from Jefferson Circuit Court (CC-11-2047)
ON RETURN TO REMAND
case is before this Court on return to remand after we
affirmed Dontae Callen's three capital-murder convictions
for the murders of Bernice Kelly, Quortes Kelly, and Aaliyah
Budgess and remanded the case to the circuit court for that
court to amend its sentencing order to make specific findings
of facts concerning the aggravating circumstances set out in
§ 13A-5-49(3), Ala. Code 1975, and § 13A-5-49(8),
Ala. Code 1975. See Callen v. State, [Ms.
CR-13-0099, April 28, 2017] __ So.3d __ (Ala.Crim.App.2017).
The circuit court has complied with our instructions on
remand, and we now address the propriety of Callen's
sentences of death.
of § 13A-5-53, Ala. Code 1975
was indicted for, and convicted of, three counts of capital
murder for murdering Bernice Kelly, Quortes Kelly, and
Aaliyah Budgess pursuant to one act or course of conduct, for
murdering the three victims during the course of an arson,
and for murdering a victim who was under 14 years of age;
offenses defined as capital by § 13A-5-40(a)(9);
13A-5-40(a)(10); and 13A-5-40(a)(15). The jury, by a vote of
11 to 1, recommended that Callen be sentenced to death. The
circuit court followed the jury's recommendation and
sentenced Callen to death. The record reflects that
Callen's sentence was not imposed under the influence of
passion, prejudice, or any other arbitrary factor.
See § 13A-5-53(b)(1), Ala. Code 1975.
circuit court found the existence of three aggravating
circumstances: (1) that the act that constituted the capital
offense did create "a great risk of death to many
persons" during its commission, § 13A-5-49(3), Ala.
Code 1975; (2) that the murders were especially heinous,
atrocious, or cruel as compared to other capital murders,
§ 13A-5-49(8), Ala. Code 1975; and (3) that Callen did
intentionally cause the death of two or more persons by one
act or pursuant to one scheme or course of conduct, §
13A-5-49(9), Ala. Code 1975.
applying § 13A-5-49(3), Ala. Code 1975, the circuit
court made the following findings of fact on remand:
"Aggravating circumstance number 3 -- § 13A-5-49(3)
-- does apply as the act which comprised the capital offense
did create a great risk of death to many persons during its
commission. The evidence and testimony presented at trial and
during the sentencing phase of the trial was that the
location of the incident was an apartment house. The building
wherein [Callen] set fire to the victim's murdered bodies
and then walked away was home to several people. The fire was
set in one apartment but could have easily spread throughout
the building, per the evidence, where several other people
were sleeping as it was the night time/early morning hours.
Had it not been for a vigilant neighbor, Jerreli Williams,
who smelled the smoke of the fire from the victims'
apartment more people would very likely have died from smoke
inhalation, while they slept or been burned to death.
Williams was able to wake his family and other building
residents to get them up and out of the building. But for his
actions there may have been more than three deaths as a
result of Callen's criminal conduct."
(Remand record, C. 39.)
neighboring State of Florida has a similar aggravating
circumstance. In applying this aggravating circumstance
to a defendant setting a fire at the scene of a murder, the
Florida Supreme Court stated:
"We agree with the trial court's finding that
defendant created a great risk of death to many persons when
he set fire to the victim's bed. Setting the fire was
clearly conduct surrounding the capital felony for which he
is being sentenced. Mines v. State[, 390 So.2d 332
(Fla. 1980)]. There were six elderly people asleep in the
building in which the victim's condominium was located.
This can be classified as many persons. Cf. Kampff v.
State, 371 So.2d 1007 (Fla. 1979). In King v.
State, 390 So.2d 315 (Fla. 1980), we held that by
setting fire to the house in which the murder victim resided
and in which no other person was present, the defendant had
knowingly created a great risk of death to many persons
because he should have reasonably foreseen that the blaze
would pose a great risk to the neighbors as well as the
firefighters and the police who responded to the call. In the
present case, the fire posed a direct threat of death to
those six elderly persons residing in the building as well as
the neighbors, firefighters, and police responding to the
Welty v. State, 402 So.2d 1159, 1164 (Fla. 1981).
This aggravating circumstance was properly applied in this
circuit court made the following findings of fact when
applying the aggravating circumstance that the murders were
especially heinous, atrocious, or cruel when compared to
other capital murders:
"Aggravating circumstance number 8 -- § 13A-5-49(8)
-- does apply in that the capital offense was especially
heinous, atrocious, or cruel compared to other capital
offenses. The testimony at trial concerning each victim's
death was as follows: Dr. Gary Simmons with the Jefferson
County Coroner/Medical Examiner's Office testified that
Bernice Kelly had a total of 18 stab wounds. All of the
wounds were above the chest area and on the front and back
areas of her body. Dr. Simmons testified that none of these
wounds would have been rapidly fatal but all would have
resulted in significant blood loss. Ms. Kelly also had
superficial burn areas. Dr. Simmons could not testify as to
whether the burns occurred before or after her death.
However, he ...