Derrick Dearman v. State of Alabama ( 2023 )

Rel: March 24, 2023
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,
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
CR-18-0060
_________________________
Derrick Dearman
v.
State of Alabama
Appeal from Mobile Circuit Court
(CC-17-1628, CC-17-1629, CC-17-1630, CC-17-1631, and CC-17-
1632)
On Return to Remand
McCOOL, Judge.
Derrick Dearman pleaded guilty to five counts of murder made
capital for intentionally killing five people – Robert Lee Brown, Chelsea
Reed, Justin Reed, Joseph Adam Turner, and Shannon Randall – during
CR-18-0060
the course of a burglary, see § 13A-5-40(a)(4), Ala. Code 1975, and five
counts of murder made capital because the victims were murdered by one
act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10),
Ala. Code 1975. The matter was then presented to a jury for the jury to
determine whether the State had proven its case against Dearman
beyond a reasonable doubt, as required by § 13A–5–42, Ala. Code 1975.
The jury returned a verdict of guilty for each of the 10 counts of capital
murder. Subsequently, during the penalty-phase of Dearman's trial, the
jury unanimously recommended a sentence of death. On October 12,
2018, the circuit court followed the jury's recommendation and sentenced
Dearman to death. Dearman appealed to this Court. In an opinion dated
August 5, 2022, this Court affirmed Dearman's five convictions for
murdering the five individuals during the course of a burglary and one
conviction for committing the murders pursuant to one scheme or course
of conduct. See Dearman v. State, [No. CR-18-0060, August 5, 2022] ___
So. 3d ___ (Ala. Crim. App. 2022). After finding a double-jeopardy
violation, we remanded this case to the circuit court with instructions for
the circuit court to vacate four of Dearman's convictions for murdering
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five victims by one act or pursuant to one scheme or course of conduct
under § 13A-5-40(a)(10), Ala. Code 1975.
On remand, the circuit court complied with this Court's
instructions. The circuit court held a hearing, during which Dearman
was present with his counsel, and set aside four of Dearman's convictions
of capital murder for murdering two or more people in the course of one
scheme or course of conduct. The circuit court subsequently issued the
following order:
"Pursuant to the Opinion dated August 5, 2022, from the
Alabama Court of Criminal Appeals, remanding [Dearman's]
Capital Murder cases to this Court for four of [Dearman's]
capital-murder convictions to be vacated, this Court hereby
SETS ASIDE the conviction and vacates the sentence in
Count II of the following cases: CC2017-001629.00, CC2017-
001630.00, CC2017-001631.00, and CC2017-001632.00.
"The conviction and sentence in Counts I and II of
CC2017-001628.00 and Count I in CC2017-001629.00,
CC2017-001630.00, CC2017-001631.00, and CC2017-
001632.00, are unaffected by this order."
(Record on Return to Remand, 163.)
On return to remand, Dearman filed a supplemental brief under
Rule 28A(a), Ala. R. App. P. In his supplemental brief, Dearman alleged
that a remand was necessary "for clarification of the circuit court's order"
because, he says, the circuit court's order vacating the convictions and
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sentences imposed in Count II of four of the cases "is inconsistent with
the original sentence imposed by the judge and jury" and is necessary "to
preserve [his] rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution, the corresponding
portions of the Alabama Constitution, and Alabama Law." (Dearman's
brief on return to remand, 8.) He also claims that the imposition of the
death penalty was improper in this case because, he says, the circuit
court "did not reweigh the aggravating and mitigating circumstances
without consideration of the vacated convictions." (Dearman's brief on
return to remand, 9.)
I.
First, Dearman alleges that the circuit court's order vacating the
convictions and sentences for four of his five convictions was
"inconsistent with the original sentence imposed by the judge and the
jury" and that it violates his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments, as well as Alabama law. We initially note that
this portion of Dearman's brief on return to remand fails to comply with
Rule 28(a)(10), Ala. R. App. P., because he failed to provide any citations
to relevant legal authority in support of his argument. Dearman's
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CR-18-0060
supplemental brief on return to remand cites one case in this portion of
his brief; however, he failed to provide any argument as to how that case
supports his claim that the circuit court's order issued on remand was
improper. Thus, his argument fails to satisfy Rule 28(a)(10). See Hodges
v. State, 926 So.2d 1060, 1075 (Ala. Crim. App. 2005)( "[C]iting a case
with no discussion as to its relevance is insufficient to satisfy Rule
28(a)(10).") Moreover, the circuit court's order vacating his convictions
and sentences in Count II of CC-17-1629, CC-17-1630, CC-17-1631, and
CC-17-1632 was in compliance with the instructions set forth in our
opinion remanding this case to the circuit court. We do not find that the
circuit court's order was unclear or ambiguous. Therefore, Dearman is
not entitled to relief on this claim.
II.
Next, Dearman specifically contends that vacating four of the five
convictions for murder made capital because the murders were
committed pursuant to one scheme or course of conduct changed the
"weight of the aggravating circumstances" in the present case and, thus,
a remand is necessary for the court to reweigh the aggravating and
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mitigating circumstances "without consideration of the invalid
convictions." (Dearman's brief on return to remand, 11.) We disagree.
