REL: 06/17/2016

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2015-2016
_________________________
CR-15-0619
_________________________
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re:

State of Alabama v. Kenneth Eugene Billups)
Appeal from Jefferson Circuit Court
(CC-05-1755)
_________________________
CR-15-0622
_________________________
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS

(In re:

State of Alabama v. Stanley Brent Chapman)

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Appeal from Jefferson Circuit Court
(CC-14-3011 and CC-14-3012)
_________________________
CR-15-0623
_________________________
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re:

State of Alabama v. Terrell Corey McMullin)
Appeal from Jefferson Circuit Court
(CC-14-3015 and CC-14-3016)
_________________________
CR-15-0624
_________________________
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS

(In re:

State of Alabama v. Benjamin Todd Acton)

Appeal from Jefferson Circuit Court
(CC-12-1194 and CC-12-1195)
KELLUM, Judge.
The State of Alabama has filed four petitions for a writ
of mandamus asking this Court to direct the Jefferson Circuit
Court

to

vacate

its

order

declaring

Alabama's

"capital-

sentencing scheme" unconstitutional and barring the State from
2

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
seeking the death penalty in capital-murder prosecutions.
Because these petitions address the same issue, we consolidate
them for the purpose of writing a single opinion.

We grant

the petitions and issue the writs.
Facts and Procedural History
Kenneth Eugene Billups, Stanley Brent Chapman, Terrell
Corey

McMullin,

and

Benjamin

Todd

Acton

(hereinafter

collectively referred to as "respondents") were indicted for
various counts of capital murder. Billups and Acton were each
indicted for one count of murder made capital because it was
committed

during

the

course

40(a)(2), Ala. Code 1975.1

of

a

robbery,

see

§

13A-5-

Chapman and McMullin were each

indicted for one count of the murder of two or more persons
pursuant to one act or one scheme or course of conduct, see §
13A-5-40(a)(10), Ala. Code 1975, for two counts of murder made
capital because it was committed during the course of a
robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and for two
counts of murder made capital because it was committed during

1

The charges against Billups and Acton are based on
unrelated offenses.
3

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the course of a burglary, see § 13A-5-40(a)(4), Ala. Code
1975.2
Before trial, the respondents each filed a motion to bar
imposition of the death penalty in their cases and to hold
Alabama's capital-sentencing scheme unconstitutional based on
the United States Supreme Court's recent decision in Hurst v.
Florida, 577 U.S. ___, 136 S.Ct. 616 (2016).3
court

consolidated

the

motions

and,

after

The circuit
conducting

a

hearing, entered an order in all four cases concluding that
"the capital sentencing scheme as provided by the Alabama
Criminal Code is unconstitutional and is this day barred from
enactment."

(Petitions, Appendix A, p. 28.)
Standard of Review

"Before a writ of mandamus may issue, the
petitioner must show (1) a clear legal right in the
petitioner to the relief sought; (2) an imperative

2

The charges against Chapman and McMullin are based on the
same murders.
3

In 2006, Billups was convicted of capital murder as
charged in his indictment and was sentenced to death. This
Court affirmed Billups's conviction and sentence on direct
appeal, but the Alabama Supreme Court reversed this Court's
judgment and remanded the cause for a new trial. See Billups
v. State, 86 So. 3d 1032 (Ala. Crim. App. 2009), rev'd, 86 So.
3d 1079 (Ala. 2010), after remand, 86 So. 3d 1087 (Ala. Crim.
App. 2011). Billups filed his motion before his retrial.
4

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
duty upon the respondent to perform, accompanied by
a refusal to do so; (3) no adequate remedy at law;
and (4) the properly invoked jurisdiction of the
reviewing court."
State v. Reynolds, 819 So. 2d 72, 79 (Ala. Crim. App. 1999).
"A writ of mandamus is a drastic and extraordinary writ and
will not be issued unless the petitioner has a clear and
undisputable

right

to

a

particular

result."

Springer, 619 So. 2d 1267, 1258 (Ala. 1992).

Ex

parte

"'A writ of

mandamus is not granted unless there is a clear showing of
error in the trial court to the injury of the petitioner.'"
Ex parte Hutcherson, 847 So. 2d 386, 388 (Ala. 2002) (quoting
Ex parte Southland Bank, 514 So. 2d 954, 955 (Ala. 1987)).
Analysis
I.
As a threshold matter, we must determine whether mandamus
is the proper avenue by which the State can seek review of the
circuit court's order.

The State argues that mandamus is

appropriate because, it says, it has no other avenue to seek
review of the court's order and the order, which prohibits the
State

from

seeking

the

death

penalty

in

capital-murder

prosecutions, represents "an extraordinary disruption in the
administration of criminal justice."
5

(Petition, p. 19.)

The

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
respondents argue, on the other hand, that the State has a
right to appeal the circuit court's ruling pursuant to § 1222-91, Ala. Code 1975, and that, therefore, mandamus is not
appropriate.
Although § 12-22-91 gives the State the right to appeal
a lower court's order holding unconstitutional the statute
"under which the indictment or information is preferred," as
the State correctly argues the circuit court in this case did
not

hold

unconstitutional

the

statute

under

which

the

respondents' indictments were preferred -- § 13A-5-40, Ala.
Code 1975.

Rather, the circuit court held unconstitutional

Alabama's "capital-sentencing scheme," i.e., those statutes
setting forth the procedures for imposing the death penalty in
Alabama, see §§ 13A-5-44 through -52, Ala. Code 1975.

"All

statutes that authorize appeals are to be strictly construed,"
Dixon v. City of Mobile, 859 So. 2d 462, 463 (Ala. Crim. App.
2003), and "may not be enlarged or extended by judicial
construction."

State v. Gautney, 344 So. 2d 232, 234 (Ala.

Crim. App. 1977).

Under the plain language of § 12-22-91, the

State could not appeal the circuit court's order in this case
because the circuit court did not hold unconstitutional § 13A-

6

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
5-40, Ala. Code 1975, the statute under which the indictments
were preferred.4
This Court "has jurisdiction not only to issue all writs
necessary

or

appropriate

in

aid

of

[our]

appellate

jurisdiction, but also has authority to issue such remedial
and original writs as are necessary to give [us] a general
superintendence and control of jurisdictions inferior to [us]
in criminal matters."
(Ala.

1981).

"[I]t

Ex parte Nice, 407 So. 2d 874, 877
is

fairly

well

settled

that

notwithstanding the fact that the State has a restricted right
in criminal cases to prosecute an appeal, the actions of a
trial judge as to certain rulings in criminal cases may be
reviewed

by

circumstances."

mandamus

proceedings

Id. at 878.

under

appropriate

Indeed, "a writ of mandamus is

a supervisory order; thus, an appellate court may issue this
writ in any situation, within recognized limits, where this

4

We note that Rule 15.7(a), Ala. R. Crim. P., permits the
State to appeal a lower court's order suppressing evidence,
dismissing an indictment, or quashing an arrest or search
warrant; that § 12-12-70(c), Ala. Code 1975, permits the State
to appeal a district court's order holding a statute or
ordinance invalid; and that § 12-22-90(b), Ala. Code 1975,
permits the State to appeal an adverse ruling on a petition
for a writ of habeas corpus. These cases do not fall into any
of those categories.
7

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
writ

is

necessary

to

protect

administration of the courts."

the

proper

judicial

Ex parte Sullivan, 779 So. 2d

1157, 1161 (Ala. 2000).
Although

generally

"[m]andamus

cannot

be

used

as

a

substitute for appeal, when no appeal is authorized by law or
court rule, [it] can be used to prevent a gross disruption in
the administration of criminal justice."
So. 2d at 879.

Ex parte Nice, 407

Mandamus may also "be used by the government

in aid of its lawful rights in the prosecution of criminal
cases,"

id. at 879, and "in exceptional circumstances which

amount to judicial usurpation of power." Id. at 878. "[O]nly
the

rarest

of

circumstances

merit

an

intervention

in

a

criminal case by mandamus; nevertheless, circumstances can
arise which present a compelling need for the issuance of the
mandamus

to

interests."
type

of

further
Id. at 880.

rare

and

important

countervailing

public

These four cases present just the

exceptional

circumstance

that

merits

intervention by mandamus to prevent a gross disruption in the
administration of criminal justice.

Therefore, mandamus is

the appropriate avenue for the State to seek review of the
circuit court's order.

8

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
II.
The

State

contends

that

the

circuit

court

erred

in

holding that Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616
(2016),

rendered

unconstitutional.

