Baldwin v. Alabama Brief for Respondent

    In T he

i>upmar (Court of tljr Initrii i ’tatra
October Term , 1984

No. 84-5743

Brian Keith  Baldwin,
Petitioner

State of Alabama,
Respondent

On Writ of Certiorari to the Alabama Supreme Court

BRIEF FOR RESPONDENT

Charles A. Graddick 
Alabama Attorney General

Edward E. Carnes *
Assistant Alabama 

Attorney General 
64 North Union Street 
250 Administrative Building 
Montgomery, Alabama 36130 
205/834-5150

Counsel for Respondent

* Counsel of Record



QUESTION PRESENTED
Are death sentences imposed under Alabama’s 1975 

capital punishment statute unconstitutional because of 
the guilt stage verdict form requirement, even though: 
a) that requirement served a limited but im portant func­
tion; b) no sentencing decision was made except by the 
trial court judge following a separate and independent 
hearing into aggravating and mitigating circumstances; 
and c) the sentencing process was attended by numerous 
safeguards, including independent appellate review of 
the aggravating and mitigating circumstances to deter­
mine the propriety of the death sentence?

PARTIES
The caption contains the names of all the parties.

(i)



*

\

s

TABLE OF CONTENTS
Page

QUESTION PRESENTED ......................................  j
PARTIES ................................................................  {

TABLE OF CONTENTS..................................................  jy

TABLE OF AUTHORITIES............................................  v
OPINIONS BELOW ...................................................  j
JURISDICTION .......................................................  2

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED...............................  2

STATEMENT OF THE C A SE.......................................  3

The C rim e...............................................  3

The Trial and Sentencing Proceedings 6

The State Appellate Decisions..................................  12

SUMMARY OF ARGUMENT........................................  13

ARGUMENT ......................................................................  16

I. INTRODUCTION ..............    16

II. THE JURY’S PARTICIPATION IN SEN­
TENCING IS LIMITED TO THE IMPACT 
ITS ADJUDICATION OF GUILT HAS AS A 
RESULT OF THE CAPITAL OFFENSES 
BEING DEFINED TO INCLUDE AGGRAVA­
TION, THE TRIAL COURT MAKES THE 
SENTENCING DECISION ONLY AFTER 
CONSIDERING AGGRAVATING AND MITI­
GATING CIRCUMSTANCES IN A SEPA­
RATE PROCEEDING, AND THE JURY VER­
DICT FORM PROVISION SERVES A LEGIT­
IMATE FUNCTION . ...................  17

A. The Jury’s Role .....................................  17

B. The Function of the Verdict Form Provision.- 22
C. The Judge’s Role .............................................  25

(iii)



IV

TABLE OF CONTENTS—Continued
Page

HI. APPELLATE REVIEW OF DEATH SEN­
TENCE CASES IS ENHANCED AND IN­
CLUDES INDEPENDENT REVIEW OF 
THE APPROPRIATENESS OF THE DEATH 
SENTENCE IN EACH INDIVIDUAL CASE.. 31

IV. THE SENTENCE WAS CONSTITUTION­
ALLY IMPOSED IN THIS AND THE RE­
MAINING PRE-BECK  DEATH SENTENCE 
CASES .................................................................... 36
A. The Statute is Not a Mandatory Death Pen­

alty System ......................................................  33

B. The Verdict Form Provision Does Not Dis­
tort the Jury’s Role or Have Any Adverse 
Effect on the Guilt Phase....................................  37

C. The Verdict Form Provision Does Not In­
ject Irrelevant or Impermissible Factors into
the Judge’s Sentencing Decision .......................  39

D. The Appellate Review System Ensured that
any Arguably Improper Effect of the Ver­
dict Form Provision Did Not Affect the 
Final Sentence......................................................  41

E. The Decisions in Beck v. Alabama, 447 U.S.
625 (1980), and Beck v. State, 396 So.2d 
645 (1980), Do Not Establish that the Sen­
tencing Procedure is Unconstitutional ........  42

F. What the Issue Is and Is N ot............................  44

CONCLUSION ........................................................................ 45

APPENDIX A .......................................... -........................ la

APPENDIX B ....................................................................... H a

APPENDIX C .......................................................................  12a

v

TABLE OF AUTHORITIES
CASE Page

Ashlock v. State, 367 So.2d 560 (Ala. Cr. App.
1978), cert, denied, 367 So.2d 562 (Ala 1979) 31

Baldwin v. State, 372 So.2d 26 (Ala. Cr. App 
1978), aff’d, 372 So.2d 32 (Ala. 1979), vacated,
448 U.S. 903 (1980), remanded, 405 So.2d 698 
(Ala. 1981), rev’d, 405 So.2d 699 (Ala. Cr. App.
1981), reaffirmed on rehearing, 456 So.2d 117 
(Ala. Cr. App. 1983), aff’d, 456 So.2d 129 (Ala 
1984) .

Barclay v. Florida, 103 S.Ct. 3418 (1983) .. .. 41
Beck v. Alabama, 447 U.S. 625 (1980)..............  passim
Beck v. State, 365 So.2d 985 (Ala. Cr. App.), 

aff’d, 365 So.2d 1006 (Ala. 1978), rev’d 447
d U:S' (1o980) ........ 18, 33-34
Beck v. State, 396 So.2d 645 (Ala. 1980) .19, 20, 22, 42-43
Berard v. State, 402 So.2d 1044 (Ala. Cr’ A dd ’

1980) .................................................. • PP' 26 2g
Bracewell v. State, 401 So.2d 123 (Ala. 1979) ....  ’ 33
Bryars v. State, 456 So.2d 1122 (Ala. Cr. App

1983), rev’d, 456 So.2d 1136 (Ala. 1984)........... ’ 34
Bullington v. Missouri, 451 U.S. 430 (1981) 36
California v. Ramos, 103 S.Ct. 3446 (1983) .. 19 44
Cooper v. State, 336 So.2d 1133, (Fla. 1976) 23
Cook v. State, 369 So.2d 1251 (Ala. 1978) 27-29 31-32
Crawford v. State, 377 So.2d 145 (Ala. Cr App ) ’ 

aff’d, 377 So.2d 159 (Ala. 1979), vacated, 448
U.S. 904 (1980)...............................  34

Dobbert v. Florida, 432 U.S. 282 (1977) ... 43
Dobbert v. Strickland, 718 F.2d 1518 (11th Cir.

1983), cert, denied, 104 S.Ct. 3591 (1984) n
Evans v. State, 361 So.2d 666 (Ala. 1978) 31-32, 34,
„  37,43
hurman v. Georgia, 408 U.S. 238 (1972) 19,25,36
Gregg v. Georgia, 428 U.S. 153 (1976) 34-35* 37’ 44
Hill v. State, 455 So.2d 930 (Ala. Cr. App.), aff’d,’

455 So.2d 938 (Ala.), cert, denied, 105 S Ct 
607 (1984) ...................................  ‘ ‘ 33

Hopper v. Evans, 456 U.S. 605 (1982).....12, 16, 37, 39, 43



vi

TABLE OF AUTHORITIES—Continued
Page

Horsley v. State, 374 So.2d 363 (Ala. Cr. App.
1978) , aff’d, 374 So.2d 375 (Ala. 1979), va­
cated, 448 U.S. 903 (1980)......................... 3-4, 6,19, 33

Jacobs v. State, 361 So.2d 640 (Ala. 1978), cert.
denied, 439 U.S. 1122 (1979).........18,25-26,28,33,40

Jacobs v. State, 371 So.2d 448 (Ala. 1979).............  31
Jurek v. Texas, 428 U.S. 262 (1976)......................  19-20
Ex parte Kyzer, 399 So.2d 330 (Ala. 1981) .19-21, 27-28
Lewis v. State, 380 So.2d 970 (Ala. Cr. App.

1979) .......................................................................  ,f4-35
Lockett v. Ohio, 438 U.S. 586 (1978) ............  28, 44
Mack v. State, 375 So.2d 476 (Ala. Cr. App.

1978) ; aff’d, 375 So.2d 504 (Ala. 1979), va­
cated, 448 U.S. 903 (1980)...................................  35

Neal v. State, 372 So.2d 1331 (Ala. Cr. App.
1979) ........................... - ........................................... 34

Nelson v. State, 405 So.2d 392 (Ala. Cr. App.
1980) .............................. ........................................  26> 28

Prothro v. State, 370 So.2d 740 (Ala. Cr. App.
1979) ......................................................................... 40

Pulley v. Harris, 104 S.Ct. 871 (1984)........... 33-36, 41, 44
Proffitt v. Florida, 428 U.S. 242 (1976).........14, 22-24, 29
Richardson v. State, 376 So.2d 205 (Ala. Cr. App.

1978) , aff’d, 376 So.2d 228 (Ala. 1979)...........  26-27
Ritter v. Smith, 726 F.2d 1505 (11th Cir.), cert.

denied, 105 S.Ct. 218 (1984)................................... 39, 43
Ritter v. State, 429 So.2d 928 (Ala. 1983).................. 18, 25
Roberts v. Louisiana, 428 U.S. 325 (1976) 37-39
Shriver v. Wainwright, 715 F.2d 1452 (11th Cir.

1983), cert, denied, 104 S.Ct. 1328 (1984)... . 11
Spaziano v. Florida, 104 S.Ct. 3154 (1984).............  21,44
Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983),

cert, denied, 104 S.Ct. 2667 (1984)....................  11
State v. Dixon, 283 So.2d 1 (Fla. 1973) 23, 33
Strickland v. Washington, 104 S.Ct 2052 (1984).. 42
Tomlin v. State, 443 So.2d 47 (Ala. Cr. App.

1979) , aff’d, 443 So.2d 59 (Ala. 1983) ...............  28
White v. State, 446 So.2d 1031 (Fla. 1984)............  24

vn

TABLE OF AUTHORITIES—Continued
Page

Wainwright v. Goode, 104 S.Ct. 378 (1983)............  42
Woodson v. North Carolina, 428 U.S. 280 (1976).. 37-39
Zant v. Stephens, 103 S.Ct. 2733 (1983).............25, 41-42
Zenith Radio Corp. v. United States, 437 U.S. 443

(1978)....................................................................... 43

STATUTE
28 U.S.C. § 1257(3).............................   2
Code of Alabama 1975,

§ 12-22-150................................................................ 3i
§ 13-11-1 through § 13-11-9....................................  2, 16
§ 13-11-2 ( a ) ............................................6, 8, 17, 19, 27-28
§ 13-11-3..........................    26
§ 13-11-5 .................................................................. 3i
§ 13-11-6.................................................................  22, 27
§13-11-7..............................................  n
§ 13A-5-53(b)....................................  33
§ 13A-5-57.................................................................. 33, 43

Alabama Rule of Appellate Procedure 39 (k) ..........  31
Alabama Rule of Appellate Procedure 45A .............  31
Alabama Rule of Appellate Procedure 45B..............  31

OTHER AUTHORITY
“Death Row, U.S.A.,” NAACP Legal Defense 

Fund Report (April 20, 1980)..............................  34, 36



I n T he

Swjirmr (Emirt uf %> Imtrii §tatw
October Term, 1984

No. 84-5743

Brian Keith  Baldwin,
v Petitioner

State of Alabama,
Respondent

On Writ of Certiorari to the Alabama Supreme Court

BRIEF FOR RESPONDENT

OPINIONS BELOW

• V AThe °Pinion of the Alabama Court of Crim­
inal Appeals affirming petitioner’s conviction and sentence 
is reported as Baldwin v. State, 372 So.2d 26 (Ala Cr 
App 1978) ; and the opinion of the Alabama Supreme

oo*1 decision is sported as Baldwin v. State, 372 So.2d 32 (Ala. 1979).

2. The opinion of the Alabama Supreme Court re- 
mandmg the case to the Alabama Court of Criminal Ap­
peals for further consideration, following this Court’s 
lemand in Baldwin v. Alabama, 448 U.S. 903 (1980 ) is

^A la '^O SlI h l ^  MatteT °f  BaLdwin’ 405 So-2d 698

3 The initial opinion of the Court of Criminal Ap­
peals following remand, in which it reversed petitioner’s



2

conviction and sentence, is reported as Baldwin v. State, 
405 So.2d 699 (Ala. Cr. App. 1981). The opinion in 
which that court thereafter granted the State’s rehearing 
application, set aside the reversal, and affirmed petition­
er’s conviction and sentence is reported as Baldwin v. 
State, 456 So.2d 117 (Ala. Cr. App. 1983). It is repro­
duced in the Joint Appendix at 20-41.

4. The opinion of the Alabama Supreme Court affirm­
ing that Court of Criminal Appeals decision and reaffirm­
ing petitioner’s conviction and sentence is reported as 
Ex parte Baldwin, 456 So.2d 129 (1984). It is repro­
duced in the Joint Appendix at 42-61.

JURISDICTION

The jurisdiction of this Court is based on 28 U.S.C.
§ 1257(3), and the petition was timely filed.

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED

1. The petitioner has made arguments concerning the 
Due Process Clause and Equal Protection Clause of the 
Fourteenth Amendment:

nor shall any state deprive any person of life, lib­
erty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws.

2. The petitioner has also made arguments concerning 
the Cruel and Unusual Punishments Clause of the Eighth 
Amendment:

Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments 
inflicted.

3. The issues in this case involve Alabama’s 1975 
capital punishment statute, Code of Alabama 1975, § 13- 
11-1 through § 13-11-9, a copy of which is attached to 
the certiorari petition.

3

STATEMENT OF THE CASE 

The Crime

On Saturday evening, March 12, 1977, sixteen-year-old 
Naomi Rolon left her home in Hudson, North Carolina to 
" r father who was ^  a local hospital. (R. 34-35 
37) She was abducted en route by petitioner and another 
criminal named Edward Horsley.1 Earlier that night pe- 
ltioner and Horsley had escaped from a Hudson, North 

Carolina prison camp, where petitioner was serving a

c T 253) ^  r °bb€ry' (S t‘ EX> 10 a t 1_2’ R- 199; S t- E x-

When petitioner and Horsley first saw Naomi Rolon’s 
car, it was stopped on the side of the highway. Thev 
walked up and asked her for a ride. She told them she 
couldn t give them one, that she was having trouble with 
he brakes, and that someone had already gone for help. 

She had opened the car door when they walked up “like 
she wanted to know what we wanted,” and after she 
refused to give them a ride petitioner shoved her over 
and got in on the driver’s side. (St. Ex. A at 1-4 R 
252)3 ’

Theinitial state appellate court opinion in this case summarized 
the facts concerning the crimes, Baldwin v. State, 372 So.2d 26 
(Ala. Cr. App. 1978), and that summary was adopted verbatim in 
later opinions, Baldwin v. State, 372 So.2d 32, 33 (Ala 1979) • 
Baldwm v. State, 456 So.2d 117, 119 (Ala. Cr. App. 1983) (J.A. 21) 
That summary gives the date of the abduction as November 25, 
1976 winch was actually the date of the victim’s sixteenth birthday

t  undlsputed at trial that the date of the abduction
was March 12, 1976. (R. 34-37, 45-49, 74-80, 274) See also, Horsley 
v. State, 374 So.2d 363, 365 (Ala. Cr. App. 1978).

2 The documentary exhibits introduced at trial were not incor­
porated into the trial transcript but were made a separate part of
th" ^ r ™ „aPPeaL (R- 273) Those ^ N t s  have been trans­mitted to this Court by the state appellate court clerk.

