christian home, clothing, and food. [Floyd] was a good student in elementary school and the grandmother even enrolled [Floyd] in piano lessons. As he grew older, she did her best to see that he got an education and even pushed him to get his GED. She was very proactive in trying to get him help in regard to his wrong doing as a teenager. Obviously, there were insecurities in [Floyd's] childhood regarding his looks, etc., but no adult person can ever say that they did not have insecurities as a child. The
Court is satisfied that [Floyd's] young life and the insecurities suffered by [him] were not of such a degree that they rise to a level of mitigating [Floyd's] conduct in committing capital murder.(C. 2253-54.) The court's findings regarding Floyd's childhood and substance abuse are supported by the record. As already noted, it is clear that the trial court properly considered all the evidence presented by Floyd in mitigation. Whether that evidence was, in fact, mitigating, was within the discretion of the trial court.
"The issue of substance abuse was raised especially through the testimony of Robert Brewer, who had been drug testing [Floyd] for a little over a month before the murder occurred. [Floyd] was in a phase one outpatient, color coded, drug treatment program through Southwest Alabama Mental Health for whom Mr. Brewer worked. It was very clear from Mr. Brewer's testimony that [Floyd] did abuse cocaine. He did test positive for cocaine on at least two occasions during the month before the murder, but had also tested negative on at least one sampling. However, Mr. Brewer's report and testimony clearly indicated that even though [Floyd] did use cocaine he was nevertheless attentive, focused, and denied that he had a problem with it but that he just liked to get high sometimes. The Court is very satisfied that even given [Floyd's] involvement with the drug culture, he was much in control of himself and that his drug 'dependency' was minor and actually not controlling in the events of this murder. This Court conclude[s] that his drug usage is not a mitigating factor in this case."
Third, Floyd argues that, in refusing to find his substance abuse to be a mitigating circumstance, the trial court improperly required a causal connection between his substance abuse and the murder. In Stanley v. State, 143 So. 3d 230 (Ala. Crim. App. 2011) (opinion after remand by the Alabama Supreme Court), this Court addressed a similar issue:
"Stanley argues that the trial court's statement that there was 'no credible evidence that any of these factors influenced the commission of the crime [Stanley] committed' (RTR C. 218) conflicts with Tennard v. Dretke, 542 U.S. 274, 287, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and Smith v. Texas, 543 U.S. 37, 45, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004). We disagree.
"In Tennard, the United States Supreme Court addressed a 'threshold "screening test"' applied by the United States Court of Appeals for the Fifth Circuit to a claim alleging that a particular capital-sentencing scheme provided an inadequate vehicle to consider mitigating evidence under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (a 'Penry claim'). Under the Fifth Circuit's test, the court initially determined whether the particular evidence was 'constitutionally relevant'; if the evidence was not 'constitutionally relevant,' the court would not review a Penry claim. The United States Supreme Court held that the Fifth Circuit's 'screening test' was unconstitutional.
"In Stanley's case, the trial court's statement that there was 'no credible evidence that any of these factors influenced the commission of the crime [Stanley] committed' is not in conflict with Tennard or Smith. The trial court's amended sentencing
order makes clear that it considered all the evidence offered by Stanley, including his family circumstances, his background, and his behavior since being incarcerated. As discussed above, however, the trial court concluded that this evidence, under the particular circumstances, was not mitigating because (1) Stanley's sisters faced the same difficult family background but went on to live successful lives, and (2) as the mitigation specialist testified, many individuals come from bad family backgrounds but do not commit capital murder. (RTR C. 215.) With that context in mind -- i.e., having already determined that those facts were not mitigating in Stanley's case -- the trial court later noted that Stanley had not offered any 'credible evidence that any of these factors influenced the commission of the crime [Stanley] committed.' Thus, the trial court's statement, even assuming Stanley's reading of Tennard and Smith is correct, does not indicate that the trial court applied a 'relevance' test in conflict with Tennard or Smith."143 So. 3d at 331-32.
