Hutcherson v. State, 677 So.2d 1174 (Ala.Cr.App. 1994) (Direct Appeal).

Defendant was convicted in the Circuit Court, Mobile County, Braxton Kittrell, J., of capital murder occurring during course of sodomy and burglary, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Taylor, J., held that: (1) indictment was not defective; (2) defendant was not denied fair trial when members of jury saw him in handcuffs and in prison uniform; (3) arresting officer had authority to arrest defendant on outstanding traffic warrant; (4) defendant knowingly waived his right to counsel; (5) prosecution's use of peremptory strikes to exclude women from jury was not Batson violation; (6) prosecutor did not improperly comment on defendant's postarrest silence; and (7) erroneous admission of DNA testimony was harmless. Affirmed. Judgment reversed, Ala., 677 So.2d 1205,on remand to, Ala.Cr.App., 677 So.2d 1210.

TAYLOR, Judge.

The appellant, Larry Eugene Hutcherson, was convicted of murder made capital because the murder occurred during the course of a sodomy and a burglary, violations of §§ 13A-5-40(a)(3) and 13A-5-40(a)(4), Code of Alabama 1975. The jury, by a vote of 11 to 1, recommended the death penalty be imposed. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

The state's evidence tended to show that on June 26, 1992, the body of 89-year-old Irma Thelma Gray was discovered in her home on Moffat Road in Mobile, Alabama. The victim's throat had been cut so severely that she was almost decapitated. Dr. Leroy Riddick, a forensic medical examiner, testified that the cut on her throat was 10 inches long, beginning at her left earlobe and progressing to within one and one-half inch of her right earlobe. The cut severed her windpipe and her carotid artery and went all the way to her spine.

The victim had many other injuries that Dr. Riddick testified occurred before her throat was cut. These injuries, consistent with a beating, included numerous other cuts, bruises, and multiple fractured ribs. There was also evidence that the victim had been sodomized. Lieutenant Frank Woodward of the Mobile Police Department testified that when he arrived at the house to investigate Ms. Gray's death, the door to the screened porch was punched inward; a window had been broken and there was pieces of broken glass and blood on the window sill.

The inside of the house was in total disarray. The antenna for the television was on the floor and a bracket in a window sill, where an air conditioner would have been, was empty. Woodward found Mrs. Gray's body lying face down on the kitchen floor. Blood covered the floor near her head and there was talcum powder on her lower body. There was also blood and a bloody footprint on the floor of the bathroom.

Woodward also stated that the door to the garage was partially open and that one of the windowpanes in the door was broken and there was a trail of blood leading from the window to the driver's side of the automobile that was in the garage. Officer Lamar Whitten of the Mobile Police Department stated that he searched the house and found the appellant's driver's license in front of a closet in one of the bedrooms. Near the appellant's driver's license was a bloody knife.

A fingerprint was also discovered on the washing machine. The print matched the print of the appellant's right thumb. Sarah Scott of the state forensic department testified that she was called to the scene to retrieve blood samples from certain areas in the house. A rag found in the garage was covered in blood consistent with the appellant's blood type. The blood on the garage window sill was also consistent with the appellant's blood as were the bloodstains lifted from the front porch. She also testified that bloodstains on a pair of jeans that the appellant was wearing when he was arrested were consistent with the victim's blood type.

The appellant's mother, Deborah Hutcherson, testified that around 6:00 a.m. on a morning during the last week of June 1992 she received a telephone call from her son asking her to pick him up on Moffat Road. The appellant told his mother that he had been in a fight and that his arm had been cut. She found her son at the Overlook Shopping Center, not far from the victim's house. She said that the cut on his arm was bad and that it looked like he needed stitches. She also stated that the appellant did not appear to be drunk but that he looked “real tired.”

Sergeant Lester Clark testified that on June 27, 1992, he took the appellant into custody on a traffic attachment out of Prichard. He said that when he found the appellant he was asleep in his car outside the Tarpon Lounge, which was located about one-half mile from the victim's house. Clark took the appellant to the police station where he read the appellant his Miranda FN1 rights.

