Brett Richard Yeiter v. State of Alabama (Appeal from Escambia Circuit Court: CC-15-42)

Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

CR-18-0599
_________________________

Brett Richard Yeiter

v.

State of Alabama

Appeal from Escambia Circuit Court
(CC-15-42)

On Remand from the Alabama Supreme Court

MINOR, Judge.

A jury convicted Brett Richard Yeiter of capital murder for the

shooting death of his father-in-law Paul Phillips while Phillips was

sitting in his parked truck. See § 13A-5-40(a)(17), Ala. Crim. App. 1975.

The jury unanimously found the existence of two aggravating factors and,
CR-18-0599

by a vote of 10-2, voted for Yeiter to be sentenced to death. 1 The trial

court, believing it had to follow that recommendation under the 2017

amendment to Alabama's capital-sentencing scheme, sentenced Yeiter to

death.

On original submission, this Court held that the trial court erred in

admitting, over Yeiter's objection, evidence during the guilt phase about

Yeiter's prior convictions and incarceration and that the admission of

that evidence was not harmless error. We thus reversed Yeiter's

conviction and death sentence, pretermitting consideration of the other

issues Yeiter raised on appeal. Yeiter v. State, [Ms. CR-18-0599, Dec. 17,

2021] ___ So. 3d ___ (Ala. Crim. App. 2021). The Alabama Supreme Court

reversed this Court's judgment, holding that the error was harmless.

State v. Yeiter, [Ms. SC-2022-0417, Sept. 2, 2022] ___ So. 3d ___ (Ala.

2022).

After reviewing those remaining issues that Yeiter preserved for

1During the penalty phase, the jury returned special verdict forms

unanimously finding that the State proved beyond a reasonable doubt
"that the capital offense was especially heinous, atrocious, or cruel
compared to other offenses" and that Yeiter "was previously convicted of
a felony involving the use or threat of violence to a person." (C. 542-43.)
See § 13A-5-49(2) and § 13A-5-49(8), Ala. Code 1975.
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appellate review, we find no error. But we hold that the trial court

applied the wrong capital-sentencing scheme. Because Yeiter was

charged with capital murder before April 11, 2017, the trial court, not the

jury, has the final sentencing decision here. We thus vacate the trial

court's order sentencing Yeiter to death and remand the case for the trial

court to apply the correct sentencing scheme and to impose a new

sentence.

FACTS AND PROCEDURAL HISTORY

On original submission, this Court summarized the evidence

presented at trial:

"On the evening of October 26, 2014, Phillips attended
the Book of Acts Holiness Church, where he was the preacher.
Phillips's grandson Nathan Blair also attended the church
that evening. Blair's vehicle was low on oil, so he decided to
leave it parked in the church parking lot until he could get
some oil. The next morning, Phillips and Blair returned to the
church with oil to put in the vehicle. Yeiter, who was Phillips's
son-in-law and Blair's stepfather, was already in the church
parking lot. Yeiter was upset because Blair's vehicle was low
on oil and Blair had allowed his vehicle to run low on oil in
the past.

"Blair testified that Yeiter 'would try to pour the oil into
the car, but he would—he would try to push [Phillips], you
know, like trying to, I guess trying to get him to—agitated,
you know.' Blair testified that he thought Yeiter was 'trying
to start a fight with' Phillips and that Yeiter 'grabbed
[Phillips's] glasses off of his face' and threw them on the
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ground. Blair testified that once they put oil in the vehicle,
Phillips sent him to take a bill to Kristen Garner's house,
which was 'around the corner' from the church. Before he left,
Blair saw Phillips try to remove a lawnmower from the back
of his truck and Yeiter tried to 'shake it away' from Phillips.

"In a statement he made to the police a week later,
Yeiter said he was trying to help Phillips with the lawnmower
but that he and Phillips 'got to tussling back and forth with
the mower' and '[t]hat's when [Phillips] finally said he was
going to get his gun. "Let me go get my gun," or something like
that he said. Hell if I know.' Yeiter got in his truck, drove the
short distance to his house, got his shotgun, and returned to
the church. When he returned, Yeiter saw Phillips sitting in
his parked truck, and the engine was running. Yeiter said he
walked toward Phillips but did not see a weapon. Yeiter said
he told Phillips to 'pull' his weapon, and then Yeiter shot
Phillips. Yeiter said he 'believe[d]' he shot Phillips 'right in
the chest.' Yeiter, however, shot Phillips in the side of his
head, killing him.

"Blair returned to the church in time to hear the
gunshot. He saw Yeiter in the parking lot holding a 'long' gun
in his hand. Yeiter drove away, and Blair went to Phillips's
truck and saw that Phillips was shot. He returned to Garner's
house, and she telephoned 911.

"Yeiter stopped at Suncoast Sod, a business near the
church. He went inside and told Toni Casey, who was
Phillips's niece,1 that he had shot Phillips. Yeiter gave his
mobile phone to Casey and told her he did not need it
anymore. Casey telephoned 911 and told them the Phillips
family had 'mentally abused' Yeiter for years and that they
'just drove him crazy.'

"Emergency personnel responded to the scene within 20
minutes. Phillips was still breathing, but there was no
evidence showing that he regained consciousness after Yeiter
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shot him. Police did not find a gun on Phillips or in his vehicle.

"Yeiter drove west for a few days, using credit cards to
buy gas and alcohol. He told law enforcement that he 'threw
[the shotgun] out in the woods somewhere' in Arkansas. He
said he kept the gun with him until then because he 'didn't
know whether [he] was going to kill [himself] yet or not.' Law
enforcement arrested Yeiter in Texas, and authorities
returned him to Alabama.

"Law enforcement in Alabama interviewed Yeiter a
week after the shooting. He told the police that he had
consumed 'half a gallon' of liquor beginning around 7 a.m. the
day he shot Phillips. He said that when he drove to his house
to get his gun, he 'thought about it all the way [to his house]
and all the way back.' When he made his statement to the
police a week after the shooting, Yeiter said he 'would still
[shoot Phillips] again because [Phillips has] had me over the
years so fricking mad about everything.' He said, 'I did it ....
Nothing is going to justify it.' He then told the police that he
had 'been up there to Atmore before' on work release for first-
degree theft of property and that he had a prior conviction in
Michigan.

"An Escambia County grand jury indicted Yeiter for
capital murder in January 2015. Before trial, Yeiter moved
to suppress the statement he had made to the police, and he
moved the trial court to remove any references to prior bad
acts, including his prior convictions. The trial court denied the
motions.

"At the end of the guilt phase of Yeiter's trial, the jury
found him guilty of capital murder. The next day, after the
evidence was presented at the penalty phase, the jury
returned special verdict forms showing that it unanimously
found (1) that Yeiter had a prior felony conviction involving
the use or threat of violence to a person and (2) that Yeiter's
crime was especially heinous, atrocious, or cruel as compared
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to other capital offense. The jury recommended, by a vote of
10-2, that the trial court sentence Yeiter to death. That same
day, without holding a separate hearing or entering a
sentencing order, the trial court sentenced Yeiter to death.

"_______________

"1Casey also testified that her cousin Kim was married
to Yeiter."

Yeiter v. State, ___ So. 3d at ___ (footnotes and citations to the record

omitted).

STANDARD OF REVIEW

"Rule 45A, Ala. R. App. P., was amended on January 12,
2023, to state:

" 'In all cases in which the death penalty has been
imposed, the Court of Criminal Appeals may, but
shall not be obligated to, 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.'

"Before Rule 45A was amended, this Court was required to
conduct plain-error review in all cases in which the death
penalty had been imposed. Although Rule 45A now provides
that plain-error review is discretionary in such cases, this
Court has explained that it will continue to conduct plain-
error review in all cases in which the death penalty has been
imposed. Iervolino v. State, [Ms. CR-21-0283, Aug. 18, 2023]
___ So. 3d ___, ___ (Ala. Crim. App. 2023). However, that does
not mean that this Court will provide a detailed analysis, or
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even any analysis, of those claims that were not properly
preserved for appellate review, as it historically did when
plain-error review was mandatory. Id.

"The standard this Court employs in conducting plain-
error review is well settled:

" ' " 'The standard of review in reviewing a claim
under the plain-error doctrine is stricter than the
standard used in reviewing an issue that was
properly raised in the trial court or on appeal.'
Hall v. State, 820 So. 2d 113, 121 (Ala. Crim. App.
1999), aff'd, 820 So. 2d 152 (Ala. 2001). Plain error
is 'error that is so obvious that the failure to notice
it would seriously affect the fairness or integrity of
the judicial proceedings.' Ex parte Trawick, 698
So. 2d 162, 167 (Ala. 1997), modified on other
grounds, Ex parte Wood, 715 So. 2d 819 (Ala.
1998). 'To rise to the level of plain error, the
claimed error must not only seriously affect a
defendant's "substantial rights," but it must also
have an unfair prejudicial impact on the jury's
deliberations.' Hyde v. State, 778 So. 2d 199, 209
(Ala. Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala.
2000). 'The plain error standard applies only
where a particularly egregious error occurred at
trial and that error has or probably has
substantially prejudiced the defendant.' Ex parte
Trawick, 698 So. 2d at 167. '[P]lain error must be
obvious on the face of the record. A silent record,
that is a record that on its face contains no
evidence to support the alleged error, does not
establish an obvious error.' Ex parte Walker, 972
So. 2d 737, 753 (Ala. 2007). Thus, '[u]nder the
plain-error standard, the appellant must establish
that an obvious, indisputable error occurred, and
he must establish that the error adversely affected
the outcome of the trial.' Wilson v. State, 142 So.
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3d 732, 751 (Ala. Crim. App. 2010). '[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, 84 L. Ed. 2d 1
(1985) (quoting United States v. Frady, 456 U.S.
152, 163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d 816
(1982))." '

"Iervolino, ___ So. 3d at ___ (quoting DeBlase v. State, 294 So.
3d 154, 182-83 (Ala. Crim. App. 2018))."