Similarly, here, nothing in the trial court's sentencing order indicates that it applied a "relevance" test before considering the evidence offered by Floyd regarding his substance abuse. The court's finding that Floyd's substance abuse "was minor and actually not controlling in the events of this murder" does not indicate, as Floyd apparently believes, that the court placed on him the burden of establishing that his substance abuse caused the murder in order for that evidence to be a relevant consideration in sentencing. This Court has recognized that "drug abuse may or may not be considered a mitigating circumstance, depending on the facts." Luong v. State, 199 So. 3d 173, 228 (Ala. Crim. App. 2015) (citations and internal quotation marks omitted). See Riley v. State, 166 So. 3d 705, 728-29 (Ala. Crim. App. 2013) (holding that the trial court did not err in refusing to find a defendant's drug addiction to be a mitigating circumstance where the evidence indicated that the defendant was not under the influence of drugs at the time of the murder). The court's findings make clear that it considered the evidence of Floyd's substance abuse but found that it did not rise to the level of a mitigating circumstance under the particular facts and circumstances in this case, because, although Floyd "liked to get high," he did not actually have a problem with substance abuse. As already explained, "[t]he circuit court must consider evidence offered in mitigation, but it is not obliged to find that the evidence constitutes a mitigating circumstance." Calhoun v. State, 932 So. 2d 923, 975 (Ala. Crim. App. 2005).
For the reasons stated above, we find no error, much less plain error, in the trial court's findings regarding the mitigating circumstances proffered by Floyd.
II.
Floyd contends that the trial court erred in finding that the murder was especially heinous, atrocious, or cruel when compared to other capital offenses because, he says, the State failed to prove that Jones suffered for any appreciable amount of time after she was shot or that she endured any psychological torture. (Issue IX in Floyd's initial brief; Issues I and II in Floyd's brief on return to remand.) Because Floyd did not present these claims to the trial court, we review them under the plain-error rule. See Rule 45, Ala. R. App. P.
In Ex parte Kyzer, 399 So. 2d 330, 334 (Ala. 1981), abrogated on other grounds by Ex parte Stephens, 982 So. 2d 1148 (Ala. 2006), the Alabama Supreme Court held that the especially heinous, atrocious, or cruel aggravating circumstance is limited "to only those conscienceless or pitiless homicides which are unnecessarily torturous to the victim." Subsequently, in Ex parte Clark, 728 So. 2d 1126, 1140-41 (Ala. 2004), the Alabama Supreme Court reiterated that "[w]e cannot depart from the established meaning of the words enacted by the Legislature -- 'especially heinous, atrocious or cruel' -- and apply those words to include murders that do not involve the infliction of torture on the victim." In Norris v. State, 793 So. 2d 847, 854-62 (Ala. Crim. App. 1999), this Court recognized three factors that are indicative that a capital offense was especially heinous, atrocious, or cruel: (1) the infliction on the victim of physical violence beyond that necessary or sufficient to cause death; (2) appreciable suffering by the victim after a swift assault that ultimately resulted in death; and (3) the infliction of psychological torture on the victim. Under all three factors, "the critical inquiry" is whether the victim was "conscious or aware" for "an appreciable lapse of time, sufficient enough to cause prolonged suffering." Norris, 793 So. 2d at 854-61.
In its sentencing order, the trial court set forth the following pertinent facts regarding the crime and Floyd's participation in it:
"In the early morning of January 2, 2011, while the victim was in her bed there is convincing evidence that [Floyd], who had come to her house dressed in a dark hoodie, jumped through her bedroom
window with a .38 caliber revolver he had just acquired by selling his car, and that he shot the victim in the back as she was trying to escape from him. The victim dropped to her knees and [Floyd], while standing over the victim, shot her ... execution style with the bullet entering in at the bridge of her nose, with the picture of the said wound (which said picture is in evidence) showing the shot to be in the bridge of her nose just below the center of her eyes. This shot knocked out many of her teeth and went through the upper and lower jaw. There was convincing evidence that this shot was at very close range. Evidence indicates that this shot may not have been fatal. The third shot to the victim occurred when the gun was pressed very hard to the back of her head and literally blew out part of her brains with this shot along with the others causing death."(C. 2247-48.) In the amendment to its sentencing order, the trial court summarized the testimony from trial regarding the domestic abuse that plagued Floyd and Jones's relationship, the testimony from trial regarding threatening text messages Floyd sent to Jones's daughter in the hours before the murder, and the testimony from trial regarding Jones's two trips to the police department in the hours before the murder. The court then concluded:
"The Court finds that in the days leading up to her death, Jones was already fearful for her life and safety due to a history of domestic violence with Floyd. She had recently broken up with him and wanted him to leave her alone. She was so fearful of Floyd that on December 31, 2010, just two days before her death, she did not stay in her own home.