Initially, the appellant stated that he did not wish to make a statement. About 45 minutes later, the appellant asked to speak with Clark. Sergeant Clark transcribed the following statement as he was talking with the appellant: FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

“ ‘[I] want to tell you about the murder.’ I again advised him that he did not have to say anything, but he stated that he had to tell someone and he wanted it to be me. The suspect continued to talk stating that, ‘I killed her.’ He stated, ‘I went to the house on Wednesday night, or it could have been early Thursday morning. Might have been after twelve o'clock. I had just left the Tarpon [Lounge] and was looking for a house to break in as I walked west on Moffat Road. I picked that house because there were no cars in the driveway and it was dark. I went in the bathroom window.’ And he said, ‘That is not-’ he hesitated and he said, ‘That is not too clear because I had taken five Valiums and drank a lot of whiskey. I knew that I knocked out-I knew that I knocked the pane out of the window to get in. I remember I cut my arm when I broke out the garage window.' “ ‘I had been in the house for awhile before I saw the old lady, who just showed up in the kitchen. I asked her where her money was and the jewelry. She wouldn't tell me and I began-she began to try to get out of the back door. I kept pulling her back, and I cut her throat. I took off her panties and poured powder over her which I found in the bathroom.

“ ‘I tried to get the car started, but it wouldn't. I left and called my mamma to pick me up. She picked me up on Moffat. I went back into the house Thursday night. I had passed several times during the day and saw that no one had found her. I went through parts of the house that I did not go through Wednesday night. This is when I took out the air conditioner and the rest of the stuff, and put it next to the fence. “ ‘I got Hardy [Avera] to stop after leaving the Tarpon Friday morning and pick up the stuff. Most of the stuff might have been-might have left town by now. I sold some and I just almost gave some away to people I owed. The air conditioner I know is still here. I know where it is. It is at my stepfather's house, Jackie Lang. “ ‘The microwave, I know where it is, but she is related to my wife, and I wouldn't want to get her involved, but I know it is there. Now, I feel better. I've told you.’ ”

Three witnesses testified that the appellant sold them a microwave, a television, and a radio, respectively, in the last week of June 1992. These items were identified by the victim's son-in-law as having belonged to the victim. Hardy Avera testified that on Wednesday in the last week of June 1992 the appellant came to his house wearing jeans and black tennis shoes. The appellant told him that “he thought he had killed someone.”

The next day he saw the appellant at the Tarpon Lounge and he took him to the victim's house. He said that the appellant went inside and came back with an air conditioner and some other items. The appellant's stepsister, was present when her father, Jackie Lang, received a telephone call from the appellant. She said that during the conversation her father wrote down on a piece of paper that Larry had killed an old lady. Ms. Lang also stated that she testified before the grand jury that the appellant had told her that “he would rather die in the electric chair than live with what he had done to the victim.”

Many of the issues raised by the appellant on appeal were not first presented to the trial court. However, because this case involves the death penalty, this court is obliged, under Rule 45A, A.R.App.P., to apply the plain error doctrine. Rule 45A, A.R.App.P., states: “In all cases in which the death penalty has been imposed, the court of criminal appeal shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

As this court stated in Haney v. State, 603 So.2d 368 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993): “The Alabama Supreme Court has adopted federal case law defining plain error, holding that ‘ “[p]lain error” only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings,’ Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981)).” “[T]he plain-error exception to the contemporaneous-objection rule is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ ” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1, 14 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). To find plain error “the claimed error [must] not only [have] seriously affected [the defendant's] ‘substantial rights,’ but ··· it [must have] had an unfair prejudicial impact on the jury's deliberations.” Young, 470 U.S. at 18, 105 S.Ct. at 1047, n. 14, 84 L.Ed.2d at 14.

