Notice: This opinion is subject to formal revision before publication in the advance
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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
State of Alabama
Appeal from Jefferson Circuit Court
(CC-04-4133; CC-04-4134; CC-04-4135; and CC-04-4384).
On Return to Remand
officers Carlos Owen, Harley A. Chisolm III, and Charles R.
Bennett; however, we remanded this case for the trial court
regarding the nonstatutory mitigating circumstances," see §
13A-5-52 and § 13A-5-47(d), Ala. Code 1975, and, if necessary,
to reweigh the aggravating and mitigating circumstances and
Woods v. State, [Ms. CR-05-0448, Aug. 31,
2007] ___ So. 2d ___, ___ (Ala. Crim. App. 2007).
court has complied with our instructions and has submitted on
remand an amendment to its sentencing order that satisfies the
In our original opinion, in accordance with Rule 45A,
Ala.R.App.P., we examined the record for any plain error with
respect to Woods's capital-murder convictions and found no
plain error or defect in the proceedings during the guilt
phase of the trial.
We have now reviewed Woods's sentence in
accordance with § 13A-5-53, Ala. Code 1975, which requires
involving Woods's capital-murder convictions, we shall also
review the propriety of the death sentence. This review shall
include our determination of the following:
(1) whether any
error adversely affecting the rights of the defendant occurred
in the sentence proceedings; (2) whether the trial court's
circumstances were supported by the evidence; and (3) whether
death is the appropriate sentence in this case.
13A-5-53(b) requires that, in determining whether death is the
proper sentence, we must determine:
(1) whether the sentence
prejudice, or any other arbitrary factor; (2) whether an
independent weighing by this Court of the aggravating and
mitigating circumstances indicates that death is the proper
sentence; and (3) whether the sentence of death is excessive
or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
After the jury convicted Woods of the capital offenses
charged in the indictment, a separate sentencing hearing was
held before the jury in accordance with §§ 13A-5-45 and -46,
aggravating and mitigating circumstances, after being properly
instructed by the trial court as to the applicable law,1 and
Although not raised by Woods at trial or in this appeal,
we note that, during its charge to the jury at the penalty
phase, the trial court stated that the prosecution had the
after being correctly advised as to its function in reference
burden of disproving a disputed mitigating circumstance by a
preponderance of the evidence, and the court then stated: "The
burden of disproving it by a preponderance of the evidence
means that you are to consider that the mitigating
circumstance does not exist unless taking the evidence as a
whole it is more likely than not that the mitigating
circumstance does not exist."
(R. 1875; emphasis added.)
Immediately after it gave this instruction, however, the trial
court then correctly stated: "Therefore, if there is a factual
dispute over the existence of a mitigating circumstance, then
you should find and consider that mitigating circumstance
unless you find the evidence is such that it is more likely
than not that the mitigating circumstance did not exist." (R.
1875.) The incorrect instruction could have been a mere slip
of the tongue on the part of the trial court or, perhaps, is
the result of an error made by the court reporter in
transcribing the court's oral charge.
The possibility of
court-reporter error is supported by the fact that Woods did
not object to the instruction, and that the remainder of the
trial court's jury charge is substantially similar to the
Alabama Proposed Pattern Jury Instructions for Use in the
Sentence Stage of Capital Cases Tried Under Act No. 81-178.
"'This Court may take notice of typographical errors which are
"plainly ... self-corrective, clerical mistake[s]." Stewart
v. State, 137 Ala. 33, 34 So. 818, 821 (1903).' Kuenzel v.
State, 577 So. 2d [474, 523 (Ala. Crim. App. 1990), aff'd, 577
So. 2d 531 (Ala. 1991)]." Simmons v. State, 797 So. 2d 1134,
1173 (Ala. Crim. App. 1999) (footnote omitted). Based on our
review of the court's oral charge as a whole, we conclude that
the jury was properly informed, and understood, that the
burden was on the State to disprove any mitigating
misstatement by the trial court. Therefore, no plain error
occurred as a result of this instruction.
appropriate, and its responsibility in reference to the return
of an advisory verdict, the jury by a vote of 10-2 recommended
that Woods be sentenced to death.
