source: Caselaw Access Project

author: PER CURIAM. TORBERT, Chief Justice JONES, Justice SHORES, Justice

license: Public Domain

text:
    In re Jerry Wayne JACOBS v. STATE of Alabama. Ex parte Jerry Wayne Jacobs.
    SC 2808.
    Supreme Court of Alabama.
    May 19, 1978.
    Rehearing Denied Aug. 11, 1978.
    John L. Carroll and Morris S. Dees, Jr. Montgomery, for petitioner.

      William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   PER CURIAM.

This case concerns the constitutionality of Act 213, 1975 Ala. Acts, p. 701, et seq., which provides penalties for certain aggravated homicides. The Court of Criminal Appeals affirmed the conviction of murder in the first degree, including the sentence of death, and held the Act constitutional. We affirm.

A full statement of the facts is contained in the opinion of the Court of Criminal Appeals, 361 So.2d 607, but briefly stated, the facts are, that on July 17, 1976, Jerry Wayne Jacobs, his brother, John Jacobs, and his nephew, Thomas Eugene Brown, went to the Star Pool Hall in Cullman with the intent to rob Walter Robert Knight. When Knight left the pool hall, the three offered him a ride, which he took. A short while later, while Jacobs pointed a sawed-off .22 caliber rifle at him, Knight was robbed of several hundred dollars.

The three men then drove Knight to a secluded section of Highway U.S. 31. Knight’s shoes were removed and Jacobs took him approximately one hundred yards into the woods. Brown testified that while he was waiting at the ear, he heard Knight plead for his life. Immediately thereafter, he heard a shot. Jacobs, in a statement entered into evidence, admitted shooting Knight. He contends, however, that Brown shot him two additional times after the Jacobses had returned to the car.

The State Toxicologist testified that Knight died from two gunshot wounds delivered to the back of the head. No further wounds were found.

Following the incident, the three divided the money and fled the state. Brown surrendered when he returned home to Cull-man. The Jacobses were apprehended shortly thereafter in North Carolina.

Pursuant to § 2, 1975 Ala. Acts, p. 701, the jury was not charged as to any lesser offenses. Furthermore, when they returned the guilty verdict, they fixed punishment at death. At the post-trial sentence hearing, the trial judge, after listing the aggravating circumstances, sentenced Jacobs to death.

Jacobs states the issues, as follows:

“I. WHETHER THE ALABAMA CAPITAL-SENTENCING PROCEDURES ARE VIOLATIVE OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BECAUSE THEY FAIL TO ASSURE THAT THE DEATH PENALTY WILL NOT BE IMPOSED IN AN ARBITRARY OR CAPRICIOUS MANNER AND DO NOT COMPORT WITH DUE PROCESS.
“II. WHETHER THE ALABAMA CAPITAL-SENTENCING PROCEDURES, AS APPLIED IN THIS CASE, VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS BECAUSE THEY RESULTED IN A STANDARD-LESS IMPOSITION OF THE DEATH SENTENCE.
“HI. WHETHER THE COURT’S CHARGE ON THE PRESUMPTION OF MALICE ARISING FROM THE USE OF A DEADLY WEAPON VIOLATED THE DEFENDANT’S RIGHT TO DUE PROCESS OF LAW.
“IV. WHETHER THE TRIAL COURT ERRED IN EXCUSING JUROR MARY RUTH MARTIN FOR HER OPPOSITION TO CAPITAL PUNISHMENT.”

The primary contention raised by Jacobs is that Alabama’s Death Penalty Act is unconstitutional because it violates the “cruel and unusual punishment” clause of the Eighth Amendment to the United States Constitution.

Initially, it should be noted that this case is not controlled by our recent decision in Harris v. State, 352 So.2d 479 (Ala.1977). That case dealt with Tit. 14, § 319, Code, and involved the narrow constitutional question concerning imposition of the death penalty for one convicted of first degree murder while already serving a life sentence. A plurality of this Court upheld the statute because of the narrow category of the offense on which it was based — a category not expressly addressed, and thus not proscribed, by the United States Supreme Court. See Harris, at 483, 484.

The Act presently before us involves imposition of the death penalty for one convicted of any one of several enumerated aggravated homicides. It was passed in response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Hubbard v. State, 290 Ala. 118, 274 So.2d 298 (1973). Without going into the well-known intricacies of the nine separate opinions in Furman, suffice it to say that Alabama’s old death statute was rendered unconstitutional, at least, insofar as it gave the jury, as the sentencing authority, a standardless discretion, in fixing the death penalty. See Hubbard, supra. Thereafter, but before several illuminating United States Supreme Court decisions were rendered, the legislature enacted the present Act which takes all discretion in sentencing away from the jury. Furthermore, a bifurcated system was established so that the trial judge, at a subsequent post-trial sentence hearing, could reduce the death sentence to life imprisonment without possibility of parole. § 3, 1975 Ala. Acts, p. 703.

The pertinent provisions of Alabama’s sentencing scheme are as follows:

“AGGRAVATED OFFENSES FOR WHICH DEATH PENALTY TO BE IMPOSED; FELONY-MURDER DOCTRINE NOT TO BE USED TO SUPPLY INTENT; DISCHARGE OF DEFENDANT UPON FINDING OF NOT GUILTY; MISTRIALS; REINDICTMENT AFTER MISTRIAL.
“If the jury finds the defendant guilty it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses: .
******
“In such cases, if the jury finds the defendant not guilty, the defendant must be discharged. The court may enter a judgment of mistrial upon failure of the jury to agree on a verdict of guilty or not guilty or on the fixing of the penalty of death. After entry of a judgment of mistrial, the defendant may be tried again for the aggravated offense, or he may be reindicted for an offense wherein the indictment does not allege an aggravated circumstance. If the defendant is reindicted for an offense wherein the indictment does not allege an aggravated circumstance, the punishment upon conviction shall be as heretofore or hereafter provided by law; however, the punishment shall not be death or life imprisonment without parole. (Acts 1975, No. 213, § 2.)
“HEARING AS TO IMPOSITION OF DEATH PENALTY OR LIFE SENTENCE WITHOUT PAROLE AFTER CONVICTION; ADMISSIBILITY OF EVIDENCE; RIGHT OF STATE AND DEFENDANTS TO PRESENT ARGUMENTS.
“If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements; provided further, that this section shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama. The state and the defendant, or his counsel, shall be permitted to present argument for or against the sentence of death. (Acts 1975, No. 213, § 3.)
“DETERMINATION OF SENTENCE BY COURT; COURT NOT BOUND BY PUNISHMENT FIXED BY JURY.
“Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death. If the court imposes a sentence of death, it shall set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentence hearing, which shall at least include the following:
“(1) One or more of the aggravating circumstances enumerated in section 13-11-6, which it finds exists in the case and which it finds sufficient to support the sentence of death; and
“(2) Any of the mitigating circumstances enumerated in section 13-11-7 which it finds insufficient to outweigh the aggravating circumstances. (Acts 1975, No. 213, § 4.)
“CONVICTION AND SENTENCE OF DEATH SUBJECT TO AUTOMATIC REVIEW.
“The judgment of conviction and sentence of death shall be subject to automatic review as now required by law. (Acts 1975, No. 213, § 5.)” [Emphasis added.]

Under this statutory scheme, the jury, if it finds a defendant guilty, is mandatorily required to fix the punishment at death. If the jury fails “to agree ... on the fixing of the penalty of death,” the defendant is not discharged; the court may enter a judgment of mistrial.

As we interpret Alabama’s sentencing statute in death cases, the jury is powerless to fix any punishment other than death, if they find the accused guilty. Alabama, therefore, does not permit the jury to exercise any discretion in fixing punishment. We find no fault with this. Under this scheme, it is only reasonable to assume that juries will consider the grave consequences of a conviction in reaching their verdict. Cf. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), wherein the court noted:

“ . . .In view of the historic record, it is only reasonable to assume that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching a verdict.”

Under Alabama’s scheme, if the jury refuses to follow the legislative mandate, and does not fix the penalty at death, the statutory scheme acts as a form of safety valve, favorable to the accused, because if one single juror refuses to follow the legislative mandate, and refuses to fix the penalty at death, then the trial court may grant a mistrial.

Under Alabama’s scheme for imposition of the death penalty, the jury obviously is not provided with guidelines to aid it in fixing the punishment; in fact, the statute directs the jury, if it finds the accused guilty, to fix the punishment at death. The jury has no discretion to fix any other penalty. If that was the end of the matter, Alabama’s statutory scheme would be unconstitutional under Woodson v. North Car olina, supra. If there was no way under Alabama law for the judiciary to check any arbitrary and capricious exercise of the power of the jury to fix the penalty of death through a review of that penalty, we would agree that Woodson controls. But, in Woodson, the Supreme Court said:

“ . . North Carolina’s mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die. And there is no way under the North Carolina law for the judiciary to check arbitrary and capricious exercise of that power through a review of death sentences. Instead of rationalizing the sentencing process, a mandatory scheme may well exacerbate the problem identified in Furman by resting the penalty determination on the particular jury’s willingness to act lawlessly. While a mandatory death penalty statute may reasonably be expected to increase the number of persons sentenced to death, it does not fulfill Furman’s basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.” (Emphasis added.)