On January 1, 2011, Jones went to the police department to report that Floyd had broken into her home on December 31, 2010, and [had] stole[n] her cell phone. She wanted the police department to issue a restraining order against Floyd. She returned to the police department later in the day on January 1, 2011, just hours before she was killed to report that Floyd had been sending threatening text messages to her daughter. She refused to file charges against Floyd because of fear. She told Officer Stallworth that she had heard that Floyd was going to kill her and then himself. Jones decided to stay in her home after assurance from Officer Stallworth that the police would keep close patrol of her home during the night. The evidence established that Jones was asleep in her bed when Floyd, armed with a pistol, jumped through her bedroom window shortly after midnight on January [2], 2011. Physical and forensic evidence showed that Jones tried to run from Floyd after he jumped through her bedroom window. She was shot in the back and was found lying face down in a pool of blood in the hallway outside of her bedroom. Her blood was found in the hallway, the doorway of the bathroom and not in her bedroom. She was also shot in the bridge of the nose and the back of the head. The medical examiner testified that all three of the wounds were individually survivable. The court finds that the fear endured by Jones at the hands of Floyd raises this capital murder to a conscienceless and pitiless crime that was unnecessarily tortuous to Jones."(Record on Return to Remand, C. 250-51.)
Relying heavily on Ex parte Clark, supra, which he says is "factually indistinguishable" from this case (Floyd's brief, p. 66), Floyd argues that the trial court's finding that each of the gunshot wounds was individually survivable is contradicted by the testimony at trial, that there was no evidence presented indicating the order in which the three shots were fired, and that the trial court's finding that Jones was first shot in the back while running away from Floyd in fear, then shot in the face, and then shot in the back of the head is based on pure speculation. According to Floyd, the evidence indicated that each of the gunshot wounds was fatal -- he says that Jones died from "sudden and instantaneously fatal gunshot wounds" -- and that Jones was not conscious and aware for a sufficiently appreciable amount of time to make the murder especially, heinous, atrocious or cruel. (Floyd's brief on return to remand, p. 20.) Floyd also argues that his history of domestic violence toward Jones and the events of the two days leading up to the murder, while "problematic and reproachable," were "relatively minor" and do not support the trial court's finding that Jones feared for her life and endured psychological torture and that the trial court erred in relying on statements Jones made in the hours before the murder about her fear of Floyd to find that Jones suffered psychological torture when, he says, those statements were introduced into evidence in violation of his right to confrontation. (Floyd's brief on return to remand, pp. 18-19.)
We agree with Floyd that the trial court's statement in the amendment to its sentencing order that each of the three gunshot wounds was individually survivable was erroneous, but not for the reason advanced by Floyd. Floyd argues that the statement was incorrect because, he says, Dr. John Lentz, the emergency-room physician who pronounced Jones dead on arrival at the hospital, testified that all the wounds were individually fatal. Although Floyd is correct that Dr. Lentz initially testified that he believed all the wounds to Jones were individually fatal, he later testified, as did Dr. Eugene Hart, the forensic pathologist who performed the autopsy on Jones, that the wound on Jones's upper left chest was likely survivable. In addition, Dr. Lentz testified that he believed the gunshot wound he saw on Jones's face was the result of a bullet that entered the bridge of her nose and exited through the back of her head, which would have been fatal, had that been the trajectory of the bullet. However, Dr. Hart testified that the shot to the bridge of Jones's nose was downward, that the bullet lodged in Jones's lower jaw, and that the shot was likely survivable. Nonetheless, Dr. Hart did testify that the shot to the back of Jones's head was likely fatal; therefore, the court's statement that all three wounds were individually survivable was incorrect. However, the court's misstatement does not warrant reversal of its judgment because, even though the wound to the back of Jones's head was fatal, the evidence established that the other two wounds were not, and the court's findings regarding the order of those wounds is supported by the evidence.