Alabama's

capital-sentencing

scheme

The State argues that Alabama's capital-

sentencing scheme is constitutional under Hurst because the
statutory scheme requires the jury, not the trial court, to
make the findings necessary for imposition of the death
penalty, during either the guilt phase or the penalty phase of
the trial, and that it has a clear legal right to seek the
death penalty in capital-murder prosecutions under Alabama's
statutory scheme.

In its order, the circuit court found that

"capital defendants in Alabama are subject to having the
'maximum authorized punishment ... increased by a judge's own
factfinding'" and that, therefore, "[i]n light of the ruling
in Hurst, Alabama's capital-sentencing scheme, 'under which an
advisory jury makes a recommendation to a judge, and the judge
makes the critical findings needed for the imposition of a
death sentence, violates the Sixth Amendment right to trial by
jury.'" (Petitions, Appendix A, pp. 26-27; citations omitted.)

9

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Initially, we point out that "statutes are presumed to be
constitutional," State v. Adams, 91 So. 3d 724, 732 (Ala.
Crim. App. 2010), and courts "should be very reluctant to hold
any act unconstitutional."
1094 (Ala. 2001).

Ex parte Boyd, 796 So. 2d 1092,

In reviewing the constitutionality of a

statute, courts "'must afford the Legislature the highest
degree of deference, and construe its acts as constitutional
if their language so permits.'"

Adams, 91 So. 3d at 732

(quoting Monroe v. Harco, Inc., 762 So. 2d 828, 831 (Ala.
2000)).

"'[I]n passing upon the constitutionality of a

legislative act, the courts uniformly approach the question
with

every

presumption

and

intendment

in

favor

of

its

validity, and seek to sustain rather than strike down the
enactment of a coordinate branch of government.'"

Herring v.

State, 100 So. 3d 616, 620 (Ala. Crim. App. 2011) (quoting
Alabama State Fed. of Labor v. McAdory, 246 Ala. 1, 9, 18
So.2d 810, 815 (1944)).

"It is the duty of a court to sustain

an act unless [the court] is convinced beyond a reasonable
doubt of [the act's] unconstitutionality." Handley v. City of
Montgomery, 401 So. 2d 171, 180 (Ala. Crim. App. 1981).

With

respect to Alabama's capital-sentencing scheme, § 13A-5-58,

10

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Ala. Code 1975, specifically directs: "This article shall be
interpreted,

and

if

necessary

reinterpreted,

to

be

constitutional."
Before examining the opinion in Hurst, we first reexamine
the opinions on which Hurst was based:

Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584
(2002).5

In Apprendi, the United States Supreme Court held

that, "[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proven
beyond a reasonable doubt." 530 U.S. at 490 (emphasis added).
The Court stated that pursuant to the Sixth Amendment to the
United States Constitution, made applicable to the states
through the Fourteenth Amendment, "it is unconstitutional for
a legislature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which a
criminal defendant is exposed.

It is equally clear that such

facts must be established by proof beyond a reasonable doubt."

5

Although both this Court and the Alabama Supreme Court
have already exhaustively examined both Apprendi and Ring, it
is important that we do so again here to understand the
context in which Hurst was decided.
11

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Id. (quoting Jones v. United States, 526 U.S. 227, 252 (1999)
(Stevens,

J.,

concurring)).

In

determining

whether

a

sentencing statute is constitutional in this respect, the
Court said, "the relevant inquiry is one not of form but of
effect -- does the required finding expose the defendant to a
greater punishment than that authorized by the jury's guilty
verdict?"

Id. at 494 (emphasis added).

The Court noted,

however, that it is permissible "for judges to exercise
discretion

--

taking

into

consideration

various

factors

relating both to offense and offender -- in imposing judgment
within the range prescribed by statute" and that "judges in
this country have long exercised discretion of this nature in
imposing sentence within statutory limits in the individual
case."

Id. at 481 (emphasis in original).

In Ring, the United States Supreme Court applied its
holding in Apprendi to capital sentencing and held Arizona's
capital-sentencing scheme unconstitutional.

Under Arizona's

capital-sentencing scheme as it then existed,6 the maximum
sentence authorized by a jury verdict finding a defendant

6

Arizona amended its capital-sentencing scheme after Ring
was decided.
12

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
guilty of first-degree murder was life imprisonment without
the possibility of parole; the defendant became eligible for
the death penalty only if the trial court, sitting without a
jury, found the existence of an aggravating circumstance and
found that there were no mitigating circumstances sufficiently
substantial

to

call

for

leniency.

The

Court

held

that

"[c]apital defendants, no less than noncapital defendants, ...
are entitled to a jury determination of any fact on which the
legislature
punishment."

conditions

an

increase

in

their

536 U.S. at 589 (emphasis added).

maximum
The Court

reiterated the principle from Apprendi that "[a] defendant may
not be 'expose[d] ... to a penalty exceeding the maximum he
would receive if punished according to the facts reflected in
the jury verdict alone.'"

Ring, 536 U.S. at 602 (quoting

Apprendi, 530 U.S. at 483 (some emphasis added)).

Because a

sentence of death exceeded the maximum punishment authorized
for a conviction of first-degree murder in Arizona, the Court
concluded, the fact necessary to expose a defendant to the
death penalty -- the existence of an aggravating circumstance
-- must be found by a jury.

The Court in Ring overruled its

previous opinion in Walton v. Arizona, 497 U.S. 639 (1990),

13

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
upholding

as

constitutional

Arizona's

capital-sentencing

scheme "to the extent that it allows a sentencing judge,
sitting without a jury, to find an aggravating circumstance
necessary for imposition of the death penalty." Ring, 536 U.S.
at 609 (emphasis added).
In Hurst, the United States Supreme Court held Florida's
capital-sentencing scheme unconstitutional.

The Court noted

that "[t]he analysis the Ring Court applied to Arizona's
sentencing scheme applies equally to Florida's."
U.S.

at

___,

136

S.Ct.

at

621-22.

Hurst, 577

Florida's

capital-

sentencing scheme as it then existed7 was similar to Arizona's
in that the maximum sentence authorized by a jury verdict
finding a defendant guilty of first-degree murder was life
imprisonment without the possibility of parole; the defendant
became eligible for the death penalty only if the trial court
found the existence of an aggravating circumstance and found
that

there

were

insufficient

mitigating

outweigh the aggravating circumstances.

circumstances

to

Although Florida's

procedure, unlike Arizona's, included an advisory verdict by

7

Florida amended its capital-sentencing scheme after Hurst
was decided.
14

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
a

jury

recommending

a

sentence,

the

Court

found

this

distinction "immaterial" because a Florida jury "'does not
make specific factual findings with regard to the existence of
mitigating or aggravating circumstances and its recommendation
is not binding on the trial judge[; therefore, a] Florida
trial court no more has the assistance of a jury's findings of
fact with respect to sentencing issues than does a trial judge
in Arizona.'"

Hurst, 577 U.S. at ___, 136 S.Ct. at 622

(quoting Walton, 497 U.S. at 648).

The Court reiterated that

"any

defendant

fact

that

'expose[s]

the

to

a

greater

punishment than that authorized by the jury's guilty verdict'
... must be submitted to a jury," Hurst, 577 U.S. at ___, 136
S.Ct. at 621 (emphasis added), and concluded that Florida's
procedure was unconstitutional because "the Florida sentencing
statute does not make a defendant eligible for death until
'findings by the court that such person shall be punished by
death,'" Hurst, 577 U.S. at ___, 136 S.Ct. at 622 (quoting
former Fla. Stat. § 785.082(1)(a)); "[t]he trial court alone
must

find

'the

circumstances
mitigating

facts

exist'

...
and

circumstances

[t]hat
'[t]hat
to

15

sufficient
there

outweigh

aggravating

are

insufficient

the

aggravating

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
circumstances.'"

Hurst, 577 U.S. at ___, 136 S.Ct. at 622

(quoting former Fla. Stat. § 921.141(3).)

As in Ring, in

which the Court overruled its previous decision in Walton
upholding Arizona's capital-sentencing scheme, the Court in
Hurst overruled its previous decisions in Hildwin v. Florida,
490 U.S. 638 (1989), and Spaziano v. Florida, 468 U.S. 447
(1984),

upholding

as

constitutional

Florida's

capital-

sentencing scheme to the extent "they allow a sentencing judge
to find an aggravating circumstance, independent of a jury's
factfinding, that is necessary for imposition of the death
penalty."

Hurst, ___ U.S. at ___, 136 S.Ct. at 624 (emphasis

added).
We first point out what the Supreme Court in Hurst did
not hold:

The Court in Hurst did not hold, as the respondents

argue, that judicial override of a jury's capital-sentencing
recommendation is unconstitutional.