Alabama, unlike North Carolina, in Woodson, provides a method to check any capricious and arbitrary exercise of the power by the jury to fix the punishment at death. In Alabama, the jury is not the body which finally determines which murderers must die and which must not. In fact, Alabama’s statute mandatorily requires the court to “hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole,” and specifically provides that the court may refuse to accept the death penalty as fixed by the jury and may “sentence” the defendant to death or life without parole. Code of Ala.1975, § 13-11-4. That section provides that if the court imposes a “sentence of death” it must set forth, in writing, the basis for the sentence. Furthermore, any conviction and sentence of death is subject to automatic appellate review, a procedure commended by the Supreme Court of the United States in Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964).

The State contends that under Alabama’s statutory scheme, the fixing of the penalty of death by the jury is merely advisory. The Court of Criminal Appeals agreed with the State and held that the jury verdict was advisory in its opinion in this case. In the sense that the verdict is not final, it may have advisory characteristics; in any event, it is certainly unlike the jury verdict in Woodson, which could not be reviewed or revised by the trial court, and is more like the verdict in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In fact, Dobbert is authority to uphold the constitutionality of Alabama’s statutory scheme, because although Florida gave its jury the power to recommend a sentence, and Alabama gives the jury no discretion or power to fix a sentence other than death if the accused is found guilty in specified cases, the Florida statute did not give the jury final sentencing authority; neither does Alabama.

Alabama’s sentencing scheme is similar to that in Florida, in that a jury verdict is a necessary step in the scheme but the jury is not the sentencing authority in either Florida or Alabama.

The Court of Criminal Appeals has spelled out specifically how death sentences, reviewed under Alabama’s automatic appeal statute, have been reversed and the causes remanded for new trials. This Court has carefully reviewed each point raised by the accused in his petition, which was granted as a matter of right because of the sentence of death. We are familiar with other cases reviewed by this Court in the last decade involving death sentences and we are convinced that the sentence here was not arbitrarily or capriciously entered. We are further convinced that trial juries will consider the serious consequences of a guilty verdict, and will either refuse to fix the penalty at death, or will acquit the defendant. In any event, the trial judge must hold a hearing to consider aggravating and mitigating circumstances and may sentence the defendant to life without parole.

We have reviewed each issue argued by the accused and we are of the opinion that Jacobs’ conviction and sentence are due to be affirmed.

AFFIRMED.

BL00DW0RTH, MADDOX, FAULKNER, ALMON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., concurs in part, and dissents in part.

JONES and SHORES, JJ., dissent.

TORBERT, Chief Justice

(concurring in part; dissenting in part):

Capital punishment and the procedures under which it may be lawfully imposed present serious moral issues and difficult constitutional questions. The Alabama Legislature resolved the moral issues arising from the death penalty by enacting a new capital punishment law in 1975. Title 13, chapter 11, Code of Alabama 1975 (Act No. 213, Regular Session 1975). Petitioner was convicted and sentenced to death under this law, and he attacks the constitutionality of the capital sentencing procedures prescribed under Alabama law.

The United States Supreme Court, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), disapproved those statutory formulations which allow for the arbitrary or capricious imposition of the death penalty. Then in 1976 the Court approved three post-Furman death penalty statutes which focused the sentencing authority’s “attention on the particularized nature of the crime and the particularized characteristics of the individual defendant.” Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 2941, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

The new Alabama death penalty law restricts the crimes for which the death penalty can be imposed to fourteen specific aggravated offenses. Sections 13-11-1, -2, Code of Alabama 1975. If the defendant is convicted, then the trial judge must conduct a sentencing hearing to review evidence in aggravation and in mitigation of the crime. Id. § 13-11-3. The trial judge, as the sentencing authority, must weigh the aggravating and mitigating factors present before imposing the sentence. Id. § 13-11-4. Therefore, these provisions require a bifurcated proceeding with a sentencing hearing wherein the particularized circumstances surrounding the offense and the offender are considered. This, without further restriction, would in my mind satisfy constitutional requirements.

However, in section 13-11-2, Code of Alabama 1975, the Legislature has ordered that the fourteen offenses comprising capital murder “shall not include any lesser offenses.” Though the jury does not actually determine the final sentence, it is informed that it “shall fix the punishment at death” if it should find the defendant guilty of capital murder. Thus, the jury in this case was faced with but three alternatives: find the defendant guilty and “sentence” him to death, acquit him, or fail to agree as to the verdict or sentence. Id. § 13-11-2(a), (c).

The petitioner argues that the Alabama capital sentencing procedure (especially the features mentioned in the preceding paragraph) allows for the arbitrary, capricious, and standardless imposition of the death penalty, and that the procedure does not satisfy due process requirements, all in violation of the eighth and fourteenth amendments to the United States Constitution. “[I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, [the court must] presume its validity,” Gregg v. Georgia, supra, 428 U.S. at 175, 96 S.Ct. at 2926, and for the reasons given below, I agree with the majority that the Alabama capital sentencing statute is not constitutionally defective.

The mere fact that a sentence of death attaches to the jury’s verdict of guilty (section 13-ll-2(a)) does not render the procedure unconstitutional when the statute is examined as a whole. The jury, when deliberating on a verdict, is only concerned with the issue of the defendant’s guilt or innocence. If the verdict is guilty, the jury has no discretion in setting a sentence: the statute provides only for the penalty of death. If the verdict is not guilty, the jury has no discretion in determining the defendant’s fate: the statute requires that he be discharged. The statute’s prohibition of any charges as to lesser included offenses further restricts the discretion of the jury.

Though these components appear to parallel the mandatory death penalty statutes invalidated in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), there are several major distinctions between those statutes and the Alabama death penalty law which operate to sustain the Alabama statute. First, the capital jury in Alabama cannot convict a defendant for a lesser included offense; its only options are guilty, not guilty, or it can refuse to return a verdict or to sentence the defendant to death. Thus, the jury, if properly instructed, does not have the “de facto sentencing discretion” that was condemned in Roberts v. Louisiana, supra, at 335, 96 S.Ct. 3001. Second, the jury under the Alabama statute has the responsibility only to determine guilt or innocence; if the defendant is found guilty, the trial judge must hold a post-trial hearing to receive evidence in aggravation and in mitigation on the issue of sentence. Section 13-11-3, Code of-Alabama 1975. The judge must weigh the statutorily defined aggravating and mitigating circumstances present before imposing a sentence, and he is not bound by the jury’s verdict and sentence. Id. § 13-11-4. This statutorily required, post-conviction sentencing hearing, wherein the trial judge hears evidence as to aggravating and mitigating circumstances, cures any constitutional defect which might have arisen through the jury’s supposed sentencing authority.

It is not constitutionally required that the jury have an input in the sentencing phase of the trial in capital cases. Richmond v. Arizona, 434 U.S 1323, 98 S.Ct. 8, 54 L.Ed.2d 34 (Rehnquist, Circuit Justice, 1977); State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976), cert. denied, 433 U.S. 915, 98 S.Ct. 8, 54 L.Ed.2d 34 (1977); State v. Simants, 197 Neb. 549, 559, 250 N.W.2d 881, 888, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977) (“The relative merits of [jury sentencing] or [judge sentencing] is for legislative and not judicial determination.”); State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976); see Gregg v. Georgia, supra, 428 U.S. at 192, 96 S.Ct. 2909 (flaws in jury sentencing); Proffitt v. Florida, supra, 428 U.S. at 252, 96 S.Ct. 2960 (greater consistency in judicial sentencing). The trial judge is the sentencing authority under the Alabama death penalty law, and his decision is carefully guided by specified statutory considerations.

The standardless discretion which was attacked in Furman is not allowed under the Alabama statute; in accordance with Fur-man, “the decision to impose [capital punishment under Alabama law is] guided by standards so that the sentencing authority [will] focus on the particularized circumstances of the crime and the defendant.” Gregg v. Georgia, supra, 428 U.S. at 199, 96 S.Ct. at 2937. Section 13-11-4, Code of Alabama 1975, requires the judge to make written findings as to any aggravating and/or mitigating factors present in the case, thereby facilitating appellate review:

“Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.”

Gregg v. Georgia, supra, at 195, 96 S.Ct. at 2935. The Court of Criminal Appeals and this court, by statute (§ 12-22-150, Code of Alabama 1975) and by court rule (amended Rule 39(c), Ala.R.App.P.) respectively, must review the decision of the trial court where the death penalty is imposed. This mandatory review guarantees that, before a defendant can be executed in Alabama, the sentence of death must be found to be appropriate by both the Court of Criminal Appeals and this court after a review of the aggravating and mitigating circumstances found in the case by the trial judge.

However, this appellate review Safeguard — a substantial protection for the defendant in Alabama — is nonexistent unless the trial judge conducts a full and fair sentencing hearing and enters complete written findings as to aggravating and mitigating circumstances. The petitioner did not receive a proper sentencing hearing in this case, and for this reason I would reverse and remand so that the trial judge could conduct a constitutionally valid sentencing hearing.

The sentencing hearing must not be a constitutional facade; though the burden of establishing mitigating circumstances must realistically rest with the defendant (State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977); State v. Richmond, supra), this does not relieve the trial court from the requirements of due process in the sentencing hearing. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); State v. Lee, 114 Ariz. 101, 559 P.2d 657 (1976). In Nebraska the trial court in capital cases must order a presentence investigation and must set out a general order of procedure prior to the commencement of the sentencing hearing. State v. Simants, supra. In other words, the sentencing hearing must involve a serious attempt to examine' the aggravating and mitigating factors surrounding the offense and the offender. The defendant cannot waive this right to due process through the failure of his attorney to make an objection. Gardner v. Florida, supra.

