FOR IMMEDIATE RELEASE
NEWS RELEASE
September 30, 2016
For More Information, contact:
Luther Strange
Mike Lewis (334) 353-2199
Alabama Attorney General
Joy Patterson (334) 242-7491
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AG STRANGE PRAISES ALABAMA SUPREME COURT RULING
THAT ALABAMA’S DEATH PENALTY LAW IS CONSTITUTIONAL
(MONTGOMERY) -Attorney General Luther Strange lauded an Alabama Supreme
Court ruling which stated emphatically that Alabama’s death penalty law was not made
unconstitutional by the U.S. Supreme Court’s decision in Hurst v. Florida. The Alabama
Supreme Court issued its decision today in the Mobile County case of Bohannon v. State,
upholding the conviction and death sentence of Jerry Bohannon.
The Alabama Supreme Court considered Hurst and other U.S. Supreme Court
opinions in reaching its conclusion that these cases “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 that an
aggravating circumstances exists beyond a reasonable doubt to make a defendant death-
eligible, Alabama’s capital sentencing scheme does not violate the Sixth Amendment.”
The Court further noted its own previous ruling in Ex Parte Waldrup, stating that
“the Sixth Amendment ‘does not require that a jury weigh the aggravating circumstances
and the mitigating circumstances’ because, rather than being ‘a factual determination,’ the
weighing process is ‘a moral or legal judgment.'” Therefore, once a jury has unanimously
made a factual determination that a defendant meets the criteria to be eligible for the death
penalty, the judge may make the legal determination of whether to impose it.
The Court’s findings agreed with the argument made by Attorney General Strange
that Alabama’s law differed materially from that of Florida because the jury must find an
aggravating circumstance in order to make someone eligible for the death penalty.
“Today’s ruling is an important victory for victims and for criminal justice,” said
Attorney General Strange. “The Hurst ruling has no bearing whatsoever on the
constitutionality of Alabama’s death penalty, which has been upheld numerous times.”
–30–
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www.ago.state.al.us REL: 09/30/2016
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
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the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2016
1150640
Ex parte Jerry Bohannon
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Jerry Bohannon
v.
State of Alabama)
(Mobile Circuit Court, CC-11-2989 and CC-11-2990;
Court of Criminal Appeals, CR-13-0498)
STUART, Justice.1150640
This Court granted certiorari review of the judgment of
the Court of Criminal Appeals affirming Jerry Bohannon’s
conviction for capital murder and his sentence of death. We
affirm.
Facts and Procedural History
The evidence presented at trial established the
following. Around 7:30 a.m. on December 11, 2010, Jerry
Bohannon, Anthony Harvey, and Jerry DuBoise were in the
parking lot of the Paradise Lounge, a nightclub in Mobile.
The security cameras in the parking lot recorded DuBoise and
Harvey talking with Bohannon. After DuBoise and Harvey had
turned and walked several feet away from him, Bohannon reached
for a pistol. Apparently, when they heard Bohannon cock the
hammer of the pistol, DuBoise and Harvey turned to look at
Bohannon. DuBoise and Harvey then ran; Bohannon pursued them,
shooting several times. DuBoise and Harvey ran around the
corner of the building and when the reappeared they had guns.
A gunfight ensued. Harvey was shot in the upper left chest;
DuBoise was shot three times in the abdomen. The testimony
indicated that, in addition to shooting DuBoise and Harvey,
21150640
Bohannon pistol-whipped them. Both DuBoise and Harvey died of
injuries inflicted by Bohannon.
In June 2011, Bohannon was charged with two counts of
capital murder in connection with the deaths. The murders
were made capital because two or more persons were killed “by
one act or pursuant to one scheme or course of conduct.” ß
13A-5-40(a)(1), Ala. Code 1975. Following a jury trial,
Bohannon was convicted of two counts of capital murder.