The issue of judicial

override was not even before the Court when it decided Hurst
because the trial court in Hurst did not override the jury's
sentencing recommendation; the trial court in Hurst followed
the jury's recommendation of death.
did

not

hold,

as

the

respondents

16

The Court in Hurst also
argue,

that

judicial

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
sentencing in capital cases is unconstitutional or that it is
unconstitutional to allow a trial court, in determining the
appropriate sentence in a capital case, to consider evidence
that was not presented to the jury.

Although the Court in

Hurst found that a jury's capital-sentencing recommendation
alone was not sufficient to establish that the jury found the
facts necessary for imposition of the death penalty under
Florida's capital-sentencing scheme, the Court did not state,
or even imply, that it is constitutionally required that a
jury, and not a judge, make the ultimate decision whether to
sentence a defendant to death or to life imprisonment without
the possibility of parole.

Indeed, in reaching its decision

in Hurst, the Court relied on its holdings in Apprendi and
Ring, and, as noted above, the Court in Apprendi specifically
found

that

discretion

it
--

was

permissible

taking

into

"for

judges

consideration

to

various

exercise
factors

relating both to offense and offender -- in imposing judgment
within the range prescribed by statute."

Apprendi, 530 U.S.

at 481.
Simply

put,

the

Court

in

Hurst

did

not,

as

the

respondents argue, hold unconstitutional the broad overall

17

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
structure of Florida's capital-sentencing scheme -- a hybrid
scheme beginning with a bifurcated capital trial during which
the jury first determines whether the defendant is guilty of
the capital offense and then recommends a sentence, followed
by the trial court making the ultimate decision as to the
appropriate sentence.

Rather, the Court held that Florida's

capital-sentencing scheme was unconstitutional to the extent
that

it

specifically

conditioned

a

capital

defendant's

eligibility for the death penalty on findings made by the
trial court and not on findings made by the jury, which
contravened the holding in Ring. The Court emphasized several
times

in

its

opinion

that

Florida's

capital-sentencing

statutes did not make a capital defendant eligible for the
death penalty until the trial court made certain findings.
See Former Fla. Stat. § 775.082(1)(a) (2010) ("[A] person who
has been convicted of a capital felony shall be punished by
death" only "if the proceeding held to determine sentence
according to the procedure set forth in s. 921.141 results in
findings by the court that such person shall be punished by
death,

otherwise

such

person

shall

be

punished

by

life

imprisonment and shall be ineligible for parole." (emphasis

18

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
added)).

And the Court held only that "Florida's sentencing

scheme, which required the judge alone to find the existence
of

an

aggravating

unconstitutional."

circumstance,

is

therefore

Hurst, 577 U.S. at ___, 136 S.Ct. at 624.

The Court in Hurst did nothing more than apply its
previous holdings in Apprendi and Ring to Florida's capitalsentencing scheme.

The Court did not announce a new rule of

constitutional law, nor did it expand its holdings in Apprendi
and Ring.

As the State correctly argues, "Hurst did not add

anything of substance to Ring."
Alabama

Supreme

Court

has

(Petitions, p. 6.)

repeatedly

construed

The

Alabama's

capital-sentencing scheme as constitutional under Ring.

See,

e.g., Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2002); Ex parte
Hodges, 856 So. 2d 936 (Ala. 2003);

Ex parte Martin, 931 So.

2d 759 (Ala. 2004); Ex parte McNabb, 887 So. 2d 998 (Ala.
2004); and Ex parte McGriff, 908 So. 2d 1024 (Ala. 2004).

For

the reasons explained below, these authorities establish that
Alabama's capital-sentencing scheme is constitutional under
Apprendi, Ring, and Hurst and that the State is entitled to
the relief it seeks.

19

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
In

Alabama,

phases.

a

capital

trial

is

bifurcated

See § 13A-5-43, Ala. Code 1975.

into

two

In the first phase

of the trial, often referred to as the guilt phase, the jury
must determine whether the defendant is guilty of the capital
offense with which he or she is charged.8

See § 13A-5-40(a),

Ala. Code 1975 (defining the capital offenses in Alabama). If
the jury finds the defendant guilty of the capital offense,
the second phase of the trial, delineated by statute as a
sentence hearing but often referred to in caselaw as the
penalty phase or sentencing phase, begins.9

At the penalty

phase, the parties present to the jury any evidence relevant
to

sentencing,

particularly

relating

to

aggravating

circumstances as listed in § 13A-5-49, Ala. Code 1975, and
mitigating circumstances as listed in §§ 13A-5-51 and 13A-552, Ala. Code 1975.
1975.

See §§ 13A-5-45 and 13A-5-46, Ala. Code

After hearing the evidence during the penalty phase of

8

Even when the defendant pleads guilty to a capital
offense, the State must prove the defendant's guilt to a jury
beyond a reasonable doubt if it is seeking the death penalty.
§ 13A-5-42, Ala. Code 1975.
9

If a jury finds the defendant not guilty of the capital
offense, or if the defendant waives his right to jury
participation in sentencing, the jury portion of the
proceedings end. See §§ 13A-5-43(b), 13A-5-43(c) and 13A-544(c), Ala. Code 1975.
20

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the

trial,

the

jury

then

returns

an

advisory

verdict

recommending a sentence of either life imprisonment without
the possibility of parole or death. See § 13A-5-46, Ala. Code
1975.
Section 13A-5-46(e) provides specific guidance to the
jury in recommending a sentence.

If the jury finds that no

aggravating circumstance in § 13A-5-49 exists, the jury must
recommend

a

sentence

of

possibility of parole.

life

imprisonment

See § 13A-5-46(e)(1).

without

the

If the jury

unanimously finds that one or more aggravating circumstances
in § 13A-5-49 exist, but finds that they do not outweigh any
mitigating circumstances in § 13A-5-51 and § 13A-5-52, the
jury must recommend a sentence of life imprisonment without
the possibility of parole. See § 13A-5-46(e)(2). If the jury
unanimously finds that one or more aggravating circumstances
exist

and

finds

that

they

outweigh

any

mitigating

circumstances, the jury must recommend a sentence of death.
See § 13A-5-46(e)(2).10

10

Section 13A-5-45(g), Ala.
Code 1975, provides: "The
defendant shall be allowed to offer any mitigating
circumstance defined in Sections 13A-5-51 and 13A-5-52. When
the factual existence of an offered mitigating circumstance is
in dispute, the defendant shall have the burden of
21

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
After the jury makes its sentencing recommendation, the
trial court "shall proceed to determine the sentence." § 13A5-47(a), Ala. Code 1975.

In determining the appropriate

sentence in a capital case, the trial court must order a
presentence-investigation report, see § 13A-5-47(b); must
conduct another sentencing hearing before the trial court
alone, see § 13A-5-47(c); must issue a sentencing order

interjecting the issue, but once it is interjected the state
shall have the burden of disproving the factual existence of
that circumstance by a preponderance of the evidence." The
jury need not unanimously agree on the existence of mitigating
circumstances. See, e.g., Scott v. State, 163 So. 3d 389,
458-59 (Ala. Crim. App. 2012). The jury must unanimously
agree only on the existence of an aggravating circumstance.
Once the jury unanimously finds the existence of an
aggravating circumstance, each juror must then individually
determine whether or not he or she believes any mitigating
circumstances exist and whether the aggravating circumstance
the jury has unanimously found to exist outweighs the
mitigating circumstance or circumstances that juror has found
to exist.
If a juror concludes that the aggravating
circumstance that the jury has unanimously found to exist
outweighs the mitigating circumstance or circumstances that
juror has found to exist, that juror should vote to recommend
the death penalty. If, on the other hand, a juror concludes
that the aggravating circumstance that the jury has
unanimously found to exist does not outweigh the mitigating
circumstance or circumstances that juror has found to exist,
the juror should vote to recommend a sentence of life
imprisonment without the possibility of parole. The number of
jurors who voted for the death penalty and the number of
jurors who voted for life imprisonment without the possibility
of parole is reflected on the penalty-phase verdict form.
22

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
containing "specific written findings concerning the existence
or nonexistence of each aggravating circumstance enumerated in
Section 13A-5-49, each mitigating circumstance enumerated in
Section 13A-5-51, and any additional mitigating circumstances
offered pursuant to Section 13A-5-52 ... [and] summarizing the
crime and the defendant's participation in it," § 13A-5-47(d);
and must "determine whether the aggravating circumstances it
finds to exist outweigh the mitigating circumstances it finds
to

exist,

and

in

doing

so

...

[must]

consider

the

recommendation of the jury contained in its advisory verdict."
§ 13A-5-47(e).
A jury's advisory verdict recommending a sentence of life
imprisonment without the possibility of parole pursuant to §
13A-5-46(e)(1) based on the jury's finding that no aggravating
circumstance exists is binding on the trial court.