The trial judge in this case failed to require a presentence report, and by his own words stated that the sentencing hearing would be “somewhat informal.” Record at 583. The record reveals that the trial judge pictured himself as a “sentence reducer,” not as the sentencing authority that must carefully weigh the aggravating and mitigating circumstances; the burden was effectually placed on the petitioner to show why he should not die:

[MR. BURTTRAM — THE DISTRICT ATTORNEY]: “I think at this time it’s the responsibility of the defense and I think, if this hearing is to go forward, it’s now time for him to show his mitigating circumstances.
“THE COURT: In other words, the State is insisting on the death sentence [based on the jury verdict]?
“MR. BURTTRAM: We are insisting on the death sentence, Your Honor.
“THE COURT: Well, since the defendant has asked that you go ahead, do you have anything else?
“MR. BURTTRAM: No, Your Honor. At this time, we rest entirely on the jury verdict with the opportunity to rebut any mitigating circumstances the defendant would offer.
“THE COURT: Well, I think that would be correct. I think you would be in the position to rely on the jury verdict. You know, heretofore this Court would be powerless to change a jury verdict. The Court could not change a jury verdict up until the passage of this law.
“And since any change in it would definitely be for the defendant’s benefit, I think the State is entitled to simply rest on its statement that they insist on the jury verdict.
“As I stated, this will be somewhat informal.”

Record at 582-83. This confusion as to the proper role of the trial judge is further shown by the following statement of the judge at the sentencing hearing:

“Sometimes, in the maze of technicalities inflicted upon us by the Federal Court and by the Appellate Courts, we loose [sic] sight of the real issue in the case; and that is whether or not the defendant is guilty as charged.”

Record at 597. Obviously, guilt is not the issue in the sentencing hearing; rather, the judge must consider the particularized circumstances surrounding the offense and the offender.

The Supreme Court has stated:

“Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.
“It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner.”

Gregg v. Georgia, supra, 428 U.S. at 189, 96 S.Ct. at 2932. When a defendant’s life is at stake, the trial judge cannot hold the defendant or his attorney solely responsible for informing the court as to mitigating circumstances. A presentence report could have revealed that the petitioner had “no significant history of prior criminal activity” — a mitigating circumstance under section 13-11-7(1), Code of Alabama 1975. See Brief of Petitioner at 40 n. 42. The evidence adduced at trial indicated that the petitioner had been drinking all night before the day of the robbery-murder. Record at 499. This might require a finding that the “capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired” — another mitigating circumstance under section 13-11-7(6). See Brief of Petitioner at 40 n. 42. The trial judge had the responsibility, under the eighth and fourteenth amendments to the United States Constitution, to closely examine the statutorily defined mitigating circumstances and to make specific findings in regard to each of them. Unless this is done, the trial judge cannot fairly weigh the aggravating and mitigating circumstances, and the appellate court certainly cannot adequately review his sentencing decision.

On October 14, 1976 the trial judge submitted his written findings and sentencing decision arising from the prior sentencing hearing. See Record at 17-18. The judge found three statutory aggravating circumstances to be present: the murder was committed while the petitioner was engaged in the robbery of the victim — section 13-11-6(4), the murder was intentionally committed to avoid or prevent a lawful arrest— section 13-11-6(5), and the murder was “especially heinous, atrocious or cruel” — section 13-11-6(8).

Though I agree that the first and third aggravating circumstances were present in this case, I do not believe that the facts support a finding that the “capital felony was committed for the purpose of avoiding or preventing a lawful arrest . . . .”

The trial judge found:

“that the evidence showed that the defendant’s brother was an accomplice in this crime and that the defendant’s brother was known to the victim and, had the victim not been killed, in all probability he would have brought about the arrest of the defendant’s brother and, possibly, of the defendant.”

Record at 18. This finding does not support the above-quoted aggravating circumstance. That circumstance applies only in the case where the defendant commits a capital felony to resist an actual, lawful arrest by an authorized individual.

The trial judge found no mitigating circumstances in this case, although the petitioner argued as a mitigating circumstance that a third participant in the robbery-murder would not receive the death penalty. The list of mitigating circumstances in section 13-11-7, Code of Alabama 1975, is exclusive, and the grounds argued by the petitioner do not fit within any of the seven enumerated factors in that section. The judge did not err by not weighing the petitioner’s “mitigating circumstance” described above.

The Supreme Court has held that “it is essential that the capital sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense.” Roberts v. Louisiana, 431 U.S. 633, 637, 97 S.Ct. 1993, 1996, 52 L.Ed.2d 637 (1977); accord, Jurek v. Texas, supra, 428 U.S. at 271, 96 S.Ct. 2950. This command is not satisfied by statutory language alone. The trial judge must require a meaningful examination of possible mitigating factors in capital cases.

JONES, Justice

(Dissenting):

I respectfully dissent.

I.

I concur in the dissenting opinion of Justice Shores. That the statutory scheme of our death penalty Act hampers, and thus impugns, the fact-finding process, presenting the jury with a “Hobson’s choice,” is dramatized by the voir dire in the instant case:

“A. [Prospective juror Jack R. Chandler] What you’re saying is there’s no in-between?
“Q. No in-between.
“A. Even though he was found guilty of a lesser crime?
“Q. Yes, sir.
“A. He still would get the death penalty, even though it was a lesser crime?
“Q. Either that, or you turn him loose completely.
“A. Well, why don’t you have an in-between? Why is it either ‘do’ or ‘don’t’?
“Q. I can’t answer that question; but would you hesitate to find the defendant not guilty?
“A. Yeah, I’d hesitate to find him not guilty.”

(The trial Judge sustained the challenge for cause of this prospective juror.) An earlier examination proceeded thusly:

“Q. If the evidence is not strong enough to justify your finding the defendant guilty and fixing the death penalty — yet guilty of a crime of some kind — do you think that you could acquit the defendant under those conditions?
“A. [Prospective juror Earl D. Allison] Not if he was guilty of some crime. No sir.”

Furthermore, the trial Judge, at the post-trial sentence hearing acknowledged the jurors’ frustration in this regard:

“The jurors do not like this law. That seemed to be the comment we got when each juror was questioned on voir dire

Obviously, then, the jurors fully appreciated the mandatory nature of the statute. The attendant possibility of either sentencing to death one whom the jury believes committed the offense charged but under circumstances not requiring the death penalty, or releasing one who has committed either the offense charged or some lessor included offense, I believe, renders the conviction arbitrary, capricious and discriminatory, and thus unconstitutional. See Woodson, supra, 428 U.S. at 289-298, 96 S.Ct. 2978 (Stewart, J.).

II.

Likewise, I would hold that due process of law is'denied by the mandatory nature of the sentence (“Kill ’em or let ’em go free”), which precludes individualized consideration of the offense and the offender in the selective process of who shall die.

The State argues that the statute does not constitute the jury as the “sentencing authority,” contending that its verdict fixing the punishment at death as merely “advisory”; and this because the trial Judge must conduct a separate, post-trial sentence hearing. This argument is not persuasive for two reasons. First, the Act specifically requires the jury, upon the finding of guilty, to “fix the punishment at death.” Act 213, § 2, 1975 Ala.Acts. Furthermore, § 4 provides inter alia:

Notwithstanding the fixing of the punishment at death by the jury, the court after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole . (Emphasis added.)

Thus, while the trial judge may “refuse to accept” the sentence previously fixed and reduce it to life imprisonment without parole, the jury initially fixes the sentence at death. This subsequent consideration of mitigating factors cannot rectify the unconstitutionally unreliable sentence already imposed.

Second, regardless of who is the actual sentencing authority, the statute mandates that the jury consider itself the “sentencer.” The jury is charged that, upon a finding of guilty, it must fix the sentence at death. As in this case, where a guilty verdict is returned, it is accompanied, manda-torily, by the death sentence. The jury is not told, nor does it believe, that the sentence it renders is merely advisory. Consequently, the statute, by its mandatory language, requires, at the very least, that the jury think of itself as the sentencing authority. Therefore, without the opportunity to consider mitigating circumstances, the jury’s sentence must be considered invalid.

III.

The majority would hold that the subsequent hearing by the trial Judge cleanses the guilt determination by weighing aggravating and mitigating circumstances and, possibly, reducing the sentence ostensibly suggested by the jury. This, however, begs the question because the jury has already found the defendant guilty and sentenced him to death. When a defendant’s life is at stake, we must be particularly sensitive to ensure that every safeguard is observed. Gregg, supra. Therefore, if a higher degree of due process is to be attendant in “death cases” (see Furman, supra (Douglas, J.)), surely this must also attend the fact-finding process as well. Furthermore, the trial judge’s consideration of mitigating and extenuating circumstances does not include the same elements and factors as does consideration of lesser included offenses. Here, the merger of guilt and punishment deliberation, when taken together with the absence of available alternative findings, forecloses dependable fact-finding bases.

“. . . [W]hen one considers the long and consistent American experience with the death penalty in first-degree murder cases, it becomes evident that mandatory statutes enacted in response to Furman have simply papered over the problem of unguided and unchecked jury discretion.” Woodson, supra, at 302, 96 S.Ct. at 2990.

It is imperative that the standard of guilt not be so diluted.