During the penalty phase, the jury recommended by a vote of
11-1 that Bohannon be sentenced to death; the circuit court
sentenced Bohannon to death for each capital-murder
conviction. Bohannon appealed. The Court of Criminal Appeals
affirmed one of Bohannon’s capital-murder convictions but
remanded the case, in light of a double-jeopardy violation,
for the circuit court to set aside one of Bohannon’s capital-
murder convictions and its sentence. Bohannon v. State, [CR-
13-0498, October 23, 2015] _ So. 3d (Ala. 2015). The
circuit court vacated one conviction and sentence, and, on
return to remand, the Court of Criminal Appeals affirmed
Bohannon’s death sentence. Bohannon v. State, [CR-13-0498,
December 18, 2015] So. 3d (Ala. 2015). Bohannon
31150640
petitioned this Court for certiorari review of the judgment of
the Court of Criminal Appeals. This Court granted Bohannon’s
petition to consider four grounds:
— Whether Bohannon’s death sentence must be vacated
in light of Hurst v. Florida, U.S. , 136 S. Ct. 616 (2016); — Whether the circuit court’s characterization of the jury’s penalty-phase determination as a recommendation and as advisory conflicts with Hurst; — Whether the circuit court committed plain error by allowing the State to question defense character witnesses about Bohannon’s alleged acts on the night of the shooting; and — Whether the circuit court committed plain error by failing to sua sponte instruct the jury on the victims’ intoxication* Standard of Review Bohannon’s case involves only issues of law and the application of the law to the undisputed facts; therefore, our review is de novo. Ex parte Key, 890 So. 2d 1056, 1059 (Ala. 2003)(“This Court reviews pure questions of law in criminal cases de novo.”), and State v. Hill, 690 So. 2d 1201, 1203-04 (Ala. 1996). Discussion 41150640 First, Bohannon contends that his death sentence must be vacated in light of the United States Supreme Court’s decision in Hurst. In 2000, in Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held that the United States Constitution requires that any fact that increases the penalty for a crime above the statutory maximum must be presented to a jury and proven beyond a reasonable doubt. In Ring v. Arizona, 536 U.S. 584 (2002), the United States Supreme Court, applying its decision in Apprendi to a capital-murder case, stated that a defendant has a Sixth Amendment right to a “jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” 536 U.S. at 589. Specifically, the Court held that the right to a jury trial guaranteed by the Sixth Amendment required that a jury “find an aggravating circumstance necessary for imposition of the death penalty.” Ring, 536 U.S. at 585. Thus, Ring held that, in a capital case, the Sixth Amendment right to a jury trial requires that the jury unanimously find beyond a reasonable doubt the existence of at least one aggravating circumstance that would make the defendant eligible for a death sentence. 51150640 In Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2002), this Court considered the constitutionality of Alabama’s capital- sentencing scheme in light of Apprendi and Ring, stating: “Waldrop argues that under Alabama law a defendant cannot be sentenced to death unless, after an initial finding that the defendant is guilty of a capital offense, there is a second finding: (1) that at least one statutory aggravating circumstance exists, see Ala. Code 1975, ß 13A-5-45(f), and (2) that the aggravating circumstances outweigh the mitigating circumstances, see Ala. Code 1975, ß 13A-5-46(e)(3). Those determinations, Waldrop argues, are factual findings that under Ring must be made by the jury and not the trial court. Because, Waldrop argues, the trial judge in his case, and not the jury, found that two aggravating circumstances existed and that those aggravating circumstances outweighed the mitigating circumstances, Waldrop claims that his Sixth Amendment right to a jury trial was violated. We disagree. “It is true that under Alabama law at least one statutory aggravating circumstance under Ala. Code 1975, ß 13A-4-49, must exist in order for a defendant convicted of a capital offense to be sentenced to death. See Ala. Code 1975, ß 13A-5-45(f)(‘Unless at least one aggravating circumstance as defined in Section 13A-5-49 exists, the sentence shall be life imprisonment without parole.’); Johnson v. State, 823 So. 2d 1, 52 (Ala. Crim. App. 2001)(holding that in order to sentence a capital defendant to death, the sentencer ‘”must determine the existence of at least one of the aggravating circumstances listed in [Ala. Code 1975,] ß 13A-5-49″‘ (quoting Ex parte Woodard, 631 So. 2d 1065, 1070 (Ala. Crim. App. 1993))). Many capital offenses listed in Ala. Code 1975, ß 13A-5-40, include conduct that clearly corresponds 61150640 to certain aggravating circumstances found in ß 13A-5-49: “‘For example, the capital offenses of intentional murder during a rape, ß 13A-5-40(a)(3), intentional murder during a robbery, ß 13A-5-40(a)(2), intentional murder during a burglary, ß 13A-5-40(a)(4), and intentional murder during a kidnapping, ß 13A-5-40(a)(1), parallel the aggravating circumstance that “[t]he capital offense was committed while the defendant was engaged … [in a] rape, robbery, burglary or kidnapping,” ß 13A-5-49(4).’ “Ex parte Woodard, 631 So. 2d at 1070-71 (alterations and omission in original). “Furthermore, when a defendant is found guilty of a capital offense, ‘any aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentencing hearing.’ Ala. Code 1975, ß 13A-5-45(e); see also Ala. Code 1975, ß 13A-5-50 (‘The fact that a particular capital offense as defined in Section 13A-5-40(a) necessarily includes one or more aggravating circumstances as specified in Section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence.’). This is known as ‘double-counting’ or ‘overlap,’ and Alabama courts ‘have repeatedly upheld death sentences where the only aggravating circumstance supporting the death sentence overlaps with an element of the capital offense.’ Ex parte Trawick, 698 So. 2d 162, 178 (Ala. 1997); see also Coral v. State, 628 So. 2d 954, 965 (Ala. Crim. App. 1992). 71150640 “Because the jury convicted Waldrop of two counts of murder during a robbery in the first degree, a violation of Ala. Code 1975, ß 13A-5-40(a)(2), the statutory aggravating circumstance of committing a capital offense while engaged in the commission of a robbery, Ala. Code 1975, ß 13A-5-49(4), was ‘proven beyond a reasonable doubt.’ Ala. Code 1975, ß 13A-5-45(e); Ala. Code 1975, ß 13A-5-50. Only one aggravating circumstance must exist in order to impose a sentence of death. Ala. Code 1975, ß 13A-5-45(f). Thus, in Waldrop’s case, the jury, and not the trial judge, determined the existence of the ‘aggravating circumstance necessary for imposition of the death penalty.’ Ring, 536 U.S. at 609, 122 S.Ct. at 2443. Therefore, the findings reflected in the jury’s verdict alone exposed Waldrop to a range of punishment that had as its maximum the death penalty. This is all Ring and Apprendi require. “…. “Waldrop also claims that Ring and Apprendi require that the jury, and not the trial court, determine whether the aggravating circumstances outweigh the mitigating circumstances. See Ala. Code 1975, ßß 13A-5-46(e), 13A-5-47(e), and 13A-5-48. Specifically, Waldrop claims that the weighing process is a ‘finding of fact’ that raises the authorized maximum punishment to the death penalty. Waldrop and several of the amici curiae claim that, after Ring, this determination must be found by the jury to exist beyond a reasonable doubt. Because in the instant case the trial judge, and not the jury, made this determination, Waldrop claims his Sixth Amendment rights were violated. “Contrary to Waldrop’s argument, the weighing process is not a factual determination. In fact, the relative ‘weight’ of aggravating circumstances and mitigating circumstances is not susceptible to any quantum of proof. As the United States Court of 81150640 Appeals for the Eleventh Circuit noted, ‘While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard … the relative weight is not.’ Ford v. Strickland, 696 F.2d 804, 818 (11th Cir. 1983). This is because weighing the aggravating circumstances and the mitigating circumstances is a process in which ‘the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence.’ Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). Moreover, the Supreme Court has held that the sentencer in a capital case need not even be instructed as to how to weigh particular facts when making a sentencing decision. See Harris v. Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995)(rejecting ‘the notion that “a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required”‘ (quoting Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988)) and holding that ‘the Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer’). “Thus, the weighing process is not a factual determination or an element of an offense; instead, it is a moral or legal judgment that takes into account a theoretically limitless set of facts and that cannot be reduced to a scientific formula or the discovery of a discrete, observable datum. See California v. Ramos, 463 U.S. 992, 1008, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983)(‘Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, … the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.’); Zant v. Stephens, 462 U.S. 862, 902, 103 S.Ct. 2733, 77 L.Ed.2d 235 91150640 (1983)(Rehnquist, J., concurring in the judgment)(‘sentencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does’). “In Ford v. Strickland, supra, the defendant claimed that ‘the crime of capital murder in Florida includes the element of mitigating circumstances not outweighing aggravating circumstances and that the capital sentencing proceeding in Florida involves new findings of fact significantly affecting punishment.’ Ford, 696 F.2d at 817. The United States Court of Appeals for the Eleventh Circuit rejected this argument, holding that ‘aggravating and mitigating circumstances are not facts or elements of the crime. Rather, they channel and restrict the sentencer’s discretion in a structured way after guilt has been fixed.’ 696 F.2d at 818. Furthermore, in addressing the defendant’s claim that the State must prove beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances, the court stated that the defendant’s argument “‘seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. [1950], 40 L.Ed.2d 295 (1974), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617-18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party.’ 101150640 “696 F.2d at 818. Alabama courts have adopted the Eleventh Circuit’s rationale. See Lawhorn v. State, 581 So. 2d 1159, 1171 (Ala. Crim. App. 1990)(‘while the existence of an aggravating or mitigating circumstance is a fact susceptible to proof, the relative weight of each is not; the process of weighing, unlike facts, is not susceptible to proof by either party’); see also Melson v. State, 775 So. 2d 857, 900-901 (Ala. Crim. App. 1999); Morrison v. State, 500 So. 2d 36, 45 (Ala. Crim. App. 1985). “Thus, the determination whether the aggravating circumstances outweigh the mitigating circumstances is not a finding of fact or an element of the offense. Consequently, Ring and Apprendi do not require that a jury weigh the aggravating circumstances and the mitigating circumstances.” Ex parte Waldrop, 859 So. 2d at 1187-90 (footnotes omitted). This Court concluded that “all [that] Ring and Apprendi require” is that “the jury … determine[] the existence of the ‘aggravating circumstance necessary for imposition of the death penalty.'” 859 So. 2d at 1188 (quoting Ring, 536 U.S. at 609), and upheld Alabama’s capital-sentencing scheme as constitutional when a defendant’s capital-murder conviction included a finding by the jury of an aggravating circumstance making the defendant eligible for the death sentence. In Ex parte McNabb, 887 So. 2d 998 (Ala. 2004), this Court further held that the Sixth Amendment right to a trial by jury is satisfied and a death sentence may be imposed if a 111150640 jury unanimously finds an aggravating circumstance during the penalty phase or by special-verdict form. McNabb emphasized that a jury, not the judge, must find the existence of at least one aggravating factor for a resulting death sentence to comport with the Sixth Amendment. The United States Supreme Court in its recent decision in Hurst applied its holding in Ring to Florida’s capital- sentencing scheme and held that Florida’s capital-sentencing scheme was unconstitutional because, under that scheme, the trial judge, not the jury, made the “findings necessary to impose the death penalty.” U.S. at , 136 S.Ct. at 622. Specifically, the Court held that Florida’s capital-sentencing scheme violated the Sixth Amendment right to a trial by jury because the judge, not the jury, found the existence of the aggravating circumstance that made Hurst death eligible. The Court emphasized that the Sixth Amendment requires that the specific findings authorizing a sentence of death must be made by a jury, stating: “Florida concedes that Ring required a jury to find every fact necessary to render Hurst eligible for the death penalty. But Florida argues that when Hurst’s sentencing jury recommended a death sentence, it ‘necessarily included a finding of an aggravating circumstance.’ … The State contends 121150640 that this finding qualified Hurst for the death penalty under Florida law, thus satisfying Ring. ‘[T]he additional requirement that a judge also find an aggravator,’ Florida concludes, ‘only provides the defendant additional protection.’ … “The State fails to appreciate the central and singular role the judge plays under Florida law. … [T]he Florida sentencing statute does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’ Fla. Stat. ß 775.082(1) (emphasis added). The trial court alone must find ‘the facts … [t]hat sufficient aggravating circumstances exist’ and ‘[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.’ ß 921.141(3) …. ‘[T]he jury’s function under the Florida death penalty statute is advisory only.’ Spaziano v. State, 433 So. 2d 508, 512 (Fla. 1983). The State cannot now treat the advisory recommendation by the jury as the necessary factual finding that Ring requires. “…. “The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfinding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.” Hurst, U.S. at , 136 S.Ct. at 622-24 (final emphasis added). Bohannon contends that, in light of Hurst, Alabama’s capital-sentencing scheme, like Florida’s, is unconstitutional because, he says, in Alabama a jury does not make “the 131150640 critical findings necessary to impose the death penalty.”