In Ex parte Clark, supra, the evidence indicated that the defendant and the victim were stopped on the side of the road, and the victim was standing facing away from the defendant's automobile when the defendant got a rifle out of the trunk of the car and shot the victim in the back of the head. The victim immediately fell to the ground and the defendant shot the victim five more times, three times in the back and two times in the head. The Alabama Supreme Court held that the trial court had erred in finding that the murder was especially heinous, atrocious, or cruel. The Court recognized that it had previously upheld the application of the heinous, atrocious, or cruel aggravating circumstance to "'execution style' murders," but noted that it had only done so when the evidence indicated that "the victims were aware of what was happening to them." 728 So. 2d at 1139. Because there was no evidence, and no reasonable inference from the evidence, that the victim was aware of his impending death or that he remained conscious after the first shot, the Court concluded, the murder did not fall within the "narrow interpretation of the phrase 'especially heinous, atrocious or cruel.'" 728 So. 2d at 1141.
In this case, unlike in Ex parte Clark, although there was no direct evidence indicating that Jones was conscious or aware during the attack or of the order of the shots, there was evidence from which a reasonable inference could be made that Jones was conscious and aware during the attack and that she was shot first in the back, then in the face, and then in the back of the head. The evidence indicated that at 11:00 p.m. Jones was asleep in her bed and that sometime between then and 12:45 a.m., when Jones's daughter first telephoned emergency 911, Floyd jumped through Jones's bedroom window brandishing a revolver, breaking glass and damaging the blinds in the process. Whether Jones was in bed asleep, or awake and in the hallway outside her bedroom where she was later found, as Floyd posits, there can be no doubt that the noise Floyd made when jumping through the window alerted Jones to his presence. The evidence indicated that Floyd shot Jones three times. One bullet, fired from an indeterminate range, entered Jones's upper left back and exited her left front chest, thus indicating that Jones was facing away from Floyd at the time of the shot, and a fragment of that bullet was found on the floor in the hallway. Another bullet, fired from within 12 inches of Jones, entered the bridge of Jones's nose, traveled directly downward through Jones's upper jaw and lodged in Jones's lower jaw, thus indicating that the shot was fired from above Jones. The third bullet entered the back of Jones's head and was a "hard contact gunshot wound," meaning that the gun was pressed firmly against the back of Jones's head when it was fired. (R. 2921.) From this evidence, and the other evidence presented at trial as set forth fully in our opinion on original submission, it can reasonably be inferred that Jones, after being alerted to Floyd's presence, was attempting to flee from Floyd as he fired at her, hitting her in the upper left back. After Jones fell from the impact of the shot and was lying helpless on the floor, Floyd approached her, stood over her, and shot her a second time through the bridge of her nose. After Jones collapsed from this second shot, Floyd then pressed the gun firmly against the back of Jones's head and fired one more shot -- the fatal shot -- to ensure Jones's death.
"When a defendant deliberately shoots a victim in the head in a calculated fashion, after the victim has already been rendered helpless by [prior] gunshots ..., such extremely wicked or shockingly evil action may be characterized as especially heinous, atrocious, or cruel." Hardy v. State, 804 So. 2d 247, 288 (Ala. Crim. App. 1999) (citations and internal quotation marks omitted), aff'd, 804 So. 2d 298 (Ala. 2000). "[E]xecution-type slayings, evidencing a cold, calculated design to kill, fall into the category of murders that are 'especially heinous, atrocious or cruel,'" Ex parte Key, 891 So. 2d 382, 391 (Ala. 2004), as long as "the victims were aware of what has happening to them." Ex parte Clark, 728 So. 2d at 1139. This is so because "evidence as to the fear experienced by the victim before death is a significant factor in determining the existence of the aggravating circumstance that the murder was especially heinous, atrocious, or cruel." Ex parte Reiber, 663 So. 2d 999, 1003 (Ala. 1995). In this case, there was evidence from which it could reasonably be inferred that Jones was conscious and aware during the attack and that she feared for her life.
In addition, there was ample evidence that Jones was afraid of Floyd in the days, and even months, before the attack, and that fear is, contrary to Floyd's apparent belief, highly relevant in determining whether the murder was especially heinous, atrocious, or cruel. As this Court explained in Russell v. State, [Ms. CR-10-1910, May 29, 2015] ___ So. 3d ___ (Ala. Crim. App. 2015), judgment vacated on other grounds by Russell v. Alabama, 580 U.S. ___, 137 S.Ct. 158 (2016):
"To determine whether [the] murder was especially heinous, atrocious, or cruel as compared to other capital murders, we must consider the entire chain of events that led to [the victim's] death. '[A] murder is not rendered especially heinous, atrocious, or cruel merely by the specific method in which a victim is killed, but by the entire set of circumstances surrounding the killing.' State v. Tirado, 358 N.C. 551, 595, 599 S.E.2d 515, 544 (2004). 'In evaluating the brutality and heinousness of a defendant's conduct, the entire spectrum of facts surrounding the given incident must be analyzed and evaluated.' People v.