The majority’s judicial review “cure-all” obtains even less credence when it is understood that such guided discretion is placed upon a popularly-elected official. It must be admitted that there is no constitutional mandate of jury sentencing. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). As pointed out in Prof-fitt, however, an important societal function is performed by jury sentencing in that only in this manner can contemporary community standards be reflected. Proffitt, at 252, 96 S.Ct. 2960. See also Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Moreover, to leave sentence reduction in the prerogative of the trial court is to place undue pressures upon this office. Again, admittedly, a trial judge must often be the bulwark of the legal system when presented with unpopular causes and adverse public opinion. This State’s recent history, however, reflects the outcry of unjustified criticism attendant with a trial judge’s reduction of a sentence to life imprisonment without possibility of parole, after a jury has returned a sentence of death. Clearly, this pressure constitutes an undue compulsion on the trial judge to conform the sentence which he imposes with that previously returned by the jury. As such, I would hold that, due to practical considerations, such system created by the statute cannot comport to constitutional standards.

IY.

Given the vacuum in which the lawmakers of our nation were compelled to function in the wake of Furman, I think it phenomenal and thus to its credit, that our State Legislature, in its enactment of Act 213, so nearly approximated the subsequently prescribed Gregg guidelines. Indeed, the overall intent and purpose of the Act, which is clear and unambivalent (to authorize the death penalty for certain narrow categories of aggravated homicide and to prescribe a sentencing procedure), is now recognized as the law of the land. The Act’s failure to provide a bifurcated proceeding in which the jury is charged with the responsibility, first, to try the issue of the defendant’s guilt, and, second (in the event of a guilty verdict), to determine at a separate hearing, based upon aggravating and mitigating circumstances, whether the defendant should be sentenced to prison for life without parole, however, renders it unconstitutional.

Any supplementing of the statute to provide bifurcated jury proceedings is not to engage in judicial legislation, but merely to conform the legislative intent, as expressed in the statute, to constitutional standards. Pruett v. Patton, 288 Ala. 710, 265 So.2d 130 (1972). See also Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974); and Jackson v. State, 337 So.2d 1242 (Miss.1976). This supplementation, according to my view, has been stated in my dissent in Harris, supra, at 494-6. Though there dealing only with the sentencing aspect, I believe a new trial, as I would here require, under the procedure there stated would be appropriate.

SHORES, Justice

(Dissenting):

I agree that it is no longer debatable that a death penalty may be provided by legislation if the legislation meets constitutional requirements as set out in the several recent decisions pronounced by the Supreme Court of the United States. I cannot agree, however, that the Alabama statute meets those standards.

In effect, our statute requires the jury (1) to find the defendant guilty or not guilty of the offense charged; (2) it may not find him guilty of any lesser offense; and (3) if it finds him guilty, it must fix his punishment at death. It seems to me that this necessarily influences the jury’s determination of guilt or innocence by introducing into that deliberation considerations which have no place in the determination of whether a defendant is guilty or innocent of the offense charged. See, generally, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1978); and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). A jury’s reluctance to set free one which it believes guilty of some offense must inevitably have a bearing on its verdict. The majority finds comfort in historical data which supports the conclusion that juries do consider the grave consequences of a conviction in reaching a verdict under mandatory death statutes. The Supreme Court of the United States did remark in Furman, infra, and again in Woodson, supra, that this nation abhorred the mandatory death sentence. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Woodson v. North Carolina, 428 U.S. at 296, 96 S.Ct. 2978. I suggest that, although there is no historical data to support it, most, if not all, jurors at this point in our history perhaps equally abhor setting free a defendant where the evidence establishes his guilt of a serious crime. We have no way of knowing what influence either of these factors have on a jury’s deliberation, and which of these unappealing alternatives a jury opts for in a particular case is a matter of purest conjecture. We cannot know that one outweighs the other. Jurors are not expected to come into the jury box and leave behind all that their human experience has taught them. The increasing crime rate in this country is a source of concern to all Americans. To expect a jury to ignore this reality and to find a defendant innocent and thereby set him free when the evidence establishes beyond doubt that he is guilty of some violent crime requires of our juries clinical detachment from the reality of human experience; and, in my judgment, renders the statute under which this defendant was convicted unconstitutional.

It is no answer to say that the defendant has been given all that the Constitution guarantees to him because the trial judge may, after a hearing, reduce the death sentence mandatorily imposed by the statute to life without parole. This, too, ignores the reality of the situation. Stripped to its bare essentials, the statutory scheme requires for any modification of the mandated death sentence that the trial judge substitute his judgment for that of the jury on the sentence to be imposed in the enumerated capital cases. The trial judge in this case, as pointed out in the Chief Justice’s separate opinion, in fact so viewed his role at the sentencing hearing. True, at that stage the trial judge may hear evidence in mitigation of the death sentence, but only after a jury has been charged that its only alternative is to find the defendant guilty of the offense charged and impose the death penalty, or set him free. I cannot agree that this is the kind of judicial review which the Supreme Court of the United States contemplated in upholding the statutes of some of our sister states.

The statutory scheme set up by our statute fails to “make rationally reviewable the process for imposing the death penalty.” Woodson v. North Carolina, supra, at 303, 96 S.Ct. at 2991.

ON REHEARING

We deny petitioner’s application to rehear his case but we point out that we have examined the cases of Bell v. Ohio, -U.S. -, 98 S.Ct. 2977, 57 L.Ed.2d 1010 and Lockett v. Ohio, - U.S. -, 98 S.Ct. 2954, 57 L.Ed.2d 973, decided after petitioner’s application for rehearing was filed, and we conclude that those cases do not invalidate Alabama’s sentencing scheme in death cases. Alabama’s sentencing scheme specifically provides, in part:

“. . . In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7. . . . ” [Emphasis added.] [§ 13-11-3, Code, 1975].
Section 13-11-7, Code, 1975, provides: “Mitigating circumstances shall be the following:
(1) The defendant has no significant history of prior criminal activity;
(2) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance;
(3) The victim was a participant in the defendant’s conduct or consented to the act;
(4) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor;
(5) The defendant acted under extreme duress or under the substantial domination of another person;
(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and
(7) The age of the defendant at the time of the crime. (Acts 1975, No. 213, § 7.)”

It is readily apparent, therefore, that Alabama’s sentencing scheme broadly allows the accused to present evidence of mitigating circumstances, and does not contain the deficiencies the court found were inherent in Ohio’s scheme.

Furthermore, we have examined the original record again to determine what opportunity was given to the petitioner to present mitigating circumstances. After the jury returned its verdict, the trial court addressed the petitioner and his counsel:

“THE COURT: Mr. Jacobs, you have heard the verdict of the jury finding you guilty as charged in the indictment and fixing your punishment at death.
“Is there anything you wish to say at this time?
“THE DEFENDANT: I didn’t shoot the man, is all I can say. At least, I didn’t kill him, anyway.”

The court then discussed the setting of the post-conviction hearing, mandated by § 13-11-3, Code, 1975:

THE COURT: Well, I’ll tentatively set it [post-conviction hearing] for Thursday, October the 14th.
“Now, Mr. Jacobs, do you have anything else to say before the jury is discharged?
“THE DEFENDANT: (Shakes head negatively.)
“THE COURT: Do you know of any reason why the jury should not be dismissed?
“MR. NESMITH: No, sir.
“MR. WALKER: No, sir.
“THE COURT: All right, then.”

At the post-conviction hearing, the court explained the scope of the inquiry:

“. . . Of course, either side can present any arguments or any other evidence of an evidentiary nature — exhibits or anything — that might be of value to the Court in determining whether or not the defendant will be sentenced to death, or to life imprisonment without parole.”

Except to request a continuance of the hearing until an alleged co-defendant could be tried, the petitioner offered essentially nothing in mitigation except to claim that his role in the offense was minor.

On two different occasions during the post-conviction hearing, the trial judge asked both of petitioner’s attorneys if they had anything further to present and they replied in the negative. Then, before sentencing petitioner, the court conducted the following colloquy with the petitioner:

“THE COURT: Mr. Jácobs, do you have anything to say at this time? Do you have anything to say at all?
“THE DEFENDANT: All I can say is that my . the bullet that I shot did not kill that man. Otherwise, I cannot say anything to change the Court’s mind on whatever they already decided.
“THE COURT: Anything else to say, Mr. NeSmith or Mr. Walker?
“MR. WALKER: No, sir, Judge.
“MR. NESMITH: No, sir. .
“THE COURT: Well, then.
Jerry Wayne Jacobs, as you have heard, the jury returned a verdict while you were present in the Courtroom finding you guilty, as has already been stated, of intentionally killing this Mr. Walter Robert Knight during the course of a robbery.
“You have already been adjudged guilty; so, after this hearing, it is now my duty to pronounce the sentence.”

It is abundantly clear that Alabama’s sentencing process permits “consideration of the ‘character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death,’ . . Lockett v. Ohio, - U.S. -, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Here, the trial judge, both before discharge of the jury, and at the statutorily mandated post-conviction hearing, specifically asked the petitioner and his counsel if they had anything further to show in mitigation. What the petitioner offered in mitigation has been set out substantially in this extended opinion.