Henderson v. State, [Ms. CR-21-0044, May 3, 2024] ___ So. 3d ___, ___

(Ala. Crim. App. 2024). Because we are vacating the trial court's order

sentencing Yeiter to death, we have not reviewed the record for plain

error, nor have we reviewed the issues Yeiter raises in his brief on appeal

but did not raise in the trial court.

DISCUSSION

I. MOTION TO DISQUALIFY THE DISTRICT ATTORNEY'S
OFFICE

In August 2016, Yeiter moved to disqualify the District Attorney's

Office for the 21st Judicial Circuit. (C. 167.) The trial court held an

evidentiary hearing on the motion in November 2018. (R. 120.) James

Eric Coale, an Assistant District Attorney for the 21st Judicial Circuit,

testified that he was at that time and had been a partner for 22 years

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with the law firm Otts, Moore, Coale, Godwin, Stearns & Darby. Coale

testified that Michael D. Godwin was the supernumerary district

attorney for the 21st Judicial Circuit. Coale testified that, while he was

also an assistant district attorney, he or his law office prepared

documents in December 2015 for an uncontested answer-and-waiver

divorce on behalf of Kimberly Yeiter. Coale testified that he took the

divorce papers to the Escambia County jail, that Yeiter signed them, and

that the chief deputy for the Escambia County Sheriff's Office, Michael

E. Lambert, notarized the documents. 2 Coale testified that he had no

communication with Yeiter except telling him that the paperwork was

there, asking him if he was ready to sign, and pointing out what Yeiter

needed to sign. Coale said that he did not speak with Yeiter about the

capital-murder charges and that he had not "participated in any capacity

in the prosecution of Mr. Yeiter." (R. 133.) He also testified that Stearns,

another partner in his law firm and an assistant district attorney, in no

way participated in representing Kimberly in the divorce from Yeiter.

After hearing this testimony and arguments from the parties, the trial

2Coale did not testify as to when he took the documents for Yeiter

to sign, but Yeiter's motion asserts that it happened on December 17,
2015. (C. 168.)
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court denied Yeiter's motion to disqualify the district attorney's office. (R.

143.)

On appeal, Yeiter argues that the trial court erred in denying the

motion to disqualify the District Attorney's Office for the 21st Judicial

Circuit. (Yeiter's brief, p. 76.) He argues that the trial court "[i]gnor[ed]

the risk that Mr. Yeiter's Sixth Amendment right to counsel was violated

when Mr. Coale, an officer of the State, met with Mr. Yeiter outside the

presence of his attorneys and after formal charges had been initiated, see

Moran v. Burbine, 475 U.S. 412, 431 (1986), and erroneously

determin[ed] that there was no conflict of interest." (Yeiter's brief, p. 78.)

Yeiter cites Davenport v. State, 157 Ga. App. 704, 278 S.E.2d 440 (1981),

as a decision that, he says, "addressed an almost identical issue." (Yeiter's

brief, p. 79.)

In Davenport, Martha Davenport was convicted in June 1978 of

aggravated assault against her husband Harold Davenport. Before the

assault, Martha had filed for divorce from Harold in October 1975.

Harold retained Robert Keller to represent him in the divorce, which was

pending from October 1975 until October 1978. In July 1977, Keller was

appointed district attorney of the Clayton Judicial Circuit but did not

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withdraw as Harold's attorney in the divorce action until October 1978.

157 Ga. App. at 705, 278 S.E.2d at 441.

Martha shot Harold in April 1976, and a grand jury indicted her in

June 1976. Martha was arraigned in October 1977, after Keller became

the district attorney. Keller signed Martha's plea of not guilty at her

arraignment. An assistant district attorney handled all pretrial motions

and Martha's trial, but Keller was present at the counsel table during the

trial. 157 Ga. App. at 705, 278 S.E.2d at 441.

The Georgia Court of Appeals held that Martha was due a new trial

because of "Keller's role in the prosecution of the case against her." 157

Ga. App. at 705, 278 S.E.2d at 441.

"While we do not believe Mr. Keller would act intentionally in
any manner which would prejudice a criminal case prosecuted
by his office, we are constrained to hold that he should not
have participated in any way in the prosecution of the
aggravated assault case against Mrs. Davenport. It is clear
that he was cognizant of information and incidents that
occurred between the victim and appellant by virtue of his
representation of Mr. Davenport in the divorce proceedings.
Under such circumstances there is at least the appearance of
impropriety, and we must conclude that appellant was denied
fundamental fairness in the state's prosecution of the charges
against her. 'The administration of the law, and especially
that of the criminal law, should, like Caesar's wife, be above
suspicion, and should be free from all temptation, bias or
prejudice, so far as it is possible for our courts to accomplish
it ...' Nichols v. State, 17 Ga. App. 593, 606, 87 S.E. 817
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(1915). In our opinion public policy prohibits a district
attorney from prosecuting a case, even though he does not
actually try the case himself, while representing the victim of
the alleged criminal act in a divorce proceeding involving the
accused."

Davenport v. State, 157 Ga. App. 704, 705-06, 278 S.E.2d 440, 441 (1981).

First, Davenport is distinguishable because the trial court found

that Coale had no role in Yeiter's prosecution. The trial court cited

evidence showing that Coale was "walled off" from the prosecution. (R.

144 "There is a firewall. There's no relationship between Mr. Coale and

this case whatsoever.").

Yeiter argues, however, that it is "immaterial" that

"Coale never participated in any capacity in the prosecution
of Mr. Yeiter … because Mr. Stearns—Mr. Coale's partner in
their private law firm—was one of the lead prosecutors in Mr.
Yeiter's case. Under these circumstances it was possible that
Mr. Stearns 'obtained confidential information which would
be helpful' in Mr. Yeiter's prosecution."

(Yeiter's brief, p. 80 (citing State v. Hatfield, 218 Neb. 470, 473, 356

N.W.2d 872, 875 (1984).) In Hatfield, the Nebraska Supreme Court

stated:

"We do agree that a prosecuting attorney who himself,
or a member of his same firm, has represented the spouse of
a defendant should be disqualified from prosecuting such
defendant for a crime arising out of the marriage relationship.
Disqualification would also be proper where, because of such
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representation, it is shown that the attorney has obtained
confidential information which would be helpful in such
criminal prosecution."

218 Neb. at 473, 356 N.W.2d at 875 (citations omitted). Neither scenario

identified by the Nebraska Supreme Court, however, is present. Unlike

the crime in Davenport, Yeiter's crime did not "aris[e] out of the marriage

relationship." And the only evidence before the trial court was that Coale

had no role in Yeiter's prosecution and that Stearns had no role in

Kimberly's divorce. Nothing suggests that either attorney obtained

confidential information used against Yeiter in the capital-murder

prosecution.

In a footnote, Yeiter asserts that "Mr. Coale's conflict of interest

was imputed to Mr. Stearns," and Yeiter cites, with no explanation, Rule

1.10(a), Ala. R. Prof'l Conduct. Rule 1.10(a) provides: "While lawyers are

associated in a firm, none of them shall knowingly represent a client

when any of them, practicing alone, would be prohibited from doing so by

Rules 1.7, 1.8(a)-1.8(k), 1.9, or 2.2." Yeiter has not shown that Coale or

Stearns had a conflict, however, and thus no conflict could be imputed

under this rule.

Finally, Yeiter asserts:

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"[T]he settlement agreement between Mr. Yeiter and
Kimberly Yeiter, which Mr. Yeiter signed while incarcerated
at Escambia County Jail awaiting trial for capital murder
after being cornered by Mr. Coale outside the presence of his
attorneys, awarded significant property to Kimberly Yeiter.
This transference of high-value marital property, combined
with the relationship between the divorce and the alleged
crime that preceded the divorce, undoubtedly planted
improper seeds of motivation in the State's mind and created
a great risk that the State would fail to 'execute its
discretionary function in an evenhanded manner.' "

(Yeiter's brief, pp. 80-81 (emphasis added) (quoting State v. Cope, 50 P.3d

513, 515 (Kan. Ct. App. 2002).) Yeiter contends that "[p]articipation by

the District Attorney's office in Mr. Yeiter's capital murder trial caused

'injury to the entire system of justice,' Hannon, 266 So. 2d at 829, and

denied Mr. Yeiter the 'fundamental fairness assured by the Due Process

Clause of the Fourteenth Amendment.' Ganger, 379 F.2d at 714."

(Yeiter's brief, p. 81.)

First, there is no evidence of Coale "cornering" Yeiter at the jail.

Nor was there merely an "alleged crime that preceded the divorce"—

Yeiter in fact murdered Phillips. And Yeiter has not explained or shown

what "improper seeds of motivation" could have been "planted … in the

State's mind." In short, Yeiter's arguments on this issue lack merit. He

is due no relief.

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II. DENIAL OF YEITER'S MOTION TO USE JUROR
QUESTIONNAIRES

Yeiter argues that the trial court erred in denying his "unopposed"

motion for juror questionnaires. (C. 243, 391; R. 264.) (Yeiter's brief, p.

31.) We disagree.

A trial court has broad discretion in handling voir dire, and its

rulings will not be reversed without a showing of an abuse of that

discretion. McWhorter v. State, 781 So. 2d 257, 322 (Ala. Crim. App.

1999). The trial court's broad discretion extends to whether to permit a

juror questionnaire. Brown v. State, 11 So. 3d 866, 885 (Ala. Crim. App.