U.S. at _, 136 S.Ct. at 622. He maintains that Hurst
requires that the jury not only determine the existence of the
aggravating circumstance that makes a defendant death-
eligible but also determine that the existing aggravating
circumstance outweighs any existing mitigating circumstances
before a death sentence is constitutional. Bohannon reasons
that because in Alabama the judge, when imposing a sentence of
death, makes a finding of the existence of an aggravating
circumstance independent of the jury’s fact-finding and makes
an independent determination that the aggravating circumstance
or circumstances outweigh the mitigating circumstance or
circumstances found to exist, the resulting death sentence is
unconstitutional. We disagree.
Our reading of Apprendi, Ring, and Hurst leads us to the
conclusion that Alabama’s capital-sentencing scheme is
consistent with the Sixth Amendment. As previously
recognized, Apprendi holds that any fact that elevates a
defendant’s sentence above the range established by a jury’s
verdict must be determined by the jury. Ring holds that the
Sixth Amendment right to a jury trial requires that a jury
141150640
“find an aggravating circumstance necessary for imposition of
the death penalty.” Ring, 536 U.S. at 585. Hurst applies
Ring and reiterates that a jury, not a judge, must find the
existence of an aggravating factor to make a defendant death-
eligible. Ring and Hurst require only that the jury find the
existence of the aggravating factor that makes a defendant
eligible for the death penalty — the plain language in those
cases requires nothing more and nothing less. Accordingly,
because in Alabama a jury, not the judge, determines by a
unanimous verdict the critical finding that an aggravating
circumstance exists beyond a reasonable doubt to make a
defendant death-eligible, Alabama’s capital-sentencing scheme
does not violate the Sixth Amendment.
Moreover, Hurst does not address the process of weighing
the aggravating and mitigating circumstances or suggest that
the jury must conduct the weighing process to satisfy the
Sixth Amendment. This Court rejected that argument in Ex
parte Waldrop, holding that that the Sixth Amendment “do[es]
not require that a jury weigh the aggravating circumstances
and the mitigating circumstances” because, rather than being
“a factual determination,” the weighing process is “a moral or
151150640
legal judgment that takes into account a theoretically
limitless set of facts.” 859 So. 2d at 1190, 1189. Hurst
focuses on the jury’s factual finding of the existence of a
aggravating circumstance to make a defendant death-eligible;
it does not mention the jury’s weighing of the aggravating and
mitigating circumstances. The United States Supreme Court’s
holding in Hurst was based on an application, not an
expansion, of Apprendi and Ring; consequently, no reason
exists to disturb our decision in Ex parte Waldrop with regard
to the weighing process. Furthermore, nothing in our review
of Apprendi, Ring, and Hurst leads us to conclude that in
Hurst the United States Supreme Court held that the Sixth
Amendment requires that a jury impose a capital sentence.
Apprendi expressly stated that trial courts may “exercise
discretion — taking into consideration various factors
relating both to offense and offender — in imposing a
judgment within the range prescribed by statute.” 530 U.S. at 481 Hurst does not disturb this holding.
Bohannon’s argument that the United States Supreme
Court’s overruling in Hurst of Spaziano v. Florida, 468 U.S.