In his original dissent, Mr. Justice Jones stated: “The majority’s judicial review ‘cure all’ obtains even less credence when it is understood that such guided discretion is placed upon a popularly-elected official.” He supports his conclusion dehors the record by citing an example in footnote 3 of his dissent, and states that public comment or clamor will influence trial judges to ignore mitigating circumstances. We hesitate to go outside the record to answer Mr. Justice Jones’ conclusion, but we feel constrained to do so, since he infers that elected judges will not do their sworn duty, and will be unduly swayed by public pressure. Since Mr. Justice Jones made his observation, we have been informed that the same trial judge who conducted the trial in the case mentioned by Justice Jones has again sentenced a defendant to life without parole. State v. Eddie Bernard Neal, # 78-00639, decided August 7, 1978, 10th Judicial Circuit. We are also informed that a jury in Covington County acquitted a defendant charged under the capital felony statute. State v. David Bonner, # CC 7825, decided April 19, 1978, 22nd Judicial Circuit. Consequently, any suggestion that either judges or jurors will fail to do their sworn duty because of public comment or clamor should not be entertained.

Furthermore, Alabama has an automatic appeal statute, which the Supreme Court of the United States has described as “an enlightened procedure,” [Coleman v. Alabama, 377 U.S. 129, at page 132, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964)], and this procedure has been utilized on many occasions to reverse cases when this Court found prejudicial error from a review of the record. Therefore, any suggestion that this Court, or the Court of Criminal Appeals will uphold the imposition of death sentences because of “pressure” should be rejected.

OPINION EXTENDED; APPLICATION FOR REHEARING DENIED.

BLOODWORTH, MADDOX, FAULKNER, ALMON, EMBRY and BEATTY, JJ., concur.

JONES and SHORES, JJ., dissent.

      . §§ 13-11-1, et seq., Ala.Code 1975.

      . § 13-11-2, Ala.Code 1975.

      . § 13-11-3, Ala.Code 1975.

      . It is interesting to note that in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the appellant argued that giving the jury discretion would allow juries to decide which defendants should and should not die. Gregg claimed, unsuccessfully, that this vesting of discretion in the jury was unconstitutional.

      . Code of Ala., 1975, § 13-11-3.

      This requirement of a meaningful examination of mitigating factors was met in another death penalty case decided today, Evans v. State, 361 So.2d 666, No. 77-180 (Ala. May 19, 1978).

      . § 13-11-2, Ala.Code 1975.

      . § 13-11-4, Ala.Code 1975.

      . Without speaking to the merits of the case, or the propriety of the trial Judge’s action in the particular setting, I call attention to the case of
        State v. Nolen, Circuit Court No. 7702059 (February 17, 1978), in which the trial Judge was made the object of voluminous public ridicule, including a resolution of condemnation by the State Legislature, numerous newspaper editorials and cartoons, Letters to the Editor, speeches, etc. To be sure, none of this criticism, to my knowledge, was based upon the merits of the statutory function of the judiciary; rather it was directed toward the “unwarranted” tampering by a trial Judge with a jury verdict.

      . The following transpired:
      “The arguments so far have been addressed more or less to the application of the law. Do you have anything else in the way of evidence?
      “MR. NESMITH: Your Honor, could I . would the Court entertain a motion that this hearing be adjourned until the trial of the State versus Eugene Brown is completed in order that the transcript of that proceedings might be introduced in the record of this case?
      “THE COURT: What benefit would that be?
      “MR. NESMITH: Well, actually, what it would do is show the discretion . . . the evidence produced in the Brown case here. Just what we’ve been arguing today. There’s no immediate hurry—
      “THE COURT: I would have to overrule your motion.”


author: TYSON, Presiding Judge.

text:
    John Louis EVANS, III, alias and Wayne Eugene Ritter, alias, v. STATE.
    1 Div. 837.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Nov. 15, 1977.

      A1 Pennington, Mobile, Francis A. Poggi, Jr., Fairhope, Reggie H. Stephens, Mobile, for appellants.
    William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

John Louis Evans, III, and Wayne Eugene Ritter were each charged by indictment with the first degree murder of one Edward A. Nassar by shooting him with a pistol while in the commission of a robbery, being a “capital murder” offense within the meaning of Act No. 213, Section 2, Subsection (b), Acts of Alabama 1975, Regular Session.

Experienced counsel was appointed by the trial court to represent each appellant. These attorneys separately moved for a psychiatric examination of each appellant. The trial court granted these motions, and Dr. Claude L. Brown of Mobile filed his report on Appellant Evans April 21, 1977, and on Appellant Ritter April 22, 1977. Each report indicated that the appellant was “competent, rational, and able to stand trial, that he understood thoroughly the nature and results of his actions, had no mental problems, was responsible for his actions, and that each was entirely capable of exercising, control and judgment of his conduct.” Each report also indicated that each appellant “sincerely seeked the death sentence, preferring this to a long prison sentence.” These reports were not submitted to the trial jury.

At arraignment, and against the advice of their respective attorneys, both Evans and Ritter entered guilty pleas. Each further filed a written waiver of any challenge to the composition of the Mobile County Grand Jury after the trial court explained to them in open court that there was a constitutional infirmity in the composition as declared by the United States District Court. Each appellant waived his challenge to this, with the trial court first ascertaining that each was a high school graduate, had been consulted by his attorney concerning his rights to make such challenge, and in writing waived same.

Each appellant also stated in open court that his attorney had explained to him his rights under the Fifth Amendment to the United States Constitution, his right to summon witnesses and cross-examine them, and each further stated in open court that he was aware that one of the punishments which might be imposed was death by electrocution. Each stated that he was aware of his rights to enter not guilty pleas or not guilty by reason of insanity, and that this had been explained to him by his respective attorney. Each nevertheless at arraignment stated his intention to enter the guilty plea with full knowledge of its consequences.

Each appellant also indicated that his attorney had advised him not to take the stand at trial and not to consult with the press, also not to make public statements.

Each appellant nevertheless consented in writing that the trial be open to television cameras, newspaper photographers, and radio recordings. Each appellant filed a written statement consenting to this.

At arraignment, the trial court advised each appellant that he had a right to a separate trial, but each, separately and in open court, stated that it was his desire to be tried together with the other. This request was granted.

The jury found each appellant guilty as charged in the indictment and fixed punishment at death by electrocution.

Thereafter, the trial court conducted a separate hearing on the aggravating, as well as the mitigating, circumstances presented, then entered judgment with extensive findings that such crime was especially heinous and vicious, and that the judgment of the court having considered both the aggravating and mitigating circumstances shown by the evidence, that the death penalty as fixed by the jury should be and was thereby accepted in each case. The trial court then entered judgment setting sentence at death by electrocution in each case.

This appeal comes to this Court under the “automatic appeal” statute, applicable to judgments wherein the death penalty is pronounced in the trial court.

I

Michael Wayne Crosby testified that he was employed at Dueitt’s Battery and Supply Company in Mobile on January 5, 1977. John Dueitt was also on duty on the afternoon in question when each of them heard a shot next door at the pawn shop wherein Edward A. Nassar was employed. Each of the men stated that he went next door to 3225 Springhill Avenue and saw two white males run out of the store. Crosby made a positive in-court identification of the appellant Evans, and stated that he saw him “putting a gun down the front of his pants” as he ran from the store.

Inside the pawn shop, Crosby and Dueitt found two little girls, ages six and nine, who were the daughters of Nassar, the victim. Crosby stated that Nassar was conscious, that he stated to him that he had been robbed and to call the police. He stated that Dueitt took the two little girls out of the shop, and that he waited there until the police arrived. Crosby stated that he was present when Nassar was placed in an ambulance and taken to the Mobile General Hospital.

Dueitt ^tated that he had known the deceased, Edward A. Nassar for about six months prior to January 5, 1977. Dueitt indicated that upon hearing the shot, he and Crosby ran next door and saw two white males, who appeared to be in their early twenties, running from the pawn shop. Dueitt made a positive in-court identification of Wayne Eugene Ritter as being one of the two men he saw leaving the pawn shop. He stated that he then took the two little girls next door to his office while Mr. Crosby telephoned the police and an ambulance.

Richard Patterson, age fourteen, stated that shortly after school on the afternoon of January 5,1977, he was walking with Nena Knipp and Cindy Giardarelli along Spring-hill Avenue when he saw a light blue Cutlass Supreme automobile, either a 1975 or a 1976 model, circle the block, then park near the railroad tracks. He stated that the automobile twice circled the block before parking. Patterson indicated that two white males in their early twenties got out and walked a short distance. A few minutes later, the two men were running toward the automobile, and that Cindy Giar-darelli called out the tag number and he wrote it down on a yellow card which he had in his pocket. Patterson gave the yellow card with the tag number to Detective Bowman that afternoon. Patterson identified State’s Exhibit 9 as the card in question.

Cindy Giardarelli stated that she and Richard Patterson and Nena Knipp were walking near Springhill Avenue after school on the afternoon of January 5, 1977. She saw a 1976 or 1977 light blue Oldsmobile Cutlass Supreme circle the block twice, and on the third time it stopped near the railroad tracks. Two white males got out and walked toward Springhill Avenue, and about fifteen to twenty minutes later, she saw the two men running to the car. The automobile turned around in the driveway, then sped away down the street. As it was turning around, she called out the numbers on the tag, which tag was white in color with blue numbers, and Richard Patterson wrote them on a yellow card. A short time later this information was given to the police.

Mrs. Jimmie Louise Tagert and her husband were stopped on Springhill Avenue in Mobile on January 5, 1977, near the entrance to the pawn shop. Her husband had gone inside and pawned a ring. She saw two men in their early twenties enter the pawn shop, one behind the other, and then she drove away. Mrs. Tagert made a positive in-court identification of Evans and Ritter as being the two men she observed enter the pawn shop immediately after her husband came out.