See Ex

parte McGriff, 908 So. 2d at 1038 ("Section 13A–5–46(e)(1)
reads:

'If

the

jury

determines

that

no

aggravating

circumstances as defined in Section 13A–5–49 exist, it shall
return an advisory verdict recommending to the trial court
that the penalty be life imprisonment without parole.'

Ring

requires that this subsection be applied in these terms: If

23

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the

jury

determines

that

no

aggravating

circumstance

as

defined in § 13A–5–49 exists, the jury must return a verdict,
binding on the trial court, assessing the penalty of life
imprisonment without parole.").

A jury's advisory verdict

recommending a sentence of life imprisonment without the
possibility of parole pursuant to § 13A-5-46(e)(2) based on
the jury's findings that one or more aggravating circumstances
exist but do not outweigh the mitigating circumstances, is not
binding

on

the

trial

court,

but

the

trial

court,

in

determining the appropriate sentence, must treat the jury's
recommendation as a mitigating circumstance.
Carroll, 852 So. 2d 833, 836 (Ala. 2002).

See Ex parte

A jury's advisory

verdict recommending a sentence of death pursuant to § 13A-546(e)(3) is not binding on the trial court.
Section 13A-5-45(f) provides that "[u]nless at least one
aggravating
exists,

the

circumstance
sentence

as

shall

defined
be

life

in

Section

imprisonment

13A-5-49
without

parole." Section 13A-5-45(e) further provides:
"At the sentence hearing the state shall have
the burden of proving beyond a reasonable doubt the
existence
of
any
aggravating
circumstances.
Provided, however, any aggravating circumstance
which
the
verdict
convicting
the
defendant
establishes was proven beyond a reasonable doubt at
24

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
trial shall be considered as
reasonable doubt for purposes
hearing."

proven beyond a
of the sentence

Under these provisions, a capital defendant in Alabama is not
eligible for the death penalty unless at least one of the
aggravating circumstances in § 13A–5–49 exists.

Since Ring

was decided, the Alabama Supreme Court has interpreted these
provisions as requiring that the jury unanimously find beyond
a

reasonable

doubt

the

existence

of

an

aggravating

circumstance in § 13A-5-49 before a capital defendant is
eligible for the death penalty. See Ex parte McGriff, 908 So.
2d at 1037-38; Ex parte McNabb, 887 So. 2d at 1005; and Ex
parte Waldrop, 859 So. 2d at 1187-90.

Alabama's capital-

sentencing scheme, as interpreted by the Alabama Supreme Court
in light of Ring, "forecloses the trial court from imposing a
death sentence unless the jury has unanimously found beyond a
reasonable doubt the existence of at least one § 13A–5–49
aggravating circumstance."
1037 (emphasis added).

Ex parte McGriff, 908 So. 2d at

Thus, contrary to the circuit court's

conclusion in its order that "capital defendants in Alabama
are subject to having the maximum authorized punishment ...
increased by a judge's own factfinding," it is the jury, not

25

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the trial court, that makes the finding of an aggravating
circumstance "that is necessary for imposition of the death
penalty."

Hurst, 577 U.S. at ___, 136 S.Ct. at 624.11

It is important here to distinguish between whether a
capital defendant is eligible for the death penalty, and
whether the death penalty is an appropriate sentence for a
capital defendant who is eligible for the death penalty. Ring
and Hurst require that any factual finding that exposes a
defendant to, or makes a defendant eligible for, a sentence of
death must be proven to a jury beyond a reasonable doubt.
However, once the jury unanimously finds the fact or facts
that expose a defendant to imposition of the death penalty,
Ring and Hurst have no further application, and a trial court
may then "exercise discretion -- taking into consideration
various factors relating both to offense and offender -- in
imposing

...

sentence

within

11

statutory

limits

in

the

Notably, after Ring was decided, the Florida Supreme
Court declined to address the impact Ring had on Florida's
capital-sentencing scheme, holding instead that Ring did not
apply to Florida. See, e.g., Bottoson v. Moore, 833 So. 2d
693 (Fla. 2002), abrogated by Hurst, supra. In contrast, the
Alabama Supreme Court, in the above-cited cases, held that
Ring applied in Alabama and addressed the impact of Ring on
Alabama's capital-sentencing scheme.
26

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
individual

case."

Apprendi,

530

U.S.

at

481

(emphasis

omitted).
As already noted, "Alabama law requires the existence of
only one aggravating circumstance in order for a defendant to
be sentenced to death" and that aggravating circumstance must
be unanimously found by a jury to exist beyond a reasonable
doubt before a capital defendant is eligible for the death
penalty.

Ex parte Waldrop, 859 So. 2d at 1190.

Once the jury

makes the required finding that an aggravating circumstance
exists, the trial court must then exercise its discretion in
determining the appropriate sentence.

Pursuant to §§ 13A-5-

47(d) and (e), the trial court must make findings of fact
regarding

the

circumstances

existence
and

and

mitigating

nonexistence
circumstances

of

aggravating

and

determine

whether the aggravating circumstance or circumstances the
court finds to exist outweigh the mitigating circumstance or
circumstances the court finds to exist.

However, the trial

court's findings are not, as the circuit court found and the
respondents argue, the findings required under Alabama law to
render a defendant eligible for the death penalty.

Rather,

the findings required by § 13A-5-47(d) and (e) are to guide

27

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the trial court in determining the appropriate sentence for a
capital defendant who is already eligible for the death
penalty by virtue of the jury's finding that an aggravating
circumstance exists and to assist this Court in its review of
a death sentence.
The respondents' argument that a capital defendant in
Alabama is not eligible for the death penalty unless the trial
court finds that the aggravating circumstances outweigh the
mitigating circumstances is simply incorrect under Alabama
law.

As already explained, the only finding necessary to

render a capital defendant eligible for the death penalty in
Alabama is the existence of an aggravating circumstance, which
must

be

unanimously

aggravating

found

by

circumstances

the

jury.

outweigh

Whether

the

the

mitigating

circumstances is not a finding of fact necessary to make a
capital defendant eligible for the death penalty but is a
"moral or legal judgment" guiding the trial court's discretion
in determining "'whether a defendant eligible for the death
penalty should in fact receive that sentence.'"

Ex parte

Waldrop, 859 So. 2d at 1189 (quoting Tuilaepa v. California,
512 U.S. 967, 972 (1994)). Additionally, nothing in Apprendi,

28

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Ring, or Hurst prohibits a trial court from finding the
existence of additional aggravating circumstances beyond the
circumstance
Because

or

circumstances

Alabama

law

requires

the
the

jury

finds

existence

to

of

exist.

only

one

aggravating circumstance in § 13A-5-49 for imposition of the
death penalty, once the jury finds the existence of one
aggravating circumstance, a capital defendant is then exposed
to, or eligible for, the death penalty, and the trial court's
finding

of

any

additional

application

only

aggravating

circumstances"

sentence.

in

aggravating

weighing
to

the

circumstances

mitigating

determine

the

and

"has
the

appropriate

Ex parte Waldrop, 859 So. 2d at 1190.

Under Apprendi, Ring, and Hurst, the crucial question is
-- does the required finding that an aggravating circumstance
exists expose the defendant to a greater punishment than that
authorized by the jury's guilty verdict alone?

In Alabama,

unlike Arizona and Florida, the answer to that question
depends

on

the

capital

offense

at

issue.

The

Alabama

legislature has chosen in some cases to have the jury make the
finding that an aggravating circumstance exists during the
guilt phase of the trial and has chosen in some cases to have

29

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the jury make that finding during the penalty phase of the
trial.12
"Many capital offenses listed in Ala. Code 1975, § 13A-540,

include

conduct

that

clearly

corresponds

to

aggravating circumstances found in § 13A-5-49."

certain
Ex parte

Waldrop, 859 So. 2d at 1188. As noted above, "any aggravating
circumstance

which

the

verdict

convicting

the

defendant

establishes was proven beyond a reasonable doubt at trial
shall be considered as proven beyond a reasonable doubt for
purposes of the sentence hearing."

§ 13A-5-45(e).