* * *

The appellant next contends that the DNA testimony regarding the semen sample recovered from the victim, which linked the appellant to the act of sodomy, should not have been received into evidence because, he says, the prosecutor failed to satisfy the test articulated by the Alabama Supreme Court in Ex parte Perry, 586 So.2d 242 (Ala.1991). The following three-pronged test must be met before DNA test results may be received into evidence.

“I. Is there a theory, generally accepted in the scientific community, that supports the conclusion that DNA forensic testing can produce reliable results? “II. Are there current techniques that are capable of producing reliable results in DNA identification and that are generally accepted in the scientific community? “III. In this particular case, did the testing laboratory perform generally accepted scientific techniques without error in the performance or interpretation of the tests?” Perry, 586 So.2d at 253. “Prior to the admission of DNA testimony into evidence, a hearing outside the presence of the jury must be held to determine if the test has been met.” Yelder v. State, 630 So.2d 92, 102 (Ala.Cr.App.1991), rev'd on other grounds, 630 So.2d 107 (Ala.1992).

In this case, no hearing was held outside the presence of the jury. Further, there was no testimony that satisfied the complete Perry test. We have recognized that DNA testing is generally accepted in the scientific community. See Seritt v. State, 647 So.2d 1 (Ala.Cr.App.1994); Yelder. However, there was not sufficient evidence presented in this case that the test performed in this case was reliable. The prosecution here failed to satisfy the third prong of the Perry test.

Thus, the court should have not allowed the DNA testimony to be received into evidence. However, our inquiry does not end here. Though this state has not had occasion to apply the harmless error analysis to the unlawful admission of DNA testimony, other states have applied the harmless error doctrine in this context. State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994); People v. Wallace, 14 Cal.App. 4th 651, 17 Cal.Rptr.2d 721 (1993); People v. Barney, 8 Cal.App. 4th 798, 10 Cal.Rptr.2d 731 (1992); State v. Nielsen, 467 N.W.2d 615, 619 (Minn.1991). Cf. People v. Finley, 161 Mich.App. 1, 410 N.W.2d 282 (1987), aff'd, 431 Mich. 506, 431 N.W.2d 19 (1988) (unlawful admission of blood typing was harmless beyond a reasonable doubt); People v. Proveaux, 157 Mich.App. 357, 403 N.W.2d 135 (1987) (unlawful admission of analysis of semen stain was harmless, given the overwhelming evidence of the appellant's guilt).

As the Arizona Supreme Court stated in Bible: “When an issue is raised but erroneously ruled on by the trial court, this court reviews for harmless error. See State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980). Absent ‘structural defect,’ Arizona v. Fulminante, 499 U.S. 279, 309[-310], 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991), and other matters not subject to harmless error analysis, we use one test to determine whether error is harmless in criminal cases, State v. White, 168 Ariz. 500, 508, 815 P.2d 869, 877 (1991), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992); State v. Lundstrom, 161 Ariz. 141, 150 n. 11, 776 P.2d 1067, 1076 n. 11 (1989); State v. Thomas, 133 Ariz. 533, 538, 652 P.2d 1380, 1385 (1982). Error, be it constitutional or otherwise, is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict. Lundstrom, 161 Ariz. at 150 & n. 11, 776 P.2d at 1076 & n. 11. ‘The inquiry ··· is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); accord McVay, 127 Ariz. at 453, 622 P.2d at 12. We must be confident beyond a reasonable doubt that the error had no influence on the jury's judgment. “There is no bright line statement of what is and what is not harmless error. See Bush v. State, 19 Ariz. 195, 204, 168 P. 508, 512 (1917); see also Jack B. Weinstein & Margaret A. Berger, 1 Weinstein's Evidence, § 103[06], at 103-70 to 81 (1992) (listing factors courts examine in determining whether error was harmless)····” “···· “··· [T]he properly admitted evidence in this case goes far beyond overwhelming evidence of guilt. It is not only inconsistent with any reasonable hypothesis of innocence, it refutes any hypothesis other than Defendant's guilt····”

