Appeal from the Cullman Circuit Court, Frank Brunner, J. [688 So2d Page 281]
The opinion of the court was delivered by: Taylor, Presiding Judge.
The appellant, Terry Lee Ponder, was convicted of murdering Mary Angela Vincent and Carol Quick Myrick, made capital because two or more persons were killed as the result of one cause of conduct. See § 13A-5-40(a)(10), Code of Alabama 1975. The jury, by a vote of eight to four, recommended that the appellant be sentenced to life in the penitentiary without the possibility of parole. The trial court overrode the jury's recommendation and sentenced the appellant to death by electrocution.
The state's evidence tended to show that on October 27, 1993, the appellant shot and killed Mary Angela Vincent and Carol Quick Myrick. Dr. Joseph Embry, the state's medical examiner, testified that both victims died as a result of gunshot wounds to the head. Steve Wayne Ponder, the appellant's brother, testified that he witnessed the appellant shoot the victims and that he helped the appellant dispose of the bodies. Steve Ponder testified that he, the appellant, Vincent, and Myrick were driving around in Myrick's mother's car on the day of the shootings. Vincent and the appellant were arguing, and the appellant shot both Vincent and Myrick. Steve Ponder testified that the appellant threatened him and told him to drive. He drove to a pond, where the appellant threw the gun he had used to shoot the victims into the water. Steve Ponder testified that they then went to their mother's house, where they wrapped the victim's bodies in sheets, put a plastic garbage bag over each of their heads, and tied concrete blocks to the bodies. They then took the bodies to Phillips Bridge and threw the bodies from the bridge into the water. The bodies were discovered after Steve Ponder related this information to police.
The appellant contends, and the State of Alabama agrees, that this case must be remanded to the Circuit Court for Cullman County so that the trial court can set aside the appellant's death sentence and sentence the appellant to life imprisonment without the possibility of parole. The state admits that the trial court, when fixing the sentence at death, erroneously found as the only aggravating circumstance mandating a sentence of death the fact that two or more people were killed during one course of conduct. § 13A-5-40(a)(10).
The aggravating circumstances that will support a death sentence are found in § 13A-5-49, Code of Alabama 1975. The death of two or more people during one course of conduct is not a statutory aggravating circumstance contained in this section. As section 13A-5-47 states:
"In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances. . . ."
The trial court admitted when fixing the appellant's sentence at death that the only aggravating circumstance it found to exist was not contained in § 13A-5-49. However, the court stated that because the crime was defined as a capital offense in § 13A-5-40(a)(10), it was finding that the death of two or more people as the result of one course of conduct was an aggravating circumstance that would uphold the imposition of the death sentence. This, however, is not the law.
As this court stated in Ex parte Woodard, 631 So.2d 1065 (Ala.Cr.App. 1993), cert. denied, 662 So.2d 929 (Ala.), cert. denied, 513 U.S. 869, 115 S.Ct. 190, 130 L.Ed.2d 123 (1994): [688 So2d Page 284]
"Under our current statutory scheme, a 'capital offense' is '[a]n offense for which a defendant shall be punished by a sentence of death or life imprisonment without parole according to the provisions of . . . Article [2 of Chapter 5 of Title 13A].' § 13A-5-39(11) (emphasis added [in Woodard]). The specific forms of conduct that the legislature has declared to be 'capital offenses' are set forth in § 13A-5-40 (Supp. 1993). Each of these offenses consists of an intentional murder coupled with some other element, e.g., that the murder was committed during the commission of certain other felonies (kidnapping, robbery, rape, sodomy, burglary, sexual abuse, and arson), § 13A-5-40(a)(1), (2), (3), (4), (8), and (9); that the murder was committed for pecuniary gain, § 13A-5-40(7); and that the victim was a law enforcement officer, § 13A-5-40(5). Although this 'other element' is sometimes referred to as an 'aggravating circumstance,' Kuenzel v. State, 577 So.2d 474, 490 (Ala.Cr.App. 1990), affirmed, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991), Crowe v. State, 485 So.2d 351, 367 (Ala.Cr.App. 1984), reversed on other grounds, 485 So.2d 373 (Ala. 1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3284, 91 L.Ed.2d 573 (1986), the § 13A-5-40 'other element' should not be confused with the statutory aggravating circumstances set out in § 13A-5-49.