2007).

Yeiter has not shown that the trial court abused its discretion in

denying his request for juror questionnaires. The voir dire here covers

almost 1,000 pages of the transcript. (R. 340-1303.) Yet Yeiter cites no

instance of an adverse ruling during voir dire. 3 Given the extensive voir

3Yeiter also argues in this part of his brief that the trial court erred

by "repeatedly rushing and limiting voir dire." (Yeiter's brief, p. 32.)
Yeiter cites these pages from voir dire as examples of the trial court's
allegedly erroneous conduct during voir dire: R. 475, 479, 694-95, 711,
713, 727, 762, 764, 770, 779, 823-25, 864, 890, 895-97, 920, 934-935, 939,
1122, 1177. Those cited pages include comments directed to both counsel
for Yeiter and the State. Those pages show no objection from Yeiter.
Thus, this issue was not preserved for review.
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dire conducted by the parties and the trial court, Yeiter is due no relief

on this issue.

III. REMOVAL OF PROSPECTIVE JURORS S.T. AND T.Y.

Yeiter argues that the trial court erred by granting the State's

motions to remove prospective jurors S.T. and T.Y. for cause. (Yeiter's

brief, p. 54.)

Prospective juror S.T.: When the trial court asked the

veniremembers if they had fixed opinions against capital punishment,

prospective juror S.T. raised her hand. (R. 696.) In response to

questioning from the trial court, S.T. stated: "I don't believe that one

man should impose death on any other person." (R. 697.) When defense

counsel asked, "[b]ut do you accept the fact that our State has decided to

make [the death penalty] part of the judicial system," S.T. stated that she

did accept that fact and that she understood that jurors must follow the

law. (R. 698-99.) She also stated that she "[w]ould be able to follow the

court's instructions and put aside personal feelings." (R. 699-700.) The

State then asked S.T. whether she would "[e]ver be able to vote to impose

the death penalty," and S.T. responded, "I don't know. I don't know. I

don't believe in the death penalty. I get that it's a part of our judicial

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system, but me personally, I can't—I don't want to impose death on

anybody." (R. 700-01.) S.T. did, however, state that she could follow the

trial court's instructions. (R. 701.)

In granting the State's challenge of S.T. for cause, the trial court

ruled:

"I heard her answers and I heard the intensity about she
didn't know if she could [follow the court's instructions] and
that she's against the death penalty. I don't think that this
juror can meet that level of commitment that the law requires
on that. And as a consequence, I grant the State's motion to
strike her for cause.

"And, again, I know what [defense counsel] said. I heard
that as well. But I heard the other side of the equation and I
was the one trying to kind of see, where is this lady's heart,
what is it that she's thinking. And she's not in favor of the
death penalty. And I don't think that she could compromise
that. And if she—I just don't think she would. I don't think
she would at all."

(R. 703.) Yeiter contends that S.T. gave "unequivocal statements that she

could set aside her personal views and follow the law" and thus that "she

was qualified to serve and could not be struck for cause." (Yeiter's brief,

p. 56.)

" 'The test for determining whether a strike rises to the
level of a challenge for cause is "whether a juror can set aside
their opinions and try the case fairly and impartially,
according to the law and the evidence." Marshall v. State, 598
So. 2d 14, 16 (Ala. Cr. App. 1991). "Broad discretion is vested
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with the trial court in determining whether or not to sustain
challenges for cause." Ex parte Nettles, 435 So. 2d 151, 153
(Ala. 1983). "The decision of the trial court 'on such questions
is entitled to great weight and will not be interfered with
unless clearly erroneous, equivalent to an abuse of
discretion.' " Nettles, 435 So. 2d at 153.' "

Thompson v. State, 153 So. 3d 84, 115-16 (Ala. Crim. App. 2012) (quoting

Dunning v. State, 659 So. 2d 995, 997 (Ala. Crim. App. 1994)). And "[t]he

qualification of a juror is a matter within the discretion of the trial court.

Clark v. State, 443 So. 2d 1287, 1288 (Ala. Cr. App. 1983). The trial judge

is in the best position to hear a prospective juror and to observe his or her

demeanor.' Ex parte Dinkins, 567 So. 2d 1313, 1314 (Ala. 1990)."

Thompson, 153 So. 3d 84 at 116.

The trial court ruled based on its observation of prospective juror

S.T. including the "intensity" of her responses. Yeiter has not shown that

the trial court exceeded its broad discretion in granting the State's

challenge for cause as to prospective juror S.T.

Prospective juror T.Y.: When the State asked a panel of

veniremembers whether any of them would "automatically vote against

the death penalty," T.Y. raised her hand. (R. 1177.) The trial court later

brought T.Y. in for private questioning with counsel for Yeiter and for the

State:
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"[PROSECUTOR]: [T.Y.], you responded, on a couple of
questions you said you would have difficulty sitting in
judgment of others.

"….

"[T.Y.]: Yes.

"[PROSECUTOR]: And you also said you would be unable to
impose the death penalty if Mr. Yeiter is found guilty.

"[T.Y.]: Of course. ….

"[DEFENSE COUNSEL]: … Now, Ms. [Y.], you have stated
you do not favor the death penalty; is that correct?

"[T.Y.]: That's correct.

"[DEFENSE COUNSEL]: Okay. That is your personal
feelings?

"[T.Y.]: Yeah. Religious beliefs and personal feelings. I work
in Holman Correctional Facility where there are executions. I
do not work in the executions place.

"[DEFENSE COUNSEL]: Okay. But you do accept the fact
that our State has decided to make it part of the criminal
justice system. You accept the fact it is part of the law.

"[T.Y.]: It is a part of the law.

"[DEFENSE COUNSEL]: And you understand that for our
system to function, jurors, like you, must follow the law as the
court sets it out. Do you understand that?

"[T.Y.]: I understand.

"[DEFENSE COUNSEL]: Now, you're the judge of the facts,
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Judge Rice is the judge of the law. Do you agree with that?

"[T.Y.]: Uh-huh.

"[DEFENSE COUNSEL]: Okay. And you understand, if you
were selected as a juror in the case, Judge Rice would tell you
what the—tell you what law you were to apply concerning all
aspects of this case including, if reached, punishment; the
death penalty or life without parole. You understand he would
be the one to instruct you under the law, correct?

"[T.Y.]: Yes, I do.

"[DEFENSE COUNSEL]: And you would be able to follow the
court's instructions and put aside any personal feelings and
do what—"

(R. 1260-62.) The trial court, stating it was "just trying to move along,"

interrupted defense counsel and questioned T.Y.:

"THE COURT: … As I understood, you have a religious
conviction against imposing the death penalty?

"[T.Y.]: Yes, I do.

"THE COURT: Is there any circumstance in this case where,
if it made it to that point where you were called upon to vote
death or not, that you would just not ever be able to vote for
[the] death penalty?

"[T.Y.]: I would not.

"THE COURT: Okay. Follow up on that?

"[PROSECUTOR]: No, Your Honor.

"[DEFENSE COUNSEL]: You could follow the law, though,
20
CR-18-0599

correct? Whatever the law told you to do.

"[T.Y.]: Uh-huh.

"[DEFENSE COUNSEL]: So she just said that she could
follow the law and that's a requirement of a juror. So if the
court instructs her as to what—

"THE COURT: I'm the one that makes those decisions.

"My question is do you have—

"[T.Y.]: I will not vote death penalty at all.

"THE COURT: Follow up from defense in regard to that
comment?

"[DEFENSE COUNSEL]: No, sir."

(R. 1262-63.)

The State then moved to strike T.Y. for cause. Given a chance to

respond, defense counsel had "[n]o response." (R. 1263.) The trial court

then granted the State's motion:

"It's obvious. She has a religious conviction and she says—I'm
reading the demeanor and what she's saying and the
intensity. It doesn't make any difference what it is, she doesn't
have in her mind—or she has in her mind that she would
never impose the death penalty. And that is a strike for cause
and I grant the strike for cause."

(R. 1263-64.)

Yeiter argues that the trial court erred by, he says, "preventing

21
CR-18-0599

defense counsel from properly questioning T.Y. on her ability to follow

the law, and subsequently extracting a prejudicial answer from her."

(Yeiter's brief, p. 57.) Although we question whether Yeiter preserved

this issue, it has no merit.

First, as the above shows, the trial court gave defense counsel the

chance to keep questioning T.Y., but counsel chose not to. Second, as with

prospective juror S.T., the trial court's ruling was based on its

observation of prospective juror T.Y., including the "intensity" of her

responses and her demeanor. Yeiter has not shown that the trial court

exceeded its broad discretion in granting the State's challenge for cause

as to prospective juror T.Y. Thompson, 153 So. 3d at 115-16. See also

Johnson v. State, 820 So. 2d 842, 856 (Ala. Crim. App. 2000) ("Clearly, as

evidenced by the above-referenced portions of the record, this juror

unequivocally stated that he could not impose the death penalty under

any circumstances. The trial court correctly granted the State's challenge

for cause of this juror.").

Yeiter is due no relief on this issue.

IV. ALLEGED JUROR MISCONDUCT BY JUROR M.K.

During voir dire, the State asked prospective jurors if "any of you

22
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or any member of your immediate family … [had] ever been arrested by

any member or officer of the Escambia County Sheriff's Department." (R.

958.) Yeiter argues that he was "deprived … of his right 'to truthfully

know jurors' biases' and, therefore, to a fair and impartial proceeding"

because, he says, M.K., the foreperson of the jury, did not disclose that

she had prior arrests in Escambia County. (Yeiter's brief, p. 67 (citations

omitted).) Defense counsel raised this issue in a motion for a new trial,

asserting that M.K. "failed to truthfully respond and did not disclose

prior arrests." (C. 555.) At the hearing on the motion, Yeiter offered

records that, he said, showed that M.K. had misdemeanor charges in

Escambia County in 2010 for criminal trespass and harassment. (R.