Thereafter, the trial court held another hearing, in
accordance with § 13A-5-47, Ala. Code 1975, to aid it in
imprisonment without the possibility of parole or to death as
recommended by the jury. The trial court ordered and received
a written presentence investigation report, as required by
In its sentencing order and the amendment to
that order, the trial court entered specific written findings
concerning the existence or nonexistence of each aggravating
circumstance enumerated in § 13A-5-49, Ala. Code 1975, each
mitigating circumstance enumerated in § 13A-5-51, Ala. Code
1975, and any mitigating circumstance found to exist under
§ 13A-5-52, Ala. Code 1975, as well as written findings of
fact summarizing the offense and Woods's participation in it.
In the sentencing order and the amendment, the trial
circumstances: (1) that Woods knowingly created a great risk
of death to many persons in the commission of the offense, see
§ 13A-5-49(3), Ala. Code 1975; (2) that the offense was
committed for the purpose of avoiding or preventing a lawful
arrest or effecting an escape from custody, see § 13A-5-49(5),
Ala. Code 1975; (3) that the offense was committed to disrupt
or hinder the lawful exercise of a government function or the
enforcement of laws, see § 13A-5-49(7), Ala. Code 1975; and
(4) that Woods intentionally caused the death of two or more
persons by one act or pursuant to one scheme or course of
conduct, see § 13A-5-49(9), Ala. Code 1975.
The trial court
found that no statutory mitigating circumstances existed. The
trial court also heard testimony regarding Woods's character
and record and any of the circumstances of the offense that
imprisonment without the possibility of parole instead of
death, see § 13A-5-52, Ala. Code 1975, and after considering
nonstatutory mitigating circumstances existed.
The trial court's sentencing order and the amendment to
that order reflects that, after considering all the evidence
presented, the arguments of counsel, the presentence report,
and the advisory verdict of the jury, and after weighing the
aggravating circumstances against the absence of mitigating
circumstances, the trial court found that the aggravating
circumstances clearly outweighed the nonexistent mitigating
Accordingly, the trial court sentenced Woods
aggravating circumstances and the mitigating circumstances are
supported by the evidence, and we find no plain error or
defect in the penalty phase of the proceedings.
Woods was convicted of intentionally causing the deaths
of Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett
while each was on duty as a police officer, and he was
convicted of intentionally causing the deaths of Carlos Owen,
Harley A. Chisolm III, and Charles R. Bennett by one act or
pursuant to one scheme or course of conduct by shooting them
with a firearm.
These offenses are defined by statute as
See § 13A-5-40(a)(5) and (10), Ala. Code
We take judicial notice that similar crimes have been
punished capitally throughout the state. See, e.g., McNabb v.
State, 887 So. 2d 929 (Ala. Crim. App. 2001), aff'd, 887 So.
2d 998 (Ala. 2004), and the cases cited therein dealing with
the murder of a police officer; and Hyde v. State, [Ms. CR-04-
1390, Sept. 28, 2007] ___ So. 2d ___ (Ala. Crim. App. 2007),
and the cases cited therein dealing with the murder of two or
more people pursuant to one act.
After carefully reviewing the record of the guilt phase
and of the penalty phase of Woods's trial, we find no evidence
indicating that the sentence of death was imposed under the
The findings and conclusions of the trial court are
amply supported by the evidence.
We have independently
weighed the aggravating circumstances against the absence of
mitigating circumstances, and we concur in the trial court's
judgment that the aggravating circumstances clearly outweigh
the nonexistent mitigating circumstances, and we agree that
death is the appropriate sentence in this case.
the crimes committed and considering Woods, we find that the
sentence of death is neither excessive nor disproportionate to
the penalty imposed in similar cases.
Based on the foregoing, Woods's sentence of death is