Mobile Police Officer Wayne Farmer stated that he entered the pawn shop, located at 3225 Springhill Avenue, in response to a call and found Edward A. Nassar lying behind the counter. Farmer stated that Nassar had been shot in the back, and he attempted to straighten out his body in order that he might breathe more easily. He stated that he told Nassar that his two daughters were next door and that they were safe. He stated that he helped Sergeant Bowman place Nassar in an ambulance, which took him to the Mobile General Hospital. Officer Farmer then identified some photographs of the pawn shop area.

Dr. Floyd Thomas Boudreaux testified that he was a pathologist at the Mobile Infirmary and was also Deputy Coroner of Mobile County. He stated that he performed an autopsy on a white male, approximately thirty-two years of age, on January 6, 1977, and that he was assisted by Mr. Kenneth Marx, that Sergeant Moore of the Mobile Police Department was also present. He stated that the victim had a gunshot wound entrance, approximately in the middle of his back, and that the bullet had damaged one of the large veins which leads to the heart, perforated the right upper level of the lung, and came to rest in the large musculature of the interior chest, on the right, from whence it was recovered.

Dr. Boudreaux stated that the cause of death was “exsanguination from the wounds of the vena cava, heart, and right lung.” (R. p. 144) He stated this was caused by the bullet wound, and that he recovered a thirty-eight caliber bullet, which was placed in a plastic bag and handed to his assistant, Mr. Kenneth Marx.

Mr. Kenneth Marx identified a plastic bag in which was placed a lead bullet by Dr. Boudreaux while he was assisting him with an autopsy on the body of one Edward A. Nassar. Mr. Marx stated that he sealed the bag and then placed his initials on the tag and handed it to Sergeant Robert Moore.

Sergeant Robert Moore testified he was present with Dr. Boudreaux and Mr. Marx when the autopsy was performed on January 6, 1977. He stated that he received a bullet in a plastic bag, which he, too, placed his initials on, then delivered it to James Small, the State Toxicologist. Sergeant Moore marked the bullet for identification and for delivery to Mr. Small.

Toxicologist James L. Small testified that he received the plastic bag, containing the bullet, from Sergeant Robert Moore on January 6, 1966, that he forwarded it by certified mail to the FBI Laboratory in Washington, D. C., and received a United States Postal receipt from the FBI Laboratory for this.

FBI Agent Bill P. Hardin testified that on March 7, 1977, accompanied by approximately eight other agents, he went to the Vagabond Motel, just south of Little Rock, Arkansas, about 9:30 p. m. He stated that he had the manager of the motel make a call to Room No. 133 and ask Evans to come to the desk to discuss a telephone bill. He stated that as Evans came outside the motel room, he was arrested. He stated that he then entered the room and found a young white female, named Becky Young. He stated that he then seized a thirty-eight caliber pistol, Serial No. 25402, it being a Dixon Commander, which was lying on the night stand between two beds. He stated that about one hour later, accompanied by several agents, he pulled into the parking lot of a Holiday Inn Motel, and that he had been following a blue 1977 Ford with a North Carolina license into the parking lot.

Becky Young had described Ritter and another female as being the parties who had been driving the car. Agent Hardin stated that at this point Ritter and his companion were arrested. He stated that he removed a thirty-eight caliber Colt Cobra six-shot revolver from underneath the front seat of the car, and that it contained five rounds of ammunition. Agent Hardin stated that he retained possession of the two pistols which he seized on the evening of March 7,1977, before marking them with identification tags and forwarding them to the FBI ballistics laboratory in Washington. Agent Hardin stated that Evans and Ritter were arrested pursuant to alias warrants for unlawful flight to avoid prosecution.

On March 8, 1977, Agent Hardin, accompanied by FBI Agent Jack E. Juel, interrogated John Louis Evans at the FBI Office, with a stenographer present. After giving Evans a full Miranda warning, and with no threats, intimidation, coercion, or inducement, the appellant executed a Miranda waiver, dated March 8,1977. The appellant then gave a statement to Hardin, admitting his involvement in the robbery of the pawn shop in Mobile, and the death of Edward A. Nassar.

Mobile Police Sergeant John W. Phillips, accompanied by Captain Sam McLarty, interrogated Wayne Eugene Ritter on March 11, 1977. The interrogation took place at the Mobile Police Headquarters, second floor, in one of the interrogation rooms. At this time, Ritter, after being fully informed of his constitutional rights, and with no threat, intimidation, coercion, or inducement, executed a waiver of his rights, then gave a statement, admitting his involvement in the robbery of the pawn shop and shooting death of Edward A. Nassar.

FBI Agent Hardin was then recalled to the stand and read the statement taken from Appellant Evans into evidence (R. pp. 182-183):

“Little Rock, Arkansas. March 8, 1977. I, John Louis Evans, III, furnish the following free and voluntary signed statement to Bill P. Hardin and Jack E. Juel, who have identified themselves to me as Special Agents of the Federal Bureau of Investigation. I understand this statement can be used in court. At Mobile, Alabama, on January 5,1977, Wayne Eugene Ritter and I entered a pawn shop with the intent to rob that pawn shop of a pistol. When we entered the pawn shop I had a .38 caliber German made revolver hidden in my waistline. Wayne Eugene Ritter asked the store owner to show him a .38 caliber Colt revolver. When the store owner took the revolver from a display shelf and handed it to Wayne Eugene Ritter, I drew my pistol at which time the store owner immediately ducked behind the counter and attempted to reach a gun in a nearby office. I leaned immediately across the counter and fired one shot which I know to have struck the man in the back. Wayne Eugene Ritter and I immediately ran from the store taking with us the .38 caliber Colt revolver. In the store at the time of the shooting were two young girls approximately six and seven years old. When we left the pawn shop we stayed in the Mobile area for approximately two- and-one-half hours. I have read the above statement consisting of this and one other typewritten page. I have initialed each page and any correction. The statement is true to the best of my knowledge. Signed, John Evans. Witnesses: Jack E. Juel, Special Agent, FBI, Little Rock, 3-8-77; Bill P. Hardin, Special Agent, FBI, Little Rock, 3-8-77.”

Jack E. Juel, FBI Agent, who accompanied Bill Hardin in the arrest of Evans and Ritter on March 7, 1977, identified a .38 caliber Dixon Revolver as the one that he and Agent Hardin seized in Room No. 133 at the Vagabond Motel in Little Rock. He stated that he and Hardin forwarded the pistol to the FBI Laboratory on March 10, 1977. This pistol was in the possession of the FBI Laboratory until it was returned to him by the FBI Laboratory Examiner, James Bolenback, the day before the trial.

Mobile Police Sergeant John Phillips was then recalled and identified a waiver of constitutional rights executed by Wayne Eugene Ritter on March 11, 1977, at Police Headquarters in Mobile. Phillips then read the statement given to him by Ritter, after first determining that such was freely and voluntarily given without any threat, intimidation, coercion, or inducement. Ritter’s statement is as follows (R. pp. 192-194):

“My name is Wayne Eugene Ritter, I am 23 years of age, I am currently a prisoner in the Mobile City Jail. I have been advised that I have the right to remain silent and that I have the right to have an attorney present while making a statement. I am waiving both of these rights, and I am making this statement of my own free will. No threats, promises, or offer of reward have been made to me to make this statement. I further understand that this statement can be used against me in a court of law. Sometime during the first week of January, 1977, myself and John Evans were in Biloxi, Mississippi. We left Biloxi about 9:00 A.M. and drove to Mobile, Alabama, and arrived in Mobile about 10:00 A.M. We were driving a 1976 Oldsmobile Cutlass, light blue in color which we had rented from a rental agency in Indianapolis, Indiana. After we arrived in Mobile we drove around town looking at various sporting goods and pawn shops to see which would be the best to hold up. Later in the afternoon after we had looked at about a half a dozen different places we decided on a pawn shop within two or three blocks of Interstate 65. We decided on this place because there was only one man there, and it was a small shop and we didn’t figure there would be any trouble. I walked past the store several times wearing a blonde wig to see what was going on at the store. We parked the car on a side street right near some railroad tracks. We left the car and walked around to the pawn shop. We went into the pawn shop and I walked to the back where the guns were in a display case. John was browsing around the store just checking things out. The clerk at the store which was a white male about 30 to 35 years old came from the office area and walked up behind the display case. I asked him to let me see the Colt Cobra Pistol and he handed it to me. When he handed it to me I opened it up and started to put bullets into the cylinder which I had been holding in my hand. While I was doing this, John had drawn his gun, which was an old Dixon .38 caliber. All of a sudden, the clerk broke and ran toward the office area. The next thing I know a shot went off and I turned and took off out the door. I would rather not say who fired the shot. We then ran back to the car and John was driving. We made a U-turn and went back in the other direction and headed to the Interstate. We got on the Interstate and drove to the Highway 90 exit. We drove to a shopping center parking lot near the Interstate and sat there until dark and then drove back to Biloxi, Mississippi. The only other thing I can remember about what happened at the pawn shop was that there were two children inside the store who saw what happened. I cannot recall if anything was said for sure from the time John drew his gun until the shot was fired. I have made this statement to Sergeant John Phillips, Sergeant Marvin Bowman and Captain Samuel McLarty freely and voluntarily and to the best of my belief and knowledge this is a true and accurate statement.”

