Whisenhant v. State

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482 So. 2d 1246 (1983)

Thomas Warren WHISENHANT v. STATE of Alabama.

1 Div. 333.

Court of Criminal Appeals of Alabama.

August 30, 1983.

Rehearing Denied October 4, 1983.

TYSON, Judge.

On original deliverance this court, 370 So. 2d 1080, determined that the prosecutor's comments accusing the appellant of other offenses in his opening statement was sufficient error to require a new sentencing hearing.

The Supreme Court of Alabama has determined that, in light of the posture in which such issue was here presented, such could constitute harmless error and has remanded this case to this court for our consideration of the record in light of this holding.

Inasmuch as the appellant rested at the sentencing hearing without offering any evidence and the State offered to reopen the case to put in evidence to support the argument made, this court does determine, in reliance on Whisenhant v. State, 482 So. 2d 1241, that such argument did constitute harmless error.

We also rely upon two very recent opinions of the Supreme Court of the United States, Zant, Warden v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) and California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983).

In reliance on the above authorities and for the reasons stated, this court does determine that the argument here made was harmless error not requiring a second sentencing hearing.

The judgment appealed from is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.