3 There is nothing to support petitioner’s assertion that the young 
victim ‘picked up” Horsley and him, except petitioner’s own self-



4

After petitioner and Horsley took control of her car, 
Naomi Rolon was scared and asked them to let her out. 
(St. Ex. A at 5, R. 252) Instead, they turned the car 
around, began to drive to Charlotte, North Carolina, and 
“ [w]e told her we were gonna give her some when we 
get there.” (St. Ex. A at 4-5, R. 252) Approximately two 
hours later, when they arrived in Charlotte, they drove 
Naomi to a parking lot and began fondling her. (St. Ex. 
A at 4-6, R. 252) When she would not let Horsley take 
her clothes off, he and petitioner hit her until she let them 
remove her clothes. (St. Ex. A at 6, R. 252) They then 
laid her down in the front seat and tried to rape her. 
The sixteen-year-old victim told them she was a virgin, 
and fought the two men ferociously, kicking, pinching, 
and biting them, and trying to scream. (St. Ex. A at 7-8, 
R. 252) Eventually, one or both of them succeeded in 
raping her. (R. 221-222) Urged on by Horsley, peti­
tioner told Naomi to commit an act of oral sodomy on 
him, but she refused. Petitioner then grabbed her by the 
head and forced her to do it. (St. Ex. A at 25-26, 33)

Afterwards, while petitioner was driving the car down 
the streets of Charlotte, he told Horsley to choke Naomi, 
who was then lying in the seat. Horsley tried to choke 
her, but “she started kicking and crying again.” Peti­
tioner drove the car behind a building where they took 
turns choking Naomi until “she went limber.” They then 
took her out, laid her down, ran over her with the car, 
and then locked her in the trunk. (St. Ex. A at 9-10, R. 
252)

Petitioner drove to a service station to buy gas, but 
they had to leave hurriedly because petitioner heard 
Naomi move in the trunk. After they drove to a more

serving statement (St. Ex. 10 at 2-3, R. 199), which conflicts with 
Horsley’s admissions (St. Ex. A at 1-4, R. 252). See also, Baldwin 
v. State, 456 So.2d 117, 119 (Ala. Cr. App. 1983) (J.A. 21) ; Horsley 
v. State, 374 So.2d 363, 365 (Ala. Cr. App. 1978).

5

rf n??teI BJ ° t> Horsley got out, opened the trunk, and 
stabbed Naomi in the stomach with a pocket knife 
(St. Ex. A at 10-11)

Later, as petitioner and Horsley drove towards King’s 
Mountain, North Carolina, they heard Naomi call out 
rom the trunk. They pulled off the highway, petitioner 

took a knife, opened the trunk and “cut h e r” (St Ex A 
at 15-19, R. 252) '

By then’ 11 was Sunday morning, March 13. Petitioner 
and Horsley drove all day Sunday, stopping to buy gas 
and something to eat, using money taken from Naomi’s 
purse. They spent Sunday night in Atlanta, Georgia. 
Before leaving Atlanta, they threw Naomi’s clothes in a 
garbage can at a shopping center. During this entire 
time, sixteen-year-old Naomi Rolon lay nude, wounded 
and blood-soaked in the trunk of the car. (St Ex A at 
12-14, 19-20, R. 252; J.A. 21)

On Monday, March 14, petitioner and Horsley drove 
Irom Atlanta into Alabama and began looking for an­
other vehicle to steal. Finally, they found an El Camino 
truck with its doors unlocked and the keys in it. (St. Ex.
A f A 0;21’ 252 ̂  They stole the O-uck between 2:00
and 3:00 p.m. that Monday afternoon. (R. 40-42) Pe­
titioner drove it off while Horsley drove Naomi Rolon’s 
car with her still in the trunk. (St. Ex. A at 20-21 R 
252) They went to a secluded side road in Monroe 
County (R. 52, 78-79; St. Ex. A at 22, R. 252), and as 
Horsley later described i t :

We pulled up in there, and Brian wras behind me. 
And he got out of the El Camino. Uh, took the key 
he had and opened the truck fsic] and helped the 
girl out. When he let her out, he stepped back and 
I was supposed to run over her. I tried to back up 
over her but I missed her and she ran, stumbled up 
in those woods where she was cut at. Stumbled up 
in there and laid there, and was trying to moan or 
something I turned the car around and ran up into 
her. I still didn’t kill her. I tried to back R out



6

I couldn’t back it out, so he went up in there with 
the hatchet and cut her, and we took the tag off the 
car, and we left and was going out and some bushes 
got stuck up under the El Camino, and we stopped 
out there on the pavement of the road and took them 
off and I got this scratch on my finger. And we got 
’3m [sic] from under there.

(St. Ex. A at 32, R. 252) Horsley also said that as peti­
tioner was preparing to kill Naomi with the hatchet peti­
tioner told her: “Move your hand so I can get this over 
with.” (J.A. 16) ; accord, Horsley v. State, 374 So.2d 
363, 365 (Ala. Cr. App. 1978).

Petitioner himself described Naomi’s murder this way:
I opened the trunk of her car and told her to get 

out. She stumbled out and fell in the pine tops. 
Edward ran into her with the car. I didn’t think she 
was dead so I cut her throat with the hatchet. Ed­
ward stabbed her in the side with her knife. She 
was laying in the pine tops bleeding and we left in 
the El Camino.

(St. Ex. 12, R. 138) It was petitioner’s hatchet blow to 
her neck that killed Naomi. (R. 218-221, 229) Her or­
deal and suffering had lasted 40 hours. (J.A. 16)

On March 15, 1977, following a high speed chase, peti­
tioner and Horsley were apprehended in the stolen truck 
in another county. (R. 42-45, 47) They were returned 
to Wilcox County, where the truck had been stolen. (R. 
49-51) While in custody, petitioner gave a number of 
incriminating statements, and on Wednesday, March 16, 
1977, petitioner led law enforcement officers to Naomi 
Rolon’s body in Monroe County. Baldwin v. State, 372 
So.2d 26, 28-30 (Ala. Cr. App. 1978) ; (R. 203).

The Trial and Sentence Proceedings

On April 20, 1977, petitioner was indicted by the Mon­
roe County Grand Jury for the Code of Alabama 1975, 
§ 13-11-2(a) (2) capital offense of robbery during the

7

course of which the victim was intentionally killed. (J.A. 
z ’ At arraignment he pleaded not guilty. (R. 282)

bef°re a jury on Auffust 8-9, 1977. IK. 804) The States evidence at trial included: testi-
ab^ rann oral statement petitioner had made (R. 

/  , ’ 1 "18-150); a taped statement petitioner had given 
to law enforcement officers (St. Ex. 9, R. 125)- the 
transcript of it (St. Ex. 10, R. 199); and a written state­
ment petitioner had signed in which he admitted killing 
Naomi Rolon with a hatchet (St. Ex. 12, R. 138). The 
State^also proved that: the license plate from Naomi 
Rolon s car was found in the front seat of the stolen 
ti uck in which petitioner was apprehended (R. 36, 46-49, 
74-75, 126); her car keys were in petitioner’̂  shirt 
pocket (R 50-53, 126, 154-157, 210-213); petitioner’s 
nngei prints were found inside her car (R. 54.55 141
1ffi2’ 151’ ?22‘ 2̂61 ’ . and ifc was Petitioner who led the 
officers to her “horribly m utilated bodv” (R. 77-81 8£-
J , 1.50' 1̂ 4’ 171-176). Baldwin v. State, 372 So.2d 26, 
31 (Ala. Cr. App. 1978).

Petitioner offered no evidence during the guilt stage 
except his own testimony that his incriminating stated 
ments were coerced. Four law enforcement officers and 
three other witnesses testified to the contrary See Bald-
™  V• ?72 So'2d at 28-30. The trial court ruled
hat petitioner s statements were voluntarily made after 

a knowing waiver of rights <R. 81-82, 124 138) and 
the Court of Criminal Appeals later agreed,’Baldwin v. 
State, supra. In considering the matter, the state appel­
late court itself listened to petitioner’s tape-recorded con­
fession (St. Ex. 9, 125), and said:

We have listened to the tape recording of the a,,pel- 
an ts confession and from inflections in his voice 

th®. ™atter' of' fact and almost casual manner in 
which he relates the events, we are unable to detect 
even a hint of coercion. In fact, the appellant re-



8

lates his part in the kidnapping, attempted strangu­
lation, stabbing, attempted murder with the auto­
mobile, and the final act of slaughtering his helpless 
victim with no more emotion than if he had been 
describing the fixing of a flat tire on his automobile. 
The tape recording of the appellant’s confession 
leaves one with the impression that he felt no re­
morse over the fact that he and his companion had 
treated this unfortunate, innocent victim with a bru­
tality not found in animals and had mercilessly 
slaughtered this defenseless young girl.

Baldwin v. State, 372 So.2d at 30 (emphasis added).
Following jury instructions to which petitioner took 

no exception (R. 247), the jury returned a verdict con­
victing him of the capital offense. As required by Code 
of Alabama 1975, § 13-11-2 (a ), the guilty verdict form 
which was submitted to and returned by the jury read: 
“We, the Jury, find the defendant guilty as charged in 
the indictment, and fix his punishment at death by elec­
trocution.” (J.A. 4)

The trial judge then informed petitioner, consistently 
with §§ 13-11-3 and 4, that:

Let me say this: The jury has found you guilty 
of the crime of robbery with the aggravated circum­
stances of intentionally killing the victim and under 
their oaths, they have re-returned a verdict of guilty 
in your case and set your punishment at death by 
electrocution but the law of this state provides first 
that there will be an additional hearing in this case 
at which time the Court will consider aggravating 
circumstances, extenuating and all other circum­
stances, concerning the commission of this particular 
offense.
The Court at that time is either authorized to let the 
sentence of death be carried into execution or to 
reduce it from death by electrocution to life impris­
onment without parole but that’s another matter

9

with which this Court will be concerned at another

(R. 249-250) The trial court contemporaneously entered
pursuant y ri*ten adjudicating petitioner guilty
sentence ^  but noted in lieu of any
io-ahnn ™ ? earlng °n a£ffravati°n, extenuation and mit> 
16 977 0 a future date.” (R. 306) On August
16 1977, one week after the trial, the court entered an

th'e courtw" fi h o i d ^ 1’ 9’ 1977 “aS the day 0n which the court will hold a hearing to aid in the determination

to d e a tW  toirf01- ^ 6 C°Urt WiU aentance the defendant to death or to life imprisonment without parole.” (J.A. 5)

1977 w  introductory comments at the September 9, 
I977 sentence hearing, the court said: “The purpose of
he* C w " g’ nf C°UrSe’ iS t0 determine whether or no[
I t o K f l  •“  rian Keith Baldwin deathor to life imprisonment without parole.” (J.A. 6) For

pi oof of aggravating circumstances under § 13-11-6 the

teds of trh ^ UCGd H°r? y’S Statement COnc™ S  the de­tails of the crime, petitioner’s juvenile record, and peti­
tioners adult criminal record. (J.A. 6-7) The State also 
incorporated the guilt stage evidence relevant to the ag- 
giavating circumstances. (J.A. 7) g

a lto n m /T T  ft0.“r  .Sfa,ld in his »wn behalf in an
fled That he h^S I ft n‘tlgatinB circums‘anees and testi- hed that, he had left home at the age of thirteen because
he could not get along with his father who would not let
him stay out late at night (J.A. 8, 11); he had finished
he ninth grade before he was “terminated” for fighting

another student who would not pay him money (J A 9
10) he h%h fd l ?  ar eSted about thirty times (J.A.
) j  A n  13d ? l0'  at 8011001 and in various jobs
to them (J A 10 a dnf \ and had been addicted
m 1 J 10‘13 ’ and he had been eighteen when he
murdered Naomi Rolon (J.A. 15). In regard to that 
crime, petitioner said: “I ain’t saying I’m J t v  h 
m.ght be guilty for murder but I ain’t guilty for ■•obtey



10

down here. That’s all I got to say.” (J.A. 13) Petitioner 
never once expressed any remorse. (J.A. 8-19)

Throughout the sentence proceedings the trial court 
displayed a sincere desire to be informed of all mitigat­
ing circumstances, every reason that might indicate a sen­
tence less than death was appropriate. (J.A. 7, 10, 12, 
14, 15) For example, after petitioner’s counsel finished 
questioning him, the trial court continued the inquiry, 
explaining:

THE COURT: Brian Keith Baldwin, today is 
the day you have in court to tell this judge what­
ever is on your mind and as Mr. Owens has told 
you, now is your time to tell the judge anything 
that you feel like might be helpful to you in the 
position that you find yourself in. I want to give 
you every opportunity in the world that I know 
about.

MR. BALDWIN: You mean problems in grow­
ing up and stuff?

THE COURT: Anything you feel like you can 
tell this Judge that will help you in your present 
position.

(J.A. 12) See also, Baldwin v. State, 372 So.2d at 31.4
After all the evidence had been presented, the court 

heard argument about whether it should sentence peti­
tioner to death or to life imprisonment without parole. 
The State’s argument stressed the forty hours of suffer­
ing the victim had undergone at petitioner’s hands, while 
petitioner’s attorneys stressed his age and “hard life.” 
(J.A. 15-16)

After a recess, the trial court judge returned to an­
nounce his sentence findings and impose sentence. The

4 Contrary to the implication in petitioner’s brief, his counsel had 
prepared for the sentence hearing and had investigated mitigating 
circumstances. Counsel’s efforts were made difficult by the refusal 
of petitioner’s estranged family to cooperate. (J.A. 14) In any 
event, no ineffective assistance issue is before this Court.

11

court found four § 13-11-6 aggravating circumstances: 
that petitioner had committed the capital offense while 
he was under sentence of imprisonment; that petitioner 
had been previously convicted of a felony involving the 
use of violence to the person; that the capital offense in­
volved robbery or flight after robbery; and that the capi­
tal offense was especially heinous, atrocious, or cruel. 
(J.A.. 18-19) The court found that the only § 13-11-7 
mitigating circumstance was petitioner’s age at the time 
of the offense. The court considered petitioner’s non- 
statutory mitigating circumstance evidence but was not 
convinced by it.5

After listing the aggravating and mitigating circum­
stances it found convincing, the court said:

The Court having considered the aggravating cir­
cumstances and the mitigating circumstances and

5 Contrary to the assertion in petitioner’s brief, the trial court 
did not think that its consideration of mitigating circumstances 
was limited to the § 13-11-7 statutory categories. Alabama law 
clearly requires the sentencing judge to consider all non-statutory 
mitigating circumstances, see p. 28 of this brief, below, and the 
trial judge in this case plainly understood that, as his comments 
during the sentence hearing indicate (J.A. 10, 12, 14). See 
Baldwin v. State, 372 So.2d 26, 31-32 (Ala. Cr. App. 1978).

