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Floyd v. State

Alabama Court of Criminal Appeals

July 13, 2018

Cedric Jerome Floyd
v.
State of Alabama

          Appeal from Escambia Circuit Court (CC-11-247)

         On Return to Remand

          KELLUM, JUDGE.

         On July 7, 2017, this Court remanded this case to the trial court for it to correct a deficiency in its order sentencing Cedric Jerome Floyd to death. We held that the trial court had failed to comply with the requirement in former § 13A-5-47(d), Ala. Code 1975, that it "enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49"[1]because it had failed to make findings of fact regarding the aggravating circumstance that the murder of Tina Jones was especially heinous, atrocious, or cruel when compared to other capital offenses. We directed the trial court to correct its sentencing order to include those findings and, if necessary, to reweigh the aggravating circumstances and the mitigating circumstances and to resentence Floyd. On January 29, 2018, the trial court issued an amendment to its sentencing order that complies with the statutory requirements, and we permitted the parties to file supplemental briefs on return to remand.

         In our opinion remanding this case to the trial court, we addressed all the issues raised by Floyd regarding the guilt phase of his trial and the penalty phase of his trial, and we reviewed the record of the guilt phase for plain error. We found no plain error or defect in the guilt phase of the proceedings, and we affirmed Floyd's conviction for murder made capital because it was committed during the course of a burglary. See § 13A-5-40(a)(4), Ala. Code 1975. We pretermitted discussion of Floyd's remaining issues and our plain-error review of Floyd's death sentence. We now address those issues, as well as the issues Floyd raises in his supplemental brief on return to remand.

         I.

         Floyd contends that the trial court's findings in its sentencing order regarding mitigating circumstances were erroneous in three respects. (Issue X in Floyd's initial brief; Issue III in Floyd's brief on return to remand.) Floyd did not present these claims to the trial court; therefore, we review them under the plain-error rule. See Rule 45A, Ala. R. App. P.

         First, Floyd argues that the trial court did not mention in its sentencing order the following mitigating evidence he presented at the sentencing hearing: that he was sexually abused when he was a child; that he suffered multiple head traumas during his life that may have resulted in frontal lobe damage; and that his IQ dropped from 109 as a child to 82 as an adult. According to Floyd, the trial court's failure to mention this evidence in its sentencing order indicates that the court failed to consider the evidence. We disagree.

         "A sentencer in a capital case may not refuse to consider or be 'precluded from considering' mitigating factors." Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala. 1997) (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)). "[T]he United States Supreme Court has held that a sentencing authority must consider all evidence offered as mitigating, that is, 'any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Woodward v. State, 123 So.3d 989, 1033 (Ala.Crim.App.2011) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). "'While Lockett[ v. Ohio, 438 U.S. 586 (1978), ] and its progeny require consideration of all evidence submitted as mitigation, whether the evidence is actually found to be mitigating is in the discretion of the sentencing authority.'" Ex parte Slaton, 680 So.2d 909, 924 (Ala. 1996) (quoting Bankhead v. State, 585 So.2d 97, 108 (Ala.Crim.App.1989), remanded on other grounds, 585 So.2d 112 (Ala. 1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Crim.App.1992), rev'd, 625 So.2d 1146 (Ala. 1993)). "The fact that the trial court does not list and make findings in its sentencing order as to each alleged nonstatutory mitigating circumstance offered by a defendant indicates that the trial court found some of the offered evidence not to be mitigating, not that the trial court did not consider this evidence." Reeves v. State, 807 So.2d 18, 48 (Ala.Crim.App.2000). It is "settled law that 'the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating.'" Ex parte Ferguson, 814 So.2d 970, 979 (Ala. 2001) (quoting Williams, supra, at 1347).

         In this case, it is clear from the record that the trial court properly considered all the evidence Floyd presented in mitigation. The trial court did not limit or restrict Floyd as to the evidence he presented or the arguments he made regarding mitigating circumstances. In its sentencing order, the trial court addressed each statutory mitigating circumstance listed in § 13A-5-51, Ala. Code 1975, and it determined that none of those circumstances existed under the evidence presented. The trial court also stated that it had considered the testimony of the four witnesses Floyd called to testify at the sentencing hearing and that it had reviewed the multiple exhibits that Floyd had introduced into evidence, and it concluded that no nonstatutory mitigating circumstances existed under § 13A-5-52, Ala. Code 1975. Although the trial court did not mention each nonstatutory mitigating circumstance offered by Floyd, it was not required to do so, and the trial court's not mentioning each nonstatutory mitigating circumstance offered by Floyd indicates only that the trial court found the offered evidence not to be mitigating, not, as Floyd argues, that the trial court did not consider the evidence.

