Appeal from Jefferson Circuit Court. (CC-89-1345.80).
State of Alabama, Plaintiff, -vs- Joseph Ward Gentry, Defendant.
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA CRIMINAL DIVISION
This case is a retrial of a case which had previously been tried before this Court and was reversed by the Court of Criminal Appeals because the trial Judge allowed the jury to separate over the objection of the appellant in violation of Alabama Code 1975, Section 12-6-9(a).
The Defendant in this case, Joseph Ward Gentry, was charged by an indictment by the Grand Jury of the Circuit Court of the Tenth Judicial Circuit, Jefferson County, for the capital offense of murder during the commission of a burglary in the first degree under Title 13A-5-40(a)(4).
On August 3, 1992 the case came on to be heard before the Court and a jury of fourteen (14) men and women duly empaneled and sworn on that date as required by law.
The jury after hearing the evidence, the Court's charge to the applicable law and upon consideration of the law and the evidence the number of the jury was diminished by two (2) as provided by law, wherein the twelve (12) remaining jurors found the defendant guilty of the capital offense as charged in the indictment. The jury was polled and the verdict was unanimous in finding the defendant guilty of the capital offense. The verdict on the guilt phase of the trial was returned on August 5, 1992 and after the jury verdict was returned the Court, after a short recess, proceeded with the punishment phase of the trial. After brief instructions by the Court as to the procedure to be followed during the sentencing, the sentencing phase began as required by the Supreme Court of the State of Alabama and by Section 13A-5-45 of the Alabama Death Penalty Statute.
After opening statements by the attorneys, their presentation of evidence during the punishment phase of these proceedings and summation by the attorneys the Court again charged the jury as to the applicable law, advising said jury that after hearing evidence concerning aggravating circumstances and mitigating circumstances that the jury would fix punishment according to the law. The Court further charged the jury that if the mitigating circumstances outweigh the aggravating circumstances then the punishment would be fixed at life imprisonment without eligibility for parole but if the aggravating circumstances outweigh the mitigating circumstances then the punishment would be fixed at death. After due deliberation the jury returned a verdict fixing the defendant's punishment at life imprisonment without parole.
The jury was individually polled and the verdict was seven (7) in favor of life imprisonment without parole and five (5) in favor of death.
The Court in its charge to the jury as to how mitigating circumstances and aggravating circumstances would be considered in fixing punishment during the punishment phase, advised the jury that emotion, passion, prejudice or other arbitrary factors should not be considered in arriving at punishment in the verdict. The Court further charged to the jury that their deliberations and verdicts should be based on the law and on the evidence as they had heard during the course of the trial. The Court is satisfied and makes the finding that the element of passion, prejudice or other arbitrary factors were not present in the jury's deliberation in fixing punishment at life imprisonment without parole. After the jury returned said verdict the Court then announced the jury verdict and set the sentencing date for September 25, 1992 at 8:30 a.m. The sentencing was subsequently continued until October 9, 1992.
FINDING OF FACTS FROM THE TRIAL
After said hearing the Court makes the following finding of facts from the trial. The victim in this case, Kimberly Diane Hill was a 24 year old female that had worked with the defendant at a local bank. The defendant had worked in a supervisory capacity over the victim and after some period of time working together, the victim and the defendant developed an intimate relationship. During this relationship the victim had given the defendant a set of keys to her apartment and the defendant had apparently used the keys for some period of time prior to January 13, 1989. Approximately two weeks before Christmas of the preceeding year the defendant was advised by the victim that she was pregnant by him which caused the defendant much concern as he was presently married with two children of his own. In subsequent conversation with the victim, the defendant advised her that he would divorce his wife ...