FBI Ballistics Examiner James B. Bolen-back testified that his duties involved firearm examinations at the FBI Laboratory in Washington, D.C., that he had been engaged in this work for more than six years. He testified that he had examined the weapons sent to him by Agents Hardin and Juel, also the bullet forwarded to him by Toxicologist Small, and determined that the Dixon revolver, State’s Exhibit 12, fired the bullet, State’s Exhibit 10, removed from the body of Edward A. Nassar (R. p. 199):

“A. I determined that the Dixon revolver, State’s Exhibit 12, fired the bullet, State’s Exhibit 10.”

Miss Allilee Pillman testified that she was in charge of the Mobile City Lab, having formerly worked under Dr. Nelson Grubbs in the Toxicologist’s Office in Mobile County. Miss Pillman then identified a Colt Cobra box, State’s Exhibit 20, Serial No. M71994, which was empty, and which had been delivered to her by Police Officer Myers. •

The appellants’ attorneys made a motion to exclude the State’s evidence on the basis that the State failed to prove a prima facie case as to both Evans and Ritter. Upon consideration of the same, the trial court overruled this motion.

Against the advice of his attorney, and the explanation of the trial court that he did not have to take the stand, Appellant Evans, upon being duly sworn, took the stand and over the objection of his attorney testified as follows (R. p. 211):

“My name is John Louis Evans, and on January the 5th, I was involved in the crime of Eddie Nassar. I am also the one that did pull the trigger and shoot and kill him during the commission of a felony, a robbery. Our whole trip was based on robbery. Kind of a spree. It was well planned, and I’ve been in crime a long time. Before you go back in there, the only thing I’ve got to say to the Jury is that I’ve been at it a long time, and if you don’t come back with a death sentence, which is the only other thing I think you can come out with, I’m going to get out, and I’m going to do it again. There’s not any question whatsoever. I have no intention whatsoever of ever reforming in any way, so I think you should do what you have to do, and I would rather die by electrocution than to spend the rest of my life in the penitentiary. So, I’m asking very sincerely that you come back with a positive verdict for the State. That’s all I have to say.” '

On cross-examination, Evans stated that he and Ritter had rented a 1976 light blue Cutlass Supreme automobile in Indianapolis, Indiana, and that this was the vehicle they used in the Nassar robbery and murder. The appellant also admitted participating in some 250 armed robberies, and that both he and Ritter had been on a several state crime spree before being apprehended by the FBI in Little Rock. He also stated that he was taking the stand against the advice of his attorney, and that he had entered his guilty plea voluntarily and signed a waiver voluntarily. He stated that he had been advised by his attorney twenty to thirty times not to pursue the course he pursued at trial.

Evans also stated that he had no remorse over having shot the deceased, Mr. Nassar.

Wayne Eugene Ritter, also over the objection and against the'advice of his attorney, having first been duly sworn, testified that he met Evans while each was serving time for armed robbery in prison in Indiana, that they began planning, upon their releases, to get together. He asked if he could make a spontaneous statement to the court. Ritter’s statement is as follows (R. pp. 218-220, Volume II):

“A. With some of the testimony by Mr. Graddick’s witnesses, but I think I can clear that up. We were in Biloxi, and we had run low on money, so we came over here with the intention of robbing. On the way, we decided while we were here pulling a robbery, we might as well go ahead and get some guns. We got in town, it was approximately ten or eleven o’clock in the morning, and we looked in the phone book, got names and addresses of various sporting goods stores and pawn shops, and started riding around and looking to see which one would be the easiest. Later that afternoon we finally got to Mr. Nassar’s place, The Pawn Shop, and we drove by it a few times, and it was a nice, small place. Looked very easy. So we decided that would be the place. And, we found a place to park, which was over by the railroad tracks, which they’ve already stated, and we went in. The plan was that I was to ask to see a pistol. I had some .38 caliber ammunition in my left hand and we went in, I asked Mr. Nassar to see the gun, he handed it to me, I opened it up, looked at it, John started to draw his gun, and I started loading the pistol he showed me. Immediately, Nassar dropped down and started going around the corner, which was an “L” shape, the counter, then towards the office. He got to the office, reached up with, I believe, his left hand, to a counter or something, and that’s when he was shot. We knew he was going for a gun. He wouldn’t have hesitated to kill us, so he had to be killed. There was no other way. And then we left, and I was first out the door, and we ran around the corner, back down to the car, and we ended up putting the guns away, etc. We didnt — . We both had the guns in our hands all the way down the street. When we got in the car, we got back on 65, and went to the Highway 90 exit, where we stopped at a shopping center right there, intersection of 65 and Highway 90, sat there until it got dark, because we knew the car had been spotted, there were just too many people around. I wasn’t quite sure who spotted it, but we knew it had been spotted. Waited until dark, and then decided to leave town by way of Highway 90. On the way out of town, we still hadn’t gotten any money, which was our main objective when we came over here, so we stopped, and I robbed a Radio Shack on Highway 90, and then we went on into Biloxi. John’s pretty well covered the rest of the story. We pulled approximately thirty armed robberies, nine kidnappings, two extortions, a couple of stolen cars, various other small charges.
“Q. Mr. Ritter, do you want to say anything to these people sitting in the Jury Box as to what you want them to do when they go back there?
“A. Well, I think there are two considerations. First, we did kill Mr. Nassar. We knew we might have to kill somebody during any robbery. We had discussed it before. If anybody went for a gun, that’s what was going to happen. We did kill him, so, really, the only thing you can come back with is the death penalty. And the other consideration is, if you give me life, or if I got life imprisonment, I could get out in ten or fifteen years, and when I got out, I know where everybody on the Jury lives, and I wouldn’t appreciate being in prison for ten or fifteen years, so I think I would have to come, after you. That’s about it.”

On cross-examination Ritter stated that he was entirely satisfied with his representation of his attorney, that he had taken the stand against his advice, and that no one had offered him any hope of leniency, or hope of reward, and that he wished to die by electrocution. Ritter admitted that the pistol seized from him at the time of his arrest by Agents Hardin and Juel in Little Rock was the pistol which he had stolen from the pawn shop in Mobile. Ritter further stated that he would have fired the pistol at Nassar on the date in question, but that Evans was in his line of fire.

An extensive oral charge was given to the jury to which no exception was taken.

I

The able attorneys appointed to represent the appellants have been given a most perplexing responsibility. Here again, over their specific advice, and over their objections, each appellant went before the Mobile County Grand Jury and openly testified as to his involvement in the robbery and murder of Edward A. Nassar.

When each appellant appeared at arraignment, against the advice of his attorney and over the advice of the trial court, he entered a guilty plea. At trial, each appellant, again against the advice of his attorney, and over his attorney’s objection, took the stand and openly admitted his participation in the robbery and murder of Edward A. Nassar.

These attorneys have performed a great public service at considerable sacrifice to themselves. Each appellant admitted that he had no complaint with the caliber of representation,, and that his attorney had fully advised him at each step of the proceeding of his constitutional rights.

Beyond question, there can be no fault, or suggestion of fault, attributed to the caliber of representation of each appellant by his respective attorney.

This Court specifically finds that both Evans and Ritter were fully, fairly, and thoroughly represented by these attorneys.

II

Attorneys for the appellants assert that they did not waive the issue of the constitutionality of the statute under which each appellant was prosecuted.

We commend them for their assertion, however, this Court in an opinion known as Jacobs v. State, 361 So.2d 607 (1977), unanimously upheld the constitutionality of the Act here challenged. This Court, through Harris, J., speaking for a unanimous Court, stated:

“We hold the New Death Statute of this State is constitutional under both the Eighth and Fourteenth Amendments to the Constitution of the United States, and the judgment of conviction is, in all things, affirmed.”

III

Appellants’ attorneys also assert that the post jury sentencing process violates due process by, in effect, requiring the appellants to prove to the trial court why they should not die since at this juncture the appellant is under a sentence of death.

As in Jacobs, supra, Judge Hocklander, the trial judge, conducted an extensive hearing, as required by Title 15, Section 342, Subsections (8) and (9), Code of Alabama 1940, as amended 1975, as to the aggravating and mitigating circumstances in this cause. Extensive findings were made by the trial judge, which are here made an appendix to this opinion.

This Court determined in Jacobs, supra, that this procedure was very similar to the procedure approved by the Supreme Court of the United States in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, inasmuch as the jury’s verdict is not binding upon the trial judge. Title 15, Section 342(6), Code of Alabama 1940, as amended 1975.

The aggravating circumstances were here averred and proved at trial, and also determined by the trial judge in a public hearing, as required by law.

In addition, this Court has weighed the aggravating and mitigating circumstances independently.

As stated by Harris, J., in Jacobs, supra: “The aggravating circumstances found by the trial court are amply supported by the evidence in this case. The verdict of the jury is overwhelmingly sustained by a preponderance of the evidence.”

Additionally, this Court has weighed the various factors presented by this record, and is of the opinion that the punishment here imposed fits the crime for which each appellant has been found guilty thereof.

A careful reading of this record convinces this Court that each appellant has here followed the course of action pursued at trial with full knowledge of its consequences. Further writing on this point would serve no worthwhile purpose. This Court is convinced that each appellant is sincere in seeking the death sentence, preferring this course to a long prison sentence.