“[Mlitigation may be in the eye of the beholder,” Stanley v. 
Zant, 697 F.2d 955, 969 (11th Cir. 1983) (footnote omitted), cert, 
denied, 104 S.Ct. 2667 (1984), and “ [wjhat one person may view 
as mitigating, another may not,” Dobbert v. Strickland, 718 F.2d 
1518, 1524 (11th Cir. 1983), cert, denied, 104 S.Ct. 3591 (1984). 
While a sentencing authority is required to consider mitigating 
circumstance evidence, it is not required to find that a specific 
circumstance is actually mitigating in any particular case. E.g., 
Dobbert v. Strickland, supra; Shriver v. Wainwright, 715 F.2d 
1452, 1457-1458 (11th Cir. 1983), cert, denied, 104 S.Ct. 1328 
(1984). Here, the sentencing judge solicited and considered the 
broadest range of mitigating circumstance evidence, but found it 
unconvincing.

In any event, there is no non-statutory mitigating circumstance 
issue before this Court.



12

after weighing the aggravating and mitigating cir­
cumstances, it is the judgment of the Court that the 
aggravating circumstances far outweigh the mitigat­
ing circumstances and that the death penalty as 
fixed by the jury should be and is hereby accepted.

(J.A. 18)
The State Appellate Decisions

The Alabama Court of Criminal Appeals initially af­
firmed petitioner’s conviction and death sentence. Bald­
win v. State, 372 So.2d 26 (1978), and the Alabama Su­
preme Court affirmed that decision. Baldwin v. State, 
372 So.2d 32 (1979). However, this Court vacated that 
judgment and remanded the case for further considera­
tion in light of the Beck v. Alabama, 447 U.S. 625 
(1980), decision. Baldivin v. Alabama, 448 U.S. 903 
(1980). The Alabama Supreme Court, in turn, remanded 
the case to the Alabama Court of Criminal Appeals, In  
the Matter of Baldwin, 405 So.2d 698 (Ala. 1981).

After remand, the Court of Criminal Appeals initially 
entered a judgment reversing petitioner’s conviction. 
Baldwin v. State, 405 So.2d 699 (1981). However, after 
this Court’s decision in Hopper v. Evans, 456 U.S. 605
(1982) , the Court of Criminal Appeals granted rehear­
ing and issued a new opinion reaffirming petitioner’s con­
viction and sentence. Baldwin v. State, 456 So.2d 117
(1983) (J.A. 20-41). The Alabama Supreme Court af­
firmed that decision. Ex parte Baldwin, 456 So.2d 129 
(Ala. 1984) (J.A. 42-61).

During the appellate process, both the Alabama Court 
of Criminal Appeals and the Alabama Supreme Court 
reviewed the sentencing decision, independently reweighed 
the aggravating and mitigating circumstances, and con­
cluded that death was the appropriate sentence in this 
case. Baldwin v. State, 456 So.2d 117, 123-128 (Ala. Cr. 
App. 1983) (J.A. 37-38); Ex parte Baldwin, 456 So.2d 
129 (Ala. 1984) (J.A. 58).

13

SUMMARY OF ARGUMENT
Alabama’s 1975 capital punishment statute, under 

which petitioner was sentenced to death, contains a jury 
verdict form provision. Under that provision the guilty 
verdict form submitted to the jury contains language 
which “fix[es] the punishment at death.” However, the 
statute is not a mandatory death penalty act. The jury 
is not the sentencing authority, and no sentence exists 
until the judge decides on one after weighing all the 
aggravating and mitigating circumstances at a separate 
and independent sentence hearing conducted after the jury 
is discharged. Approximately one-third of the defendants 
convicted of capital offenses under the statute were sen­
tenced to life imprisonment without parole, instead of 
death.

Capital offenses are narrowly defined to include only 
specific types of intentional killing homicides committed 
under significant aggravated circumstances. Accordingly, 
a verdict of guilty necessarily reflects not only a jury 
finding beyond a reasonable doubt that the defendant 
committed an intentional killing homicide but also a find­
ing that he did so under circumstances which aggravated 
the crime and set it apart from other intentional killing 
homicides. For example, in this case the definitional ag­
gravating circumstance was that the intentional killing 
had occurred during a robbery and involved the victim of 
that robbery. The substantive advice the jury verdict 
form conveys from the jury to the sentencing' judge is 
limited to non-binding advice that the definitional ag­
gravating circumstance exists.

Through the verdict form provision the legislature uses 
the jury to procedurally convey to the sentencing judge an 
important legislative judgment about punishment. The 
legislative judgment is that if the definitional aggravating 
circumstance does exist the punishment should be death, 
unless there are one or more mitigating circumstances to 
offset or counterbalance that and any other aggravating 
circumstances. The constitutionality of that legislative



14

judgment is established by Proffitt v. Florida, 428 U.S. 242 
(1976), which upheld a statute which had been construed 
to effect a similar judgment, e.g., id., a t 260 (concurring 
opinion of White, J .). The capital punishment statutes 
of fifteen other states embody a similar legislative judg­
ment.

The jury’s action in respect to “fixfing] the punish­
ment at death” is purely ministerial. I t makes no deci­
sion about punishment. The jury is given no discretion 
about the matter; all the discretion is with the judge. 
The fact that the statute may appear from the jury’s 
perspective to be a mandatory death penalty act could 
not have harmed petitioner or anyone else tried under it. 
The historical evidence uniformly establishes and all the 
authorities agree that if an apparently mandatory death 
penalty provision has any effect at all on the jury, it 
makes the jury more reluctant to convict. However, no 
unjust acquittals have skewed the sentencing pattern 
under this statute.

After the jury convicts the defendant, the trial judge 
holds a sentencing hearing. There are some limitations 
on the evidence the prosecution can present, but the de­
fendant may present any probative evidence relevant to 
any statutory or non-statutory mitigating circumstance. 
After the hearing, the judge determines whether he con­
curs with the advisory finding that the definitional ag­
gravating circumstance is present. If he does not concur, 
there can be no death penalty. If he does concur, and 
there are no statutory or non-statutory mitigating cir­
cumstances, the sentence is death because there is a rea­
son to impose the death penalty and no reason not to do 
so. If the judge finds any mitigating circumstance at 
all, he decides upon the proper sentence by weighing the 
definitional aggravating circumstance and any other 
statutory ones against all the mitigating circumstances. 
No numerical weights are assigned to the circumstances, 
and the final decision is in the judge’s discretion.

15

While the statute requires the judge to consider or 
weigh the jury’s verdict, containing the formal language 
fixing the penalty at death, it does not require the judge 
to treat it as though the jury has made a sentencing rec­
ommendation. The jury did not consider any mitigating 
circumstances or any statutory aggravating circumstance 
other than the definitional one. The judge knows that. 
Ihe judge also knows that the jury had no discretion 
about the language contained in its verdict form. What 
the statute requires, and what the judge does, is to weigh 
the substantive advice implicit in the verdict that the 
definitional aggravating circumstance is present and to 
consider the previously discussed legislative judgment re­
flected in the verdict language.

. ^*’om ^ e  judge’s perspective, the legislature is saying 
in the verdict form provision that the punishment for an 
intentional killing homicide accompanied by a serious 
aggravating circumstance should be death unless there is 
some reason (mitigating circumstance or circumstances) 
in the case to make the judge think otherwise. The jury 
did not make that judgment; the legislature did. The 
jury s verdict language, prescribed by the legislature 
simply conveys the legislative judgment.

. ^  the iU(%e finds that the definitional aggravating 
circumstance does not exist, or if in his judgment the 
aggravating circumstances are offset or counter-balanced 
by mitigating circumstances, he sentences the defendant 
u , .lfe, ^ lthout parole. In doing so, the judge necessarily 
rejects or reduces” the preliminary punishment the 

legislature set in the purely formal verdict language. If 
t e judge finds that the definitional aggravating circum­
stance exists and if in his judgment there are insufficient 
mitigating circumstances to offset it, he sentences the de­
fendant to death. In doing so he necessarily “accepts” 
the preliminary punishment the legislature set in the ver­
dict form language. He has the authority and the duty 
to make the actual sentencing decision and thereby “ac-



16

cept” or “reject” the punishment contained in the verdict 
form. The statute plainly says so.

If the judge decides the appropriate sentence is death, 
his decision is not final. An enhanced appellate review of 
the sentence hearing and sentence findings is conducted to 
determine whether any error or arbitrary factor influ­
enced the sentence. In addition, both the Alabama Court 
of Criminal Appeals and the Alabama Supreme Court 
review the sentence decision itself. This review not only 
includes review by comparison with sentences in similar 
cases, but also includes an independent reweighing of ag­
gravating and mitigating circumstances in which the ap­
pellate courts decide for themselves the proper sentence 
under all the circumstances. Even if the verdict form 
provision somehow could be said to improperly affect the 
trial judge’s sentence decision, it does not affect the in­
dependent reconsideration of the aggravating and mitigat­
ing circumstances by the appellate courts.

ARGUMENT
I. INTRODUCTION

This case involves the constitutional validity of the cap­
ital sentencing procedure which was in effect prior to 
Beck v. Alabama, 447 U.S. 625 (1980), under Alabama’s 
1975 capital punishment statute. Code of Alabama 1975, 
§§ 13-11-1 through 13-11-9.H Petitioner’s attack on the 
sentencing procedure focuses on the jury verdict form

8 Because of the Beck decision’s holding concerning the preclu­
sion clause and for other unrelated reasons, the convictions in most 
pre-Beck death sentence cases have been reversed. See Appendix C. 
As a result those cases have been or will be retried and resentenced 
under different procedures. See p. 43, below.

Petitioner’s case is different, because the Alabama Supreme Court 
affirmed his pre-Beck conviction under Hopper v. Evans, 456 U.S. 
605 (1982), and also affirmed his death sentence. The nine other 
pre-Beck death sentence cases which have not been retried under a 
different procedure are listed in Appendix A.

17

provision. That provision specifies that when a jury con­
victs a defendant of a capital offense its guilt stage ver­
dict form shall contain language formally “fixiing]” the 
punishment at death. Code of Alabama 1975, § 13-ll-2(a).

Petitioner’s argument that the sentencing procedure is 
unconstitutional as a result of the verdict form provision 
embodies two interrelated and erroneous contentions. 
First, petitioner contends that the jury is required to 
reach a sentence determination without being given an 
opportunity to consider all the aggravating and mitigat­
ing circumstances in the case. Secondly, he contends that 
the trial court judge who has both the opportunity and 
the duty to consider all the aggravating and mitigating 
circumstances, is impermissibly influenced by the jury’s 
sentence determination. Both contentions are dependent 
upon a fundamental misreading of the procedure in­
volved. In addition, his argument misapprehends the 
effect of the extensive appellate review of the sentencing 
process and of the sentence itself.

II. THE JURY’S PARTICIPATION IN SENTENCING 
IS LIMITED TO THE IMPACT ITS ADJUDICA­
TION OF GUILT HAS AS A RESULT OF THE 
CAPITAL OFFENSES BEING DEFINED TO IN­
CLUDE AGGRAVATION, THE TRIAL COURT 
MAKES THE SENTENCING DECISION ONLY 
AFTER CONSIDERING AGGRAVATING AND MIT­
IGATING CIRCUMSTANCES IN A SEPARATE 
PROCEEDING, AND THE JURY VERDICT FORM 
PROVISION SERVES A LEGITIMATE FUNCTION

A. The Jury’s Role

Under Alabama’s 1975 capital punishment statute, the 
jury does not consider mitigating circumstances because 
the jury does not have a discretionary role in sentencing:

The jury, when deliberating on a verdict, is only 
concerned with the issue of the defendant’s guilt or



18

innocence. If the verdict is guilty, the jury has no 
discretion in setting the sentence; the statute pro­
vides only for the penalty of death. If the verdict is 
not guilty, the statute requires that the accused be 
discharged and, as noted, if the jury cannot agree on 
a verdict of guilty or not guilty or about fixing the 
death penalty, the trial court may enter a judgment 
of mistrial. In either of the above situations the 
jury has no discretion in determining the defend­
ant’s fate. . . J

Ritter v. State, 429 So.2d 928, 936 (Ala. 1983). The 
jury lacks any discretion in sentencing, because the jury 
is not the body which determines which convicted mur­
derers die and which do not. Jacobs v. State, 361 So.2d 
640, 644 (Ala. 1978), cert, denied, 439 U.S. 1122 (1979). 
Instead, that decision is made by the trial judge, because 
“ [u]nder Alabama’s statute the trial court and not the 
jury is the actual sentencing authority.” Ritter v. State, 
supra; accord, e.g., Jacobs v. State, 361 So.2d 607, 631 
(Ala. Cr. App. 1977), aff’d, 361 So.2d 640 (Ala. 1978), 
cert, denied, 439 U.S. 1122 (1979).

No convicted capital defendant can be sentenced to 
death or to life imprisonment without parole except by 
the trial judge after he has held the separate and inde­
pendent sentence hearing discussed on pp. 26-30, below. 
There is no consideration of aggravating and mitigating 
circumstances until the judge, the actual sentencing au­
thority, conducts a sentence hearing after the jury has 
returned its guilt stage verdict and been discharged. No 
sentence exists until the judge decides between death and 
life imprisonment without parole at the conclusion of 
that hearing. E.g., Beck v. State, 365 So.2d 985, 1005 
(Ala. Cr. App.), aff’d, 365 So.2d 1006 (Ala. 1978), rev’d 
on unrelated grounds, 447 U.S. 625 (1980).

Even though the jury does not make the sentencing 
decision under this procedure, it does participate in a lim-

7 See n.8 on p. 21, below.

19

ited but important way in the process that ultimately 
determines sentence. The jury’s input into the sentencing 
piocess stems from the way in which the statute narrowly 
defines capital offenses. Prior to Furman v. Georgia, 408 
U.S. 238 (1972), a death sentence could be imposed on an 
Alabama defendant convicted of any type of first degree 
murder or any of twelve non-homicide offenses. Beck v 
State, 396 So.2d 645, 652 (Ala. 1980). In response to 
Furman, Alabama significantly narrowed the category of 
capital offenses by removing all non-homicide offenses, all 
non-intentional killing homicides, and all intentional kill­
ing homicides that were not accompanied by the presence 
of an aggravating circumstance. See, § 13-11-2(a) • Beck 
v. State, 396 So.2d at 662. This approach is similar to the 
one taken in the Texas statute which this Court upheld 
in Jurek v. Texas, 428 U.S. 262 (1976). See, id., at 265 
n. 1, 268, 270-271; California v. Ramos, 103 S Ct 3446 
3452 n. 11 (1983). ‘ ’

Each of Alabama’s narrowly defined capital offenses 
contains a homicide component and a definitional aggra­
vating circumstance component. E.g., Beck v. State, 396 
So.2d at 662; Hill v. State, 455 So.2d 930, 932 (Ala. Cr. 
APP-1*84), aff’d, 455 So.2d 938 (Ala. 1984), cert, denied, 
105 S.Ct. 607 (1984). The homicide component for the 
§ 1 3 -ll-2 (a )(l) , (2), (3) (4), (8), and (9) capital
offenses is an intentional killing;” for the § 13-11-2(a) 
(5), (6), (7), (13), and (14) capital offenses is “mur­
der;” and for the § 13-ll-2(a) (10), (11), and (12) cap­
ital offenses is “murder in the first degree” Ex parte 
Kyzer, 399 So.2d 330, 335 (Ala. 1981). Because all those 
homicide components require at a minimum an inten­
tional killing, there can be no conviction for a capital 
offense without proof beyond a reasonable doubt of the 
defendant s intent to kill. E.g., Beck v. Alabama 447 
U.S. 625, 628 n. 2 (1980); Ex parte Kyzer, supra;’Beck 
v. State, supra; Horsley v. State, 374 So.2d 363 367 
(Ala. Cr. App. 1978), aff’d, 374 So.2d 375 (Ala. 1979) 
vacated on unrelated grounds, 448 U.S. 903 (1980)



20

While proof beyond a reasonable doubt of an inten­
tional killing homicide is necessary to a capital offense 
conviction, it is not sufficient. Each capital offense also 
includes as an essential component a definitional aggra­
vating circumstance. See, e.g., §13-11-2(a); Beck v. 
State, 396 So.2d at 662. For example, in a robbery- 
intentional killing case such as this one the definitional 
aggravating circumstance is that the intentional killing 
homicide the defendant committed occurred during a rob­
bery and involved his killing of the robbery victim. E.g., 
Section 13-11-2(a) (2); Ex parte Kyzer, 399 So.2d at 
335-337; Beck v. State, 396 So.2d at 662. Because it is a 
component of the capital offense, the definitional aggra­
vating circumstance must be averred in the indictment 
and proven beyond a reasonable doubt to a jury before 
there can be any capital offense conviction. E.g., Ex parte 
Kyzer, supra-, Beck v. State, 396 So.2d at 663. As a re­
sult, no defendant is even eligible for a death sentence 
until the State has alleged and proven beyond a reason­
able doubt to a jury not only the defendant’s guilt of an 
intentional killing homicide but also that an aggravating 
circumstance exists which makes that homicide different 
from—and worse than—many others. That was done in 
this case. (J.A. 2; R. 241-245, 298).

