Ex Parte Henderson , 1991 Ala. LEXIS 315 ( 1991 )

583 So. 2d 305 (1991)

Ex parte Jerry Paul HENDERSON.
(Re Jerry Paul Henderson v. State).

1900321.

Supreme Court of Alabama.

April 11, 1991. Rehearing Denied June 7, 1991.

Jonathan L. Adams and R.D. Pitts, Talladega, for petitioner.

James H. Evans, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for respondent.

STEAGALL, Justice.

Jerry Paul Henderson was convicted by a Talladega County jury of capital murder (Code of Alabama 1975, § 13A-5-40(a)(7)), and was sentenced to death.^[1] The Court of Criminal Appeals affirmed the conviction; see Henderson v. State, 583 So. 2d 276 (Ala. Cr.App.1990). This Court granted Henderson's petition for writ of certiorari. Rule 39(c), A.R.App.P.

In his petition to this Court, Henderson raises the same 22 issues that he raised before the Court of Criminal Appeals. The opinion released by the Court of Criminal Appeals provides a thorough treatment of each issue raised by Henderson. Henderson v. State, supra.

Our review of a death penalty case allows us to address any plain error or defect found in the proceeding under review, even if the error was not brought to the attention of the trial court. Rule 45A, A.R.App.P. "``"Plain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" Ex parte Womack, 435 So. 2d 766, 769 (Ala. Cr.App.1983), cert. denied, Womack v. Alabama, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. 1981). This Court may take appropriate action when the error "has or probably has" substantially prejudiced the appellant. Rule 45A, A.R.App.P.

We have thoroughly reviewed the record before us for error regarding the issues raised by Henderson as well as for plain error not raised. Out of an abundance of caution, we have given special consideration to the issues involving the spousal privilege, self-defense, an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and allegedly improper jury instructions. We find the rulings of the Court of Criminal Appeals to be correct on these issues and on the remaining issues presented to this Court for review. Furthermore, we have found no plain error.

Therefore, the judgment of the Court of Criminal Appeals is due to be, and it is hereby, affirmed.

AFFIRMED.

HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.

NOTES

[1] Judy M. Haney, Henderson's sister-in-law, hired him to murder her husband, Jerry Wayne Haney. She was also convicted of capital murder and received a sentence of death. Her conviction has been appealed to the Court of Criminal Appeals (that court has remanded the case to the circuit court with directions to deal with a possible violation of Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987)). Haney v. State, [Ms. 7 Div. 148, March 29, 1991] (Ala.Cr.App.1991).