“Given this unequivocal evidence, independent of the hotly contested DNA probability evidence, we find beyond a reasonable doubt that the erroneous admission of the DNA evidence could have had ‘no influence on the verdict of [this] jury’ McVay, 127 Ariz. at 453, 622 P.2d at 12. Other courts have reached similar conclusions with weaker, or at least comparably strong, evidence of guilt independent of the erroneous admission of DNA evidence. See, e.g., [ People v.] Barney, 10 Cal.Rptr.2d [731] at 747-48 [ (1992) ] (upholding conviction where defendant's wallet found on bloodstained couch in victim's home, defendant's fingerprint found in room of victim's home, and non-DNA blood testing linked defendant to crime scene); State v. Nielsen, 467 N.W.2d 615, 619 (Minn.1991) (victim last seen alive with defendant, blood matching victim's found on defendant's shirt, untypable human blood found in defendant's car, defendant's blood type matched semen found on victim's body, defendant had black eye day after murder, and defendant left the area when told that the police were looking for him); cf. [People v.] Wallace, 17 Cal.Rptr.2d [721] at 726-27 [ (1993) ] (following Barney and upholding conviction where crimes were distinctive, one victim identified defendant, circumstantial evidence connected defendant to crimes, traditional blood typing eliminated all but two or three percent of the population, and defendant admitted committing offenses to fiancee); [People v.] Atoigue, 1992 WL 245628, at 4 [D.Guam App.Div., September 1, 1992] (upholding conviction where victim identified defendant).” Bible, 858 P.2d at 1191-93.

We realize that the courts in this state have stated that “overwhelming evidence of guilt does not render prejudicial error harmless under Rule 45, A.R.App.P.” Tomlin v. State, 591 So.2d 550 (Ala.Cr.App.1991); Malone v. City of Silverhill, 575 So.2d 107 (Ala.1990); Hall v. State, 520 So.2d 218 (Ala.Cr.App.1987); Carroll v. State, 599 So.2d 1253 (Ala.Cr.App.1992), aff'd, 627 So.2d 874 (Ala.1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994). However, the Alabama Supreme Court in Ex parte Greathouse, 624 So.2d 208, 211 (Ala.1993), stated: “As the Court of Criminal Appeals recognized, this Court has held that ‘ “[o]verwhelming evidence of guilt does not render prejudicial error harmless under Rule 45, Ala.R.App.P.” ’ Ex parte Malone, 575 So.2d 106, 107 (Ala.1990) (quoting Ex parte Lowe, 514 So.2d 1049, 1050 (Ala.1987)); see also Ex parte Johnson, 507 So.2d 1351, 1356 (Ala.1986).

In Malone, this Court held that the admission of evidence of scientific test results without the laying of a proper predicate was not harmless. In that case, this Court discussed why the jury's consideration of the test results could have affected its determination on the issue of guilt. This Court specifically held that the improper admission of the evidence of the test results might have adversely affected the defendant's right to a fair trial and, therefore, that the admission of that evidence required a reversal of his conviction. In this case, the Court of Criminal Appeals determined, based upon its review of the record, that the comment by the codefendant's counsel did not have such an adverse effect and that ‘the evidence of [the defendant's] guilt was “virtually ironclad.” ’ 624 So.2d at 209.

“In Wilson, this Court, quoting Chapman v. California], 386 U.S. [18] 24, 87 S.Ct. [824] 828, [17 L.Ed.2d 705 (1967) ] stated that ‘ “ before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” ’ 571 So.2d at 1264. Applying that rule of law to the facts of this case, we conclude, as did the Court of Criminal Appeals, that the record shows that the evidence of guilt is ‘virtually ironclad’; therefore, we agree with the Court of Criminal Appeals that the comment did not affect the outcome of the trial or otherwise prejudice Greathouse's right to a fair trial.” (Emphasis added.) We hold that the admission of the DNA evidence was “harmless beyond a reasonable doubt.”