1983-84; Supp. C. 378-79.) According to defense counsel, the charges were

later nolle prossed upon motion of the district attorney. The trial court

denied Yeiter's motion, holding that, as for M.K.'s failure to disclose, "the

court does not see that that rises to the level that would require a retrial."

(R. 1985.)

On appeal, Yeiter characterizes the two pages of records he offered

at the hearing on the new-trial motion as "showing that M.K. had been

arrested in Escambia County in 2010 and charged with criminal trespass

23
CR-18-0599

and harassment." (Yeiter's brief, p. 68.) He asserts that although "those

charges were subsequently nolle prossed upon motion of the district

attorney, the question posed during voir dire concerned arrest history

and M.K. no doubt should have responded affirmatively." (Yeiter's brief,

pp. 68-69.) He argues that the trial court abused its discretion in denying

his motion for a new trial "without conducting any of the requisite

analysis." (Yeiter's brief, p. 69 (citing Porter v. State, 196 So. 3d 365, 371

(Ala. Crim. App. 2015).) That analysis, Yeiter argues, should have

included considering the factors stated in Ex parte Dobyne, 805 So. 2d

763 (Ala. 2001), for determining whether a party was prejudiced by a

prospective juror's failure to answer a question during voir dire.

The State, on the other hand, argues that the trial court did not

abuse its discretion. The State correctly notes that Yeiter had the burden

of proving " the allegations of his motion—that the juror committed the

alleged misconduct—to the satisfaction of the trial court." (State's brief,

p. 29 (citing Dawson v. State, 710 So. 2d 472, 475 (Ala. 1997).) Citing the

two pages of records that Yeiter offered, the State contends that Yeiter

offered nothing—such a date of birth or Social Security number—to show

that the records involved the same M.K. who served as the foreperson of

24
CR-18-0599

his jury. The State also notes that Yeiter did not call M.K. as a witness

at the hearing to verify that she was the person referenced in the "SJIS

display" on the two pages of records or to ask her any questions about the

circumstances of the alleged charges. (State's brief, p. 29.) Thus, the

State argues that Yeiter simply failed to prove his claim and that the

circuit court did not abuse its discretion in denying it.

"In Dobyne, the Alabama Supreme Court held:

" 'The proper standard for determining
whether juror misconduct warrants a new trial, as
set out by this Court's precedent, is whether the
misconduct might have prejudiced, not whether it
actually did prejudice, the defendant. See Ex
parte Stewart, 659 So. 2d 122 (Ala. 1993);
Campbell v. Williams, 638 So. 2d 804 (Ala. 1994);
Union Mortgage Co. v. Barlow, 595 So. 2d 1335
(Ala. 1992), cert. denied, 506 U.S. 906, 113 S. Ct.
301, 121 L. Ed. 2d 224 (1992). The "might-have-
been-prejudiced" standard, of course, casts a
"lighter" burden on the defendant than the actual-
prejudice standard. See Tomlin v. State, [695 So.
2d 157, 170 (Ala. Crim. App. 1996)]. For a more
recent detailed discussion of the burden of proof
required to make a showing under the "might-
have-been-prejudiced" standard, see Ex parte
Apicella, [809 So. 2d 865, 871 (Ala. 2001)] ("It is
clear, then, that the question whether the jury's
decision might have been affected is answered not
by a bare showing of juror misconduct, but rather
by an examination of the circumstances particular
to the case." (Emphasis original.)).

25
CR-18-0599

" 'It is true that the parties in a case are
entitled to true and honest answers to their
questions on voir dire, so that they may exercise
their peremptory strikes wisely. See Fabianke v.
Weaver, 527 So. 2d 1253 (Ala. 1988). However, not
every failure to respond properly to questions
propounded during voir dire "automatically
entitles [the defendant] to a new trial or reversal
of the cause on appeal." Freeman v. Hall, 286 Ala.
161, 166, 238 So. 2d 330, 335 (1970); see also
Dawson v. State, [710 So. 2d 472,] 474 [ (Ala.
1997)]; and Reed v. State, [547 So. 2d 596 (Ala.
1989)]. As stated previously, the proper standard
to apply in determining whether a party is entitled
to a new trial in this circumstance is "whether the
defendant might have been prejudiced by a
veniremember's failure to make a proper
response." Ex parte Stewart, 659 So. 2d at 124.
Further, the determination of whether a party
might have been prejudiced, i.e., whether there
was probable prejudice, is a matter within the trial
court's discretion. Eaton v. Horton, 565 So. 2d 183
(Ala. 1990); Land & Assocs., Inc. v. Simmons, 562
So. 2d 140 (Ala. 1989) (Houston, J., concurring
specially).

" ' "The determination of whether
the complaining party was prejudiced
by a juror's failure to answer voir dire
questions is a matter within the
discretion of the trial court and will not
be reversed unless the court has
abused its discretion. Some of the
factors that this Court has approved for
using to determine whether there was
probable prejudice include: 'temporal
remoteness of the matter inquired
about, the ambiguity of the question
26
CR-18-0599

propounded, the prospective juror's
inadvertence or willfulness in
falsifying or failing to answer, the
failure of the juror to recollect, and the
materiality of the matter inquired
about.' "

" 'Union Mortgage Co. v. Barlow, 595 So. 2d at
1342-43 (quoting Freeman v. Hall, supra (other
citations omitted)).'

"805 So. 2d at 771-72 (footnote omitted). The Court went on in
Dobyne to explain that

" '[t]he form of prejudice that would entitle a party
to relief for a juror's nondisclosure or falsification
in voir dire would be its effect, if any, to cause the
party to forgo challenging the juror for cause or
exercising a peremptory challenge to strike the
juror. Ex parte Ledbetter, 404 So. 2d 731 (Ala.
1981); Warrick v. State, 460 So. 2d 320 (Ala. Crim.
App. 1984); and Leach v. State, 31 Ala. App. 390,
18 So. 2d 285 (1944). If the party establishes that
the juror's disclosure of the truth would have
caused the party either to (successfully) challenge
the juror for cause or to exercise a peremptory
challenge to strike the juror, then the party has
made a prima facie showing of prejudice. Id. Such
prejudice can be established by the obvious
tendency of the true facts to bias the juror, as in
Ledbetter, supra, or by direct testimony of trial
counsel that the true facts would have prompted a
challenge against the juror, as in State v.
Freeman, 605 So. 2d 1258 (Ala. Crim. App. 1992).'

"805 So. 2d at 772-73."

Porter v. State, 196 So. 3d 365, 368-69 (Ala. Crim. App. 2015).
27
CR-18-0599

In Porter, this Court held that the trial court had not properly

applied the Dobyne factors in its analysis of whether the defendant might

have been prejudiced by juror R.R.'s failure to respond that he had a

conviction for DUI when the prosecutor asked "whether any prospective

juror had 'been arrested, charged or convicted of a crime." 196 So. 3d at

367, 371. This Court also noted that defense counsel stated in an

affidavit "that knowledge of juror R.R.'s arrest history would have

prompted him to ask further questions and to seriously consider

challenging him for cause or exercising a peremptory strike." 196 So. 3d

at 371.

The two-page record that Yeiter offered in support of his juror-

misconduct claim includes the same name as M.K., lists two

misdemeanor charges, and lists as the date of the charges August 2010.

The record also includes "NOL PRS/DA MOTION," which presumably

means, as Yeiter's counsel asserted at the hearing, that the charges were

nolle prossed on the motion of the district attorney. The record includes

several codes, but Yeiter offered no evidence to explain what the codes

mean.

Unlike the broad question asked by the prosecutor in Porter, the
28
CR-18-0599

question here concerned only a prior arrest. So far as we can determine,

however, the two-page record does not show that M.K. was arrested on

the 2010 misdemeanor charges. What's more, Yeiter's attorney did not

include an affidavit stating that knowledge of the 2010 charges "would

have prompted him to ask further questions and to seriously consider

challenging [M.K.] for cause or exercising a peremptory strike." 196 So.

3d at 371. Nor can we say that the limited record Yeiter offered shows

"the obvious tendency of the true facts to bias the juror." 196 So. 3d at

369. Thus, Porter does not support Yeiter's claim.

Based on the limited evidence Yeiter offered in support of his claim,

we cannot say that the trial court should have analyzed the Dobyne

factors, nor can we say that the trial court abused its discretion in

denying the claim. Yeiter is due no relief.

V. ADMISSION OF YEITER'S STATEMENT TO THE POLICE

Yeiter argues that the trial court erred in admitting his November

3, 2014, statement to Deputy Billy Blair and Investigator Adam Johnson,

employees with the Escambia County Sheriff's Office. (Yeiter's brief, p.

