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Johnson v. State

Alabama Court of Criminal Appeals

October 13, 2017

Bart Wayne Johnson
v.
State of Alabama

         Appeal from Shelby Circuit Court (CC-09-1450; CC-09-1451)

          ON REMAND FROM THE UNITED STATES SUPREME COURT

          BURKE, Judge.

         Bart Wayne Johnson was convicted of two counts of murder made capital because the victim was an on-duty police officer, see § 13A-5-40(a)(5), Ala. Code 1975, and because the murder was committed by or through the use of a deadly weapon fired within or from a vehicle, see § 13A-5-40(a)(18), Ala. Code 1975. The jury, by a vote of 10 to 2, recommended that Johnson be sentenced to death. The trial court followed the jury's recommendation and sentenced Johnson to death. This Court affirmed Johnson's convictions but remanded the case with instructions that the trial court amend its sentencing order and "'enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, [Ala. Code 1975, ] each mitigating circumstance enumerated in Section 13A-5-51, [Ala. Code 1975, ] and any additional mitigating circumstances offered pursuant to Section 13A-5-52[, Ala. Code 1975].'" Johnson v. State, [Ms. CR-10-1606, May 20, 2014] ___ So.3d ___ (Ala.Crim.App.2014), quoting § 13A-5-47(d), Ala. Code 1975.[1] The trial court complied with those instructions and again sentenced Johnson to death. This Court affirmed that decision in Johnson v. State, [Ms. CR-10-1606, February 6, 2015] ___ So.3d ___ (Ala.Crim.App.2014)(opinion on return to remand). The Alabama Supreme Court denied certiorari review, without an opinion, on August 21, 2015.

         On May 2, 2016, the United States Supreme Court granted Johnson's petition for a writ of certiorari, vacated this Court's judgment, and remanded the case "for further consideration in light of Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016)." Johnson v. Alabama, ___ U.S. ___, 136 S.Ct. 1837, 194 L.Ed.2d 828 (2016). Both Johnson and the State filed supplemental briefs addressing this issue.

         Discussion

         In Hurst, the United States Supreme Court held Florida's capital-sentencing scheme unconstitutional because, as it then existed, [2] Florida law allowed a trial judge alone to make the findings necessary to render a defendant eligible for the death penalty. In Ex parte Bohannon, 222 So.3d 525, 531 (Ala. 2016), the Alabama Supreme Court analyzed Hurst and explained that "the [United States Supreme] Court held that Florida's capital-sentencing scheme violated the Sixth Amendment right to a trial by jury because the judge, not the jury, found the existence of the aggravating circumstance that made Hurst death-eligible. The Court emphasized that the Sixth Amendment requires that the specific findings authorizing a sentence of death must be made by a jury ...."

         In his supplemental brief, Johnson argues that his death sentences are unconstitutional under Hurst, Ring v. Arizona, 536 U.S. 584 (2002), and State v. Billups, [Ms. CR-15-0619, June 17, 2016] ___ So.3d ___ (Ala.Crim.App.2016). Specifically, Johnson claims that he was sentenced to death based on the findings of the trial court, and not the jury, regarding the existence of aggravating circumstances; that the jury's advisory verdict did not satisfy the requirements of the Sixth Amendment; and that the trial court's determination that the aggravating circumstances outweighed the mitigating circumstances was a finding of fact that, he says, had to be made by a unanimous jury.

         Before analyzing Johnson's specific arguments, we note that the Alabama Supreme Court recently held that Alabama's capital-sentencing scheme is not unconstitutional in light of Hurst. In Bohannon, supra, the Court held:

"Our reading of Apprendi[v. New Jersey, 530 U.S. 466 (2000)], Ring[v. Arizona, 536 U.S. 584 (2002)], and Hurst leads us to the conclusion that Alabama's capital-sentencing scheme is consistent with the Sixth Amendment. As previously recognized, Apprendi holds that any fact that elevates a defendant's sentence above the range established by a jury's verdict must be determined by the jury. Ring holds that the Sixth Amendment right to a jury trial requires that a jury 'find an aggravating circumstance necessary for imposition of the death penalty.' Ring, 536 U.S. at 585, 122 S.Ct. 2428. Hurst applies Ring and reiterates that a jury, not a judge, must find the existence of an aggravating factor to make a defendant death-eligible. Ring and Hurst require only that the jury find the existence of the aggravating factor that makes a defendant eligible for the death penalty -- the plain language in those cases requires nothing more and nothing less. Accordingly, because in Alabama a jury, not the judge, determines by a unanimous verdict the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible, Alabama's capital-sentencing scheme does not violate the Sixth Amendment."

222 So.3d at 532. Accordingly, Bohannon forecloses any argument that Alabama's capital-sentencing scheme is facially unconstitutional under Hurst. See also Billups, ___ So.3d at ___ ("Alabama's capital-sentencing scheme is constitutional under Apprendi, Ring, and Hurst, and the circuit court erred in holding otherwise ....")

         I.

         Johnson first argues that, in violation of Hurst, Ring, and Billups, he was sentenced to death based on the findings of the trial court, not the jury, regarding the existence of aggravating circumstances. Johnson correctly asserts that a trial court may not impose a death sentence unless the jury unanimously finds the existence of at least one aggravating circumstance beyond a reasonable doubt. He also points out that the jury's verdicts in the guilt phase of his trial did not establish either of the aggravating circumstances the State sought to prove in the penalty phase because, he says, the aggravating circumstances did not overlap with an element of either capital offense Johnson was convicted of. As this Court explained in Billups:

"'Many capital offenses listed in Ala. Code 1975, § 13A-5-40, include conduct that clearly corresponds to certain aggravating circumstances found in § 13A-5-49.' Ex parte Waldrop, 859 So.2d [1181] at 1188 [(Ala. 2002)]. 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 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 guilt-phase verdict necessarily includes the finding of an aggravating circumstance necessary 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 is life imprisonment without the possibility of parole. 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."

___ So.3d at ___.

         As noted, Johnson was convicted of murder made capital because the victim was a police officer who was on duty and because the murder was committed by or through the use of a deadly weapon fired within or from a vehicle. During the penalty phase, the State sought to prove the following aggravating circumstances: that "[t]he capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, " § 13A-5-49(5), Ala. Code 1975, and that "[t]he capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws." § 13A-5-49(7), Ala. Code 1975. In McNabb v. State, 887 So.2d 929, 995 (Ala.Crim.App.2001), this Court held that "the capital murder of a police officer under § 13A-5-40(a)(5) does not necessarily include conduct that corresponds with the aggravating circumstances in § 13A-5-49(5) and (7)." Similarly, murder made capital because it was committed by or through the use of a deadly weapon fired within or from a vehicle does not correspond to either aggravating circumstance the State sought to prove in Johnson's case. Johnson is correct that the guilty verdicts alone do not establish that the jury unanimously found the existence of one or more aggravating circumstances beyond a ...


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