McGee, 121 Ill. App. 3d 1086, 1089, 77 Ill. Dec. 539, 542, 460 N.E.2d 843, 846 (1984)."___ So. 3d at ___.
For example, in Ex parte Key, supra, the defendant stalked the victim, his ex-wife, for almost two years after their divorce, and was convicted of aggravated stalking just one day before he murdered the victim. The evidence indicated that, after a car chase that resulted in the victim's car being driven into a ditch, the defendant approached the car and shot the victim multiple times. The Alabama Supreme Court upheld the trial court's finding that the murder was especially heinous, atrocious, or cruel, relying in part on the fact that the victim suffered psychological torture for an appreciable amount of time, not only because she was aware of the defendant's intent to kill her during and after the car chase and remained conscious after she was shot, but also because she was aware of the defendant's propensity for violence and had been afraid of the defendant and feared for her life even before the car chase.
In Ex parte Reiber, supra, the defendant stalked the victim, a convenience-store clerk, for several days before he walked into the store where she was working and shot her during a robbery. The Alabama Supreme Court upheld the trial court's finding that the murder was especially heinous, atrocious, or cruel, not only because the victim was alive when she was found by a customer shortly after the shooting, but also because the evidence indicated that the victim had been aware of the defendant's presence while he was stalking her and had been afraid of him.
In this case, the evidence indicated that Floyd and Jones had been in a relationship in the year leading up to the murder that was plagued by domestic violence, that Jones had recently ended the relationship, that Floyd would not leave her alone, and that Jones was afraid of Floyd in the days before she was murdered. Assuming, as Floyd argues, that the trial court erred in relying on statements Jones made to police to support its finding that Jones was afraid of Floyd, that error was harmless for the same reason we found the admission of those statements to be harmless in our opinion on original submission -- the statements were largely cumulative to the ample other evidence presented that showed Jones's fear of Floyd.
Given Floyd's history of domestic violence, it can be reasonably inferred that Jones was keenly aware of Floyd's propensity for violence. In addition, both Lakeshia Finley, Jones's cousin, and Sarah Marshall, who lived with Jones, testified that Jones was afraid of Floyd. Marshall testified that Jones was so afraid of Floyd in the five months before her death that Jones appeared "sick," "couldn't eat," "couldn't sleep," and was afraid to stay at her own house, and evidence was presented that only 24 hours before her death, Jones, in fact, took her children and stayed the night at her aunt's house because she was afraid of Floyd. (R. 2689.) There was also evidence indicating that the night Jones stayed with her aunt, the night before her murder, Floyd broke into Jones's house, and that, in the hours leading up to the murder, Floyd sent threatening text messages to Jones's daughter. There can be no doubt that Floyd's actions only intensified Jones's fear. In addition, although Jones twice went to the police department in the hours before her murder to report Floyd, Jones did not file a complaint either time, which also indicates how intensely frightened of Floyd she was. Simply put, the evidence amply supports the trial court's finding that, in the days leading up the her death, Jones feared for her life and safety and suffered psychological torture.
Therefore, we find no error, plain or otherwise, in the trial court's finding that the murder was especially heinous, atrocious, or cruel when compared to other capital offenses.
III.
As noted above, on original submission, we examined the record for any plain error or defect with respect to the guilt phase of Floyd's trial in accordance with Rule 45A, Ala. R. App. P.; we found none and we affirmed Floyd's conviction for murder made capital because it was committed during the course of a burglary.
