
    Ex parte Walter Leroy MOODY, Jr. (In re Walter Leroy Moody, Jr. v. State of Alabama).
    1022151.
    Supreme Court of Alabama.
    March 26, 2004.
    Bruce A. Gardner, Huntsville, for petitioner.
    William H. Pryor, Jr., atty. gen., and Nathan A. Forrester, deputy atty. gen., and Regina F. Speagle, asst. atty. gen., for respondent.
   SEE, Justice.

WRIT DENIED. NO OPINION.

HOUSTON, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

I concur in denying the petition for a writ of certiorari. However, while I do not think the Court of Criminal Appeals erred to reversal in affirming Moody’s death sentence, I question several aspects of the analysis by that court of the legality of the sentence. Most prominent among the questionable aspects is the rationale that the 11-1 vote to recommend the death sentence proves that all 12 jurors found the existence of at least one aggravating circumstance. That rationale overindulges a legal fiction, the presumption that jurors follow the jury instructions. The notion that the 11 jurors who voted for the death penalty would have refrained from that vote and would have agreed upon a life-without-parole recommendation because a single juror did not find the existence of at least one aggravating circumstance ignores reality; and our procedures do not provide any way for a juror who does not find at least one aggravating circumstance to register the absence of that finding except to vote for a life-without-parole recommendation when the other jurors proceed to vote for a death recommendation. Thus, I respectfully submit that we should adopt a rule requiring the trial court to poll the jurors on the existence of each proffered aggravating circumstance if the jury returns a less-than-unanimous recommendation for the death penalty.  