After careful examination of this record, as required by law, most specifically where the death penalty is involved, we find that the procedures here mandated by the Alabama statutes fully comport with constitutional demands of the Eighth and Fourteenth Amendments to the United States Constitution.

The judgment of conviction and sentence of death as to each appellant is in all respects affirmed.

We will not set the date of execution of these sentences until this case runs its course through the courts.

AFFIRMED.

All the Judges concur.

APPENDIX

THE COURT Will you please rise? The Court, having conducted a Hearing pursuant to Section 3 of Act No. 213 of the Legislature of Alabama, Regular Session 1975, to determine whether or not the Court will sentence Mr. John Louis Evans, III to death or to life imprisonment without parole; and the Court having considered the evidence presented at the trial and at said sentence hearing; the Court makes the following findings of fact:

The Court first considers the aggravating circumstances as described in Section 6 of said Act 213:
(a) The Court finds that the Capital Felony was committed by Mr. Evans while he was under sentence of imprisonment, although he was serving the latter part of his sentence on parole at the time.
(b) The Court finds no convincing evidence that Mr. Evans was previously convicted of another Capital Felony or a felony involving the use or threat of violence to the person.
(c) The Court finds that on numerous prior occasions Mr. Evans knowingly created a great risk of death to many persons. By Mr. Evans’ testimony, he was involved in thirty armed robberies and nine kidnappings with Mr. Ritter, and further claims to have been involved in approximately 250 armed robberies prior to associating with Mr. Ritter.
(d) The Court finds that the Capital Felony was committed while Mr. Evans was engaged in the commission or attempt to commit a robbery.
(e) The Court finds that the Capital Felony was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) The Court finds that the Capital Felony was not committed for pecuniary gain, within the meaning of Section 6(f) of said Act 213.
(g) The Court finds the Capital Felony was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) The Court finds that the Capital Felony was committed in the immediate presence of the two young daughters of Edward A. Nassar, deceased, aged approximately 9 years and 7 years, respectively; The Court finds that Edward A. Nassar, deceased, was shot through the back while he was unarmed and crawling along the aisle behind the counter. The Court finds no evidence that he was ordered to halt or given any warning before being shot. While in the personal opinion of the Court, the Capital Felony was especially heinous or attrocious the Court has no precedent or authority which would allow it to hold as a matter of law that this Capital Felony meets the test of being especially heinous or attrocious or cruel, as set out in Section (h) of Section 6 of Act 213, and so the Court makes no finding on this point.
The Court now considers mitigating circumstances as described in Section 7 of said Act 213:
(a) The Court finds that Mr. Evans has a significant, extensive history of prior criminal activity.
(b) The Court finds that the Capital Felony was not committed while Mr. Evans was under the influence of extreme mental or emotional disturbance.
(c) The Court finds that the victim was not a participant in Mr. Evans’ conduct, and did not consent to the act.
(d) The Court finds that Mr. Evans was not an accomplice in the Capital Felony committed, but was, in fact, the principal who fired the shot causing the death of Edward A. Nassar, deceased.
(e) The Court finds that Mr. Evans did not act under extreme duress or under the substantial domination of another person.
(f) The Court finds that the capacity of Mr. Evans to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired, and was not, in fact, impaired in any degree.
(g) The Court finds that Mr. Evans’ age at the time of the crime is not a mitigating circumstance.
(h) The Court finds further another mitigating circumstance, although not set out as such in Section 7 of said Act 213, to be the fact that Mr. Evans made no effort or attempt to harm the two young daughters of Edward A. Nassar, deceased, who were in his immediate presence at the time of the commission of the Capital Felony or any of the other witnesses in the vicinity.

The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances; it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the Jury should be and is hereby accepted.

It is therefore considered and adjudged by the Court that John Louis Evans, III is guilty of the Capital Felony charged in the indictment, and specifically of intentionally killing Edward A. Nassar during the robbery or attempt thereof of the said Edward A. Nassar, deceased. It is therefore ordered and adjudged that you, John Louis Evans, III suffer death by electrocution at any time before the hour of sunrise on the 25th day of July, 1977, inside the walls of the William C. Holman Unit of the Prison System at Atmore, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution.

It is therefore further ordered and adjudged by the Court that the Warden of William C. Holman Unit of the Prison System at Atmore, or in the case of his death, disability, or absence, his Deputy, or in the event of the death, disability, or absence of both the Warden and his Deputy, the person appointed by the Commissioner of Corrections, at any time before the hour of sunrise, shall on the 25th day of July, 1977, inside the walls of the William C. Holman Unit of the Prison System at Atmore, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through the body of the said John Louis Evans, III, a current of electricity of sufficient intensity to cause his death, and the continuance and application of such current through the body of the said John Louis Evans, III, until the said John Louis Evans, III, be dead, May God Have Mercy on Your Soul. You may be seated.

THE COURT Mr. Wayne' Eugene Ritter, do you have anything to say why the sentence of law should not be passed against you?

MR. RITTER No, I don’t.

THE COURT Will you please rise? The Court having conducted a Hearing pursuant to Section 3 of Act No. 213 of the Legislature of Alabama, Regular Session 1975 to determine whether or not the Court will sentence Mr. Wayne Eugene Ritter to death or to life imprisonment without parole; and the Court having considered the evidence presented at the trial and at said sentence hearing, the Court makes the following findings of fact:

The Court first considers the aggravating circumstances as described in Section 6 of said Act 213:
(a) The Court finds that the Capital Felony was committed by Mr. Ritter while he was under sentence of imprisonment although he was serving the remainder of his sentence on parole at the time;
(b) The Court finds that Mr. Ritter has been previously convicted of another felony involving the use or threat of violence to the person; to wit: the offense of robbery;
(c) The Court finds that Mr. Ritter has knowingly on approximately thirty-nine previous occasions created a great risk of death to many persons;
(d) The Court finds that the Capital Felony was committed while Mr. Ritter was an accomplice in the commission of a robbery;
(e) The Court finds that the Capital Felony was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
(f) The Court finds the Capital Felony was not committed for pecuniary gain, within the meaning of Section 6(f) of said Act 213;
(g) The Court finds the Capital Felony was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws;
(h) The Court finds that the Capital Felony was committed in the immediate presence of the two young daughters of Edward A. Nassar, deceased, aged approximately nine years and seven years respectively. The Court finds that Edward A. Nassar, deceased, was shot through the back while he was unarmed and crawling along the aisle behind the counter. The Court finds no evidence that he was ordered to halt or given any warning before being shot. While in the personal opinion of the Court the Capital Felony was especially heinous or attrocious, the Court has no precedent or authority which would allow it to hold as a matter of law that this Capital Felony meets the test of being especially heinous or attrocious or cruel, as set out in Section (h) of Section 6 of Act 213, and so the Court makes no finding on this point.
The Court now considers mitigating circumstances as described in Section 7 of said Act 213:
(a) The Court finds that Mr. Wayne Eugene Ritter has a significant history of prior criminal activity;
(b) The Court finds that the Capital Felony was not committed while Mr. Wayne Eugene Ritter was under the influence of extreme mental or emotional disturbance;
(e)The Court finds that the victim was not a participant in Mr. Wayne Eugene Ritter’s conduct and did not consent to the act;
(d) The Court finds that while Mr. Wayne Eugene Ritter was an accomplice in the Capital Felony committed by another person, his participation was not relatively minor, and by Mr. Ritter’s own statement, he was prepared to shoot Edward A. Nassar, deceased, but could not fire because his accomplice, John L. Evans, III was in his line of fire;
(e) The Court finds that Mr. Wayne Eugene Ritter did not act under extreme duress or under the substantial domination of another person;
(f) The Court finds that the capacity of Mr. Ritter to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired or impaired in any degree;
(g) The Court finds that Mr. Wayne Eugene Ritter’s age at the time of the crime to be a mitigating circumstance;
(h) The Court finds further another mitigating circumstance, although not set out as such in Section 7 of said Act 213, to be the fact that Mr. Ritter made no effort or attempt to harm the two young daughters of Edward A. Nassar, deceased, who were in his immediate presence at the time of the commission of the Capital Felony or any of the other witnesses in the vicinity.

The Court, having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances; it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the Jury should be and is hereby accepted.

It is therefore considered and adjudged by the Court that Wayne Eugene Ritter is guilty of the Capital Felony charged in the indictment, and specifically of intentionally killing Edward A. Nassar during the robbery or attempt thereof of the said Edward A. Nassar, deceased. It is therefore ordered and adjudged that you, Wayne Eugene Ritter, suffer death by electrocution at any time before the hour of sunrise on the 25th day of July, 1977 inside the walls of the William C. Holman Unit of the Prison System at Atmore, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution.

It is therefore further ordered and adjudged by the Court that the Warden of William C. Holman Unit of the Prison System at Atmore, or in the case of his death, disability or absence, his Deputy, or in the event of the death, disability or absence of both the Warden and his Deputy, the person appointed by the Commissioner of Corrections, at any time before the hour of sunrise, shall on the 25th day of July, 1977 inside the walls of the William C. Holman Unit of the Prison System at Atmore, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through the body of the said Wayne Eugene Ritter a current of electricity of sufficient intensity to cause his death, and the continuance and application of such current through the body of the said Wayne Eugene Ritter until the said Wayne Eugene Ritter be dead, May God Have Mercy On Your Soul.

MR. RITTER Thank you, your Honor.

THE COURT Take charge of the prisoners. (Whereupon, the Court was adjourned at 12:20 P.M.)