48.) Before trial, Yeiter moved to suppress the statement. (C. 303.) The

trial court held a hearing on the motion at which Deputy Blair and

29
CR-18-0599

Investigator Johnson testified. At that hearing, the State offered a

recording and a transcript of the statement and a waiver-of-rights form

signed by Yeiter, Blair, and Johnson. (Supp. C. 214-15.) After the

hearing, the trial court denied the motion, and the trial court admitted

the statement over Yeiter's objection at trial. 4

Yeiter argues that his "inculpatory statement" was "elicited after

[he] invoked his right to counsel and did not reinitiate contact with

authorities." (Yeiter's brief, p. 49.) He argues that the admission of the

statement "violated his rights against self-incrimination and to counsel

and his rights to due process, a fair trial, and a reliable conviction and

sentence under the Fifth, Sixth, Eighth, and Fourteenth Amendments of

the United States Constitution and Alabama law." (Yeiter's brief, pp. 53-

54.) He contends that the admission of his statement was reversible error

4On original submission, this Court agreed with Yeiter's argument

that, during the State's case-in-chief in the guilt phase, the trial court
erred by not redacting evidence of prior bad acts from Yeiter's statement
to law enforcement, and we reversed his conviction and sentence.
(Yeiter's brief, p. 11.) On certiorari review, the Alabama Supreme Court
reversed our judgment and held that any error in the admission of that
statement was harmless beyond a reasonable doubt. State v. Yeiter, [Ms.
SC-2022-0417, Sept. 2, 2022] ___ So. 3d ___, ___ (Ala. 2022).
30
CR-18-0599

under the principles recognized in Edwards v. Arizona, 451 U.S. 477

(1981). (Yeiter's brief, p. 48.)

Yeiter gave a statement on November 3, 2014, in Deputy Blair's

office, which was located "across from the county jail." (R. 180.) The

statement began with Yeiter stating his name, his date of birth, and his

highest level of education, a G.E.D. Then this happened:

"INVESTIGATOR JOHNSON: Okay. I guess you know
what we want to talk to you about but before we do I have to
read you your rights.

"[YEITER]: Sure.

"INVESTIGATOR JOHNSON: And I'm going to show it
to you while I read it and we'll go over it. If you have any
questions just stop me and we'll go over any part of it.

"You must understand your rights before we ask you any
questions. You have the right to remain silent. Anything that
you say can be used against you in court. You have the right
to talk to a lawyer for advice before being questioned. You
have the right to have him with you during questioning. If you
cannot afford a lawyer and want one a lawyer will be
appointed for you by the court. If you decide to answer
questions now without a lawyer present you will still have the
right to stop the questioning at anytime. You also have the
right to stop the questioning at any time til you speak to a
lawyer.

"[YEITER]: I guess I'm going to need a lawyer because
they going to give me one when I go over there regardless if I
need one or not.

31
CR-18-0599

"INVESTIGATOR JOHNSON: Well, they are going to
give you an attorney but you don't have to have one to speak
with us but that's your rights. It's up to you.

"[YEITER]: Well, the more I speak to y'all the more I
incriminate myself, right?

"INVESTIGATOR JOHNSON: Well, I mean we've got
our case proven but we would like to hear your side of the
story.

"[YEITER]: Yeah, I can. I mean …

"INVESTIGATOR JOHNSON: I mean but before—
before I can ask you any questions about your side of the story
I have to read you your rights.

"[YEITER]: I'll sign it.

"INVESTIGATOR JOHNSON: You sure?

"[YEITER]: Yeah.

"INVESTIGATOR JOHNSON: I mean that's up to you.

"Okay. Date, time, sign it and print. I'm tell [sic] you the
date. Today's date—

"[YEITER]: Can you answer me one question. I'm going
to sign this.

"INVESTIGATOR JOHNSON: Okay.

"[YEITER]: I want one—Hang on.

"INVESTIGATOR JOHNSON: Today's date is
November 3rd, and the time is 10:31.

32
CR-18-0599

"The second part is a waiver of rights. It says, I do not
want a lawyer at this time. I understand and know what I'm
doing. No promises or threats have been made to me and no
pressure or force of any kind as been used against me. I hereby
voluntarily and intentionally waive my rights, and I'm willing
to make a statement or answer questions.

"But even though you sign this saying you waive your
rights and you want to talk to me you can stop at any time.
You understand?

"[YEITER]: Yeah.

"INVESTIGATOR JOHNSON: Sign, date and time.
Same date, and time is 10:32 now.

"Are you on any medication?

"[YEITER]: Nah. I don't want to pay for it.

"INVESTIGATOR JOHNSON: Sir?

"[YEITER]: Y'all going to have to hang on.

"INVESTIGATOR JOHNSON: Okay.

"CAPTAIN BLAIR: Have you got a question of us, Mr.
Yeiter?

"[YEITER]: Couple of them. Just hold on.

"INVESTIGATOR JOHNSON: We'll hold on. You want
a tissue?"

(Supp. C. 216-19 (emphasis added).) Yeiter then asked about whether his

sons were okay and whether anyone had picked up his younger son from

33
CR-18-0599

school on the day he shot Phillips and left town. He also asked about

whether his wife Kimberly was "okay." (Supp. C. 220.) Investigator

Johnson responded that he had talked "with all three of them and they

are all okay." (Id.) Yeiter then told the officers, "Okay. That's all I need

to know. What do you want to know?" (Supp. C. 221.) He then

participated in the interview with the officers.

Citing the emphasized language above, Yeiter contends that he

made "an unequivocal assertion of the right to counsel," and he asserts

that his statement that "the more I speak to y'all the more I incriminate

myself, right" "only reinforced his initial request for counsel. (Yeiter's

brief, pp. 50-51.) Yeiter asserts that he "clearly 'expressed his desire to

deal with the police only through counsel' " but that "the officers

disregarded his requests and pushed forward, encouraging him to sign

the waiver so they could talk to him." (Yeiter's brief, p. 50 (quoting

Edwards, 451 U.S. at 484).) We disagree.

"During a custodial interrogation, if the suspect
unequivocally requests counsel at any time before or after the
suspect waives his Miranda [v. Arizona, 384 U.S. 436 (1966),]
rights, 'the interrogation must cease until an attorney is
present.' Miranda, 384 U.S. at 474. If the suspect makes an
equivocal reference to an attorney after waiving his Miranda
rights, the interrogating officer has no obligation to stop
questioning the suspect and the officer is not required to ask
34
CR-18-0599

questions to clarify whether the suspect actually wants an
attorney. Davis v. United States, 512 U.S. 452, 459-62, 114
S. Ct. 2350, 129 L. Ed. 2d 362 (1994). However, if a suspect
makes an equivocal reference to an attorney before waiving
his Miranda rights, the interrogating officer is required to ask
questions to clarify the reference until the suspect either
clearly invokes his right to counsel or waives it. See State v.
Collins, 937 So. 2d 86, 93 (Ala. Crim. App. 2005) (holding that
'[b]ecause [the defendant] did not waive her Miranda rights
before she asked the questions about obtaining a lawyer, the
ambiguity of her questions required the interrogating officer
to ask follow-up questions to clarify the ambiguity')."

Thompson v. State, 97 So. 3d 800, 806-07 (Ala. Crim. App. 2011).

"In determining whether a suspect's statement was an
unequivocal invocation of his right to counsel, we are guided
by the following principles:

" ' "The applicability of the ' "rigid"
prophylactic rule' of Edwards [v. Arizona, 451 U.S.
477, 101 S. Ct. 1880 (1981),] requires courts to
'determine whether the accused actually invoked
his right to counsel.' Smith v. Illinois, [469 U.S. 91,
95, 105 S. Ct. 490, 492, 83 L. Ed. 2d 488 (1984)]
(emphasis added), quoting Fare v. Michael C., 442
U.S. 707, 719 [99 S. Ct. 2560, 2569, 61 L. Ed. 2d
197] (1979). To avoid difficulties of proof and to
provide guidance to officers conducting
interrogations, this is an objective inquiry. See
Connecticut v. Barrett, supra, 479 U.S. [523], at
529 [107 S. Ct. [828] at 832 (1987)]. Invocation of
the Miranda right to counsel 'requires, at a
minimum, some statement that can reasonably be
construed to be an expression of a desire for the
assistance of an attorney.' McNeil v. Wisconsin,
501 U.S. [171] at 178 [111 S. Ct. [2204] at 2209
(1991).] ....
35
CR-18-0599

" ' "... As we have observed, 'a statement
either is such an assertion of the right to counsel
or it is not.' Smith v. Illinois, 469 U.S., at 97-98
[105 S. Ct., at 494] (brackets and internal
quotation marks omitted). Although a suspect
need not 'speak with the discrimination of an
Oxford don,' post, at 476, 114 S. Ct., at 2364
(Souter, J., concurring in judgment), he must
articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer
in the circumstances would understand the
statement to be a request for an attorney." '

"Ex parte Cothren, 705 So. 2d 861, 864 (Ala. 1997) (quoting
Davis [v. United States], 512 U.S. [452,] 458-59 [(1994)]).

"Furthermore, a suspect's reference to an attorney is
equivocal if ' "a reasonable officer in light of the circumstances
would have understood only that the suspect might be
invoking the right to counsel." ' Cothren, 705 So. 2d at 864
(quoting Davis, 512 U.S. at 459). '[T]he proper standard to be
used in resolving this issue is an objective one—whether a
police officer in the field reasonably could have concluded from
the circumstances that a suspect was not absolutely refusing
to talk without the assistance of an attorney.' Cothren, 705
So. 2d at 866-67.

"Equivocal has been defined as:

" ' " 'Having different significations equally
appropriate or plausible; capable of double
interpretation; ambiguous,' 5 Oxford English
Dictionary 359 (2d ed., J.A. Simpson & E.S.C.
Weiner, eds., 1989); and as: 'Having two or more
significations; capable of more than one
interpretation; of doubtful meaning; ambiguous,'

36
CR-18-0599

Webster's Third International Unabridged
Dictionary 769 (1986)." '

"Cothren, 705 So. 2d at 866 (quoting Coleman v. Singletary,
30 F.3d 1420, 1425 (11th Cir. 1994))."

Thompson, 97 So. 3d at 807-08.