In the present case, the jury's determination that Dearman had
committed the crime of murder made capital because two or more persons
were murdered by the defendant by one act or pursuant to one scheme or
course of conduct established one aggravating circumstance -- that "[t]he
defendant intentionally caused the death of two or more persons by one
act or pursuant to one scheme or course of conduct" under Section 13A-5-
49(9), Ala. Code 1975. See § 13A-5-45(e), Ala. Code 1975. Although
Dearman was originally improperly convicted of more than one count of
murder made capital because two or more persons were murdered by the
defendant by one act or pursuant to one scheme or course of conduct, the
remaining conviction for capital murder under § 13A-5-40(a)(10) was
sufficient to establish the existence of the aggravating circumstance
under § 13A-5-49(9) -- that the defendant intentionally caused the death
of two or more persons by one act or pursuant to one scheme or course of
conduct. Nothing in the record suggests that the jury or the circuit court
improperly considered each of Dearman's convictions under § 13A-5-
40(a)(10) as more than one aggravating circumstance under § 13A-5-
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49(9), Ala. Code 1975. When the court instructed the jury concerning the
aggravating circumstances that it could consider when making its
determination regarding sentencing, the circuit court properly instructed
the jury that its verdicts established by law the aggravating
circumstances that: 1) "the capital offense was committed during the
course of a burglary," and 2) "that the capital offense involved the death
of two or more people pursuant to one act or pursuant to one common
scheme or design." 1 (R. 1659.) At the sentencing hearing and in its
sentencing order, the circuit court specifically referred to the aggravating
circumstance of § 13A-5-49(9) as one of three aggravating circumstances
that it considered when it sentenced Dearman. See (C. 480-81; R. 1701-
03.) Therefore, because the record clearly indicates that the jury and the
circuit court gave the proper consideration to the one aggravating
circumstance that was established by the jury's determination of guilt for
the charge of murder made capital because two or more persons were
1 The circuit court also instructed the jury that it could consider the
aggravating circumstance that the capital offense was especially heinous,
atrocious, or cruel compared to other capital offenses, see § 13A-5-49(8),
Ala. Code 1975, if the jury unanimously found that the State had proven
that aggravating circumstance beyond a reasonable doubt, which the jury
did.
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murdered by the defendant by one act or pursuant to one scheme or
course of conduct, a remand for the circuit court to reconsider Dearman's
sentence of death is unnecessary.
Further, the aggravating facts that support the existence of the
aggravating circumstance in question are the same regardless of whether
Dearman had one or more than one conviction for murder made capital
because two or more persons were murdered by the defendant by one act
or pursuant to one scheme or course of conduct. As Presiding Judge
Windom explained in her special writing in Shaw v. State, 207 So. 3d 79at 131-32 (Ala. Crim. App. 2014)(Windom, P.J., concurring in part and
dissenting in part):
"As the Supreme Court of the United States has
explained, '[a]n invalidated sentencing factor (whether an
eligibility factor or not) will render the sentence
unconstitutional by reason of its adding an improper element
to the aggravation scale in the weighing process unless one of
the other sentencing factors enables the sentencer to give
aggravating weight to the same facts and circumstances.'
Brown v. Sanders, 546 U.S. at 220. In other words, it is the
facts supporting an aggravating circumstance that must be
considered in determining whether a sentence of death should
be imposed. Thus, if an invalid aggravating circumstance is
considered, no constitutional error occurs if the facts
supporting that invalid aggravating circumstance could have
been considered in support of a valid aggravating
circumstance. Id. As the Supreme Court explained,
consideration of an invalid aggravating circumstance will
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CR-18-0060
skew the sentencing scheme 'and give rise to constitutional
error, only where the jury could not have given aggravating
weight to the same facts and circumstances under the rubric
of some other, valid sentencing factor.' Brown, 546 U.S. at
221."
Adopting this reasoning, we hold that, because the same aggravating
facts were properly considered to support Dearman's remaining capital-
murder conviction under § 13A-5-40(a)(10), Ala. Code 1975, the fact that
this Court has ordered four of Dearman's convictions under § 13A-5-
40(a)(10) to be set aside does not render Dearman's sentence or
sentencing process invalid.2
Conclusion
This Court previously affirmed Dearman's five convictions for
capital murder committed during a burglary, and one conviction for the
murder of two or more people during one scheme or course of conduct.
2 We recognize that, in Shaw, this Court did initially instruct the
circuit court to reweigh the aggravating and mitigating circumstances
when it remanded the case to vacate one of Shaw's capital-murder
convictions under § 13A-5-40(a)(10), Ala. Code 1975, because this Court
found that "the circuit court specifically referenced four capital-murder
convictions in its sentencing order." See Shaw, 207 So. 3d at 130.
However, this Court also noted on return to remand that it had instructed
the circuit court to reweigh the aggravating and mitigating
circumstances "in an abundance of caution." See Shaw, 207 So. 3d at 132.
For the reasons stated in this opinion, a reweighing of the aggravating
and mitigating circumstances is unnecessary in this case.
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CR-18-0060
Pursuant to the requirements of § 13A-5-53(b), Ala. Code 1975, this Court
also previously determined that: 1) Dearman's death sentences "were not
imposed under the influence of passion, prejudice, or any other arbitrary
factor;" 2) that this Court had independently reweighed the aggravating
and mitigating circumstances presented in this case and found that
Dearman's death sentences were appropriate; and 3) that Dearman's
death sentences were neither disproportionate nor excessive as compared
to the penalties imposed in similar cases. See Dearman, ___ So. 3d at ___.
The circuit court has now properly complied with this Court's instruction
to vacate four of Dearman's convictions for the murder made capital
because the victims were murdered by one act or pursuant to one scheme
or court of conduct. Accordingly, the circuit court's judgment imposing
sentence of death for Dearman's convictions for two counts of capital-
murder convictions in CC-17-1628, and one count of capital-murder in
CC17-1629, CC17-1630, CC17-1631, and CC17-1632 is hereby affirmed.
AFFIRMED.
Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.
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