Derrick Dearman v. State of Alabama

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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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 79

at 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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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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