When the

capital offense itself includes as an element one of the
aggravating circumstances in § 13A-5-49 (often referred to as
"overlap"), the jury will make the finding that an aggravating

12

The United States Supreme Court in neither Ring nor
Hurst expressed any opinion as to when, during a bifurcated
capital trial, the finding of an aggravating circumstance
necessary to make a capital defendant eligible for the death
penalty must be made, only that it must be made by a jury. In
his special concurrence in Ring, the late Justice Scalia
noted: "Those States that leave the ultimate life-or-death
decision to the judge may continue to do so -- by requiring a
prior jury finding of [an] aggravating factor in the
sentencing
phase
or,
more
simply,
by
placing
the
aggravating-factor determination (where it logically belongs
anyway) in the guilt phase." 536 U.S. at 612-613 (Scalia, J.,
concurring specially) (emphasis added).
The Alabama
legislature has chosen a combination of the two approaches.
30

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
circumstance necessary for imposition of the death penalty
exists during the guilt phase of the trial.

In those cases,

the maximum sentence a defendant convicted of a capital
offense may receive based on the jury's guilty verdict alone
is death, and Apprendi, Ring, and Hurst are satisfied because
the

jury's

finding

of

guilt-phase
an

verdict

aggravating

necessarily

circumstance

includes
necessary

the
for

imposition of the death penalty.
When the capital offense does not include as an element
one of the aggravating circumstances in § 13A-5-49, the
maximum sentence a defendant may receive based on the jury's
guilty

verdict

alone

possibility of parole.

is

life

imprisonment

without

the

In those cases (referred to here as

"non-overlap" cases), the jury must make the finding that an
aggravating circumstance necessary for imposition of the death
penalty

exists

during

the

penalty

phase

of

the

trial.

However, Alabama law still requires that the jury unanimously
find the existence of an aggravating circumstance before the
defendant is eligible for the death penalty.

Thus, in non-

overlap cases, just as in overlap cases, Apprendi, Ring, and
Hurst are satisfied because it is the jury, not the trial

31

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
court,

that

must

make

the

finding

that

an

aggravating

circumstance necessary for imposition of the death penalty
exists, albeit during the penalty phase of the trial instead
of the guilt phase.
The only question that arises in non-overlap cases is
whether it can be determined, from the jury's penalty-phase
advisory verdict alone, that the jury unanimously found the
existence of an aggravating circumstance necessary to make a
defendant eligible for the death penalty.

In all but one

scenario -- where the jury unanimously recommends a sentence
of life imprisonment without the possibility of parole -- a
trial

court

will

be

able

to

determine, from

the

jury's

advisory verdict alone, that the jury unanimously found the
existence of an aggravating circumstance.

In Alabama, unlike

Florida, the jury cannot consider an aggravating circumstance
unless

the

jury

unanimously

agrees

that

the

particular

circumstance exists, and the jury cannot vote on whether to
impose the death penalty unless it first unanimously finds the
existence of at least one aggravating circumstance.13

13

Because

The Proposed Pattern Jury Instructions for Use in the
Sentence Stage of Capital Cases Tried Under Act No. 81-178
include unanimity instructions. See also Moody v. State, 888
32

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the jury cannot vote on whether to recommend the death penalty
unless it first unanimously finds the existence of the same
aggravating circumstance, as long as at least one juror votes
for the death penalty, the jury's advisory verdict, regardless
of what sentence it recommends,14 necessarily establishes that
the

jury

unanimously

agreed

that

the

same

aggravating

circumstance existed and then proceeded to the next step in

So. 2d 532, 601 (Ala. Crim. App. 2003), in which this Court
quoted with approval particularly clear and concise unanimity
instructions that included not only the pattern instructions,
but additional language regarding unanimity.
14

Section 13A-5-46(f) provides:

"The decision of the jury to return an advisory
verdict recommending a sentence of life imprisonment
without parole must be based on a vote of a majority
of the jurors.
The decision of the jury to
recommend a sentence of death must be based on a
vote of at least 10 jurors. The verdict of the jury
must be in writing and must specify the vote."
Contrary to the respondents' argument, neither Ring nor Hurst
held that a jury's advisory verdict recommending a sentence of
death must be unanimous. Rather, as already explained, both
Ring and Hurst held only that the factual finding necessary to
make a capital defendant eligible for the death penalty must
be unanimously found by a jury. The factual finding necessary
to make a capital defendant eligible for the death penalty in
Alabama is the existence of an aggravating circumstance, not
the jury's advisory verdict. Thus, it is permissible for a
jury that has unanimously found the existence of an
aggravating circumstance to return a non-unanimous sentencing
recommendation.
33

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the process to weigh the aggravating circumstance and the
mitigating circumstance or circumstances and vote on whether
to recommend the death penalty.

See Ex parte McNabb, 887 So.

2d at 1004-06 (holding that the jury's advisory verdict
recommending a sentence of death, even though not unanimous,
established that the jury had unanimously found the existence
of an aggravating circumstance during the penalty phase of the
trial because the trial court had properly instructed the jury
that it must unanimously agree that at least one aggravating
circumstance

existed

before

it

could

even

consider

recommending the death penalty and that it could not consider
an any aggravating circumstance to exist unless the jury
unanimously agreed that that particular circumstance existed);
Jackson v. State, 169 So. 3d 1, 96-97 (Ala. Crim. App. 2010)
(opinion

on

return

to

remand)

(holding

that

the

jury's

advisory verdict recommending a sentence of life imprisonment
without

the

possibility

of

parole

by

a

vote

of

10-2

established that the jury had unanimously found the existence
of an aggravating circumstance because the trial court had
properly instructed the jury that it must unanimously agree on
the existence of an aggravating circumstance before it could

34

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
even consider recommending the death penalty). "The fact that
the jury's deliberations yielded a vote whether to impose the
death penalty -- where the jury had been instructed that it
could not proceed to a vote unless it first unanimously found
the existence of at least one aggravating circumstance -establishes that the jury unanimously found that at least one
aggravating circumstance existed." Moody v. State, 888 So. 2d
532, 601-02 (Ala. Crim. App. 2003).

It is "the fact of the

jury's vote, rather than the actual vote tally following the
jury's weighing process, [that] is the telling circumstance."
Id. at 602.
This, we believe, was one of the constitutional defects
in Florida's capital-sentencing scheme.
did

not

have

to

unanimously

find

In Florida, the jury

the

existence

of

an

aggravating circumstance before the jury could vote on whether
to recommend a sentence of death or even before the jury
recommended death; only the jurors who voted for death had to
find the existence of an aggravating circumstance, and even
the jurors who voted for death did not have to unanimously
agree on which aggravating circumstance existed.

See Steele

v. State, 921 So. 2d 538, 545 (Fla. 2005) ("Under the law, ...

35

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
the jury may recommend a sentence of death so long as a
majority concludes that at least one aggravating circumstance
exists

[and

n]othing

in

the

statute,

the

standard

jury

instructions, or the standard verdict form ... requires a
majority

of

the

jury

to

agree

on

circumstances exist." (emphasis added)).

which

aggravating

Under Florida law,

then, the jury's verdict in Hurst recommending a sentence of
death by a vote of 7-5 established only that 7 members of the
jury found that 1 of the 2 aggravating circumstances the State
had relied on in seeking the death penalty existed.

It did

not signify that all 12 jurors unanimously found the existence
of the same aggravating circumstance.

Therefore, the United

States Supreme Court rejected Florida's argument in Hurst that
the

jury's

verdict

recommending

a

sentence

of

death

established that the jury had found the existence of an
aggravating circumstance beyond a reasonable doubt, noting
that "[t]he State cannot now treat the advisory recommendation
by

the

jury

requires."

as

the

necessary

factual

finding

577 U.S. at ___, 136 S.Ct. at 622.

that

Ring

In Alabama,

unlike Florida, the jury must unanimously agree that an
aggravating circumstance exists and must unanimously agree on

36

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
which aggravating circumstance exists before the jury can even
consider whether to recommend the death penalty. Thus, unlike
Florida,

a

jury's

capital-sentencing

recommendation

that

includes at least one vote for death establishes that all 12
jurors unanimously found the existence of the same aggravating
circumstance.
However,

if

the

jury

returns

a

verdict

unanimously

recommending a sentence of life imprisonment without the
possibility of parole, it will be impossible to know whether
that

verdict

was

based

on

the

jury's

finding

that

no

aggravating circumstance existed (in which case, the defendant
would not be eligible for the death penalty and the jury's
advisory verdict would be binding on the trial court) or was
based on the jury's finding that at least one aggravating
circumstance existed but that the aggravating circumstance did
not outweigh the mitigating circumstance or circumstances (in
which case, the defendant would be eligible for the death
penalty and the jury's advisory verdict would not be binding
on the trial court).

In that scenario, the trial court would

be left in the position of having to guess whether the
defendant is eligible for the death penalty. Although neither

37

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
this Court nor the Alabama Supreme Court would presume that a
trial court would impose the death penalty based on guesswork,
to avoid having trial courts placed in such an untenable
position, the Alabama Supreme Court in Ex parte McGriff
endorsed the use of special-verdict forms during the penalty
phase of a capital trial in non-overlap cases so that "the
count of the jurors' votes on the issue of the existence of an
aggravating circumstance be expressly recorded on the verdict
form."