In defining the capital offenses as it did the Alabama 
Legislature made a policy choice, Ex parte Kyzer, 399 
So.2d at 336-337, and that choice was to particularize at 
the threshold of the process those cases in which death 
was to be an available punishment, id., at 339. As this 
Court recognized in Jurek v. Texas, 428 U.S. 262, 270 
(1976), narrowing the category of murders for which 
the death penalty may be imposed serves the constitution­
ally mandated goal of individualized sentencing.

Including an aggravating circumstance component in 
the capital offense definitions serves another purpose in 
the Alabama system. It allows the jury to have a care­
fully limited but nonetheless important participation in

21
the sentencing process, in the broadest sense of that term. 
The jury’s substantive input into sentencing is confined 
to the impact of its guilt stage adjudication. The jury 
does not make any finding concerning the existence of 
mitigating circumstances or concerning the existence of 
any aggravating circumstance other than the one defined 
into the offense. The jury does not weigh aggravating 
and mitigating circumstances, and it does not make a 
sentencing decision. If it convicts the defendant of the 
capital offense it is required to return a verdict form 
containing language which “fixTes] the punishment at 
death.” However, that is a purely ministerial act.8

The jury does determine in the first instance, at the 
guilt stage, whether or not the definitional aggravating 
circumstance exists. That role is important because un­
less that aggravating circumstance exists there can be no 
death sentence regardless of the number of § 13-11-6 ag­
gravating circumstances that are present. E.g Ex parte 
Kyzer, 399 So.2d at 337. The jury’s verdict convicting 
the defendant of a capital offense necessarily carries 
with it the jury’s finding beyond a reasonable doubt that 
the definitional aggravating circumstance exists. While 
the judge is not required to concur in the jury’s aggra­
vating circumstance finding, he does consider the fact 
that the jury in its adjudication of guilt has made that 
finding about the crucial aggravating circumstance. See 
?P;( 2J-28’ telow. In that way the jury verdict of guilt 
is advisory” in a substantive sense. Thus, the jury does 
have a limited but important role in the sentencing 
process.0 b

8 The provision in § 13-ll-2(c) that the trial court may enter a 
mistrial if the jury fails to agree “on a verdict of guilty or not 
guilty or on the fixing of the penalty of death” does not'indicate 
to the contrary. That provision simply acts as a safety valve to 
prevent unjust acquittals if the jury rebels against the required 
formal language.

“Spaziano v. Florida, 104 S.Ct. 3154 (1984), establishes that 
the Constitution does not require any jury participation in the



22

The way in which the jury’s verdict serves an “ad­
visory” function in a procedural sense is discussed below.

B. The Function of the Verdict Form Provision

The language in the guilt stage verdict form “fixfing] 
the punishment at death” serves two functions. First, it 
conveys into the sentencing stage the jury’s factfinding, 
described above, that the essential aggravating circum­
stance exists. The second function it serves is to express 
a fundamental policy decision made by the legislature. As 
the Alabama Supreme Court explained in Ex parte Kyzer, 
399 So.2d 330, 337, 338 (Ala. 1981), the legislature de­
cided to punish capitally defendants convicted of the 
aggravated offenses set forth in § 13-11-2(a), unless the 
trial court after conducting a sentence hearing finds that 
there are mitigating circumstances which, when weighed 
against the aggravating circumstances, indicate the sen­
tence should be less than death. That is why under the 
statute the judge can impose a death sentence based on 
the aggravation inherent in the capital offense defini­
tion, even if none of the additional § 13-11-6 aggravating 
circumstances exists. E x parte Kyzer, supra.

The trial judge as the sentencing authority not only 
may, but must, impose a death sentence on a defendant 
guilty of an intentional killing homicide aggravated by 
one of the circumstances defined into the capital offense, 
unless there are mitigating circumstances to offset or 
counter-balance the aggravating circumstance(s). Ex 
parte Kyzer, supra.10 If the jury finds the defendant

capital sentencing process. However, in Alabama juries have al­
ways participated to some extent in the capital sentencing process, 
Beck v. State, 396 So.2d at 659, and in the 1975 statute the legisla­
ture prescribed the role described above, id., at 660.

10 Although the literal language of § 13-11-4(1) seemingly indi­
cates to the contrary, this Court must consider the statute the way 
the Alabama Supreme Court has construed it. E.g., Proflit v. Flor­
ida, 428 U.S. 242, 255 (1976) (joint opinion).

23

guilty of the aggravated intentional killing homicide, the 
jury’s purely ministerial fixing of the penalty at death 
conveys that legislative judgment into the sentence stage. 
The jury has not made the judgment that the penalty 
should be death unless sufficient mitigation is shown to 
the judge at the sentence hearing. The legislature has 
made it. The jury in delivering the verdict form lan­
guage to the judge merely acts as the legislature’s mes­
senger. In that way, the verdict form language is “ad­
visory” in a procedural sense. It “advises” the sen­
tencing authority of the legislative judgment.

Of course, the validity of the entire scheme is initially 
dependent on the constitutionality of the legislature’s 
substantive decision that where there is an aggravating 
circumstance the penalty should be death unless mitigat­
ing circumstances indicate to the contrary. In Proffitt v. 
Florida, 428 U.S. 242 (1976), this Court upheld a capital 
sentencing system which mandated that:

the sentencing judge is required to impose the death 
penalty on all first-degree murderers as to whom the 
statutory aggravating factors outweigh the mitigat­
ing factors. . . .

M., at 260 (concurring opinion of White, J.) (emphasis 
in original). Accord, e.g., State v. Dixon, 283 So.2d 1, 19 
(1973) (when one or more aggravating circumstances is 
found, death is presumed to be the proper sentence un­
less it or they are overridden by one or more of the 
mitigating circumstances”); Cooper v. State, 336 So.2d 
1133, 1136, 1142 (Fla. 1976) (same).11 Thus, Proffitt

The language of the Florida statute itself indicates that in 
some cases an aggravating circumstance might not be sufficient to 
justify a death sentence irrespective of mitigation. Barclay v. 
Florida, 103 S.Ct. 3418, 3426 (1983). However, this Court was 
required to consider the statute as it had been construed by the 
Florida Supreme Court, Proffitt v. Florida, 428 U.S. at 255, and in



24

establishes that the substantive legislative judgment re­
flected in the jury verdict form provision of Alabama’s 
1975 capital punishment statute is a constitutionally per­
missible one.

That legislative judgment is certainly not unique. As 
Appendix B indicates, where there is one or more ag­
gravating circumstances: the statutes of six states re­
quire that death be the punishment unless mitigating cir­
cumstances exist and outweigh the aggravating circum­
stance (s) ; the statutes of five states require that death 
be the punishment unless mitigating circumstance (s) 
exist which are not outweighed by the aggravating cir­
cumstance ( s ) ; and the statutes of four states require 
that death be the punishment unless sufficient mitigating 
circumstances exist to preclude it or call for a lesser sen­
tence. None of the statutes of those fifteen states per­
mits an inquiry by the sentencer into the sufficiency of 
the aggravating circumstance (s), except in relation to the 
sufficiency or weight of the mitigating circumstance (s). 
The fifteen statutes contain different procedures, but all 
of them embody a legislative judgment or presumption 
which is constitutionally indistinguishable from that 
which is embodied in the jury verdict form provision at 
issue in this case.

Any holding that this widespread legislative judgment 
is constitutionally prohibited not only would be unprece­
dented, but also illogical. “ [A]n aggravating circum­
stance must genuinely narrow the class of persons eligible

Dixon that court had construed it to require the sentencer to im­
pose the death penalty absent sufficient mitigating circumstances 
to offset the aggravating circumstances.

Concurring in Barclay, Justice Stevens noted that Florida case 
law on this point “appears to have evolved over time.” 103 S.Ct. 
at 3430 n.3; but see, White v. State, 446 So.2d 1031, 1037 (Fla. 
1984). However, at the time of Proffitt, Florida case law mandated 
the death penalty where an aggravating circumstance existed and 
outweighed any mitigating circumstance(s), and this Court upheld 
the Florida law.

25

for the death penalty and must reasonably justify the 
imposition of a more severe sentencer on the defendant 
compared to others found guilty of murder.” Zant v. 
Stephens, 103 S.Ct. 2733, 2742-2743 (1983) (footnote 
omitted). The aggravating circumstances defined into 
Alabama’s capital offenses unquestionably do that. See, 
§ 13-11-2(a) (1)-(14). In addition, the sentencing au­
thority must be permitted to consider as a mitigating 
factor any aspect of a defendant’s character or record 
and any of the circumstances of the offense that the de­
fendant proffers as a basis for a sentence less than death. 
Lockett v. Ohio, 438 U.S. 586 (1978). Alabama’s proce­
dure complies. See p. 28, below. Therefore, the sub­
stantive legislative judgment conveyed by the verdict 
form provision amounts to nothing more than a direction 
that if some aspect(s) of the murder justify the imposi­
tion of a death sentence in a particular case compared to 
others, then the death sentence should be imposed unless 
some aspect(s) of the defendant’s character or record or 
the circumstances of the offense nonetheless cause the 
sentencer to conclude that the sentence should not be 
death. Any holding that such a rule is unconstitutional 
would turn Furman on its head and be a large step back­
wards toward the pre-Furman state of affairs.

Therefore, the jury verdict form provision serves to 
procedurally convey both the jury’s substantive “advice” 
concerning the existence of the definitional aggravating 
circumstance and the legislature’s constitutionally permis­
sible directive that if that aggravating circumstance ex­
ists the sentence should be death unless there are mitigat­
ing circumstance(s) which counterbalance it.

C. The Judge’s Role

The trial court judge is the sentencing authority. E.g., 
Ritter v. State, 429 So.2d 928, 936 (Ala. 1983); Jacobs 
v. State, 361 So.2d 607, 631 (Ala. Cr. App. 1977), aff’d, 
361 So.2d 640 (Ala. 1978), cert, denied, 439 U.S. 1122



26

(1979). He conducts the sentence hearing, the purpose 
and importance of which the Alabama courts have de­
scribed as follows:

The sentencing hearing is one of the most im­
portant and critical stages under Alabama’s death 
penalty law. The guilt stage has passed. Now an 
experienced trial judge must consider the particular­
ized circumstances surrounding the offense and the 
offender and determine if the accused is to die or be 
sentenced to life imprisonment without parole. It is 
a due process hearing of the highest magnitude and 
the exclusionary rules of evidence play no part. The 
trial evidence must be reviewed to determine all of 
the aggravating circumstances leading up to and 
culminating in the death of the victim and then all 
the mitigating circumstances must be considered in 
determining if any outweigh the aggravating cir­
cumstances so found in the trial court’s findings of 
fact. Unless and until this is done “the trial judge 
cannot fairly weigh the aggravating and mitigating 
circumstances, and the appellate court cannot ade­
quately review his sentencing decision.”

Richardson v. State, 376 So.2d 205, 224 (Ala. Cr. App. 
1978), aff’d, 376 So.2d 228 (Ala. 1979). Section 13-11-3 
provides that any probative evidence the court deems 
relevant to sentence may be received at the sentence hear­
ing irrespective of the rules of evidence.1- The Alabama 
appellate courts have held that: “ [t]he defendant must 
be afforded the opportunity to adduce any testimony 
which has any probative value that will enable the court 
to perform its constitutional responsibility for the ques­
tion of whether a man should live or die is not to be

12 The only exceptions favor the defendant. The State may not 
present: any hearsay unless the defendant is accorded a fair op­
portunity to rebut it, § 13-11-3; any evidence secured in violation 
of the state or federal constitutions, id.; or any evidence of non- 
statutory aggravating circumstances, see, e.g., Nelson v. State, 
405 So.2d 392, 400 (Ala. Cr. App. 1980) ; Berard v. State, 402 So.2d 
1044,1050 (Ala. Cr. App. 1980).

27

treated as a mere formality.” Richardson v. State, supra. 
To aid him in his sentence inquiry, the judge may order 
a pre-sentence report. E.g., Cook v. State, 369 So.2d 
1251, 1257 (Ala. 1978).

After he has received and considered all the evidence, 
the threshold question the judge must decide in making 
his sentencing decision is whether the aggravating cir­
cumstance included in the §13-11-2 (a) capital offense 
definition exists. Unless the judge finds the definitional 
aggravating circumstance exists, there can be no death 
sentence regardless of the number of § 13-11-6 aggravat­
ing circumstances in the case. As the Alabama Supreme 
Court has explained:

the legislature, by requiring the aggravating cir­
cumstance to be averred in the indictment, neces­
sarily meant that the trial judge must find that par­
ticular aggravating circumstance was present in the 
case |in order to impose a death sentence]. If the 
trial judge does not find that the aggravating cir­
cumstance averred in the indictment is present, 
there can be no death sentence imposed, although 
there might be several other statutory [§ 13-11-6] 
aggravating circumstances present.

Ex parte Kyzer, 399 So.2d 330, 337 (Ala. 1981) (mate­
rial in brackets added). For example, in the present case, 
if the trial judge had not found that the capital offense 
involved robbery, the definitional aggravating circum­
stance, petitioner could not have been sentenced to death 
even though the § 13-11-6(1), (2), and (8) aggravating 
circumstances were present (J.A. 18-19). The judge did 
find the definitional aggravating circumstance of robbery 
present, as is indicated by his express finding that the 
overlapping §13-11-6(4) aggravating circumstance was 
present (J.A. 18). See, Ex parte Kyzer, 399 So.2d at 
334.

