Ryan Gerald RUSSELL v. STATE of Alabama

CR-10-1910

Court of Criminal Appeals of Alabama.

December 16, 2016 Rehearing Denied March 17, 2017 Certiorari Denied November 17, 2017

Alabama Supreme Court 1160647

Glennon F. Threatt (withdrew 06/29/2012); Richard Warren Bell, Birmingham; Heather Dawn Collier, Foley; and Randall S. Susskind, Montgomery, for appellant.

Luther Strange, atty. gen., and James C. Crenshaw and Kristi Deason Hagood, asst. attys. gen., for appellee.

*On Remand from the United States Supreme Court*

WELCH, Judge.

Ryan Gerald Russell was convicted of murder made capital because the victim was less than 14 years old. See § 13A-5-40(a)(15), Ala. Code 1975. During the penalty phase of the trial, the foreperson of the jury submitted to the court a verdict form reflecting that, by a unanimous vote, the jurors found that the State had proven beyond a reasonable doubt the aggravating circumstance that Russell's capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses. See § 13A-5-49(8), Ala. Code 1975. The foreperson of the jury submitted to the court a verdict form reflecting that, by a unanimous vote, the jurors recommended that Russell be sentenced to death. The trial court ordered that a presentence investigation report be furnished to the court.

The trial court sentenced Russell to death following its consideration of the evidence presented at the guilt and penalty phases of the trial, the presentence report, the aggravating and mitigating factors it found to exist, the trial court's determination that the aggravating factor outweighed the mitigating factors, and the jury's advisory verdict. This Court affirmed Russell's conviction and sentence in *Russell v. State*, 261 So. 3d 397 (Ala. Crim. App. 2015), and the Alabama Supreme Court denied certiorari on February 19, 2016. On October 3, 2016, the United States Supreme Court granted Russell's petition for a writ of certiorari and held:

> "On petition for writ of certiorari to the Court of Criminal Appeals of Alabama. Motion of petitioner for leave to proceed *in**forma**pauperis* and petition for writ of certiorari granted. Judgment vacated, and case remanded to the Court of Criminal Appeals of Alabama for further consideration in light of *Hurst v. Florida*, 577 U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016)."

*Russell v. Alabama* (No. 15-9918, Oct. 3, 2016), 580 U.S. ----, 137 S.Ct. 158, 196 L.Ed.2d 6 (2016).

In *Hurst v. Florida*, 577 U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), the United States Supreme Court held that Florida's death-penalty scheme violated the protection guaranteed by the Sixth Amendment of the United States Constitution of a defendant's right to an impartial jury because Florida's death-penalty statute "required the judge alone to find the existence of an aggravating circumstance." *Hurst*, 577 U.S. at ----, 136 S.Ct. at 622-24. The United States Supreme Court had *456previously decided two cases upon which the holding in *Hurst* was based: *Apprendi v. New Jersey*, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and *Ring v. Arizona*, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). *Apprendi* held that the United States Constitution requires that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." *Apprendi*, 530 U.S. at 490. *Ring*, citing *Apprendi*, held that "[c]apital defendants, no less than noncapital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." *Ring*, 536 U.S. at 589. Moreover, *Ring* requires "that the jury unanimously find the existence of an aggravating circumstance in order to make the defendant death-eligible." *Duke v. State*, 889 So.2d 1, 43 n.4 (Ala. Crim. App. 2002), vacated on other grounds, *Roper v. Simmons*, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

On September 30, 2016, the Alabama Supreme Court released *Ex parte Bohannon*, 222 So. 3d 525 (Ala. 2016), addressing the effect of *Hurst* on Alabama's death-penalty statute and holding that Alabama's capital-sentencing scheme is *not* in violation of *Hurst*, *Apprendi*, or *Ring*.1

The Alabama Supreme Court held in *Bohannon*:

> " *Ring* and *Hurst* require only that the jury find the existence of the aggravating factor that makes a defendant eligible for the death penalty-the plain language in those cases requires nothing more and nothing less. Accordingly, because in Alabama a jury, not the judge, determines by a unanimous verdict the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible, Alabama's capital-sentencing scheme does not violate the Sixth Amendment."

*Bohannon*, 222 So. 3d at 532. In the case before us, the jury unanimously found the existence of the aggravating factor that the crime was especially heinous, atrocious, or cruel when compared to other capital offenses-the same aggravating circumstance the judge relied upon to impose a sentence of death-and the jury then unanimously recommended a sentence of death.

Thus, Alabama has reviewed its capital-sentencing scheme in light of *Hurst* and has determined that its capital-sentencing scheme does not violate the United States Constitution and does not run afoul of *Apprendi*, *Ring*, or *Hurst*. Therefore, for the foregoing reasons, as well as the reasons stated by this Court in *Russell v. State*, 261 So. 3d 397 (Ala. Crim. App. 2015), the judgment of the trial court is affirmed.

AFFIRMED.

Windom, P.J., and Burke, J., concur. Joiner, J., recuses himself. Kellum, J., not sitting.

1

See also *State v. Billups*, 223 So. 3d 954 (Ala. Crim. App. 2016), holding that Alabama's capital-sentencing statute is not unconstitutional.