447 (1984), and Hildwin v. Florida, 490 U.S. 638 (1989), which
161150640
upheld Florida’s capital-sentencing scheme against
constitutional challenges, impacts the constitutionality of
Alabama’s capital-sentencing scheme is not persuasive. In
Hurst, the United States Supreme Court specifically stated:
“The decisions [in Spaziano and Hildwin] are overruled to the
extent they allow a sentencing judge to find an aggravating
circumstance, independent of a jury’s factfinding, that is
necessary for imposition of the death penalty.” Hurst, _ U.S. at , 136 S.Ct. at 624 (emphasis added). Because in Alabama a jury, not a judge, makes the finding of the existence of an aggravating circumstance that makes a capital defendant eligible for a sentence of death, Alabama’s capital- sentencing scheme is not unconstitutional on this basis. Bohannon’s death sentence is consistent with Apprendi, Ring, and Hurst and does not violate the Sixth Amendment. The jury, by its verdict finding Bohannon guilty of murder made capital because “two or more persons [we]re murdered by the defendant by one act or pursuant to one scheme or course of conduct,” see ß 13A-5-40(a)(10), Ala. Code 1975, also found the existence of the aggravating circumstance, provided in ß 13A-5-49(9), Ala. Code 1975, that “[t]he defendant 171150640 intentionally caused the death of two or more persons by one act or pursuant to one scheme of course of conduct,” which made Bohannon eligible for a sentence of death. See also ß 13A-5-45(e), Ala. Code 1975 (“[A]ny aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentence hearing.”). Because the jury, not the judge, unanimously found the existence of an aggravating factor — the intentional causing of the death of two or more persons by one act or pursuant to one scheme of course of conduct — making Bohannon death-eligible, Bohannon’s Sixth Amendment rights were not violated. Bohannon’s argument that the jury’s finding of the existence of the aggravating circumstance during the guilt phase of his trial was not an “appropriate finding” for use during the penalty phase is not persuasive. Bohannon reasons that because, he says, the jury was not informed during the guilt phase that a finding of the existence of the aggravating circumstance during the guilt phase would make him eligible 181150640 for the death penalty, the jury did not know the consequences of its decision and appreciate its seriousness and gravity. A review of the record establishes that the members of the venire were “death-qualified” during voir dire. Specifically, the trial court instructed: “THE COURT: The defendant was indicted by the Grand Jury of Mobile County during its term in June of 2011. … “…. “THE COURT: The case — and by that I mean the Grand Jury indictment — is indicted for what is known as capital murder. “Capital murder is an offense which, if the defendant is convicted, is punishable either by death or by life imprisonment without the possibility of parole. “The first part of this case that will be presented to the jury is what is known as the guilt phase. The jury will be called upon to determine whether the State has proved that the defendant is guilty beyond a reasonable doubt of the offense, or whether the State has proved the guilt of the defendant beyond a reasonable doubt of anything at all. “If the jury finds the defendant not guilty, that, of course, ends the matter. “If the jury finds the defendant guilty of some offense less than capital murder, then it will be incumbent upon the Court — or me — to impose the appropriate punishment. 191150640 “If, however, the jury finds the defendant guilty of the offense of capital murder, the jury would be brought back for a second phase, or what we know as the penalty phase of this case. And, at that time, the jury may hear more evidence, will hear legal instructions and argument of counsel. The jury would then make a recommendation as to whether the appropriate punishment is death or life imprisonment without the possibility of parole.” Bohannon’s jury was informed during voir dire that, if it returned a verdict of guilty of capital murder, Bohannon was eligible for a sentence of death. Therefore, Bohannon’s argument that his jury was not impressed with the seriousness and gravity of its finding of the aggravating circumstance during the guilt phase of his trial is not supported by the record. Next, Bohannon contends that an instruction to the jury that its sentence is merely advisory conflicts with Hurst because, he says, Hurst establishes that an “advisory recommendation” by the jury is insufficient as the “necessary factual finding that Ring requires.” Hurst, U.S. at ,
136 S.Ct. at 622 (holding that the “advisory” recommendation
by the jury in Florida’s capital-sentencing scheme was
inadequate as the “necessary factual finding that Ring
requires”). Bohannon ignores the fact that the finding
201150640
required by Hurst to be made by the jury, i.e., the existence
of the aggravating factor that makes a defendant death-
eligible, is indeed made by the jury, not the judge, in
Alabama. Nothing in Apprendi, Ring, or Hurst suggests that,
once the jury finds the existence of the aggravating
circumstance that establis