There was absolutely no doubt that the victim had been sodomized. Dr. Riddick testified that semen was found in the victim's rectum. Here, no other reasonable inference could have been drawn from the evidence except that the appellant sodomized the victim. The evidence against the appellant was “virtually ironclad.” Greathouse. For this reason, we hold that the unlawful admission of the DNA testimony amounted to harmless error. The appellant also raises several other issues concerning the admission of the DNA evidence. Having found that the court erred in receiving this testimony into evidence we find it unnecessary to address these issues. The admission of the DNA evidence, although error, was harmless beyond a reasonable doubt.

* * *

The appellant next argues that there was insufficient evidence to show that he committed the murder during the course of committing a sodomy. Specifically, he argues that there was evidence that the victim was dead at the time she was sodomized and that there was no evidence that the appellant formed the intent to sodomize the victim before the victim was killed. Dr. Leroy Riddick, a forensic pathologist, testified that semen was found in the victim's rectum but that there was no evidence of trauma to the rectum.

He testified that this could be either because of her age and the loss of elasticity in the area or because she was sodomized after her death. The appellant argues that on the basis of Dr. Riddick's testimony he could not be found guilty of sodomizing the victim and therefore could not be found guilty of the capital offense of murder committed during the course of sodomy under § 13A-5-40(a)(3), Code of Alabama 1975. We hold that the legislature did not intend such a result when it enacted § 13A-5-40(a)(3).

Section 13A-5-40(a)(3) defines a capital murder as “murder by the defendant during a rape in the first or second degree or an attempt thereof committed by the defendant; or murder by the defendant during sodomy in the first or second degree or an attempt thereof committed by the defendant.” (Emphasis added.) “During” is defined in § 13A-5-39(2) as “in the course of or in connection with the commission of, or in immediate flight from the commission of the underlying felony or attempt thereof.” This court in Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), aff'd 548 So.2d 547 (Ala.1989), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989), had occasion to determine whether a robbery that occurred after a murder could support a conviction for capital murder.

Judge Patterson, writing for the court, stated: “The capital crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim; the offense consists of two elements, robbing and intentional killing···· The intentional murder must occur during the course of a robbery in question; however, the taking of the property of the victim need not occur prior to the killing···· While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs.” 548 So.2d at 534 (citations omitted).

The reasoning of Hallford applies to this case. It makes no difference if the actual act of sodomy occurred after the victim's death. We agree with the Minnesota Supreme Court: “One who ‘[c]auses the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the person or another,’ is guilty of murder in the first degree. Minn.Stat. § 609.185(2) (1990). In Minnesota the felony-murder rule applies whenever the felony and the homicide ‘are part of one continuous transaction.’ Bellcourt v. State, 390 N.W.2d 269, 274 (Minn.1986) [quoting Kochevar v. State, 281 N.W.2d 680, 686-87 n. 4 (Minn.1979) ].

Thus, the felony-murder rule applies even though the underlying felony is completed after the homicide, provided the felony and homicide are parts of a single ‘continuous transaction.’ Compare State v. LaTourelle, 343 N.W.2d 277 (Minn.1984) (defendant convicted of first degree felony-murder where defendant intended to rape victim prior to the homicide but the rape took place after the homicide) with State v. Givens, 332 N.W.2d 187 (Minn.1983) (defendant acquitted of first degree felony-murder where defendant participated in murder of victim, then returned to murder scene a short time later to rape victim).

“The defendant correctly points out the absence of scientific evidence that the sexual assault took place while the victim was alive: the autopsy did not reveal whether penetration occurred before or after [the victim's] death. Nevertheless, there was a great deal of evidence from which the jury could conclude that death occurred during or as the result of a sexual assault. Many of the victim's wounds, the disarray of her clothing, and the way in which the clothing had been torn from her upper body were suggestive of, or at least consistent with, a sexually motivated assault.