Under those principles, Yeiter made, at most, an equivocal

reference to an attorney when he stated, "I guess I'm going to need a

lawyer because they going to give me one when I go over there regardless

if I need one or not." His statement, "Well, the more I speak to y'all the

more I incriminate myself, right?"—either alone or when considered as a

follow-up statement—also was not an unequivocal request for an

attorney. Thompson, 97 So. 3d at 808 (finding equivocal the statements

"I guess I got to call an attorney if I needed one, right? Is this the time

now when I need to?"); see also Petersen v. State, 326 So. 3d 535, 581

(Ala. Crim. App. 2019) (finding equivocal the statements "Probably

should talk to my mom and my lawyer before I go into or know what the

charges are I don't know," "I guess I have to talk to my lawyer," "Maybe

[I want to talk to an attorney], I don't know I'm not—attorney—

37
CR-18-0599

apparently I did—I don't know …," and "need an attorney"). The trial

court did not err in admitting Yeiter's statement. 5

VI. REFUSAL TO INSTRUCT THE JURY ON PROVOCATION
MANSLAUGHTER

Yeiter argues that the trial court erred by not instructing the jury

on provocation or "heat-of-passion" manslaughter (Issue II.A. in Yeiter's

brief) and manslaughter due to voluntary intoxication (Issue II.B. in

Yeiter's brief). Yeiter preserved only Issue II.A. as to provocation

manslaughter; we thus review only that issue.

"The offense of 'heat-of-passion' manslaughter is defined
in § 13A-6-3(a)(2), Code of Alabama 1975,[6] as follows:

5What's more, as Yeiter explained in his statement, he had multiple

prior convictions and was thus experienced with the criminal justice
system.

6The version of § 13A-6-3, Ala. Code 1975, quoted here was in effect

when Yeiter committed the offense. Section 13A-6-3, Ala. Code 1975, has
been amended since then. See Act No. 2023-387, Ala. Acts 2023; Act No.
2024-103, Ala. Acts 2024. See also Minnifield v. State, 941 So. 2d 1000,
1001 (Ala. Crim. App. 2005) ("It is well settled that the law in effect at
the time of the commission of the offense controls the prosecution. See
Davis v. State, 571 So. 2d 1287, 1289 (Ala. Crim. App. 1990) ('A
defendant's sentence is determined by the law in effect at the time of the
commission of the offense.'); Hardy v. State, 570 So. 2d 871 (Ala. Crim.
App. 1990) (unless otherwise stated in the statute, the law in effect at the
time the offense was committed controls the offense); and Jefferson v.
City of Birmingham, 399 So. 2d 932 (Ala. Crim. App. 1981) (law in effect
at the time of the offense governs prosecution).").
38
CR-18-0599

" '(a) A person commits the crime of manslaughter if:

" '....

" '(2) He causes the death of another person under
circumstances that would constitute murder under Section
13A-6-2; except, that he causes the death due to sudden heat
of passion caused by provocation recognized by law, and
before a reasonable time for the passion to cool and for reason
to reassert itself.'

"The defendant must present evidence of legal
provocation to require a charge on heat of passion.

" ' " 'Manslaughter is the unlawful killing of a
human being without malice; that is, the
unpremeditated result of passion-heated blood—
caused by a sudden, sufficient provocation. And
such provocation can, in no case, be less than
assault, either actually committed, or menaced
under such pending circumstances as reasonable
to convince the mind that the accused has cause
for believing, and did believe, he would be
presently assaulted, and that he struck, not in
consequence of a previously formed design,
general or special, but in consequence of the
passion suddenly aroused by the blow given, or
apparently about to be given ....' " '

"Easley v. State, 246 Ala. 359, 362, 20 So. 2d 519, 522 (1944),
quoting Reeves v. State, 186 Ala. 14, 16-17, 65 So. 160 (1914)."

Harris v. State, 683 So. 2d 26, 28 (Ala. Crim. App. 1996).

Yeiter asserts that he shot Phillips "after a heated struggle in which

Mr. Phillips had threatened lethal violence." (Yeiter's brief, p. 22.) He

39
CR-18-0599

notes that the trial court denied defense counsel's request for a charge on

provocation manslaughter as a lesser-included offense. (C. 497; R. 1715.)

Yeiter argues:

"At trial, the defense relied on the theory that Mr. Yeiter
was provoked by Mr. Phillips, urging the jury in its opening
statement that the ultimate question in the case would 'get
down to the why.' (R. 1358.) Consistent with this theory, the
defense relied on evidence of a scuffle between Mr. Yeiter and
Mr. Phillips before the shooting occurred (R. 1390-92, 1403,
1408, 1613-14), during which Mr. Phillips said he was going
to get his gun. (R. 1610-11, 1613-14, 1741). Additional
testimony from Mr. Phillips's niece, Toni Casey, and a
recording of her 911 call, indicated that the Phillips [family]
had 'mentally abused' Mr. Yeiter leading up to the incident
and had finally pushed him over the edge. (R. 1417-18, 1491,
1739.)

"From these facts, the jury could have concluded that
Mr. Yeiter did not have the specific intent to kill Mr. Phillips
but instead acted under sufficient provocation to negate
intent. …"

(Yeiter's brief, pp. 25-26.) Yeiter cites Fuller v. State, 231 So. 3d 1207,

1218 (Ala. Crim. App. 2015), for its statements that manslaughter is "the

unlawful killing of a human being without malice; that is, the

unpremeditated result of passion—heated blood—caused by a sudden,

sufficient provocation" and that "the mere appearance of imminent

assault may be sufficient to arouse heat of passion." Fuller does not

support Yeiter's position, however, because there was no evidence here of
40
CR-18-0599

"a sudden, sufficient provocation" or "the mere appearance of imminent

assault."

" 'A person accused of the greater offense has a right to
have the court charge on lesser included offenses when there
is a reasonable theory from the evidence supporting those
lesser included offenses.' MacEwan v. State, 701 So. 2d 66, 69
(Ala. Crim. App. 1997). An accused has the right to have the
jury charged on ' "any material hypothesis which the evidence
in his favor tends to establish." ' Ex parte Stork, 475 So. 2d
623, 624 (Ala. 1985). '[E]very accused is entitled to have
charges given, which would not be misleading, which correctly
state the law of his case, and which are supported by any
evidence, however[ ] weak, insufficient, or doubtful in
credibility,' Ex parte Chavers, 361 So. 2d 1106, 1107 (Ala.
1978), 'even if the evidence supporting the charge is offered by
the State.' Ex parte Myers, 699 So. 2d 1285, 1290-91 (Ala.
1997), cert. denied, 522 U.S. 1054, 118 S. Ct. 706, 139 L. Ed.
2d 648 (1998). However, '[t]he court shall not charge the jury
with respect to an included offense unless there is a rational
basis for a verdict convicting the defendant of the included
offense.' § 13A-1-9(b), Ala. Code 1975. 'The basis of a charge
on a lesser-included offense must be derived from the evidence
presented at trial and cannot be based on speculation or
conjecture.' Broadnax v. State, 825 So. 2d 134, 200 (Ala. Crim.
App. 2000), aff'd, 825 So. 2d 233 (Ala. 2001), cert. denied, 536
U.S. 964, 122 S. Ct. 2675, 153 L. Ed. 2d 847 (2002). ' "A court
may properly refuse to charge on a lesser included offense only
when (1) it is clear to the judicial mind that there is no
evidence tending to bring the offense within the definition of
the lesser offense, or (2) the requested charge would have a
tendency to mislead or confuse the jury." ' Williams v. State,
675 So. 2d 537, 540-41 (Ala. Crim. App. 1996), quoting
Anderson v. State, 507 So. 2d 580, 582 (Ala. Crim. App.
1987)."

Clark v. State, 896 So. 2d 584, 641 (Ala. Crim. App. 2000).
41
CR-18-0599

In Bohannon v. State, 222 So. 3d 457 (Ala. Crim. App. 2015), this

Court stated:

"Here, there was no rational basis that would support a
jury instruction on heat-of-passion manslaughter. Three
cameras recorded the shootings. Rarely does a reviewing court
have the means to review this issue with such clarity. It is
clear from the videotapes that one victim did initially gently
shove Bohannon; however, that act is not sufficient to
constitute legal provocation for heat-of-passion
manslaughter. After one victim shoved Bohannon, both
victims turned their backs to Bohannon and started to walk
toward their vehicle when Bohannon grabbed his gun from
the back waistband of his pants and rushed after the two
victims with his gun pointed at them. The victims then ran
away from Bohannon and attempted to hide.

" ' "Manslaughter is the unlawful killing of a
human being without malice; that is, the
unpremeditated result of passion-heated blood—
caused by a sudden, sufficient provocation. And
such provocation can, in no case, be less than
assault, either actually committed, or menaced
under such pending circumstances as reasonable
to convince the mind that the accused has cause
for believing, and did believe, he would be
presently assaulted, and that he struck, not in
consequence of a previously formed design,
general or special, but in consequence of the
passion suddenly aroused by the blow given, or
apparently about to be given ...." '

"Easley v. State, 246 Ala. 359, 362, 20 So. 2d 519, 522 (1944),
quoting Reeves v. State, 186 Ala. 14, 16–17, 65 So. 160 (1914).

" 'Alabama courts have, in fact, recognized three
legal provocations sufficient to reduce murder to
42
CR-18-0599

manslaughter: (1) when the accused witnesses his
or her spouse in the act of adultery; (2) when the
accused is assaulted or faced with an imminent
assault on himself; and (3) when the accused
witnesses an assault on a family member or close
relative.'

"Spencer v. State, 58 So. 3d 215, 245 (Ala. Crim. App. 2008).

