Appeal from Marshall Circuit Court. (CC-87-200210).
Cobb, Judge. All the Judges concur.
The opinion of the court was delivered by: Cobb
This court, in its opinion released January 13, 1995, failed to include a review of the propriety of the appellant's sentence as is required by § 13A-5-53, Code of Alabama 1975. Therefore, our opinion of January 13, 1995, is modified to include a review of the appellant's sentence of death.
We have reviewed the trial court's findings concerning the aggravating and mitigating circumstances in this case. The trial court found one aggravating circumstances: that the capital offense was committed while the defendant was engaged in the commission of a rape. The trial court considered each of the statutory mitigating circumstances set out in § 13A-5-51, Code of Alabama 1975, and it considered such non statutory mitigating evidence as the appellant's previous mental health problems and his family history.
Our review of the record leads us to conclude that the trial court's findings concerning the aggravating and mitigation circumstances are supported by the record. We find no evidence that the appellant's sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. Our independent weighing of the aggravating and mitigating circumstances convinces us that death is the appropriate and proper sentence in this case.
Furthermore, the appellant's sentence of death is not disproportionate to the penalty imposed in similar cases, considering the crime and this appellant. See Barbour v. State, [Ms. 93-931, December 29, 1994] ___ So. 2d ___ (Ala. Crim. App. 1994); Bradley v. State, 494 So. 2d 750 (Ala. Crim. App. 1985), aff'd, 494 So. 2d 772 (1986), cert. denied, Williams v. Ohio, 480 U.S. 923, 107 S. Ct. 1385, 94 L. Ed. 2d 699 (1987).
Pursuant to Rule 45A, Ala. R. App. P., we have thoroughly reviewed the record in this case, and we find no error that adversely affected this appellant's rights during the guilt phase or the sentencing phase of this trial. The appellant's convictions for this capital offense and his sentence of death are proper.
APPELLEE'S APPLICATION GRANTED; APPELLANT'S APPLICATION DENIED; OPINION MODIFIED; AFFIRMED.