908 So. 2d at 1039.

The Court in Ex parte McGriff

also emphasized that the jury be properly instructed on
unanimity with respect to the existence of an aggravating
circumstance, and, because of the critical and central role
the jury plays under Alabama's capital-sentencing scheme -- as
the body that makes the factual finding necessary to render a
capital defendant eligible for the death penalty -- that the
jury not "be told that its decision on the issue of whether
the proffered aggravating circumstance exists is 'advisory' or
'recommending.'"15

Ex parte McGriff, 908 So. 2d at 1038.

15

This is not to say that a jury cannot be informed that
its penalty-phase verdict is advisory or a recommendation.
The Court stated only that the jury should not be informed
that its factual finding as to the existence of an aggravating
circumstance was advisory or a recommendation because, under
38

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
In sum, under Alabama's capital-sentencing scheme, a
capital defendant is not eligible for the death penalty unless
the jury unanimously finds beyond a reasonable doubt, either
during the guilt phase or during the penalty phase of the
trial, that at least one of the aggravating circumstances in
§ 13A-5-49 exists.

Unlike both Arizona and Florida, which

conditioned a first-degree-murder defendant's eligibility for
the death penalty on a finding by the trial court that an
aggravating circumstance existed, Alabama law conditions a
capital defendant's eligibility for the death penalty on a
finding by the jury that at least one aggravating circumstance
exists.

If the jury does not unanimously find the existence

of at least one aggravating circumstance, the trial court is
foreclosed from sentencing a capital defendant to death.

If

the jury unanimously finds that at least one aggravating
circumstance does exist, then the trial court must proceed to
determine the appropriate sentence.

Although the trial court

in Alabama must also make findings of fact regarding the
existence or nonexistence of aggravating circumstances, the
trial court's findings are not the findings that render a

Alabama law, it is not.
39

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
capital defendant eligible for the death penalty, as was the
case in Ring and Hurst.

Under Alabama law, only a jury's

finding that an aggravating circumstance exists will expose a
capital defendant to the death penalty.
Alabama's capital-sentencing scheme, unlike the schemes
held unconstitutional in Ring and Hurst, does not "allow a
sentencing

judge

to

find

an

aggravating

circumstance,

independent of a jury's factfinding, that is necessary for
imposition of the death penalty." Hurst, ___ U.S. at ___, 136
S.Ct. at 624; accord Ring, 536 U.S. at 609.

Because in

Alabama it is the jury, not the trial court, that makes the
critical

finding

necessary

for

imposition

of

the

death

penalty, Alabama's capital-sentencing scheme is constitutional
under Apprendi, Ring, and Hurst.
With respect to the particular cases currently before
this

Court,

all

four

cases

are

overlap

cases

--

each

respondent was indicted for one or more capital offenses that
has as an element of the offense itself one of the aggravating
circumstances in § 13A-5-49.

If the respondents are found

guilty by a jury of the capital offense or offenses with which
they are charged, the jury's guilty verdict will necessarily

40

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
include a unanimous finding by the jury that an aggravating
circumstance exists and that finding by the jury at the guiltphase of the trial will make the respondents eligible for the
death penalty.

Therefore, in these four cases, Apprendi,

Ring, and Hurst will be satisfied by virtue of the jury's
guilt-phase verdicts.
Conclusion
Alabama's capital-sentencing scheme is constitutional
under Apprendi, Ring, and Hurst, and the circuit court erred
in holding otherwise and prohibiting the State from seeking
the death penalty in capital-murder prosecutions.

The State

has established the prerequisites for mandamus to issue.
Therefore, the circuit court is directed to set aside its
order

holding

Alabama's

capital-sentencing

scheme

unconstitutional and to allow the State to seek the death
penalty in capital-murder prosecutions if it chooses to do so.
CR-15-0619 -- PETITION GRANTED; WRIT ISSUED.
CR-15-0622 -- PETITION GRANTED; WRIT ISSUED.
CR-15-0623 -- PETITION GRANTED; WRIT ISSUED.
CR-15-0624 -- PETITION GRANTED; WRIT ISSUED.

41

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Windom, P.J., and Welch, J., concur. Joiner, J., concurs
in part and concurs in the result, with opinion. Burke J.,
concurs in the result, with opinion.

42

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
JOINER, Judge, concurring in part and concurring in the
result.
I concur in Part I of the main opinion; I agree that
these

matters are

properly

before this

petitions for writs of mandamus.
opinion,

I

concur

only

in

part.

Court

by

way

of

As to Part II of the
I

concur

to

grant

the

petitions and issue the writs.
Initially, I question whether the circuit court had
jurisdiction to decide the motions filed by Kenneth Eugene
Billups, Stanley Brent Chapman, Terrell Corey McMullin, and
Benjamin Todd Acton (hereinafter collectively referred to as
"the respondents") in which they argued that the death-penalty
portion

of

Alabama's

unconstitutional.

capital-murder

statute

is

facially

First, the materials before us do not

indicate that the respondents served the attorney general with
a

copy

of

their

motions,

and

when

the

attorney

general

attempted to intervene, the circuit court denied his request
to

appear

to

defend

the

capital-sentencing scheme.16

constitutionality

of

Alabama's

See § 6-6-227, Ala. Code 1975

16

The transcript of the proceedings in the circuit court
indicates that a representative from the Attorney General's
Office was present at the hearing on the respondents' motions.
When the attorney general's representative attempted to make
43

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
("In any proceeding which involves the validity of a municipal
ordinance, or franchise, such municipality shall be made a
party and shall be entitled to be heard; and if the statute,
ordinance, or franchise is alleged to be unconstitutional, the
Attorney General of the state shall also be served with a copy
of the proceeding and be entitled to be heard."); see also Guy
v. Southwest Alabama Council on Alcoholism, 475 So. 2d 1190,
1191 (Ala. Civ. App. 1985) ("The Alabama Supreme Court has
held that compliance with the requirements of § 6–6–227 is
mandatory and jurisdictional. Barger v. Barger, 410 So. 2d 17
(Ala. 1982); Sullivan v. Murphy, 279 Ala. 202, 183 So. 2d 798
(1966); Smith v. Lancaster, 267 Ala. 366, 102 So. 2d 1 (1958);
Wheeler v. Bullington, 264 Ala. 264, 87 So. 2d 27 (1956).
Hence, when a party challenges the constitutionality of a
state statute and fails to serve the attorney general, the
trial court has no jurisdiction to decide the constitutional
claims, and its decree is void.

Jones v. Sears, Roebuck &

Co., 342 So. 2d 16 (Ala. 1977); Busch Jewelry Co. v. City of

an oral notice of appearance to defend the constitutionality
of Alabama's death-penalty statute, the respondents (with the
exception of Billups) objected. The circuit court agreed with
the respondents' position and denied "the State's request for
the attorney general to enter any sort of arguments on the
record."
44

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
Bessemer, 266 Ala. 492, 98 So. 2d 50 (1957); Bond's Jewelry
Co. v. City of Mobile, 266 Ala. 463, 97 So. 2d 582 (1957);
Wheeler, 264 Ala. at 267, 87 So. 2d at 29.").17
Furthermore, I question the appropriateness--in terms of
ripeness and standing--of the respondents' constitutional
challenge to Alabama's capital-sentencing scheme. At root, as
noted above, the respondents' challenge is a facial challenge,
i.e., they argue that under no circumstance could Alabama's
capital-sentencing
manner.
1017

scheme

be

applied

in

a

constitutional

See State ex rel. King v. Morton, 955 So. 2d 1012,

(Ala.

2006)

("The

State's

17

challenge

to

the

Act

is

This Court, in Townsend v. City of Mobile, 793 So. 2d
828 (Ala. Crim. App. 1998), rev'd on other grounds, 793 So. 2d
835 (Ala. 2000), held that "§ 6-6-227 is a provision included
in the civil practice section of the Code and is inapplicable
in a criminal proceeding." Townsend, however, has been
criticized by members of this Court and by the Alabama Supreme
Court. In a dissenting opinion joined by Justice Wise, who
was then a judge on this Court, Justice Shaw, when he was a
member of this Court, criticized our decision in Townsend,
explaining that Townsend "incorrectly states Alabama law."
Boyd v. State, 960 So. 2d 717, 721 (Ala. Crim. App. 2006)
(Shaw, J. dissenting). Justice See, in an opinion joined by
Justice Parker, concurred specially to the Alabama Supreme
Court's decision quashing the writ of certiorari in Boyd.
Justice See echoed Justice Shaw's sentiments, explaining that,
"[b]y its terms, § 6–6–227, Ala. Code 1975, applies to 'any
proceeding.' The statute does not purport to limit its
application to civil statutes, nor does it exclude challenges
to criminal statutes." Boyd v. State, 960 So. 2d 722, 724
(Ala. 2006) (See, J., concurring specially).
45

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
essentially a '"facial challenge," which is defined as "[a]
claim that a statute is unconstitutional on its face--that is,
that it always operates unconstitutionally."'