         Second, Floyd argues that the trial court erred in not finding as nonstatutory mitigating circumstances that he had a difficult childhood and that he struggled with substance abuse. According to Floyd, once he interjected his difficult childhood and substance abuse as mitigating circumstances, and those circumstances went unrefuted by the State, the trial court was required to find their existence. We disagree. "[A]lthough a trial court is required to consider all evidence proffered as mitigation, a trial court is not required to find that a mitigating circumstance exists simply because evidence is proffered to the trial court in support of that circumstance." Phillips v. State, [Ms. CR-12-0197, December 18, 2015] ___ So.3d ___, ___ (Ala.Crim.App.2015) (opinion on return to remand) (emphasis added). As this Court explained in Largin v. State, 233 So.3d 374 (Ala.Crim.App.2015):

"Section 13A-5-45(g), Ala. Code 1975, provides that, '[w]hen the factual existence of an offered mitigating circumstance is in dispute, the defendant shall have the burden of interjecting the issue, but once it is interjected the state shall have the burden of disproving the factual existence of that circumstance by a preponderance of the evidence.' The United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), held that a circuit court must consider all evidence offered in mitigation when determining a capital defendant's sentence. However, a defendant's proffer of evidence in support of a mitigating circumstance does not require the trial court to find that the mitigating circumstance exists. Rather, the trial court, after considering all proffered mitigating evidence, has the discretion to determine whether a particular mitigating circumstance has been proven. E.g., Carroll v. State, 215 So.3d 1135 (Ala.Crim.App.2015); Albarran v. State, 96 So.3d 131, 213 (Ala.Crim.App.2011).

         233 So.3d at 424.

         In its sentencing order, the trial court thoroughly explained why it found that Floyd's difficult childhood and his struggles with substance abuse were not mitigating:

"The Court has paid close attention to this allegation that [Floyd] had a bad childhood and the apparent suggestion that such situation should carry weight with this Court's decision. The testimony of [Floyd's] grandmother, Ms. Alma Rose, has given the Court the best understanding about [Floyd's] childhood and upbringing. [Floyd's] mother did not raise him nor did he, until after his arrest in this case, have any contact with his biological father. He was raised by his grandmother who had custody of him after his mother's inability to parent became apparent to the Conecuh County, Alabama, Department of Human Resources. The grandmother was apparently given legal custody of [Floyd] when he was less than a year old. The grandmother testified very strongly. [Floyd] did not grow up rich, as in money. However, [Floyd's] grandmother did not put up with wrongdoing and did her best to provide [Floyd] with a warm and loving Christian home, clothing, and food. [Floyd] was a good student in elementary school and the grandmother even enrolled [Floyd] in piano lessons. As he grew older, she did her best to see that he got an education and even pushed him to get his GED. She was very proactive in trying to get him help in regard to his wrong doing as a teenager. Obviously, there were insecurities in [Floyd's] childhood regarding his looks, etc., but no adult person can ever say that they did not have insecurities as a child. The Court is satisfied that [Floyd's] young life and the insecurities suffered by [him] were not of such a degree that they rise to a level of mitigating [Floyd's] conduct in committing capital murder.
"The issue of substance abuse was raised especially through the testimony of Robert Brewer, who had been drug testing [Floyd] for a little over a month before the murder occurred. [Floyd] was in a phase one outpatient, color coded, drug treatment program through Southwest Alabama Mental Health for whom Mr. Brewer worked. It was very clear from Mr. Brewer's testimony that [Floyd] did abuse cocaine. He did test positive for cocaine on at least two occasions during the month before the murder, but had also tested negative on at least one sampling. However, Mr. Brewer's report and testimony clearly indicated that even though [Floyd] did use cocaine he was nevertheless attentive, focused, and denied that he had a problem with it but that he just liked to get high sometimes. The Court is very satisfied that even given [Floyd's] involvement with the drug culture, he was much in control of himself and that his drug 'dependency' was minor and actually not controlling in the events of this murder. This Court conclude[s] that his drug usage is not a mitigating factor in this case."

(C. 2253-54.) The court's findings regarding Floyd's childhood and substance abuse are supported by the record. As already noted, it is clear that the trial court properly considered all the evidence presented by Floyd in mitigation. Whether that evidence was, ...


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