Opinion
No. CR-04-1171.
Decided October 9, 2009.
Appeal from Russell Circuit Court (CC-95-231.80)
On Return to Remand
Vernon Lamar Yancey was convicted of capital murder for the death of Mattie "Pee-Wee" Sports during the robbery of Tyler's Grocery Store, see § 13A-5-40(a)(2), Ala. Code 1975. This Court affirmed the conviction on March 20, 2009.Yancey v. State, [Ms. CR-04-1171, March 20, 2009] ___ So. 3d ___ (Ala. Crim. App. 2009). However, this Court remanded the case for the trial court to clarify its sentencing order because the trial court did not state in its order that it was according the jury's recommendation of life imprisonment without parole the weight of a nonstatutory mitigating circumstance. This Court therefore ordered the trial court to reweigh the aggravating circumstances and the mitigating circumstances and to resentence Yancey in accordance with Ex parte Carroll, 852 So. 2d 833, 836 (Ala. 2002). The trial court, on return to remand, has submitted an amended sentencing order and has again sentenced Yancey to death.
The original opinion in this case was authored by Judge H.W. "Bucky" McMillan. The case was reassigned to Judge Main on return to remand.
In his amended sentencing order, the trial judge again found that the State sufficiently proved the existence of three aggravating circumstances: that Yancey committed the capital offense of intentional murder while he was engaged in the commission of a first-degree robbery; that Yancey committed the capital offense while he was under a sentence of imprisonment; and that Yancey had been previously convicted of a felony offense involving the use of violence on a person.
As to the mitigating circumstances, the trial court stated that defense counsel presented no arguments or evidence of the existence of any statutory mitigating circumstances. The trial court did find the existence of two nonstatutory mitigating circumstances: that Yancey was raised in a dysfunctional family environment and that the jury recommended a sentence of life imprisonment without parole.
The trial court then weighed the aggravating circumstances and the mitigating circumstances and concluded:
"The undersigned Judge takes into consideration both of these non-statutory mitigating circumstances, but finds from the presentation of evidence at the jury's sentencing recommendation hearing, and from the presentation of evidence at the sentencing hearing held on March 16, 2005, that the aggravating circumstances, clearly, beyond a reasonable doubt, outweigh the two mitigating circumstances established in this case.
"After giving full measure and weight to each of the aggravating circumstances and giving full and fair consideration to the two mitigating circumstances proven in this case, which includes the jury's advisory sentencing verdict, it is the judgment of the Court that the gravity of the three aggravating circumstances as proven by the evidence in this case far outweigh the two mitigating circumstances proven by the evidence in this case."
(Supp. C. 106.)
The trial court's findings concerning the nonstatutory mitigating circumstances, including the jury's advisory verdict, were appropriately considered and, as we previously held following the first sentencing order, "[t]he trial court fully established its reasons for overriding the advisory verdict." ___ So. 3d at ___.
"`It is not required that the evidence submitted by the accused as a non-statutory mitigating circumstance be weighed as a mitigating circumstance by the sentencer, in this case, the trial court; although consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Cochran v. State, 500 So. 2d 1161 (Ala. Crim. App. 1984), aff'd in pertinent part, remanded on other part, 500 So. 2d 1179 (Ala. 1985), aff'd on return to remand, 500 So. 2d 1188 (Ala.Cr.App.), aff'd 500 So. 2d 1064 (Ala. 1986), cert. denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987).'
"Haney v. State, 603 So. 2d 368, 389 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992). See also Lewis v. State, [Ms. CR-03-0480, April 28, 2006] ___ So. 3d ___, ___ (Ala. Crim. App. 2006); Yeomans v. State, 898 So. 2d 878, 904 905 (Ala. Crim. App. 2004)."
Spencer v. State, [Ms. CR-04-2570, May 1, 2009] ___ So. 3d ___, ___ (Ala. Crim. App. 2008) (opinion on return to second remand).
The trial court stated in its amended sentencing order that "[a]11 other findings in the sentencing order dated March the 16th of 2005 not specifically changed by [the] amended sentencing order remain in full force and effect." (Supp. R. 8.)
Because the trial court has complied with this court's order on return to remand as to the sentencing order, Yancey's sentencing proceedings will now be reviewed pursuant to Rule 45A, Ala.R.App.P. As that rule requires, we have searched the entire proceedings for any plain error or defect that has or probably has adversely affected any of Yancey's substantial rights. We have also reviewed the propriety of the sentence of death as required by § 13A-5-53 (a), Ala. Code 1975. It is the finding of this court that there is no error in the sentencing that adversely affected Yancey's rights.
We held in our original opinion of March 20, 2009, that the trial court's findings as to the aggravating circumstances were proper. Having also reviewed the amended sentencing order, we now hold that the trial court's findings as to the statutory and nonstatutory mitigating circumstances are also proper and supported by the record.
It is the finding of this court that death is the proper sentence in this case. There is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. Section 13A-5-53(b)(2), Ala. Code 1975, requires this court to weigh the aggravating and mitigating circumstances independently to determine the propriety of Yancey's sentence of death. An independent weighing of the aggravating circumstances and the mitigating circumstances indicates that death is the proper sentence. As required by § 13A-5-53(b)(3), Ala. Code 1975, this court must determine whether Yancey's sentence was disproportionate or excessive when compared to penalties imposed in similar cases. The sentence of death in this case is neither excessive nor disproportionate to the penalties imposed in similar cases, considering the crime and Yancey. See, e.g., Floyd v. State, [Ms. CR-05-0935, Aug. 29, 2008] ___ So. 3d ___ (Ala. Crim. App. 2007) (opinion on return to remand); Washington v. State, [Ms. CR-05-1297, Jan. 12, 2007] ___ So. 3d ___ (Ala. Crim. App. 2007); Gamble v. State, 791 So. 2d 409 (Ala. Crim. App. 2000); Gaddy v. State, 698 So. 2d 1100 (Ala. Crim. App. 1995), aff'd, 698 So. 2d 1150 (Ala. 1997) (all murder/robbery).
For the reasons expressed here, we now affirm Yancey's conviction and sentence.
AFFIRMED.
Wise, P.J., and Welch, Windom, and Kellum, JJ., concur.