The jury was not required to believe defendant's tale of bestiality-that the thought of sexual activity did not occur to him until after he had driven around for a half hour in a vain search for a policeman to whom he could turn over [the victim's] dead body. Even if the rape occurred after death, the jury could have believed that the assault was sexually motivated and that the criminal sexual conduct and the homicide were one continuous transaction making the crime first degree felony murder. State v. Nielsen, 467 N.W.2d 615, 618 (Minn.1991). (Emphasis added.) There was sufficient evidence for the jury to conclude that the murder occurred “during” the sodomy as defined in Ex parte Johnson, 620 So.2d 709 (Ala.1993).

* * *

The appellant next contends that the trial court's findings were erroneous. Initially, he argues that the court erred in finding that the crime was “especially heinous, atrocious, or cruel.” Previously, we quoted the court's order regarding this aggravating circumstance. The court's order clearly reflects that no error occurred in its finding the circumstances surrounding the murder to be “especially heinous, atrocious, or cruel.” Ex parte Kyzer, 399 So.2d 330 (Ala.1981); Henderson v. State, 583 So.2d 276, 304 (Ala.Cr.App.1990), aff'd, 583 So.2d 305 (Ala.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992).

The appellant further contends that § 13A-5-49(8) is unconstitutional on its face. This aggravating circumstance has been upheld. Hallford, supra. The appellant last contends that the court erred in failing to find his alleged intoxication at the time of the offense and his reputation in the community as mitigating circumstances. As this court recently stated in Dobyne: “ ‘The sentencing tribunal, and, on appeal, the reviewing court, determines the weight to be assigned to each factor. Ex parte Hart, 612 So.2d 536 (Ala.1992), cert. denied, Hart v. Alabama, 508 U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993); Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982).’ ” 672 So.2d at 1351, quoting Ex parte Giles, 632 So.2d 577, 585 (Ala.Cr.App.1993). The court's finding concerning the absence of these mitigating factors is supported by the evidence at trial.

Section 13A-5-53, Code of Alabama 1975, requires this court to address the propriety of the appellant's conviction and sentence to death. The appellant was indicted and convicted of capital murder as defined in § 13A-5-40(a)(3) and § 13A-5-40(a)(4), i.e., murder committed during the course of a burglary and during the course of sodomy. The record reflects that the appellant's sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. § 13A-5-53(b)(1), Code of Alabama 1975.

A review of the record shows that the trial court correctly found that the aggravating circumstances outweighed the mitigating circumstances. The trial court reviewed all the evidence offered in mitigation and found as statutory mitigating circumstances that the appellant had no significant history of prior criminal activity, § 13A-5-51(1), and that the appellant was 22 years old at the time of the murder, § 13A-5-51(7).

The court found as a nonstatutory mitigating circumstance that: “As a result of multiple relationship with other men and numerous marriages, [the appellant's mother] did not provide a nurturing, caring environment. The Court further finds that the death of the defendant's adoptive father affected the defendant, and the defendant's attempted suicide suggest a degree of depression at those points in his life.”

The court found as aggravating circumstances that the offense was committed during the course of a burglary, § 13A-5-49(4), and that the crime was “especially heinous, atrocious, or cruel” compared to other capital crimes § 13A-5-49(8). The court weighed the mitigating and the aggravating circumstances and sentenced the appellant to death. We agree with the court's findings in the present case.

However, pursuant to § 13A-5-53(b)(2), this court must independently weigh the aggravating and the mitigating circumstances to determine the propriety of the appellant's death sentence. After an independent weighing, this court is convinced that the appellant's sentence to death by electrocution is the appropriate sentence. As § 13A-5-53(b)(3) provides, we must also address whether the appellant's sentence was disproportionate or excessive when compared to the penalties imposed in similar cases. The appellant's sentence was neither. Hunt, supra. Last, we have searched the entire record for any error that may have adversely affected the appellant's substantial rights and have found none. Rule 45A, A.R.App.P.

The appellant's conviction and sentence to death are due to be, and are hereby, affirmed. AFFIRMED. All the Judges concur.