Joshua Eugene Russell v. State of Alabama (2017)

On Application for Rehearing

The State has filed an application for rehearing and a brief in support of that application. See Rule 40, Ala. R. App. P. This Court, because we had ordered a return to remand, initially declined to accept the State's application on the intervening remand and ordered that it be stricken pursuant to Ex parte Harris, 947 So. 2d 1139 (Ala. 2005).¹ The State thereafter moved this Court to reconsider our decision, noting that the “reversal of Russell's death sentence voided the penalty-phase proceeding, and the slate has been wiped clean.” (State's motion to reconsider, p. 2); see Ex parte Apicella, 87 So. 3d 1150, 1154 (Ala. 2011)(“Reversal of a judgment and remanding of the cause restores both the State and the defendant to the condition in which they stood before the judgment was pronounced.”). This Court granted the State's motion and accepted the State's application for rehearing and supporting brief.

The State's application for rehearing does not convince us that our original decision was in error. Upon further consideration, however, we no longer think a return to remand is necessary in this case. Therefore, we have modified our original opinion to omit the requirement that the circuit court make a return to our remand instructions. Because our decision is now final, Russell may file an application for rehearing as to that part of our judgment affirming his convictions.

APPLICATION FOR REHEARING DENIED; OPINION OF SEPTEMBER 8, 2017, MODIFIED [BY SUBSTITUTION OF PAGES 139-40].

whether the circuit court used the invalid aggravating circumstance to enhance Russell's sentence.

Accordingly, because Russell's prior conviction possibly could have contributed to the jury's recommendation and possibly could have been used to enhance his sentence, we cannot say that this error was harmless. Therefore, we must reverse Russell's sentence of death and remand this case to the circuit court for that court to conduct a new penalty-phase proceeding wherein the jury is not presented with evidence of Russell's municipal-court conviction.

Conclusion

We affirm Russell's capital-murder conviction. Because, however, the jury considered an invalid aggravating circumstance during the penalty phase and the circuit court considered an invalid aggravating circumstance when it overrode the jury's sentencing recommendation, Russell's sentence of death is reversed, and this case is remanded to the circuit court for that court to conduct a new penalty-phase proceeding.38

38Because we reverse Russell's sentence, we pretermit discussion of the remaining issues with respect to the penalty phase and sentence.

[substituted p. 139]

AFFIRMED AS TO CONVICTION; REVERSED AS TO SENTENCE; AND REMANDED.

Welch, Kellum, and Burke, JJ., concur. Windom, P.J., concurs in part and dissents in part, with opinion.

[substituted p. 140]

I firmly adhere to my decision to concur in this Court's decision to affirm Joshua Eugene Russell's capital-murder conviction and to dissent from its decision to reverse his sentence of death. On application for rehearing, the majority modified its opinion so as to omit the requirement that the circuit court file a return to remand, thus rendering its decision final and subject to further review.

The majority issued an additional writing on application for rehearing. In that writing, the majority states:

“The State's application for rehearing does not convince us that our original decision was in error. Upon further consideration, however, we no longer think a return to remand is necessary in this case. Therefore, we have modified our original opinion to omit the requirement that the circuit court make a return to our remand instructions. Because our decision is now final, Russell may file an application for rehearing as to that part of our judgment affirming his convictions.”

I disagree with the statement that “[t]he State's application for rehearing does not convince us that our original decision was in error.” Rather, I believe that this Court did err in reversing Russell's sentence of death by creating a new and unprecedented evidentiary burden on the State during a capital-sentencing preceding. I also believe that it is unnecessary to explain to the parties that the modified opinion now renders the majority's decision final and subject to an application for rehearing and certiorari review. Accordingly, I concur with the majority's decision to issue a substituted opinion. I, however, dissent from the majority's decision to overrule the State's application for rehearing and its advisory opinion on application for rehearing.

FOOTNOTES

1.   “[W]hen the Court of Criminal Appeals remands a case, unless the Court of Criminal Appeals has expressly directed a return to its remand order, we will treat its decision as final.” Harris, 947 So. 2d at 1142 (emphasis added).

JOINER, Judge.

Welch, Kellum, and Burke, JJ., concur. Windom, P.J., concurs in part and dissents in part, with opinion.