We now review Floyd's sentence in accordance with § 13A-5-53(a), Ala. Code 1975, which requires that we determine whether any error adversely affecting Floyd's rights occurred in the sentence proceedings; whether the trial court's findings concerning the aggravating circumstances and the mitigating circumstances were supported by the evidence; and whether death is the appropriate sentence. Section 13A-5-53(b) requires that, in determining whether death is the appropriate sentence, we must determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether an independent weighing by this Court of the aggravating circumstances and the mitigating circumstances indicates that death is the proper sentence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
After the jury convicted Floyd of the capital offense charged in the indictment, by virtue of which the jury unanimously found the existence of the aggravating circumstance that the murder was committed during the course of a burglary, see § 13A-5-49(4), Ala. Code 1975, the penalty phase of the trial was held before the jury in accordance with §§ 13A-5-45 and -46, Ala. Code 1975, as those sections read before the amendment effective April 11, 2017. See note 1, supra. After hearing evidence, after being properly instructed by the trial court as to the applicable law, and after being correctly advised as to its function in reference to the finding of any aggravating and mitigating circumstances, the weighing of those circumstances, if appropriate, and its responsibility in reference to the return of an advisory verdict, the jury unanimously found beyond a reasonable doubt the existence of three additional aggravating circumstances -- that the murder was committed while Floyd was under a sentence of imprisonment, see § 13A-5-49(1), Ala. Code 1975; that the murder was committed after Floyd had previously been convicted of a felony involving the use or threat of violence, see § 13A-5-49(2), Ala. Code 1975; and that the murder was especially heinous, atrocious, or cruel when compared to other capital offenses, see § 13A-5-49(8), Ala. Code 1975. By a vote of 11-1, the jury recommended that Floyd be sentenced to death for his capital-murder conviction.
Thereafter, the trial court held a sentencing hearing in accordance with § 13A-5-47, Ala. Code 1975, as it read before the amendment effective April 11, 2017 (see note 1, supra), to aid it in determining whether it would sentence Floyd to life imprisonment without the possibility of parole or follow the jury's recommendation and sentence him to death. The trial court ordered and received a written presentence investigation report as required by § 13A-5-47(b), as it read before the amendment effective April 11, 2017 (see note 1, supra), and accepted evidence from Floyd in mitigation. In its sentencing order, as amended on remand, the trial court entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Ala. Code 1975, each mitigating circumstance enumerated in § 13A-5-51, Ala. Code 1975, and any mitigating circumstance found to exist under § 13A-5-52, Ala. Code 1975, as well as written findings of fact summarizing the offense.
The trial court, like the jury, found the existence of four statutory aggravating circumstances: that the murder was committed during the course of a burglary, that the murder was committed while Floyd was under a sentence of imprisonment, that the murder was committed after Floyd had previously been convicted of a felony involving the use or threat of violence, and that the murder was especially heinous, atrocious, or cruel when compared to other capital offenses. The trial court found no statutory mitigating circumstances to exist under § 13A-5-51, and found no nonstatutory mitigating circumstances to exist under § 13A-5-52. After considering all the evidence presented, the arguments of counsel, the presentence report, and the advisory verdict of the jury, and after weighing the aggravating circumstances against the absence of mitigating circumstances, the trial court found that the aggravating circumstances outweighed the mitigating circumstances and sentenced Floyd to death. The trial court's findings concerning the aggravating circumstances and the mitigating circumstances are supported by the evidence, and we find no error adversely affecting Floyd's rights during the penalty phase of the trial or the sentencing proceedings before the court.
Floyd was convicted of murder committed during the course of a burglary, an offense defined by statute as a capital offense. See § 13A-5-40(a)(4), Ala. Code 1975. We take judicial notice that similar crimes have been punished capitally throughout the state. See, e.g., McCray v. State, 88 So. 3d 1 (Ala. Crim. App. 2010); Jones v. State, 987 So. 2d 1156 (Ala. Crim. App. 2006); Brown v. State, 982 So. 2d 565 (Ala. Crim. App. 2006); Beckworth v. State, 946 So. 2d 490 (Ala. Crim. App. 2005); Walker v. State, 932 So. 2d 140 (Ala. Crim. App. 2004); and Hall v. State, 820 So. 2d 113 (Ala. Crim. App. 1999). Considering Floyd and the crime he committed, we find that the sentence of death in this case is neither excessive nor disproportionate to the penalty imposed in similar cases. We have also carefully reviewed the record of the trial and sentencing proceedings, and we find no evidence that the sentence in this case was imposed under the influence of passion, prejudice, or any other arbitrary factor. Finally, we have independently weighed the aggravating circumstances against the absence of statutory and nonstatutory mitigating circumstances, and we concur in the trial court's judgment that the aggravating circumstances outweigh the mitigating circumstances, and that death is the appropriate sentence in this case.
Based on the foregoing, Floyd's sentence of death is affirmed.
AFFIRMED.
Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.