In determining whether the definitional aggravating 
circumstance exists the judge must consider the jury’s



28

“advisory” verdict that it did exist, but the judge is not 
bound by the jury’s finding. In most instances the judge 
will concur, because the evidence which convinced the 
jury beyond a reasonable doubt at the guilt stage will 
cause the judge to reach the same conclusion at the sen­
tence stage. However, “since the trial court at the sen­
tence hearing is allowed substantive and procedural flex­
ibility which is generally prohibited during the jury [i.e., 
guilt stage] trial,” the trial court can reach a sentence 
finding at odds with the jury’s determination of guilt. 
Tomlin v. State, 443 So.2d 47, 52-54 (Ala. Cr. App. 
1979), aff’d, 443 So.2d 59 (Ala. 1983). If the judge does 
find, contrary to the jury’s guilt determination, that the 
definitional aggravating circumstance is not present, then 
there can be no death sentence. E.g., Ex parte Kyzer, 
399 So.2d at 337.13

The aggravating circumstances are confined to the 
definitional one and any additional ones listed in § 13- 
11-6: “ [t]he statutory aggravating circumstances may 
not be added to or expanded.” Nelson v. State, 405 So.2d 
392 (Ala. Cr. App. 1980); accord, e.g., Cook v. State, 
369 So.2d 1251, 1257 (Ala. 1978); Berard v. State, 402 
So.2d 1044, 1050 (Ala. Cr. App. 1980). The mitigating 
circumstances are not confined to the statutory ones listed 
in § 13-11-7. Instead, from the beginning, the Alabama 
appellate courts have interpreted the statute consistently 
with Lockett v. Ohio, 438 U.S. 586 (1978), to permit con­
sideration of any non-statutory mitigating circumstances. 
E.g., Jacobs v. State, 361 So.2d 640, 652-654 (Ala. 1978), 
cert, denied, 439 U.S. 1122 (1979); Cook v. State, 369 
So.2d at 1256; Baldwin v. State, 372 So.2d at 32; see, 
Lockett v. Ohio, 438 U.S. at 606-607.

13 In Tomlin v. State, supra, a death sentence was nonetheless 
possible because the defendant was convicted of a capital offense 
under two sections, § 13-ll-2(a) (7) and (10). The judge’s sen­
tence stage findings negated only the § 13-11-2 (a) (7) definitional 
aggravating circumstance.

\

29
If the definitional aggravating circumstance is present 

and theie is no statutory or non-statutory mitigating cir­
cumstance, then the death penalty ministerially “fixed” 
by the jury at the legislature’s direction is “accepted” by 
the judge. See pp. 22-25, above. However, if there is any 
mitigating circumstance present—any reason not to im­
pose the death penalty—then the judge weighs the miti­
gating circumstance (s) against the definitional aggravat­
ing ciicumstance and any additional § 13-11-6 aggravat­
ing circumstances present to determine for himself the 
proper sentence. The weighing process is not one of 
numerical tallying. E.g., Cook v. State, 369 So.2d 1251, 
1257 (Ala. 1978). Instead, it involves careful considera­
tion by the judge of the reasons why the death penalty 
should be imposed in a given case (the aggravating cir­
cumstances) against the reasons why it should not be im­
posed (the mitigating circumstances). No specific 
weights are assigned to aggravating and mitigating cir­
cumstances. Cf., Proffitt v. Florida., 428 U.S. at 257-258. 
In a ̂ particular case a single mitigating circumstance 
may “outweigh” a number of aggravating circumstances, 
oi the converse could be true. Cook v. State, supra.

Section 13-11-4 does indicate that in arriving at his 
sentencing decision, the judge is to consider or weigh the 
fixing of the punishment at death by the jury. However, 
the statute does not direct the judge to weigh the jury’s 
action as though the jury was advising him about whether 
the aggravating circumstances outweigh the mitigating 
circumstances. The jury does not even consider the ex­
istence of any mitigating circumstances or of any ag­
gravating circumstance other than the definitional one. 
The judge knows that. The statute does not direct the 
judge to consider the jury’s action as any indication of 
what the jury thinks the sentence should be. Under the 
statute, the jury plainly has no choice about what pun­
ishment to fix in its verdict form. The judge knows that.

The limited weight and consideration which the statute 
actually prescribes for the jury’s verdict, and which the



30
judge in fact accords it, has two aspects. First, the jury’s 
fixing of the punishment at death reflects its considered 
finding that the important definitional aggravating cir­
cumstance is present, see pp. 20-21, above, and the judge 
considers it as advice concerning that issue. Secondly, 
the jury’s ministerial action in fixing the penalty at death 
reflects the legislative judgment that if that definitional 
aggravating circumstance exists, the penalty should be 
death unless the judge finds mitigating circumstances 
sufficient to call for a lesser penalty. See pp. 22-25, 
above. The statute, in effect, directs the judge to “weigh” 
that legislative judgment when determining what the 
proper sentence should be. Because of the seriousness of 
the narrowly defined capital offenses, the legislature has 
fixed the initial penalty at death, but has required the 
judge to consider any reason the death penalty should 
not be imposed in the particular case. If any such rea­
son exists, the sentencing decision is made by the judge.

If the judge decides that the reasons not to impose the 
death sentence in the case (mitigating circumstances) 
are sufficient to counter-balance the reason (s) to impose 
the death sentence (aggravating circumstance(s ) ), he 
sentences the defendant to life without parole and neces­
sarily rejects the penalty “fixed” by the legislature in the 
jury verdict form. If he determines that the reasons to 
impose the death penalty outweigh the reasons not to, he 
sentences the defendant to death and necessarily “accepts” 
the penalty “fixed” in the verdict form. Ex parte Bald­
win, 456 So.2d 129, 139 (Ala. 1984). (J.A. 56) As the 
Alabama Supreme Court has interpreted the statute:

the court, which is the sentencing authority, con­
siders the circumstances of the particular offense 
and the character and propensities of the offender, 
i.e., the aggravating and mitigating circumstances, 
in a separate and independent sentencing hearing, 
and then imposes the sentence.

Id. That is what the Constitution requires, and that is 
what the judge does.

31

III. APPELLATE REVIEW OF DEATH SENTENCE 
CASES IS ENHANCED AND INCLUDES INDE­
PENDENT REVIEW OF THE APPROPRIATENESS 
OF THE DEATH SENTENCE IN EACH INDIVID­
UAL CASE

Under Alabama’s 1975 statute, both the conviction and 
the sentence in every capital case is subject to automatic 
appellate review, §§ 13-11-5 and 12-22-150, even if the 
defendant does not desire it, see, e.g., Evans v. State, 361 
So.2d 666, 667 (Ala. 1978). That review is by two tiers 
of appellate courts. If the Court of Criminal Appeals 
affirms both the conviction and death sentence, and only 
if it does, certiorari review by the Alabama Supreme 
Court is automatic. A.R.A.P. 39(c). This rule, special 
to capital cases, ensures that no capital case will be af­
firmed until fourteen judges on two appellate courts have 
reviewed it.

Appellate review is also enhanced by two other special 
rules applicable only to capital cases. One requires the 
Court of Criminal Appeals to search the record in a capi­
tal case for errors in either the guilt or sentence stage 
that have not been raised on appeal, A.R.A.P. 45B, 
modifying § 12-22-240, and permits the Alabama Su­
preme Court to do so. Both courts have searched the 
record in capital cases and found errors in sentence pro­
ceedings not raised on appeal. Cook v. State, 369 So.2d 
1251, 1252, 1255-1257 (Ala. 1978) ; Ashlock v. State, 367 
So.2d 560, 561 (Ala. Cr. App. 1978), cert, denied, 367 
So.2d 562 (Ala. 1979).

The other special rule provides that the Court of Crim­
inal Appeals is required, A.R.A.P. 45A, and the Alabama 
Supreme Court is permitted, A.R.A.P. 39 (k), to reverse 
a death sentence case for any plain error affecting the 
conviction or sentence, notwithstanding the defendant’s 
failure to raise or preserve the issue in the trial court. 
Capital convictions, e.g., Jacobs (John L.) v. State, 371 
So.2d 448, 449-450 (Ala. 1979), and sentences, e.g., Cook



\

32

v. State, 369 So.2d at 1257, have been reversed under the 
plain error rule.

Review is also enhanced by the attitude of the Alabama 
appellate courts concerning death sentence cases. In re­
viewing a case against the defendant’s wishes, the Ala­
bama Supreme Court recognized a “dominant and over­
riding interest in ensuring that the death penalty is im­
posed only for utmost of compelling legal reasons.” 
Evans v. State, 361 So.2d at 667. In reversing a death 
sentence for errors which were not raised at trial or on 
appeal and probably made no difference anyway, Cook v. 
State, 369 So.2d at 1252, 1255, 1257, the court said that, 
“where the State proposes to take a life as punishment 
for crime, it is our duty to insure that the proper result 
is reached,” id., at 1257. The court has also recognized 
the non-availability of corrective mechanisms once a capi­
tal sentence has been carried out, id., at 1255, and said 
that, “ ft]o pass on the death sentence is the gravest and 
most delicate duty that this court is called upon to per­
form,” Ritter v. State, 429 So.2d at 937.

How seriously the Alabama appellate courts have taken 
that duty is shown by the results of their review in pre- 
Beck cases like this one. Appendix C to this brief lists 
the death sentence cases in which at least one opinion was 
issued before the decision in Beck v. Alabama, supra. 
There were thirty-four. In six (18%) the convictions 
were reversed. In fifteen (44% ) the death sentences were 
reversed and new proceedings ordered because of errors 
at the sentence hearing, or in the trial court’s sentence 
findings, or in the sentence itself. Only in thirteen cases 
(38%), including this one, were both the conviction and 
sentence affirmed on the first review.

In addition to thoroughly reviewing capital cases “to 
insure that no error has tainted the trial or the sentenc­
ing process,” Cook v. State, 369 So.2d at 1255, the Ala­
bama appellate courts also review the death sentence to 
determine for themselves whether it is appropriate under

33

all the circumstances. See, e.g., Bracewell v. State, 401 
So.2d 123, 124 (Ala. 1979) (directing the Court of Crim­
inal Appeals to review the propriety of the death sen­
tence) . This review has two components.

First, the Alabama appellate courts perform compara­
tive proportionality review in which the death sentence in 
each case is compared to the results in similar cases as 
a safeguard against arbitrariness. This type of review 
under Alabama’s 1975 statute is remarkably similar to 
that under Florida’s statute. Neither statute expressly 
provides for it, but both states’ appellate courts have read 
it into their statutes. Compare State v. Dixon, 283 So.2d 
1, 10 (Fla. 1973) with Jacobs v. State, 361 So.2d 640, 
644 (Ala. 1978), and Beck v. State, 365 So.2d 985, 1005 
(Ala. Cr. App. 1978).14 In Pulley v. Harris, 104 S.Ct. 
871 (1984), this Court noted that comparative propor­
tionality review has been part of Florida’s theory of ap­
pellate review since the beginning, having been endorsed 
in the very first case decided under Florida’s statute, al­
though the Florida Supreme Court “has undeniably be­
come more enthusiastic, or at least more explicit, about 
proportionality review in recent years,” id., at 877-878 
n.8. The same is true in Alabama. It was endorsed in 
the very first ease, Jacobs v. State, supra, although the 
Alabama appellate courts have undeniably become more 
enthusiastic, or at least more explicit, about it in recent 
years. Compare Baldwin v. State, 372 So.2d 26, 32 (Ala.

14 Alabama’s 1981 capital punishment statute does specifically 
provide for in-depth appellate review of every death sentence, in­
cluding comparative proportionality review. Code of Alabama 1975, 
§ 13A-5-53 (b). Although that statute applies only to cases in 
which the crime occurred on or after July 1, 1981, § 13A-5-57, the 
Alabama appellate courts have “borrowed” its provisions for review 
of cases tried under the 1975 statute. Hill v. State, 455 So.2d 930, 
936 (Ala. Cr. App.), aff'd, 455 So.2d 938 (Ala.), cert, denied, 105 
S.Ct. 607 (1984) ; Baldwin v. State, 456 So.2d at 128 (J.A. 37-38); 
Horsley v. State, No. 1 Div. 931 (Ala. Cr. App. Nov. 29, 1983), 
Ms. op. at 3.



\ 34

Cr. App. 1978), with Baldwin v. State, 456 So.2d 117, 
128 (Ala. Cr. App. 1983) (J.A. 37-38). In Pulley this 
Court also noted that the Florida Supreme Court has not 
expressly reviewed the comparative proportionality of 
every death sentence, but went on to hold that the fact it 
was not done explicitly in a case does not mean that it 
was not done at all. 104 S.Ct. at 877-878 n.8. The same is 
true in Alabama.15

Georgia’s system of appellate review of death sentences 
has received much praise from this Court. Gregg v. Geor­
gia, 428 U.S. 153, 206 (1976) (joint opinion); id., at 
222-224 (concurring opinion of White, J.) ; Pulley v. 
Harris, 104 S.Ct. at 882, 884 (concurring opinion of 
Stevens, J .). Alabama’s system is even more extensive. 
In addition to encompassing all three of the Georgia ap­
pellate determinations, see, Gregg v. Georgia, 428 U.S. at 
212, Alabama’s review adds another inquiry—whether the 
appellate court, in its own independent judgment thinks 
that the aggravating circumstances outweigh the mitigat­
ing circumstances.16

The importance of this added step is shown in Lewis 
v. State, 380 So.2d 970 (Ala. Cr. App. 1979), in which

15 The Florida Supreme Court has had more opportunity to en­
gage in comparative proportionality review than the Alabama 
courts have. Because of its larger population, older statute, and 
more broadly defined capital offenses, Florida had 140 murderers 
on death row compared to Alabama’s 38, just before Beck v. Ala­
bama, supra. “Death Row, U.S.A.,” NAACP Legal Defense Fund 
Report (April 20,1980).

16 This aspect of appellate review is often explicitly reflected in 
the opinions. E.g., Beck v. State, 365 So.2d at 985; Crawford v. 
State, 377 So.2d 145, 159 (Ala. Cr. App.), aff’d, 377 So.2d 159 (Ala. 
1979), vacated on unrelated grounds, 448 U.S. 904 (1980) ; Evans 
v. State, 361 So.2d at 662; Bryars v. State, 456 So.2d 1122, 1133 
(Ala. Cr. App. 1983), rev’d on unrelated grounds, 456 So.2d 1136 
(Ala. 1984) ; see also, Neal v. State, 372 So.2d 1331, 1347 (Ala. Cr. 
App. 1979) (concurring opinion of Bowen, J.). It was in this 
case. (J.A. 37-38, 58)

35

a death sentence was imposed in a robbery-intentional 
killing case. As the cases summarized in Appendix A in­
dicate, death sentences are certainly not unusual in 
robbery-intentional killing cases. Therefore, comparative 
proportionality review did not suggest a reduction of sen­
tence in Lewis. However, when the Court of Criminal 
Appeals independently weighed the aggravating and miti­
gating circumstances itself, it concluded that the mental 
state mitigating circumstances in that particular case 
outweighed the aggravating circumstances and that the 
sentence should not be death. Accordingly, it reversed 
the sentence and ordered the trial court to conduct new 
proceedings in conformity with the appellate court’s deci­
sion that “the death sentence should be reduced to a sen­
tence of life imprisonmont without parole.” Id., at 971, 
972, 976-977. Pursuant to the appellate court’s directions 
and mandate, the trial court reduced the sentence.17

To ensure that they are able to independently weigh 
the aggravating and mitigating circumstances themselves, 
the Alabama appellate courts have strictly enforced the 
requirement that trial judges enter complete written find­
ings concerning aggravating and mitigating circum­
stances whenever a death sentence is imposed. E.g., Mack 
v. State, 375 So.2d 476, 500-501 (Ala. Cr. App. 1978) ; 
aff’d, 375 So.2d 504 (Ala. 1979), vacated on unrelated 
grounds, 448 U.S. 903 (1980).