Board of Water

& Sewer Comm'rs of Mobile v. Hunter, 956 So. 2d 403, 419 (Ala.
2006) (quoting Black's Law Dictionary 244 (8th ed. 2004)).").
In Woods v. State, 13 So. 3d 1, 38-39 (Ala. Crim. App. 2007),
we held that a defendant who had been sentenced to death in
accordance

with

the

jury's

recommendation

did

not

have

standing to challenge the "jury-verdict-override sentencing
scheme of Alabama's capital-murder statute" because there had
been no override of the jury's recommendation that he be
sentenced to death; indeed, the trial court had followed that
recommendation. In the procedural posture of the underlying
cases, of course, none of the respondents has been convicted
of capital murder, much less sentenced to death.18
Assuming they are convicted, however, the particular
facts of these respondents' cases will not implicate all
aspects of Alabama's capital-sentencing scheme. As the Court

18

Billups was convicted of capital murder and was
sentenced to death in 2006; that conviction and sentence,
however, were reversed in 2010, and his case was remanded for
a new trial, which he is currently awaiting.
46

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
notes, each of the respondents in this case is charged with
"overlap" offenses--i.e., "each respondent was indicted for
one or more capital offenses that has as an element of the
offense itself an aggravating circumstance in § 13A-5-49,"
Ala. Code 1975.

___ So. 3d at ___.

I agree with the Court's

thorough and well reasoned analysis of the relevant caselaw-in particular, Apprendi v. New Jersey, 530 U.S. 466 (2000),
Ring v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida,
577 U.S. ___, 136 S. Ct. 616 (2016)--insofar as the Court
disposes of the respondents' arguments as they pertain to the
"overlap" offenses with which they are charged. Specifically,
I agree with the Court's conclusion that
"[i]f the respondents are found guilty by a jury of
the capital offense or offenses with which they are
charged, the jury's guilty verdict will necessarily
include a unanimous finding by the jury that an
aggravating circumstance exists and that finding by
the jury at the guilt-phase of the trial will make
the respondents eligible for the death penalty.
Therefore, in these four cases, Apprendi, Ring, and
Hurst will be satisfied by virtue of the jury's
guilt-phase verdicts."
___ So. 3d at ___.
In evaluating a claim that a statute is unconstitutional
on

its

face,

we

should

determine

whether

there

is

no

reasonable circumstance in which the statute may be applied in
47

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
a constitutional manner.
the

"overlap"

nature

Here, as the Court aptly explains,
of

the

offenses

with

which

the

respondents are charged means that the capital-sentencing
scheme could be applied in a constitutional manner.

Under

normal circumstances, having concluded that the statute being
challenged can be applied in a constitutional manner, our
analysis would end.
The trial court's order in the underlying cases, however,
is sweeping and based on virtually no legal analysis. In that
context and given our obligation to exercise "a general
superintendence and control" of inferior courts, see Ex parte
Nice, 404 So. 2d 874, 877 (Ala. 1981), I understand the
Court's

speculation

regarding

additional

scenarios

not

necessarily implicated by the facts of the underlying cases,
as well as the Court's attempt to address all questions that
may arise in these cases or in other capital cases before the
trial court. I think, however, that whether and to what extent
other possible scenarios are constitutional under Hurst are
questions we should decide when they are properly presented to
us, and I therefore express no opinion as to them.

48

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
I feel compelled to sound a warning, however, as to this
Court's holding that "nothing in Apprendi, Ring, or Hurst
prohibits

a

trial

court

from

finding

the

existence

of

additional aggravating circumstances beyond that circumstance
or those circumstances the jury finds to exist." Although that
is a fair reading, Hurst is, in my opinion, deliberately vague
on

this

point.

Given

the

United

States

Supreme

Court's

continuing expansion of the constitutional limitations on the
use of capital punishment and the fact that any death sentence
imposed today will have to withstand years and years of "the
rigorous appellate review process," Hagood v. State, 777 So.
2d 221, 223 (Ala. Crim. App. 2000), trial courts imposing a
sentence of death should be wary of relying on any aggravating
circumstance that has not been found by a jury to exist.
Although not required by Alabama's capital-sentencing scheme
or by an express holding of the United States Supreme Court
(yet), the better practice for a sentencing court imposing the
death penalty would be to rely on only those aggravating
circumstances a jury has unanimously found to exist.

49

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
BURKE, Judge, concurring in the result.
The majority grants the State's petition for a writ of
mandamus and, in doing so, holds that Alabama's capitalsentencing scheme is constitutional under Hurst v. Florida, __
U.S. __, 136 S. Ct. 616 (2016).

Although I agree with the

rationale

majority

employed

by

the

regarding

the

constitutional issue, I would not reach the constitutional
issue because, in my view, the trial court lacked subjectmatter jurisdiction to rule on that issue.

Therefore, I

concur in the result.
In J.L.N. v. State, 894 So. 2d 751, 753-54 (Ala. 2004),
the Alabama Supreme Court held:
"'Not all controversies ... are justiciable.
Justiciability is a compound concept, composed of a
number of distinct elements.
Chief among these
elements is the requirement that a plaintiff have
"standing to invoke the power of the court in his
behalf."' Ex parte State ex rel. James, 711 So. 2d
952, 960 (Ala. 1998)(quoting Ex parte Izundu, 568
So. 2d 771, 772 (Ala. 1990)). 'Standing ... turns
on "whether the party has been injured in fact and
whether the injury is to a legally protected
right."' State v. Property at 2018 Rainbow Drive,
740 So. 2d 1025, 1027 (Ala. 1999)(quoting Romer v.
Board of County Comm'rs of the County of Pueblo, 956
P.2d
566,
581
(Colo.
1998)(Kourlis,
J.,
dissenting)).
"'When a party without standing
purports to commence an action, the trial
50

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
court
acquires
no
subject-matter
jurisdiction.
Barshop v. Medina County
Underground Water Conservation District,
925 S.W.2d 618, 626 (Tex. 1996)("Standing
is a necessary component of subject matter
jurisdiction"). See also Raines v. Byrd,
521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d
849 (1997); Lewis v. Casey, 518 U.S. 343,
116 S.Ct. 2174, 135 L.Ed.2d 606 (1996);
United States v. Hays, 515 U.S. 737, 742,
115
S.Ct.
2431,
132
L.Ed.2d
635
(1995)("'standing "is perhaps the most
important
of
[the
jurisdictional]
doctrines"'"); National Organization for
Women, Inc. v. Scheidler, 510 U.S. 249,
255, 114 S.Ct. 798, 127 L.Ed.2d 99
(1994)("Standing
represents
a
jurisdictional requirement which remains
open to review at all stages of the
litigation."); Romer v. Board of County
Comm'rs of the County of Pueblo, supra, 956
P.2d at 585 ("standing is a jurisdictional
prerequisite to every case and may be
raised
at
any
stage
of
the
proceedings")(Martinez, J., dissenting);
Cotton v. Steele, 255 Neb. 892, 587 N.W.2d
693 (1999). But see Hertzberg v. Zoning
Bd.
of
Adjustment
of
the
City
of
Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998)
(standing is not jurisdictional).'
"State v. Property at 2018 Rainbow Drive, 740 So. 2d
at 1028.
"....
"'Appellate courts will not pass upon
a constitutional question unless some
specific right of the appellant is directly
involved; the appellant must belong to that
class affected by the statute's provisions.
McCord v. Stephens, 295 Ala. 162, 325 So.
51

