Death Sentence Appeal In Alabama

X was convicted of murder made capital because he had been convicted of another murder within the 20 years preceding this offense, see 13A-5-40(a)(13), Ala. Code 1975. The jury, by a vote of 10-2, recommended that he be sentenced to death. the trial court accepted this recommendation and sentenced X to death by electrocution. On appeal, the Court of Criminal Appeals held that the trial court's written sentencing order was deficient in that it failed to comply with the requirement of 13A-5-47(d), Ala. Code 1975, that the trial court enter specific written findings concerning the existence or non-existence of each aggravating circumstance enumerated in 13A-5-51, and any additional mitigating circumstances offered pursuant to 13A-5-52. X v. State, [Ms. CR-94-0453, September 26, 1997] So. 2d, 1997 Ala. Accordingly, the Court of Criminal Appeals remanded the cause for the trial court to enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in 13A-5-49, each mitigating circumstance enumerated in 13A-5-51, and any additional non-statutory mitigating circumstances offered pursuant to 13A-5-52. On the circuit court's return to that remand order, the Court of Criminal Appeals, on May 29, 1998, wrote another opinion, stating that the amended sentencing order indicated that the trial court had found the existence of two statutory aggravating circumstances: (1) that X, in September 1975, had been convicted of a felony involving the use of violence to the person (specifically, second-degree murder) see 13A-5-49(2); and (2) that the capital offense was committed while X was engaged in an attempt to commit a kidnapping and a rape, see 13A-5-49(4). The amended order further indicated that the trial court, after making specific written findings as to each circumstance, found that none of the statutory mitigating circumstances enumerated in 13A-5-51 had been proven to exist. The Court of Criminal Appeals affirmed X's conviction and his sentence of death. On the question of a proper sentence in a capital case, the trial court must permit a defendant to submit any evidence the defendant feels might be taken in mitigation during his sentencing. Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978); Ex parte Land, 678 So. 2d 224, 241 (Ala. 1996); Ex parte Hart, 612 So. 2d 536, 541-42 (Ala. 1992), cert. denied, 508 U.S. 953, 113 S. Ct. 2450, 124 L. Ed. 2d 666 (1993). X submitted the evidence regarding his mental condition, and the sentencing order indicates that the judge considered that evidence. There is no requirement that a sentencing authority must find the evidence offered by the defendant as a mitigating factor; however, the sentencing authority may not be precluded from considering any mitigating factor. Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Rutledge v. State, 523 So. 2d 1087, 1103-04 (Ala. Crim. App. 1987), rev'd on other grounds, 523 So. 2d 1118 (Ala. 1988). Clisby v. State, 456 So. 2d 99 (Ala. Crim App. 1983), aff'd, 456 So. 2d 105 (Ala. 1984), cert. denied, 470 U.S. 1009, 84 L. Ed. 2d 391, 105 S. Ct. 1372 (1985). We have thoroughly reviewed the record, acting pursuant to Rule 39(k), Ala. R. App. P., and we have found no "plain error" that would warrant a reversal of the conviction. The Court of Criminal Appeals addressed three issues raised by X: (1) whether the trial court erred in denying his motion to suppress physical evidence obtained following his arrest; (2) whether his constitutional rights were violated by his absence from a pretrial hearing held on November 17, 1994; (3) whether the trial court's finding, as a statutory aggravating circumstance, that X, when he committed the murder, was attempting to kidnap "or possibly rape" the victim, constitutes evidence indicating that the State failed to prove the existence of that statutory aggravating circumstance "beyond a reasonable doubt," as required by 13A-5-45(e), Ala. Code 1975. The Court of Criminal Appeals, finding no reversible error, affirmed X's conviction and sentence. We affirm the judgment of the Court of Criminal Appeals.