"A number, but not all, of the § 13A-5-40 capital offenses include as 'other elements' conduct that clearly corresponds to one or more of the aggravating circumstances specified in § 13A-5-49. For example, the capital offenses of intentional murder during a rape, § 13A-5-40(a)(3), intentional murder during a robbery, § 13A-5-40(a)(2), intentional murder during a burglary, § 13A-5-40(a)(4), and intentional murder during a kidnapping, § 13A-5-40(a)(1), parallel the aggravating circumstance that '[t]he capital offense was committed while the defendant was engaged . . . [in a] rape, robbery, burglary or kidnapping,' § 13A-5-49(4). However, other capital offenses, such as intentional murder during a sodomy, § 13A- 5-40(a)(3), intentional murder during sexual abuse, § 13A-5-40(a)(8), the intentional murder of two or more persons by one act or course of conduct, § 13A-5-40(a)(10), and the offense of which the petitioner is accused, the intentional murder of a child, § 13A-5-40(a)(15), do not parallel any aggravating circumstance enumerated in § 13A-5-49. See Ex parte Kyzer, 399 So.2d 330, 334 (Ala. 1981) (recognizing as 'an anomaly' in the former capital offense statutes that 'there [wa]s a corresponding aggravating circumstance for most, but not all, of the aggravated offenses').
"The fact that § 13A-5-40(a)(15) does not parallel a statutory aggravating circumstance does not render that section 'contradictory and in diametric opposition to the legislative intent which underlies the purpose of the statute as a whole.' To the contrary, the legislature has clearly classified certain crimes as 'capital offenses,' § 13A-5-40, and it has set the minimum punishment for such crimes as imprisonment for life without parole, see §§ 13A-5-45(f); 13A-5-46(e)(1). This is no different from the legislature's classifying other offenses for purposes of punishment and establishing minimum and maximum punishments for each classification. See §§ 13A-5-3; 13A-5-6; 13A-5-7. A greater punishment — death — may be imposed on a defendant convicted of a capital offense, but only if one or more of the aggravating circumstances enumerated in § 13A-5-49 is found to exist and that aggravating circumstance(s) outweighs any mitigating circumstance(s) that may exist. See §§ 13A-5-45(f); 13A-5-46(e); 13A-5-47(e). Cf. Ex parte Kyzer, 399 So.2d at 334 (under former capital offense statutes, death sentence could not be upheld where defendant was convicted of the intentional murder of three persons in one course of conduct, but no statutory aggravating circumstances existed); Holladay v. State, 549 So.2d 122, 133 (Ala.Cr.App. 1988) (death sentence upheld where defendant was convicted of the intentional murder of three persons in one course of conduct and two § 13A-5-49 aggravating circumstances existed), affirmed, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989)." [688 So2d Page 285]
631 So.2d at 1070-71. (Emphasis original.) Cf. Edwards v. State, 515 So.2d 86 (Ala.Cr.App. 1987) (death of two or more persons as a result of one course of conduct recognized, after Ex parte Kyzer, 399 So.2d 330 (Ala. 1981), as a nonstatutory aggravating circumstance; however, in Edwards a statutory aggravating circumstance to uphold the sentence of death was also present).
As this court stated in Bush v. State, [Ms. CR-90-1652, December 1, 1995] ___ So.2d ___, ___ (Ala.Cr.App. 1995): "A trial court may consider only those aggravating circumstances listed in § 13A-5-49 in fixing the death penalty. Clisby v. State, 456 So.2d 99 (Ala.Cr.App. 1983); Berard v. State, 402 So.2d 1044 (Ala.Cr.App. 1980)."
The appellant's sentence of death is not based on the law and therefore cannot stand. This cause is remanded to the Circuit Court for Cullman County for that court to vacate the appellant's sentence of death by electrocution and to fix the appellant's sentence at the only sentence provided by law, i.e., life in the penitentiary without the possibility of parole. Woodard.
Although we are remanding this case for resentencing, in the interest of judicial economy we will address the remaining issues raised in this court. However, we will not address any issues relating to the death penalty because our remand of this case renders those issues moot. We further note that because the death penalty has been vacated, this court not obligated to search the record for plain error. Rule 45A, Ala. R. App. P. Thus, any issues raised on appeal must be correctly preserved before this court can review them.
The appellant contends that his constitutional rights were violated when he was absent from two pretrial hearings — one on March 11, 1994, and another on August 12, 1994. On both occasions appellant's counsel was present.
Initially, we note that there was no objection to the appellant's absence and, in fact, the attorneys representing the appellant stated for the record at each hearing that the appellant's presence was waived because they did not think his presence was necessary. Both hearings apparently dealt with pretrial discovery.