17 When it deems a death sentence excessive, an Alabama ap­
pellate court does not reduce the sentence itself, but instead re­
mands the case to the trial court for that purpose. The same is 
true in Georgia. Gregg v. Georgia, 428 U.S. at 168 (“the court may 
affirm the death sentence or remand the case for resentencing’’). 
Constitutionally, it is immaterial whether the appellate court re­
duces the sentence itself or directs the trial court to do so.

In Lewis, although the trial court conducted a new sentence pro­
ceeding on remand, it based the sentence of life without parole 
which it imposed thereafter not on any new evidence but instead 
on “the directions” and “the mandate” of the appellate court. 380 
So.2d at 979-980 (after remand).



36
In summary, Alabama’s pre-Beck capital sentencing 

system incorporates a thorough and effective system of 
enhanced appellate review which ensures that no error 
taints the trial or sentencing process. It also ensures non- 
arbitrary individualized sentencing through both com­
parative proportionality review and independent weigh­
ing of the aggravating and mitigating circumstances in 
each case by the appellate courts. No death sentence 
leaves the Alabama appellate system unless and until the 
Court of Criminal Appeals and the Alabama Supreme 
Court have each determined that the death sentence is 
appropriate under the facts of that particular case.18

IV. THE SENTENCE WAS CONSTITUTIONALLY IM­
POSED IN THIS AND THE REMAINING PRE- 
BECK  DEATH SENTENCE CASES
A. The Statute is Not a Mandatory Death Penalty 

System

A capital statute which requires the sentencing au­
thority to impose the death sentence on eveiy defendant 
convicted of a specified offense without allowing it to con-

18 Because capital offenses were narrowly limited to aggravated 
homicide crimes, and because the cases meriting a sentence less 
than death received it at the trial level, Alabama’s appellate courts 
had little opportunity to order any sentences reduced in the four 
years the statute operated prior to Beck v. Alabama, supra. They 
did do so in the Lewis case.

In its first decade of reviewing post-Furman cases the Georgia 
Supreme Court vacated and remanded seven death sentences for 
reduction. See, Pulley v. Harris, 104 S.Ct. 871, 890-891 (1983) 
(dissenting opinion of Marshall, J.). However, only two of those 
were homicide cases, and in one the defendant had received a life 
sentence for the same offense in an earlier trial. Id .; see, Bullington 
v. Missouri, 451 U.S. 430 (1981). Therefore, the Alabama ap­
pellate courts reduced as many comparable homicide death sen­
tences (one) in four years as the Georgia Supreme Court did in 
ten years. That is true even though Georgia has had many more 
death sentences imposed than Alabama. See, “Death Row U.S.A.,” 
supra, (two months before Beck, Alabama had 38 on death row, 
Georgia had 98).

37
sider mitigating circumstances is unconstitutional. Wood- 
sow v. North Carolina, 428 U.S. 280 (1976) ; Roberts v. 
Louisiana, 428 U.S. 325 (1976). However, this statute is 
not a mandatory one. The trial judge, who is the actual 
sentencing authority, considers mitigating circumstances 
and is not required to impose the death sentence. Ap­
proximately one-third of the convictions under this stat­
ute did not result in a death sentence.111

If the statute were mandatory, the judge would not 
have held a hearing in this case the express purpose of 
which was “to aid in the determination of whether or not 
the Court will sentence the defendant to death or to life 
imprisonment without parole.” (J.A. 5) During that 
hearing he would not have repeatedly expressed his desire 
to be told of all mitigating circumstances. (J.A. 10, 12- 
13, 14) Nor would the appellate courts have independ­
ently decided whether death was the proper sentence in 
this particular case. (J.A. 37-38, 58)

B. The Verdict Form Provision Does Not Distort the 
Jury’s Role or Have Any Adverse Effect on the 
Guilt Phase

Petitioner argues th a t requiring the ju ry  to make a 
sentencing decision without providing it  with sufficient 
information leads to irrational and uncertain sentencing

lu According to a stipulation filed in the Evans case, by the same 
attorneys who represent the parties in this case, as of May 14, 
1979, sixty-five defendants had been convicted of capital offenses 
and sentenced under the statute. Twenty-two of those defendants 
received life without parole sentences from the trial court. Thirteen 
of those twenty-two were cases in which the defendant pleaded 
guilty, and nine were not. Record in Hopper v. Evans 456 U S 
605 (1982), at 67-68.

Guilty plea convictions should be included in considering the 
sentencing results under the statute, because prosecutors are more 
likely to agree to a guilty plea and life without parole sentence in 
those cases less deserving of a death sentence. Cf., Gregg v. Georgia, 
428 U.S. at 225 (White, J., concurring). Therefore, excluding 
guilty plea convictions skews the analysis. See also, n.22 on pp. 40- 
41, below.



38
results. The obvious fallacy of his argument is that the 
jury is not the sentencing authority and does not make 
any decision about what the sentence should be. The 
jury’s action in regard to the verdict form language is 
purely ministerial and without choice, as the jury is 
plainly told (R. 242-243, 246-247). The jury is not given 
any guidelines to the exercise of its sentencing power, 
because it does not have any sentencing power. The dis­
cretionary sentencing power is vested in the trial judge, 
who is given guidelines for the proper exercise of it. See 
pp. 25-30, above.

Because the jury is not told that the judge will later 
conduct a sentence hearing to decide on the actual punish­
ment, it may appear to the jury that if it convicts the 
defendant of the capital offense he will be sentenced to 
death. However, that could only have benefited petitioner. 
The plurality of opinions in Woodson and Roberts are 
replete with, and to some extent dependent on, historical 
evidence that juries are more reluctant to convict in 
cases where they believe a death sentence will be the auto­
matic result. Surely, petitioner is not entitled to have his 
sentence set aside because the procedures under which he 
was tried created an unnecessary risk that he would be 
acquitted.

The plurality opinions in Woodson and Roberts did sug­
gest that under some systems, facing the jury with a 
mandatory sentencing provision might produce so many 
unjust acquittals that it would infect the overall sen­
tencing pattern with arbitrariness and capriciousness like 
that of the pre-Furman days. Such a result was pre­
dicted or assumed for the systems struck down in Rob­
erts, 428 U.S. at 334-335, and Woodson, 428 U.S. at 303. 
The same prediction or assumption cannot be made here. 
Indeed, there is no need to predict or assume anything 
here. This system is closed; the results are in. During 
the four years Alabama’s pre-Beck system operated, 
there was a 4 °/o acquittal rate in capital cases. Beck v. 
Alabama, 447 U.S. at 641. Because it is absolutely un­

39
disputed that the verdict form provision did not infect 
the sentencing pattern with unjust acquittals, petitioner’s 
contention that it might have been expected to do so, 
should be rejected.20

C. The Verdict Form Provision Does Not Inject Ir­
relevant or Impermissible Factors into the Judge’s 
Sentencing Decision

Petitioner’s argument that the verdict form provision 
injects an impermissible or arbitrary consideration into 
the judge’s sentencing decision, and the federal appeals 
court holding to that effect in Ritter v. Smith, supra, are 
both dependent on a fundamentally erroneous assump­
tion. They both assume that the statute requires the 
judge to consider or weigh the jury’s verdict as though 
the jury had actually made a decision or recommenda­
tion about punishment. As is discussed in detail on 
pp. 22-30, above, that is not how the Alabama Supreme 
Court has construed the statute, and that is not how the 
process works. Instead, the jury’s verdict, including the 
purely formal language “fixfingj” the punishment, is 
given a much more limited but legitimate weight and 
consideration by the judge.

Petitioner’s insistence that the sentencing judge treats 
the verdict language as though it embodied a real deci­
sion by the jury on the sentence issue reflects an appar­
ent belief that the sentencing judge is unaware of the 
jury’s lack of choice about the matter. Petitioner does

20 If petitioner’s argument that the verdict form provision 
“blurred” and “distorted” the guilt phase contains a contention 
that the provision may have caused unjust convictions, that con­
tention should also be rejected. There is not only no evidence to 
support the contention, but all the evidence about jury behavior in 
response to mandatory sentencing requirements, which was sur­
veyed in Woodson and Roberts, is directly to the contrary. More­
over, as the Eleventh Circuit Court of Appeals has held, Ritter v. 
Smith, 726 F.2d 1505, 1514 n.21 (11th Cir. 1984), cert, denied, 
105 S.Ct. 218 (1984), this Court’s decision in Hopper v. Evans, 
456 U.S. 605 (1982), necessarily establishes that the verdict form 
provision did not taint pr&-Beck convictions.



40

not explain how a judge who instructs the jury at the 
guilt stage that it has no choice (R. 242-243, 246-247) 
can himself be ignorant of that fact at the sentence stage.

Nor did the public announcement of the jury’s verdict 
language pressure any judge into sentencing a defendant 
to death despite mitigating factors that call for a lesser 
sentence. To argue that any judge was so influenced 
because of public pressure demeans the judicial office and 
is inconsistent with one of the most fundamental assump­
tions of our system of justice—judges will do their duty 
without regard to public clamor or comment. It is true 
that one Alabama Supreme Court justice has expressed 
fears about the public pressure that might be exerted on 
the sentencing judge in this regard. See, Beck v. Ala­
bama, 447 U.S. at 625 n. 22. However, his comments 
were answered by a majority of that court which pointed 
out that judges had continued to impose life without 
parole sentences under the statute, and also that no 
death sentence would be upheld unless both the Court of 
Criminal Appeals and the Alabama Supreme Court found 
it to be proper. Jacobs v. State, 361 So.2d at 654.21

The fact that a substantial number of those convicted 
under the statute were sentenced to death, see n. 19 on 
p. 37, above,22 does not demonstrate that the verdict form

21 It should also be pointed out that the justice cited only one 
case which he thought involved a public “outcry of unjustified 
criticism” over a judge’s decision to sentence a defendant to death. 
Id., at 650-651 & n.3. That the public criticism of the sentencing 
decision in that case probably was not unjustified is evident in the 
Court of Criminal Appeals’ subsequent opinion in that case. 
Nolen v. State, 376 So.2d 1145, 1148 (Ala. Cr. App. 1979) ; id., 
a t 1148 (concurring opinion of DeCarlo, J .) .

22 The statistics contained in footnote 22 of the Beck opinion do 
not encompass guilty plea convictions, which also require a jury 
verdict of guilt “fix[ing] the punishment at death” under Alabama 
law. See, Prothro v. State, 370 So.2d 740 (Ala. Cr. App. 1979).

41

provision produced unjust death sentences. No defendant 
could be convicted of a capital offense without proof be­
yond a reasonable doubt that he committed an inten­
tional killing homicide accompanied by an aggravating 
circumstance of the most serious sort. See pp. 19-20, 
above. In view of that, it would have been extraordinary 
if any other sentencing pattern had emerged.

The death sentence in this case and the ones described 
in Appendix A are the only remaining ones imposed 
under this procedure. Nothing indicates that these ten 
death sentences are in any way unjust.

I). The Appellate Review System Ensured that Any 
Arguably Improper Effect of the Verdict Form 
Provision Did Not Affect the Final Sentence

This Court’s decisions establish that appellate review 
of death sentences is an important safeguard which must 
be considered in determining the constitutionality of a 
statute or any part of it which is under attack. E.g., 
Pulley v. Harris, 104 S.Ct. 871, 877, 880 11984) ; Zant 
v. Stephens, 103 S.Ct. 2733, 2749-2750 (1983); Barclay 
v. Florida, 103 S.Ct. 3418, 3428 (1983). Alabama’s en­
hanced and effective system of appellate review is dis­
cussed on pp. 31-36, above. Under that system, petition­
er’s sentence was reconsidered and held to be proper by 
two appellate courts, both of which independently weighed 
the aggravating and mitigating circumstances without 
regard to the jury’s formal verdict language. (J.A. 
37-38, 58) Both courts decided for themselves that death 
was the appropriate sentence because in each court’s judg­
ment the aggravating circumstances “greatly out­
weighed” the mitigating circumstance(s). (J.A. 38, 58)

They should be included for the reasons discussed in n.19 on p. 37, 
above.

In addition, neither the statistics contained in n.22 of the Beck 
opinion nor those in n.19 of this brief reflect the reduction in death 
sentences that occurred in a number of the cases because of appel­
late review and new proceedings on remand.



42
In Wainwright v. Goode, 104 S.Ct. 378, 383 (1983), 

this Court held that even if an allegedly improper factor 
had infected the sentencing process at the trial level, the 
sentence was nonetheless valid, because:

Whatever may have been true of the sentencing 
judge, there is no claim that in conducting its inde­
pendent reweighing of the aggravating and mitigat­
ing circumstances the Florida Supreme Court consid­
ered Goode’s future dangerousness. Consequently, 
there is no sound basis for concluding that the pro­
cedures followed by the State produced an arbitrary 
or freakish sentence forbidden by the Eighth Amend­
ment.

Id., at 383. See also, Strickland v. Washington, 104 S.Ct. 
2052, 2069 (1984) (inquiry into whether an error was 
prejudicial as to sentence must include role of appellate 
court when it reweighs the evidence). The same is true 
here. Even if it be assumed that the verdict form pro­
vision affected the trial judge’s sentencing decision, there 
cussed on pp. 31-36, above. Under that system, petition- 
is no basis for concluding that it was considered during 
the independent reweighing of aggravating and mitigating 
circumstances by both of Alabama’s appellate courts.

The dictum in Zant that harmless error analysis is un­
available where the state treats as an aggravating cir­
cumstance factors that are “constitutionally impermis­
sible or totally irrelevant to the sentencing process” 103 
S.Ct. at 2747, does not apply here. The jury verdict form 
provision does not do that, see pp. 22-25, above, and the 
aggravating circumstances considered by the trial judge 
(J.A. 18) and by the appellate courts (J.A. 28-38, 57-58) 
are not constitutionally impermissible or irrelevant.

E. The Decisions in Beck v. Alabama, 447 U.S. 625 
(1980), and Beck v. State, 396 So.2d 645 (1980), Do 
Not Establish th a t the Sentencing Procedure is 
Unconstitutional

This Court did not grant certiorari in Beck v. Alabama, 
447 U.S. 625 (1980), to decide whether the existence of

43

the verdict form provision invalidated a capital sen­
tence, id., at 627, nor did it purport to do so. Beck's 
holding and its sweeping language concerning the net 
effect of the preclusion clause and verdict form provision 
“in every case,” id., at 638-643, were expressly limited 
in Hopper v. Evans, 456 U.S. 605 (1982), to only those 
cases in which there was an evidentiary basis for a lesser 
offense verdict, id., at 610-612. Accord, Ritter v. Smith, 
726 F.2d at 1514 n. 22; see also, Zenith Radio Corp. v. 
United States, 437 U.S. 443, 459-462 (1978). This is not 
such a case. (J.A. 22-24, 43-48) Therefore, neither the 
holding nor the rationale of Beck, as limited in Evans, 
applies here.