" 'A minor or technical assault or battery is
insufficient, but a blow inflicting considerable pain
or injury ordinarily is sufficient Easley v. State,
246 Ala. 359, 20 So. 2d 519 (1945); Buffalow v.
State, 219 Ala. 407, 122 So. 633 (1929). Mere
abusive or opprobrious words or insulting gestures
are insufficient. Cates v. State, 50 Ala. 166 (1874);
Easley v. State, supra; Weaver v. State, 1 Ala. App.
48, 55 So. 956, rehearing denied, 2 Ala. App. 98, 56
So. 749 (1911). In a mutual fight where no more
than ordinary battery was intended, the blows
may constitute provocation, but use of deadly
weapon or undue advantage is usually murder.
Diamond v. State, 219 Ala. 674, 123 So. 55 (1929);
Lanier v. State, 31 Ala. App. 242, 15 So. 2d 278
(1943).'

"Commentary to § 13A-6-3, Ala. Code 1975.

"In Living v. State, 796 So. 2d 1121 (Ala. Crim. App.
2000), this Court found that the circuit court did not err in
refusing to give a jury instruction on heat-of-passion
manslaughter after the victim had shoved the defendant. We
stated:

" ' "[A]n extreme emotional or mental disturbance,
without legally recognized provocation, will not
reduce murder to manslaughter." MacEwan v.
State, 701 So. 2d [66,] 70 [(Ala. Crim. App. 1997)]
43
CR-18-0599

(quoting Gray v. State, 482 So. 2d 1318, 1319 (Ala.
Crim. App. 1985)). Moreover, [the victim] shoving
[the defendant] during an argument does not
constitute legal provocation for heat-of-passion
manslaughter. "A minor technical assault which
did not endanger life or inflict serious physical
injury or inflict substantial and considerable pain
would not amount to sufficient provocation."
Shultz v. State, 480 So. 2d 73, 76 (Ala. Crim. App.
1985). Because no evidence of adequate legal
provocation was presented at trial, the trial court
did not err in refusing to instruct the jury on heat-
of-passion manslaughter.'

"796 So. 2d at 1130. See also Woolf v. State, 220 So. 3d 338
(Ala. Crim. App. 2014)."

Bohannon, 222 So. 3d at 510-11.

The evidence at trial showed that Yeiter was the initial aggressor,

"grabb[ing] the glasses off [Phillips's] face" (R. 1391); that he walked

away from the initial confrontation and drove a half-mile to his house to

get his shotgun; that he drove back to the church; and that he shot

Phillips while Phillips was sitting inside his idling truck unarmed and

with his seatbelt buckled. (Supp. C. 234.) Yeiter told the police that it was

"premeditated murder" and that he "thought about it all the way [home]

and all the way back." (Supp. C. 233.) Yeiter's request for a charge on

heat-of-passion manslaughter had no support in the law or the evidence.

44
CR-18-0599

Thus, the trial court did not err in refusing Yeiter's request for a charge

on heat-of-passion manslaughter, and Yeiter is due no relief.

VII. EXCLUSION OF TESTIMONY FROM JEWELL PHILLIPS

Yeiter argues that the trial court erred in not allowing Jewell

Phillips—who was married to Phillips for over 50 years—to testify at the

penalty phase that, in her opinion, Phillips would not have wanted Yeiter

sentenced to death. (Yeiter's brief, p. 37.)

During the penalty phase, Yeiter called Jewell as a witness. (R.

1808.) In response to defense counsel's question, 7 Jewell testified: "I don't

want him to have the death penalty. I don't believe in it." (R. 1838.) Jewell

testified that she "still love[d] Brett Yeiter" and that she thought

executing him "would cause [her] family … more pain." (R. 1838.)

The State objected when defense counsel asked Jewell whether

Phillips would "want the death penalty" for Yeiter. (R. 1839.) The trial

court sustained the objection: "That is the mental operation of somebody

else and under our rules of evidence, that is not permitted." (R. 1839.)

On appeal, Yeiter argues that "[u]nder Alabama law, a victim's

7The State objected to the question at first. (R. 1810.) After a
lengthy discussion outside the presence of the jury, the State withdrew
its objection. (R. 1833.)
45
CR-18-0599

family member may recommend leniency or request a lesser sentence

during the sentencing hearing and this recommendation should be

considered as a [nonstatutory] mitigating factor." (Yeiter's brief, p. 38.)

For many reasons Yeiter asserts that the trial court erred.

This Court addressed an almost identical claim in Smith v. State,

[Ms. CR-17-1014, Sept. 2, 2022] ___ So. 3d ___ (Ala. Crim. App. 2022),

cert. denied (No. SC-2022-1033, June 23, 2023):

"Smith argues that the trial court 'improperly
prohibited [him] from introducing a victim's family member's
request for leniency' during the sentencing phase. (Smith's
brief, p. 36.) Specifically, Smith argues that the trial court
erred when it prevented Bobby Bennett, the brother of David
Bennett, from testifying that he was in favor of Smith's being
sentenced to life imprisonment without the possibility of
parole. (Smith's brief, p. 36.) According to Smith, 'victim
requests for leniency are admissible' and the trial court erred
in not allowing the jury to consider Bobby's testimony as a
mitigating circumstance. Thus, Smith says the trial court
denied him 'his right to present mitigating evidence and
receive an individualized sentencing determination under
Lockett [v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973
(1978)], Tennard [v. Dretke, 542 U.S. 274, 124 S. Ct. 2562, 159
L. Ed. 2d 384 (2004)], and [Ex parte] Carroll[, 852 So. 2d 833
(Ala. 2002)], and his rights to have mitigation found and
considered, a complete defense, due process, a fair trial, and a
reliable sentence.' (Smith's brief, pp. 38-39.)

"This Court, however, rejected this precise claim in
Barbour v. State, 673 So. 2d 461 (Ala. Crim. App. 1994):

" ' "In Payne [v. Tennessee, 501
46
CR-18-0599

U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d
720 (1991)], the court held that if the
State 'chooses to permit the admission
of victim impact evidence and
prosecutorial argument on the subject,
the Eighth Amendment erects no per se
bar.' McMillian v. State, 594 So. 2d
1253, 1275 (Ala. Cr. App. 1991). Payne
did not address the issue in this case,
whether a request for leniency by the
victim's family can properly be
considered as a mitigating
circumstance.

" ' "The United States Supreme
Court in Eddings v. Oklahoma, 455
U.S. 104 [102 S. Ct. 869, 71 L. Ed. 2d 1]
(1982), held that the sentencer in
capital cases must be permitted to
consider any relevant mitigating factor
touching the defendant's character and
record.

" ' "The Court is aware of three
cases which address the specific issue
presented. In Floyd v. State, 497 So. 2d
1211 (Fla. 1986), the court held the
testimony of the murder victim's
daughter that she and the victim
opposed capital punishment was
mitigating evidence. However, on
retrial of the case, the trial judge
refused to allow the victim's daughter
to testify to her opinion as to whether
Floyd should be executed and the
Florida Supreme Court held that the
trial judge did not abuse his discretion.
Floyd v. State, 569 So. 2d 1225 (1990),
47
CR-18-0599

cert. denied, 501 U.S. 1259, 111 S. Ct.
2912 [115 L. Ed. 2d 1075] (1991). The
Tenth Circuit Court of Appeals held
that a victim's relative was properly
prohibited from expressing her opinion
that the death penalty should not be
imposed in Robison v. Maynard, 829
F.2d 1501 (10th Cir. 1987) (applying
Oklahoma law). See Robison v.
Maynard, 943 F.2d 1216 (10th Cir.
1991) (the court reached the same
conclusion upon consideration after
Payne v. Tennessee, 501 U.S. 808, 111
S. Ct. 2597, 115 L. Ed. 2d 720 (1991)
was decided). See Kathryn E. Bartolo,
Payne v. Tennessee: The Future Role of
Victim's Statements of Opinion in
Capital Sentencing Proceedings, 77
[Iowa] L. Rev. 1217 (1992).

" ' "The Alabama Supreme Court
recently held that the defendant's
'Eighth Amendment rights were
violated if the trial judge ... considered
the portions of the victim impact
statement wherein the victim's family
members offered their
characterizations or opinions of ... the
appropriate punishment.' Ex parte
McWilliams, 640 So. 2d 1015 (Ala.
1993).

" ' "The Court held that opinions of
family members as to the appropriate
punishment either for the death
penalty, Ex parte McWilliams, or
against the death penalty, Robison I &
II, are inadmissible. The reasoning of
48
CR-18-0599

the Court in Robison I is persuasive.
The Court reasoned that such opinion
evidence is not relevant because
mitigating evidence is composed of
evidence of the defendant's character
or record or any of the circumstances of
the offense, and the witnesses' opinion
of the appropriate punishment is not
relevant to either. In Robison II the
court further explained its holding in
Robison I, and, notwithstanding that
the jury is the sentencing authority in
Oklahoma, the court's reasoning is also
persuasive. The court said that the
proffered testimony 'was calculated to
incite an arbitrary response [from the
jury], thus it was properly excluded.'
Robison II at 1217."

" 'The trial court's ruling was correct for the
reasons stated by the Alabama Supreme Court in
McWilliams v. State, 640 So. 2d 1015, 1017 (Ala.
1993). The court stated:

" ' "In Booth v. Maryland, 482 U.S.
496, 107 S. Ct. 2529, 96 L. Ed. 2d 440
(1987), the United States Supreme
Court vacated a death sentence,
holding that it violated the defendant's
Eighth Amendment rights for the
sentencer to consider victim impact
statements in sentencing the
defendant to death. The victim impact
statements in that case contained the
same types of information as were in
the statements in the present case. In
Payne v. Tennessee, 501 U.S. 808, 111
S. Ct. 2597, 115 L. Ed. 2d 720 (1991),
49
CR-18-0599

the Supreme Court partially overruled
Booth. The Court in Payne held that
the defendant's Eighth Amendment
rights were not violated by the trial
court's consideration of statements
regarding the victims and the impact of
their deaths upon the family members.
The victim impact statements in Payne
did not contain characterizations or
opinions about the defendant, the
crime, or the appropriate punishment.
That portion of Booth that proscribed
the trial court's consideration of that
type of statement was, therefore, left
intact by Payne.