As this court, in Harris v. State, 632 So.2d 503 (Ala.Cr.App. 1992), aff'd, 632 So.2d 543 (Ala. 1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995), stated:
"The court in Proffitt v. Wainwright, [685 F.2d 1227 (11th Cir. 1982), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983)], acknowledged in a footnote that in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), 'which was a capital case, [the Court] stated that the sixth amendment privilege of confrontation could "be lost by consent or at times even by misconduct." Snyder v. Massachusetts, 291 U.S. at 106, 54 S.Ct. at 332.' Proffitt v. Wainwright, supra, at 1257, n. 43. See also State v. Davis, 290 N.C. 511, 227 S.E.2d 97, 110 (1976) ('[t]he strict rule that an accused cannot waive his right to be present at every stage of his trial upon an indictment charging a capital felony, State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969), is not extended to require his presence at the hearing of a pretrial motion for discovery when he is represented by counsel who consented to his absence, and when no prejudice resulted from his absence'). See also State v. Piland, 58 N.C. App. 95, 293 S.E.2d 278 (1982), appeal dismissed, 306 N.C. 562, 294 S.E.2d 374 (1982) ('[t]he [capital] defendant in this case has not demonstrated any prejudice to him by his absence from a part of the hearing. The evidence elicited was not disputed and there has been no showing that it would have been different had the defendant been present').
"Thus, if the appellant's presence . . . would have been useless to [his] defense and if the [pre-trial] hearing was not considered to be a 'critical stage' of [his] trial, then we can find no error in the appellant's absence from the hearing."
632 So.2d at 512 (Emphasis original.) See also Dobyne v. State, 672 So.2d 1319 (Ala.Cr.App. 1994); Ex parte DeBruce, 651 So.2d 624 (Ala. 1994). [688 So2d Page 286]
The appellant further contends that he was denied a fair trial because of alleged prosecutorial misconduct. Specifically, he contends that the prosecutor in his closing statement commented on the appellant's right to remain silent, bolstered the credibility of state's witnesses, and asked the jury to send a message to the community by finding the appellant guilty.
There was no objection to these comments in the prosecutor's closing argument until the whole argument had been made to the jury. At the end of the argument, the sole objection was that the prosecutor had commented on the appellant's right to remain silent. Thus, any issues concerning the other comments are not preserved for appellate review because they are raised for the first time on appeal. Linville v. State, 634 So.2d 601 (Ala.Cr.App. 1993).
The prosecutor made the following argument in closing:
"Everybody has their duties in a trial, and your duties are about to begin as far as the important part. And the judge has conducted the trial in an orderly and a proper fashion. He has allowed everybody to have their say, either before the jury or outside the jury, and he has not conducted himself in any improper manner. And the attorneys, and I'm sure you also, appreciate that.
"Where do we start? I think the first way to start is to say the end of their testimony began with the credibility attack on Stevie Ponder, and I think that is probably the best place to begin. You first have to decide if he is credible or not credible. You say if he's credible, then you would evaluate all of his testimony along with all the other testimony. If you say he is not credible, then I think you have to disregard all of his testimony.
"What I'm saying is I don't think you can pick and choose. Say, when he testified for the state he was not credible, but everything he said in favor of the defendant, then he is credible, because it's all a continuing event. The stresses that were on him at one time would have been on him throughout the entire ordeal. So I think you either say we believe him or we don't believe him.
"Let's approach it in the first fashion and say you don't believe him, you disregard his entire testimony. If you approach it in that fashion it simplifies your deliberations considerably, because the only one that has testified as to the elements of their defense, as a practical matter, is Stevie, the only testimony that has come to you from the stand.
"He testified about the events out there at the pond where the murders took place. He's the only one that can testify to those events. He's the only one that can testify as to the fight or the argument that took place in the car. He's the only one that can testify as to intoxication."
The standard used to evaluate prosecutor's comments made in closing argument is set forth by the United States Supreme Court in Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The United States Supreme Court stated:
"[I]t 'is not enough that the prosecutors' remarks were undesirable or even universally condemned.' Darden v. Wainwright, 699 F.2d  1031 at 1036 [(1983)]. The relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process' Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)."
477 U.S. at 181, 106 S.Ct. at 2471, 91 L.Ed.2d at 157.
As this court further stated in Payne v. State, 683 So.2d 440 (Ala.Cr.App. 1995):
"In Windsor v. State, 683 So.2d 1023-24 (Ala. 1994), the Alabama Supreme Court addressed the standard for reviewing whether a comment is a comment on an accused's failure to testify, as follows:
" 'As this Court recently held in Ex parte Musgrove, 638 So.2d 1360 (Ala. 1993), "When an accused contends that a prosecutor has made improper comments during a closing argument, the statements at issue must be viewed in the context of the evidence presented in [688 So2d Page 287]
the case and the entire closing arguments made to the jury. . . ." 638 So.2d at 1368. . . .
" 'Alabama, by statute, specifically protects the privilege against self-incrimination from comment by the prosecution. § 12-21-200, Ala. Code 1975. A prosecutor must be extremely careful not to overstep the mark or to break with the established protocol regarding statements about that privilege. Musgrove, supra. To improperly comment on that privilege would be a clear violation of the defendant's rights under Article I, § 6, Ala. Const. 1901, as well as the rights ...