Faced with the invalidation of the preclusion clause, 
the Alabama Supreme Court restructured the sentencing 
procedure for future trials or retrials under the statute. 
Beck v. State, 396 So.2d 645 (1980). The verdict form 
provision was deleted, but not because the court thought 
it had operated unconstitutionally in the past. Instead, 
it was deleted because the court feared that without the 
preclusion clause the verdict form provision might cause 
future juries to use lesser included offenses to unjustly 
acquit capital defendants. Ex parte Baldivin, 456 So.2d 
at 139-140 (J.A. 56-57). Applying the new procedure 
only to cases to be tried or retried in the future—cases in 
which a lesser included offense verdict might be avail­
able—was a rational approach. See, Dobbert v. Florida, 
432 U.S. 282, 301 (1977). The court did not think that 
the verdict form provision operated unconstitutionally in 
pre-Beck cases and in fact has repeatedly held to the 
contrary. E.g., Ex parte Baldwin, 456 So.2d at 137-140 
(J.A. 52-57).23

-3 Nor did the legislature think so when it later enacted a new 
capital punishment statute. See, § 13A-5-57 (1982) (pre-existing 
law left in effect).



44

F. What the Issue Is and Is Not

The issue in this case is not whether the legislature 
could have chosen some other procedure to serve the 
legitimate functions of the verdict form provision. This 
Court has upheld the Texas, Florida, Georgia, and Cali­
fornia systems; each one uses procedures which vary 
from the others; therefore, each system could have em­
ployed different procedures to serve legitimate functions. 
Each distinct system must be examined on an individual 
basis. E.g., Gregg v. Georgia, 428 U.S. at 195.

The issue in this case is not the uniqueness of the ver­
dict form provision. Saying, “ [w]e take statutes as we 
find tjiem,” Pulley v. Harris, 104 S.Ct. at 876, this Court 
has often upheld capital sentencing provisions that are 
unusual or rare. Id., at 876, 890; Spaziano v. Florida, 
104 S.Ck, at 3164-3165; California v. Ramos, 103 S.Ct. at 
3459-3460 & n.30. Nor is the issue whether this Court 
prefers the verdict form provision or thinks it wise as a 
policy matter. See, Gregg v. Georgia, 428 U.S. at 174- 
175 & n.20.

The issue is not whether the pre-Beck sentencing pro­
cedures, including the verdict form provision, are perfect. 
Perfection is not required, because “ [tjhere is no perfect 
procedure for deciding in which cases governmental au­
thority should be used to impose death.” Lockett v. Ohio, 
438 U.S. at 605; accord, e.g., Pulley v. Harris, 104 S.Ct. 
at 881; Gregg v. Georgia, 428 U.S. at 226 (concurring 
opinion of White, J.)

Instead, the issue is whether petitioner was constitu­
tionally sentenced to death. Petitioner was sentenced un­
der procedures which suitably directed and limited the 
sentencing judge’s discretion and at the same time per­
mitted an individualized determination on the basis of 
the character and record of the individual and the cir­
cumstances of the crime. The procedures included an en­
hanced and effective system of appellate review which

45

resulted in a redetermination of the propriety of the sen­
tence. Moreover, given the particularly outrageous na­
ture of petitioner’s crime, see pp. 3-8, above, and the vir­
tual absence of mitigating circumstances, see pp. 9-12, 
above, any constitutionally permissible capital sentencing 
system would have produced the same result.

CONCLUSION

The decision of the Alabama Supreme Court should be 
affirmed.

Respectfully submitted,

Charles A. Graddick 
Alabama Attorney General

Edward E. Carnes *
Assistant Alabama 

Attorney General 
64 North Union Street 
250 Administrative Building 
Montgomery, Alabama 36130 
205/834-5150

Counsel for Respondent

* Counsel of Record

February 25,1985



\

l

la

APPENDIX A

THE OTHER PRE-BECK DEATH SENTENCE CASES 

Charles Bracewell v. State
On August 15, 1977, Bracewell and a female co-defen­

dant robbed and murdered Rex Carnley, who owned and 
operated a country store. Bracewell v. State, 407 So.2d 
827, 829-837 (Ala.Cr.App. 1979). According to his own 
statement, after the female co-defendant initially shot 
Carnley, Bracewell took the gun from her and shot the 
wounded and helpless man in the back of the head and 
several times in the face. Id. Bracewell was convicted of 
the Code of Alabama 1975, § 13-11-2 (a) (2) capital of­
fense of robbery-intentional killing. After conducting a 
sentence proceeding, in which it was proven that Brace­
well had been previously convicted of the felony offenses 
of kidnapping and robbery, the trial court sentenced him 
to death. Id.

The Alabama Court of Criminal Appeals affirmed 
Bracewell’s conviction and sentence. Bracewell v. State, 
supra. The Alabama Supreme Court ordered the case re­
manded to the trial court for further proceedings, in­
cluding additional sentence proceedings because of the 
misapplication of an aggravating circumstance. Ex parte 
Bracewell, 407 So.2d 845 (Ala. 1979). Following addi­
tional sentence proceedings, in which the misapplication 
of the aggravating circumstance was corrected, the trial 
court found that the aggravating circumstances still out­
weighed the mitigating circumstances, which were none, 
and resentenced Bracewell to death. The Court of Crim­
inal Appeals affirmed. Bracewell v. State, 407 So.2d 848 
(Ala.Cr.App. 1980).

In the meantime, this Court had entered its decision in 
Beck v. Alabama, 447 U.S. 625 (1980), and the Alabama 
Supreme Court had entered its decision in Beck v. State,



2a

396 So.2d 645 (Ala. 1980). Thereafter, the Alabama 
Supreme Court entered a decision remanding the case to 
the Alabama Court of Criminal Appeals for reconsidera­
tion in light of the Beck decision. Ex parte Bracewell, 
407 So.2d 853 (Ala. 1981). The Alabama Court of Crim­
inal Appeals reversed based upon the Beck decision, 
Bracewell v. State, 407 So.2d 854 (Ala.Cr.App. 1981J, 
and the Alabama Supreme Court denied the State’s peti­
tion for a writ of certiorari. Ex parte State, 407 So.2d 
854 (Ala. 1981).

Thereafter, the State petitioned this Court for a writ 
of certiorari, and it granted the State’s petition and re­
manded the case to the Alabama Court of Criminal Ap­
peals for further consideration in light of Hopper v. 
Evans, 456 U.S. 605 (1982). Alabama v. Bracewell, 102 
S.Ct. 2920 (1982). On remand, the Alabama Court of 
Criminal Appeals reversed the conviction in the case once 
more, on authority of Beck v. Alabama, 447 U.S. 625 
(1980), notwithstanding Hopper v. Evans, 456 U.S. 605 
(1982). However, on December 18, 1984, the Alabama 
Supreme Court granted the State’s petition for a writ of 
certiorari in order to review the Court of Criminal Ap­
peals decision. Ex parte Bracewell, No. 84-120. The case 
was submitted to the Alabama Supreme Court on Janu­
ary 10, 1985, and no decision has been announced.

[This case is contained in this appendix notwithstand­
ing the Alabama Court of Criminal Appeals’ reversal of 
the conviction, because of the Alabama Supreme Court’s 
action in granting certiorari. If the Alabama Supreme 
Court reverses the Court of Criminal Appeals’ reversal 
of the conviction, that action will reinstate Bracewell’s 
pre-Beck death sentence.]

John Ronald Daniels v. State
Daniels is the hit man or contract killer who was hired 

by Phillip Wayne Tomlin to commit a murder. The facts

3a

of the crime are described in the discussion of Tomlin’s 
case, on p. 9a, below. Pursuant to his contract with 
Daniels, Tomlin committed a double murder on January 
2, 1977. He was convicted of the Code of Alabama 1975, 
§ 13-11-2 (a) (10) capital offense of murder in the first 
degree wherein two or more human beings are inten­
tionally killed by the defendant by one or a series of acts. 
After conducting a sentence hearing, the trial court sen­
tenced Daniels to death.

Citing Beck v. Alabama, 447 U.S. 625 (1980), the 
Court of Criminal Appeals reversed Daniels’ conviction, 
Daniels v. State, 406 So.2d 1023 (Ala.Cr.App. 1981), and 
the Alabama Supreme Court denied the State’s petition 
for a writ of certiorari, Ex parte State, 406 So.2d 1024 
(Ala. 1981). However, this Court vacated the Court of 
Criminal Appeals’ judgment and remanded the case to it 
for further consideration in light of Hopper v. Evans, 
456 U.S. 605 (1982). Alabama v. Bracewell, 102 S.Ct. 
2920 (1982).

Following that remand, the case has been submitted to 
the Alabama Court of Criminal Appeals for decision. 
The Alabama Court of Criminal Appeals has entered an 
order holding the case in abeyance pending the decision 
of this Court in the Baldwin case.

Timothy Charles Davis v. State

On July 20, 1978, Davis robbed, sodomized, and bru­
tally murdered an elderly female store owner, by stab­
bing her in the back seventeen times with a “common 
steak knife.” Timothy Charles Davis v. State, No. 5 Div. 
538 (Ala.Cr.App. Oct. 9, 1984). He was convicted of the 
Code of Alabama 1975, § 13-11-2(a) (2) capital offense 
of robbery-intentional killing. After conducting a sen­
tence hearing, the trial court sentenced Davis to death. 
Id.



4a

The Alabama Court of Criminal Appeals has affirmed 
Davis’ conviction, id., and the issue concerning the valid­
ity of his death sentence is pending before that court on 
applications for rehearing filed by both sides. However, 
the Court of Criminal Appeals has entered an order hold­
ing any decision on the rehearing applications and the 
sentence issue addressed therein in abeyance pending the 
decision of this Court in the Baldwin case.

Walter Hill v. State

On January 7, 1977, Hill “heartlessly and methodically 
executed three defenseless persons,” one of whom was 
retarded. Hill v. State, 455 So.2d 930, 937-938 (Ala.Cr. 
App. 1984). Hill Was convicted of the Code of Alabama 
1975, § 13-11-2 (a) (10) capital offense of murder in the 
first degree wherein two or more human beings are in­
tentionally killed by the defendant by one or a series of 
acts. After conducting a sentence hearing in which it 
was established that Hill had previously been convicted 
of two unrelated murders, of kidnapping, and of violation 
of the Dyer Act, the trial court sentenced him to death.

Hill’s original conviction was reversed under the With­
erspoon v. Illinois, 391 U.S. 510 (1968), decision. Hill v. 
State, 371 So.2d 60 (Ala.Cr.App. 1978). Thereafter, he 
was retried, reconvicted, and resentenced to death. Citing 
Beck v. Alabama, 447 U.S. 625 (1980), the Court of 
Criminal Appeals reversed Hill’s reconviction, Hill v. 
State, 407 So.2d 567 (Ala.Cr.App. 1981), and the Ala­
bama Supreme Court denied the State’s petition for a 
writ of certiorari, Ex parte State, 407 So.2d 567 (Ala. 
1981). However, this Court vacated the Court of Crim­
inal Appeals’ decision and remanded the case to that court 
for further consideration in light of Hopper v. Evans, 
456 U.S. 605 (1982). Alabama v. Hill, 102 S.Ct. 2920 
(1982).

5a

On remand, the Alabama Court of Criminal Appeals 
reconsidered its prior decision in light of Hopper v. 
Evans, supra, and affirmed Hill’s conviction and death 
sentence. 455 So.2d 930 (Ala. Cr. App. 1984). The Ala­
bama Supreme Court affirmed that decision. Ex parte 
Hill, 455 So.2d 938 (Ala. 1984), and this Court denied 
Hill’s petition for a writ of certiorari. Hill v. Alabama, 
105 S.Ct. 607 (Ala. 1984). Hill has not yet filed a col­
lateral attack on his conviction or sentence.
Edward Horsley v. State

Horsley is Baldwin’s co-defendant, and his participa­
tion in the crime is adequately described on pp. 3-6 of 
this brief. Like Baldwin, Horsley was convicted of the 
Code of Alabama 1975, § 13-11-2(a ) (2 ) capital offense 
of robbery-intentional killing. After conducting a sen­
tence hearing, at which Horsley’s prior unrelated rob­
bery conviction was established, the trial court sentenced 
him to death. Horsley v. State, 374 So.2d 363, 364-365, 
373-375 (Ala. Cr. App. 1978).

Horsley’s conviction and death sentence were affirmed 
by the Court of Criminal Appeals, id., and that decision 
was affirmed by the Alabama Supreme Court, Horsley v. 
State, 374 So.2d 375 (Ala. 1979). This Court granted 
Horsley’s petition for a writ of certiorari, vacated the 
judgment of the Alabama Supreme Court, and remanded 
the case to that court for further consideration in light 
of Beck v. Alabama, 447 U.S. 625 (1980). Horsley v. 
Alabama, 448 U.S. 903 (1980). On remand, the Alabama 
Supreme Court remanded the case to the Court of Crim­
inal Appeals for further consideration in light of the 
Beck decision. Horsley v. State, 409 So.2d 1346 (Ala. 
1981).

When the case reached the Alabama Court of Criminal 
Appeals on remand, it reversed the conviction on Beck 
grounds, 409 So.2d 1347 (Ala. Cr. App. 1981), and the 
Alabama Supreme Court denied the State’s certiorari



6a

petition. No. 81-216 (Ala. 1982). However, this Court 
granted the State’s certiorari petition, vacated the judg­
ment of the Court of Criminal Appeals, and remanded 
the case to that court for further consideration in light 
of Hopper v. Evans, 456 U.S. 605 (1982). Alabama v. 
Horsley, 102 S.Ct. 2921 (1982). On remand, after re­
considering the case in light of Hopper v. Evans, supra, 
the Court of Criminal Appeals affirmed Horsley’s convic­
tion and sentence. Edward Horsley v. State, No. 1 Div. 
931 (Ala. Cr. App. Nov. 29, 1983).

Thereafter, pursuant to the automatic certiorari pro­
visions of A.R.A.P. 39(c), the Alabama Supreme Court 
granted Horsley’s petition for writ of certiorari. After 
the case had been submitted to the Alabama Supreme 
Court, it entered an order holding the case in abeyance 
pending the decision of this Court in the Baldwin case.

Herbert Lee Richardson v. State
On August 16, 1977, Richardson placed a bomb on the 

front porch of a dwelling house, located in a heavily 
populated residential area. The house was inhabited by 
several children and adults. One of the children, a ten- 
year-old girl, found the bomb and attempted to throw it 
away from herself and the house. Richardson had con­
structed the bomb in such a way that it would explode 
when moved, and it did so, blowing parts of the little 
girl’s body over a two-block area. Richardson v. State, 
376 So.2d 205 (Ala. Cr. App. 1978). Richardson was con­
victed of the Code of Alabama 1975, § 13-11-2(a) (9) 
capital offense of willfully setting off an explosion near 
an inhabited dwelling house when a person is intention­
ally killed by the defendant as a result of the explosion. 
After conducting a sentence hearing at which it found 
that Richardson had knowingly committed a great risk 
of death to many persons, the trial court sentenced him 
to death.

7a
On its initial review, the Alabama Court of Criminal 

Appeals remanded the case to the trial court because that 
court had failed to enter complete written findings as to 
aggravating and mitigating circumstances, which made it 
impossible for the Court of Criminal Appeals to review 
the sentencing decision. Richardson v. State, 376 So.2d 
at 223-224. Following remand, and the entry of com­
plete written sentence findings by the trial court, the 
Court of Criminal Appeals affirmed the conviction and 
death sentence in the case. Id., at 224-228. The Alabama 
Supreme Court affirmed that decision. Ex parte Richards 
son, 376 So.2d 228 (Ala. 1979).