" ' "We conclude that
McWilliams's Eighth Amendment
rights were violated if the trial judge in
this case considered the portions of the
victim impact statements wherein the
victim's family members offered their
characterizations or opinions of the
defendant, the crime, or the
appropriate punishment."

" '(Emphasis added.)'

"Barbour, 673 So. 2d at 468-69.

"Here, Bobby's proposed testimony that Smith should be
sentenced to life imprisonment without the possibility of
parole is precisely the type of testimony that Payne, Booth,
and McWilliams prohibit. The opinion of a victim's family
member as to what punishment the defendant should receive
is impermissible, whether favorable to the defendant or not.7
Thus, the trial court did not err in refusing to allow Smith to
present Bobby's testimony as to what he believed the proper
50
CR-18-0599

punishment in this case should be. Accordingly, Smith is not
entitled to relief on this claim.

"_______________

"7Notably, the trial court did let Bobby testify to the fact
that his family had forgiven Smith—a fact that the jury could
consider when assessing the penalty-phase evidence."

Smith, ___ So. 3d at ___.

As recognized in Smith, Alabama law prohibited Jewell's testimony

about what punishment she thought Phillips would want Yeiter to

receive. Thus, the trial court did not err in disallowing that testimony,

and Yeiter is due no relief on this claim.

VIII. CAPITAL-SENTENCING SCHEME

In its brief the State notes that the trial court's sentencing "order

does not indicate the existence or non-existence of aggravating and

mitigating circumstances or make specific findings of fact" about the

aggravating circumstances as required by § 13A-5-47, Ala. Code 1975.

(State's brief, p. 54 n.8.) The State cites cases in which this Court has

remanded the case for the trial court to make such findings. See, e.g.,

Phillips v. State, 287 So. 3d 1063, 1157 (Ala. Crim. App. 2015)

(remanding for the trial court to clarify whether it found the existence or

nonexistence of each statutory and non-statutory mitigating
51
CR-18-0599

circumstance); Floyd v. State, 289 So. 3d 337, 446 (Ala. Crim. App. 2017)

(remanding for the trial court to make findings about the especially

heinous, atrocious, or cruel aggravating circumstance). The State is

correct. More than that, however, the record shows that, in treating the

jury's verdict as binding rather than advisory, the trial court applied the

wrong capital-sentencing scheme.

On original submission, we noted:

"The trial court repeatedly stated that it had to follow
the jury's verdict. (See R. 1934 ('[There is no] judicial override.
The court has absolutely no discretion. Therefore I see no need
to delay formal sentencing from the court. Because all I'm
doing is pronouncing the sentence imposed by the jury.'); R.
1784 ('[J]udicial override ... no longer exists.'); R. 1813 ('Now,
with the statute as it presently exists, the jury makes the
decision.').) Although both the State and Yeiter agreed with
the trial court, this position is erroneous.

"Act No. 2017-131, Ala. Acts 2017, amended §§ 13A-5-
45, 13A-5-46, and 13A-5-47, Ala. Code 1975, eliminated
judicial override, and placed the final sentencing decision in
the hands of the jury. That Act, however, did not apply
retroactively to Yeiter, who was charged with capital murder
before April 11, 2017—the effective date of the Act. See § 2,
Act No. 2017-131, Ala. Acts 2017 ('This act shall apply to any
defendant who is charged with capital murder after the
effective date of this act and shall not apply retroactively to
any defendant who has previously been convicted of capital
murder and sentenced to death prior to the effective date of
this act.'). Under the versions of §§ 13A-5-45, 13A-5-46, and
13A-5-47 applicable to Yeiter, the judge, not the jury, had the
final sentencing decision."
52
CR-18-0599

Yeiter, ___ So. 3d at ___ n.2.

This Court has repeatedly held that Act No. 2017-131, Ala. Acts

2017, does not apply to a defendant like Yeiter who was charged with

capital murder before April 11, 2017, the effective date of Act No. 2017-

131, but convicted and sentenced after that date.8 See, e.g., Sykes v.

State, [Ms. CR-2022-0546, May 3, 2024] ___ So. 3d ___, ___ (Ala. Crim.

App. 2024) ("The new capital sentencing scheme is triggered by the date

on which a defendant is charged with capital murder."); Dearman v.

State, [Ms. CR-18-0060, Aug. 5, 2022] ___ So. 3d ___ (Ala. Crim. App.

2022); Young v. State, 375 So. 3d 813 (Ala. Crim. App. 2021), cert. denied

(No. 1210291, Oct. 21, 2022); and Belcher v. State, 341 So. 3d 237 (Ala.

Crim. App. 2020), cert. denied (No. 1200374, May 21, 2021). Thus, the

trial court erred in concluding that Act No. 2017-131 applies to Yeiter.

The procedure the trial court used here satisfied former § 13A-5-45,

Ala. Code 1975. But for treating the jury's verdict as binding rather than

as an advisory verdict, the procedure likewise complied with former §

8A complaint charging Yeiter was filed on October 27, 2014. Law

enforcement arrested Yeiter in November 2014, and a grand jury indicted
him in January 2015. See Rule 1.4(b), Ala. R. Crim. P. (" 'Charge' means
a complaint, indictment, or information.").
53
CR-18-0599

13A-5-46, Ala. Code 1975. The procedure did not, however, comply with

former § 13A-5-47, which provided:

"(a) After the sentence hearing has been conducted, and
after the jury has returned an advisory verdict … the trial
court shall proceed to determine the sentence.

"(b) Before making the sentence determination, the trial
court shall order and receive a written presentence
investigation report. The report shall contain the information
prescribed by law or court rule for felony cases generally and
any additional information specified by the trial court. No
part of the report shall be kept confidential, and the parties
shall have the right to respond to it and to present evidence
to the court about any part of the report which is the subject
of factual dispute. The report and any evidence submitted in
connection with it shall be made part of the record in the case.

"(c) Before imposing sentence the trial court shall permit
the parties to present arguments concerning the existence of
aggravating and mitigating circumstances and the proper
sentence to be imposed in the case. The order of the
arguments shall be the same as at the trial of a case.

"(d) Based upon the evidence presented at trial, the
evidence presented during the sentence hearing, and the
presentence investigation report and any evidence submitted
in connection with it, the trial court shall enter specific
written findings concerning the existence or nonexistence of
each aggravating circumstance enumerated in Section 13A-5-
49, each mitigating circumstance enumerated in Section 13A-
5-51, and any additional mitigating circumstances offered
pursuant to Section 13A-5-52. The trial court shall also enter
written findings of facts summarizing the crime and the
defendant's participation in it.

"(e) In deciding upon the sentence, the trial court shall
54
CR-18-0599

determine whether the aggravating circumstances it finds to
exist outweigh the mitigating circumstances it finds to exist,
and in doing so the trial court shall consider the
recommendation of the jury contained in its advisory verdict,
…. While the jury's recommendation concerning sentence
shall be given consideration, it is not binding upon the court."

Thus, we must vacate the trial court's order sentencing Yeiter to

death and remand this case for the trial court to impose a new sentence

after following the procedure outlined in former § 13A-5-47. Rather than

conducting a new penalty-phase proceeding before a jury, the trial court

should treat the jury's penalty-phase verdict as an advisory verdict under

former § 13A-5-46. The trial court also should:

(1) Under former § 13A-5-47(b), "order and receive a written
presentence investigation report" and allow "the parties … to
respond to it and to present evidence to the court about any part
of the report which is the subject of factual dispute";9

(2) Under former § 13A-5-47(c), "permit the parties to present
arguments concerning the existence of aggravating and
mitigating circumstances and the proper sentence to be
imposed in the case";

(3) Under former § 13A-5-47(d), "enter specific written findings
concerning the existence or nonexistence of each aggravating
circumstance enumerated in Section 13A-5-49, each mitigating
circumstance enumerated in Section 13A-5-51, and any

9The trial court did not order a presentence report because the court

thought that the jury's penalty-phase verdict was binding. (See, e.g., R.
1933 ("[T]here is no need for a presentence report.").)

55
CR-18-0599

additional mitigating circumstances offered pursuant to
Section 13A-5-52" and "also enter written findings of facts
summarizing the crime and the defendant's participation in it."

(4) As to the aggravating circumstance that the murder "was
especially heinous, atrocious, or cruel compared to other capital
offenses," § 13A-5-49(8), Ala. Code 1975, " 'make specific
findings of fact explaining why this aggravating circumstance
was applicable' under the standard set forth in Ex parte Kyzer[,
399 So. 2d 330 (Ala. 1981), abrogated on other grounds by Ex
parte Stephens, 982 So. 2d 1148 (Ala. 2006),]" Floyd, 289 So. 3d
at 446 (quoting Miller v. State, 913 So. 2d 1148, 1152 (Ala.
Crim. App. 2004)); and

(5) Pronounce Yeiter's sentence in open court, see Ex parte Kelley,
246 So. 3d 1068 (Ala. 2015).

CONCLUSION

Because the trial court applied the wrong capital-sentencing

scheme, we vacate its order sentencing Yeiter to death, and we remand

this case for the trial court to apply the correct sentencing scheme as

stated above and to impose a new sentence. Due return should be filed in

this court no later than 120 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.

56