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
2d 155 (1975); Evans v. State, 338 So. 2d
1033 (Ala. Crim. App. 1976), cert. denied,
348 So. 2d 784 (Ala. 1977); Bozeman v.
State, 7 Ala. App. 151, 61 So. 604, cert.
denied, 183 Ala. 91, 63 So. 201 (1913).
Even under the circumstances where a
constitutional attack on a statute may be
presented to the trial court prior to trial
and, consequently, without benefit of a
trial record, adherence to the traditional
concepts of standing is required.
See,
e.g., State v. Friedkin, 244 Ala. 494, 14
So. 2d 363 (1943); State v. Wilkerson, [54
Ala. App. 104, 325 So. 2d 378 (1974) ];
People v. Allen, 657 P.2d 447 (Colo. 1983);
State v. Raybon, 242 Ga. 858, 252 S.E.2d
417 (1979); State v. Price, 237 N.W.2d 813
(Iowa 1976), appeal dismissed, 426 U.S.
916, 96 S.Ct. 2619, 49 L.Ed.2d 370 (1976);
People v. Jose L., 99 Misc. 2d 922, 417
N.Y.S.2d
655
(N.Y.Crim.Ct.
1979);
Commonwealth v. Bonadio, 490 Pa. 91, 415
A.2d 47 (1980); Commonwealth v. Hughes, 468
Pa. 502, 364 A.2d 306 (1976). Unless these
usual rules of standing are not applicable
to the situation at bar, they should have
precluded the trial court from deciding the
constitutionality of the sexual misconduct
statute in a factual vacuum.'
"State v. Woodruff, 460 So. 2d [325] at 328 [(Ala. Crim.
App. 1984)]."
The phrase "injury in fact" has been defined as "'an
invasion of a legally protected interest which is (a) concrete
and particularized, see

[Allen v. Wright, 468 U.S. 737,] at

756 [(1984)]; Warth v. Seldin, 422 U.S. 490, 508 (1975);
Sierra Club v. Morton, 405 U.S. 727, 740–741, n. 16 (1972);
52

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
and

(b)

"actual

'hypothetical,'"

or

imminent,

not

'conjectural'

or

Whitmore[ v. Arkansas,] 495 U.S. [149,] at

155 [(1990)] (quoting Los Angeles v. Lyons, 461 U.S. 95[, 102]
(1983)).'"

Salter v. State, 971 So. 2d 31, 35-36 (Ala. Civ.

App. 2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992)).
The trial court's order purports to hold "Alabama's
capital sentencing scheme" unconstitutional on its face but
fails to cite the specific statutes it intends to invalidate.
However, the sentencing provisions of Alabama's death-penalty
statutes begin in § 13A-5-43, Ala. Code 1975.
the

proceedings

below,

§

13A-5-43(d),

At the time of

Ala.

Code

1975,

provided19:
"If the defendant is found guilty of a capital
offense or offenses with which he is charged, the
sentence shall be determined as provided in Sections
13A-5-45 through 13A-5-53[, Ala. Code 1975]."
(Emphasis

added.)

Section

13A-5-45(a),

Ala.

Code

1975,

details the sentencing proceedings that are to take place

19

Section 13A-5-43 was amended effective May 11, 2016.
See Act No. 2016-360, Ala. Acts 2016. Although Act No. 2016360 added language to subpart (d) of § 13A-5-43, it did not
alter the pertinent language of the statute quoted above.
53

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
"[u]pon conviction of a defendant for a capital offense ...."
(Emphasis added.)
In the proceedings below, none of the defendants have
been convicted of a capital offense.

Rather, all have been

indicted for capital murder under various provisions of § 13A5-40(a), Ala. Code 1975, and are awaiting trial.

At the

present time, there exists the possibility that some or all of
the

defendants

could

be

acquitted

of

capital

murder.

Consequently, any invasion of a legally protected interest
would be hypothetical at this point.

Because the defendants

are

of

not

presently

subject

to

any

the

Alabama's capital-sentencing scheme, they

provisions

of

have not suffered

an "injury in fact." Therefore, none of the defendants belong
to a "'class affected by the statute's provisions,'"

J.L.N.,

894 So. 2d at 754, (quoting State v. Woodruff, 460 So. 2d at
328), and do not have standing to raise a constitutional
challenge.
Accordingly, I would hold that the trial court lacked
subject-matter

jurisdiction

to

rule

on

the

defendants'

motions, and I would grant the State's petition on that basis
alone.

54

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
I also note that, at the hearing on the defendants'
motion

to

hold

Alabama's

capital-sentencing

scheme

unconstitutional, the trial court refused to allow counsel
from the Alabama Attorney General's Office to argue the
validity of Alabama's death-penalty statutes on behalf of the
State.

(Petitions, Appendix B, p. 6.)

Assistant Attorney

General Clay Crenshaw sought to enter an oral notice of
appearance at the beginning of the hearing, but counsel for
three of the four defendants objected based on a lack of
notice.

The trial court stated: "Pursuant to the notice

requirement in the Alabama Rules of Criminal Procedure and the
laws of the State of Alabama, I'm going to deny the State's
request

for

the

attorney

general

to

enter

any

sort

of

arguments on the record as it relates to the hearings before
this court today."

(Petitions, Appendix B, p. 6.)

Section 6-6-227, Ala. Code 1975, provides:
"All persons shall be made parties who have, or
claim, any interest which would be affected by the
declaration, and no declaration shall prejudice the
rights of persons not parties to the proceeding. In
any proceeding which involves the validity of a
municipal ordinance, or franchise, such municipality
shall be made a party and shall be entitled to be
heard; and if the statute, ordinance, or franchise
is alleged to be unconstitutional, the Attorney

55

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
General of the state shall also be served with a
copy of the proceeding and be entitled to be heard."
Although this Court has held that § 6-6-227 "is a civil
provision which is inapplicable in criminal proceedings," Boyd
v. State, 960 So. 2d 717, 719 (Ala. Crim. App. 2006)(citing
Townsend v. City of Mobile, 793 So. 2d 828 (Ala. Crim. App.
1998), rev'd on other grounds, 793 So. 2d 835 (Ala. 2000)), I
believe, as did then Judge Shaw, that the holding in Townsend
should be revisited.

See Boyd, 980 So. 2d at 721, (on

application for rehearing)(Shaw, J., dissenting).

See also

Feggans v. State, 983 So. 2d 1152 (Ala. Crim. App. 2007)(Shaw,
J., concurring specially)(noting that the attorney general
should

be

challenge,

notified
rather

only
than

when
an

a

party

as-applied

asserts

a

challenge,

facial
to

the

constitutionality of a statute).
In Townsend, this

Court based its holding that § 6-6-227

applies only to civil actions on the fact that § 6-6-227 "is
a provision included in the civil practice section of the Code
...."

793 So. 2d at 829.

However, § 1-1-14, Ala. Code 1975,

provides:
"(a) The classification and organization of the
titles, chapters, articles, divisions, subdivisions
and sections of this Code, and the headings thereto,
56

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
are made for the purpose of convenient reference and
orderly arrangement, and no implication, inference
or presumption of a legislative construction shall
be drawn therefrom.
"(b) Unless otherwise provided in this Code, the
descriptive headings or catchlines immediately
preceding or within the text of the individual
sections of this Code, except the section numbers
included in the headings or catchlines immediately
preceding the text of such sections, do not
constitute part of the law, and shall in no manner
limit or expand the construction of any such
section. All historical citations and notes set out
in this Code are given for the purpose of convenient
reference, and do not constitute part of the law."
Thus, the fact that § 6-6-227 appears in the civil-practice
section of the Code is not dispositive.

Accordingly, I would

urge this Court to revisit its holding in Townsend regarding
the scope of § 6-6-227.
Finally, I point out that the trial court's 28-page
order, which appears to have been pre-drafted because it was
read into the record immediately upon the conclusion of the
hearing, contains sparse analysis on the application of Hurst
to Alabama's capital-sentencing scheme.

The majority of the

order is devoted to the trial court's opinions regarding
partisan politics,20 the effects of an elected judiciary, court

20

The trial court's order begins with the trial judge's
assertion that "[t]he influence of partisan politics on the
57

 CR-15-0619; CR-15-0622; CR-15-0623; CR-15-0624
funding, and the propriety of the death penalty in general.
Additionally, the trial court extensively cites secondary
sources, including materials from "Project Hope to Abolish the
Death Penalty" as well as from the Web site of the Equal
Justice Initiative, a nonprofit organization whose attorneys
are representing the defendants in this very proceeding.21

In

reviewing the materials that were filed with this Court, I
find no mention of these issues. Thus, I question whether the
trial court's ultimate conclusion is based on its analysis of
Hurst or on the trial judge's personal opinions regarding
Alabama's death penalty.

Alabama judiciary indeed has never ending, interlaced talons
that reach into every aspect of its criminal justice
system..." and continues to opine that "Alabama's judiciary
has unequivocally been hijacked by partisan interests and
unlawful legislative neglect." (Petitions, Appendix A, p. 1.)
21

Attorneys for Equal Justice Initiative filed a notice of
appearance with this Court on March 14, 2016, on behalf of the
respondents in the present mandamus proceedings.
58