Thereafter, Richardson sought a petition for a writ of 
error coram nobis in the State trial court, which was 
denied. The Alabama Court of Criminal Appeals affirmed 
that denial, Richardson v. State, 419 So.2d 289 (Ala. Cr. 
App. 1982), and the Alabama Supreme Court denied 
Richardson’s certiorari petition to review that decision, 
No. 81-937 (Ala. 1982). This Court denied certiorari. 
Richardson v. Alabama, 103 S.Ct. 1262 (1983).

At the time this Court granted certiorari in the 
Baldwin case, the State had a motion to reset Richard­
son s execution date pending in the Alabama Supreme 
Court. However, that court has entered an order hold­
ing the State’s motion in abeyance pending this Court’s 
decision in the Baldwin case.

Wayne Eugene Ritter v. State

On January 5, 1977, Ritter and his co-defendant, John 
Louis Evans, robbed and murdered a store owner in 
front of the man’s two young daughters. Although Ritter 
did not personally shoot the victim, he did participate in 
the crime with intent to kill and encouraged and sup­
ported Evans in the actual killing itself. At all stages 
of the proceeding in the trial court, Ritter boasted that 
he and Evans had an agreement to kill anybody who



8a

went for a gun in one of their robberies, and that he 
would have killed the victim himself had Evans not been 
in his line of fire. Ex parte Ritter, 375 So.2d 270, 273, 
275 (Ala. 1979); Ritter v. Smith, 568 F.Supp. 1499, 1509- 
1513 (S.D. Ala. 1983), aff’d in part and rev’d in part, 
726 F.2d 1505 (11th Cir. 1984), cert, denied, 105 S.Ct. 
218 (1984). Ritter also actively sought the death pen­
alty, demanded that he be executed, and threatened to 
harm the jury if he was not. Ritter v. Smith, 568 F.Supp. 
at 1505-1508; Ritter v. State, 429 So.2d 928, 929 (Ala. 
1983).

Ritter was convicted of the Code of Alabama 1975, 
§ 13-11-2(a) (2) capital offense of robbery-intentional 
killing. After a sentence hearing, a t which it was estab­
lished that on approximately thirty-nine occasions Ritter 
had created a great risk of death to many persons, the 
trial court sentenced him to death. Evans and Ritter v. 
State, 361 So.2d 654, 664 (Ala. Cr. App. 1977). His con­
viction and death sentence were affirmed by the state 
appellate courts in a complicated series of decisions which 
is summarized in the Alabama Supreme Court’s last deci­
sion in the case. See, Ritter v. State, 429 So.2d 928, 931- 
932 (Ala. 1983). Ritter filed a petition for writ of 
habeas corpus in the United States District Court for 
the Southern District of Alabama. That court denied the 
petition, Ritter v. Smith, 568 F.Supp. 1499 (1983). Rit­
ter appealed, and the Eleventh Circuit Court of Appeals 
reversed the district court’s decision insofar as it con­
cerned Ritter’s death sentence. Ritter v. Smith, 726 F.2d 
1505 (1984). This Court denied certiorari. Smith v. 
Ritter, 105 S.Ct. 218 (1984).

On December 3, 1984, pursuant to the Eleventh Cir­
cuit’s decision, the United States District Court for the 
Southern District of Alabama entered an order granting 
Ritter’s habeas petition “insofar as the sentence of death 
is concerned unless, on or before 180 days from the date

9a

of this Order, the State of Alabama grants petitioner a 
new sentence proceeding.” Ritter v. Smith, No. 83-0457-H 
(S.D. Ala.). Ritter has not yet been resentenced, and 
under the district court’s order the State is not required 
to have him resentenced until June 1, 1985. The State 
intends to seek an extension of that deadline so that it 
may apply for a recall of the mandate in the Ritter case 
if this Court decides the sentence issue in the present 
case favorably to the State. Such a recall would be ap­
propriate because the Eleventh Circuit’s reversal of 
Ritter’s sentence was predicated on a holding that the 
1975 statute’s sentence procedure was unconstitutional.

Phillip Wayne Tomlin v. State

On January 2, 1977, Tomlin and his hired “hit man” 
John Ronald Daniels, murdered nineteen-year-old Ricky 
Brune and fifteen-year-old Cheryl Moore by shooting 
them a number of times with a pistol and a sixteen- 
gauge shotgun. Tomlin v. State, 443 So.2d 47, 50-51 (Ala. 
Cr. App. 1979). Tomlin was convicted of the Code of 
Alabama 1975, § 13-11-2(a) (7) capital offense of murder 
in the first degree when the killing was done for a pecu­
niary or other valuable consideration or pursuant to a 
contract or for hire, and the § 13-11-2(a) (10) capital 
offense of murder in the first degree wherein two or more 
human beings are intentionally killed by the defendant by 
one or a series of acts. Following a sentence hearing, 
the trial court sentenced him to death.

On appeal, the Alabama Court of Criminal Appeals 
affirmed Tomlin’s conviction but reversed the sentence 
and remanded the case for further sentence proceedings 
because of errors the trial court made in sentencing. 
Tomlin v. State, 443 So.2d at 57-59. The Alabama Su­
preme Court affirmed that decision. Ex parte Tomlin 
443 So.2d 59 (Ala. 1983).

Following new sentence proceedings, the trial court 
resentenced Tomlin to death. The new sentence is on



10a

appeal to the Alabama Court of Criminal Appeals. How­
ever, that court has entered an order holding the case 
in abeyance until this Court issues its decision in the 
Baldwin case.

Freddie Lee Wright v. State
On December 2, 1977, Wright robbed a store being 

operated by Mr. and Mrs. Warran Green, whom he shot 
to death as they lay tied together back to back on the 
floor. Wright was convicted of the Code of Alabama 
1975, § 13-11-2(a) (2) capital offense of robbery-inten­
tional killing, and the § 13-11-2(a) (10) capital offense 
of murder in the first degree wherein two or more human 
beings are intentionally killed by the defendant by one 
or a series of acts. Following a sentence hearing before 
the trial court, he was sentenced to death.

Wright’s conviction was reversed on Beck grounds by 
the Alabama Court of Criminal Appeals, Wright v. State, 
407 So.2d 565 (Ala. Cr. App. 1981), and the Alabama Su­
preme Court denied the State’s petition for a writ of 
certorari, Ex parte State, 407 So.2d 565 (Ala. 1981). 
However, this Court granted the State’s petition for writ 
of certiorari, vacated the judgment of the Court of Crim­
inal Appeals, and remanded the case to that court for 
further consideration in light of. Hopper v. Evans, 456 
U.S. 605 (1982). Alabama v. Wright, 102 S.Ct. 2920 
(1982). As it has done in other pre-Beck death sentence 
cases pending before it, the Alabama Court of Criminal 
Appeals has entered an order holding this case in abey­
ance pending this Court’s decision in the Baldwin case.

11a

APPENDIX B

Capital Punishment Statutes Which Provide that if an 
Aggravating Circumstance or Circumstances Exist the 
Sentence Shall Be Death Unless Mitigating Circumstances 
Exist and Outweigh the Aggravating Circumstance (s ) :

Idaho Code § 19-2515 (c) (Supp. 1984)
Md. Ann. Code, Art. 27 § 413(h) (1982)
Nev. Rev. Stat. § 200.030(4) (a) (1983)
N.J. Stat. Ann. § 2C:ll-3(c) (3) (1982)
Okla. Stat. Title 21, § 701.11 (1981)
Tenn. Code Ann. § 39-2-203(g) (1982)

Capital Punishment Statutes Which Provide that if an 
Aggravating Circumstance or Circumstances Exist the 
Sentence Shall Be Death if  the Aggravating Circum­
stance (s) Outweigh any Mitigating Circumstance(s) 
Which Exist:

Ala. Code § 13A-5-46(e) (3) (1982)
Cal. Penal Code Ann. § 190.3 (West Supp. 1984)
Ind. Code § 35-20-2-9(e), (g) (Supp. 1984)
Ohio Rev. Code Ann. § 2929.03 (D)(2) (1982)
42 Pa. Cons. Stat. Ann. § 9711(c) (1) (iv) (1982)

Capital Punishment Statutes Which Provide that i f  an 
Aggravating Circumstance or Circumstances Exist the 
Sentence Shall Be Death Unless Sufficient Mitigating Cir­
cumstances Exist to Preclude the Death Sentence or Call 
for a Lesser Sentence:

Ariz. Rev. Stat. Ann. § 13-703(E) (Supp. 1984-1985) 
Colo. Rev. Stat. § 16-11-103(2) (Supp. 1984)
111. Rev. Stat. ch. 38, U 9-1 (g) (1983)
Mont. Code Ann. § 46-18-305 (1983)



12a

APPENDIX C

ALABAMA DEATH SENTENCE CASES TRIED UN­
DER THE 1975 CAPITAL PUNISHMENT STAT­
UTE IN WHICH AT LEAST ONE OPINION WAS 
ISSUED BY THE ALABAMA APPELLATE 
COURTS BEFORE THE DECISION IN BECK v. 
ALABAMA, 447 U.S. 625 (1980) WAS ANNOUNCED

Cases in Which the Conviction Was Reversed
Ashlock v. State, 367 So.2d 560 (Ala. Cr. App.

1978)
Clements v. State, 370 So.2d 723 (Ala. 1979)
HiU v. State, 371 So.2d 60 (Ala. Cr. App. 1978) 

[first trial]
Jacobs (John L.) v. State, 371 So.2d 448 (Ala.

1979)
Watters v. State, 369 So.2d 1272 (Ala. 1979)
Whisenhant v. State, 370 So.2d 1080 (Ala. Cr. 

App.), cert, denied, 370 So.2d 1106 (Ala.
1979)

Cases in Which the Conviction Was Affirmed but the 
Sentence Was Reversed and the Case Remanded for 
Further Sentence Proceedings Because of Errors in 
the Sentence Hearing or Sentence Findings or Be­
cause the Death Sentence Was Deemed Inappropriate

*Berard v. State, 402 So.2d 1044, 1049-1051 
(Ala. Cr. App. 1980)

*Bufford v. Stat, 382 So.2d 1162, 1173-1175 (Ala. 
Cr. App.), cert, denied, 382 So.2d 1175 (Ala.
1980)

Ex parte Bracewell (Charles), 407 So.2d 845, 
847 (Ala. 1979)

13a

* Bracewell (Debra) v. State, 401 So.2d 123, 124
(Ala. 1979), on remand, 401 So.2d 124, 125 
(Ala. Cr. App. 1980)

* Colley v. State, 405 So.2d 374, 389-390 (Ala.
Cr. App. 1979), after first remandment, 405 
So.2d 391 (Ala. Cr. App. 1980) (on rehear­
ing)

•Cook v. State, 369 So.2d 1251, 1255-1257 (Ala.
1978)

* Hubbard v. State, 382 So.2d 577, 596 (Ala. Cr.
App. 1979)

*Ex parte Johnson, 399 So.2d 873 (Ala. 1979)
Keller v. State, 380 So.2d 926, 936-937, after 

remandment, 380 So.2d 938 (Ala. Cr. App.
1979) , cert, denied, 380 So.2d 938 (Ala. 1980)

Lewis v. State, 380 So.2d 970 (Ala. Cr. App. 
1979), after remandment, 380 So.2d 978 
(Ala. Cr. App. 1980)

•Mack v. State, 375 So.2d 476, 500-501 (Ala. Cr. 
App. 1978), after remandment, 375 So.2d 501 
(Ala. Cr. App. 1979)

*Morrison v. State, 398 So.2d 730, 748 (Ala. Cr. 
App. 1979), after remandment, 398 So.2d 749 
(Ala. Cr. App. 1979)

*Reed v. State, 407 So.2d 153, 161-162 (Ala. Cr. 
App. 1980)

•Richardson v. State, 376 So.2d 205, 223-224 
(Ala. Cr. App. 1978), after remandment, 376 
So.2d 224 (Ala. Cr. App. 1978)

Tomlin v State, 443 So.2d 47, 57-59 aff'd, 443 
So.2d 59 (Ala. 1983)



4

14a

Cases in Which the Conviction Was Affirmed and the 
Sentence Was Affirmed Without a Remand to the 
Trial Court for any New or Further Sentence Pro­
ceedings

Baldwin v. State, 372 So.2d 26 (Ala. Cr. App. 
1978), aff’d, 372 So.2d 32 (Ala. 1979)

*Beck v. State, 365 So.2d 985 (Ala. Cr. App.), 
aff’d, 365 So.2d 1006 (Ala. 1978)

*Cade v. State, 375 So.2d 802 (Ala. Cr. App.
1978) , aff’d, 375 So.2d 828 (Ala. 1979)

*Coon v. State, 380 So.2d 980 (Ala. Cr. App.
1979) , aff’d, 380 So.2d 990 (Ala. 1980)

* Crawford v. State, 377 So.2d 145 (Ala. Cr. 
App.), aff’d, 377 So.2d 159 (Ala. 1979)

Evans v. State, 361 So.2d 654 (Ala. Cr. App.
1977) , aff’d, 361 So.2d 666 (Ala. 1978), cert, 
denied, 440 U.S. 930 (1979)

Hill v. State, 371 So.2d 60 (Ala. Cr. App. 1978) 
[retrial]

Horsley v. State, 374 So.2d 363 (Ala. Cr. App.
1978) , aff’d, 374 So.2d 375 (Ala. 1979)

**Jacobs (Jerry Wayne) v. State, 361 So.2d 607 
(Ala. Cr. App. 1977), aff’d, 361 So.2d 640 
(Ala. 1978), cert, denied, 439 U.S. 1122 
(1979) -

*Julius v. State, 407 So.2d 141 (Ala. Cr. App.
1980)

Ritter v. State, 361 So.2d 654 (Ala. Cr. App. 
1977), aff’d in part and remanded in part, 
361 So.2d 666 (Ala. 1978), aff’d on remand, 
375 So.2d 266 (Ala. Cr. App. 1978), aff’d 
after remand, 375 So.2d 270 (Ala. 1979)

15a

**Thomas v. State, 373 So.2d 1149 (Ala. Cr.
App.), aff’d, 373 So.2d 1167 (Ala. 1979)

* Williamson v. State, 370 So.2d 1054 (Ala. Cr.
App. 1978), aff’d, 370 So.2d 1066 (Ala. 1979)

* Wilson v. State, 371 So.2d 932 (Ala. Cr. App.
1978), aff’d, 371 So.2d 943 (Ala. 1979)

Explanatory Notes
An asterisk (*) indicates cases in which the convic­

tion was reversed in later direct appeal proceedings on 
Beck v. Alabama, 447 U.S. 625 (1980), grounds.
_ Two asterisks (**) indicate cases in which the convic­

tion was later reversed in state court collateral proceed­
ings on Beck v. Alabama, 447 U.S. 625 (1980), grounds.

The second category of cases, those in which the con­
viction was affirmed but the death sentence was reversed’' 
and the case remanded for further sentence proceedings, 
includes cases in which the death sentence was reim­
posed by the trial court after new proceedings and was 
affirmed on appeal, as well as cases in which the new 
sentence proceedings resulted in a life without parole 
sentence.

All cases, including some summarized in Appendix A, 
in which no appellate opinion was issued before the Beck 
decision was announced have been omitted.