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Christie
Michelle SCOTT
Associated Press
October 06, 2012
MONTGOMERY, Ala. (AP) - A state appeals court
has upheld the death sentence given to a Franklin County woman
charged with setting the Aug. 16, 2008 house fire that killed her
6-year-old autistic son.
The Alabama Court of Criminal Appeals upheld
the sentence given to 34-year-old Christie Michelle Scott. The
unanimous opinion said the appeals court found death was the
appropriate sentence for "the horrific murder."
Court testimony said the fire appeared to have
been set in the bedroom Mason shared with another child.
Prosecutors accused Scott of setting the fire to collect on
insurance policies. The court rejected Scott's arguments for
overturning her conviction, including that her trial should have
been moved out of Franklin County because of publicity the case
received.
Scott is 1 of 4 women on Alabama's death row.
Court upholds Scott conviction
By Kellie Singleton - FranklinCountyTimes.com
October 5, 2012
For the past three years, Franklin County
District Attorney Joey Rushing has awaited a higher court’s
decision on whether or not the verdict and sentence for one of the
county’s biggest cases would be upheld, and he received his answer
Friday afternoon.
Rushing received word that the guilty verdict
and death sentence handed down to Christie Michelle Scott, 34,
found guilty of the murder of her 6-year-old son, Mason, in 2008,
was officially upheld by the Alabama Criminal Court of Appeals.
Rushing said this is the first step in the
appeals process and one that he considered crucial.
“If there was any plain error made during the
trial that could cause the case to be retried or the verdict to be
overturned, the Court of Criminal Appeals would be the ones to
find the error,” Rushing said.
“It is a big relief that they not only upheld
the decision but that it was a unanimous decision that the verdict
and death sentence should be upheld. There wasn’t a dissenting or
concurring opinion at all. It was just completely unanimous.”
Rushing said the wording in the 172-page
opinion pointed at how strongly the court seemed to feel about
their decision.
“At the end of the report, the court stated
that ‘ this court independently weighed the aggravating
circumstances and mitigating circumstances as required by the
Alabama Code of 1975 and is convinced, as was the circuit court,
that death was the appropriate sentence for the horrific murder of
six-year-old Mason,’” Rushing quoted.
“They also stated ‘this court has searched the
record for any error that may have affected Scott’s substantial
rights and we have found none.’
“That was great news for us to hear as the case
moves forward in the appeals process.”
Rushing said this is the longest it has ever
taken one of his cases to receive an opinion from the Court of
Criminal Appeals. Scott was sentenced in August of 2009 so he said
he’s spent a little more than three years anxiously waiting to
hear their opinion.
“The longest I’ve had to wait before this was
around one year and the opinions we get back are normally five to
10 pages and this one took more than three years and the opinion
was 172 pages long,” Rushing said.
“The court was very thorough and went through
the many details the defense brought up as reasons to re-try the
case or over-turn the conviction, but in the end, they upheld each
decision made by the circuit court.”
Mason Scott died in a house fire that started
in his bedroom at the Scotts’ home at 180 Signore Dr. in
Russellville on Aug. 16, 2008, at 2:30 a.m.
At the time of Mason Scott’s death, fire
officials were unaware of how the fire started, even though they
had determined it had started in or near Mason Scott’s bedroom
where the child was found after the flames were extinguished.
Christie Scott had managed to escape from the
house with her youngest son who was four years old at the time.
Scott’s husband was out of town in Atlanta on
business when the fire occurred.
Fire investigations are standard in cases that
result in fatalities, and once the investigation commenced,
officials said investigators began noticing things that just
didn’t seem to match up.
“The first red flag of the investigation was
the smoke detector, which seemed to have been ripped from the wall
and didn’t match the way a normal smoke detector would have looked
if it had still been attached to the wall and fully functional at
the time of the fire,” Rushing said.
“That was the first of many oddities and
details that pointed to Christie Scott’s involvement in the fire.”
Scott was accused of intentionally setting the
fire that led to Mason’s death and was originally charged with
Mason’s murder in September 2008 when a grand jury found enough
information to charge her with three alternative counts of capital
murder – one which accused Scott of intentionally killing her son
by starting a fire for the purpose of monetary gain, one which
accused Scott of intentionally killing her son as a result of
committing first-degree arson, and one which accused Scott of
intentionally killing someone who is less than 14 years old.
Records indicate that during Scott’s initial
bond hearing, testimony revealed that Scott took out an additional
life insurance policy on her son the day before the fire.
Under cross-examination from Rushing, Scott’s
father, Donald Bray, gave testimony that affirmed his daughter had
also been connected to at least three previous fires.
The original trial began in June of 2009 and
testimony lasted for approximately four weeks – the longest trial
in Franklin County’s history.
During the trial, the prosecution brought up
point after point that they believed proved Scott’s guilt and
calculated plan to set fire to the house and kill Mason while
defense attorney Robert Tuten continually maintained Scott’s
innocence and that the fire was electrical in nature and no fault
of Scott’s.
After four weeks of testimony and a little more
than two days of deliberating, the jury returned guilty verdicts
for all three alternative counts of capital murder.
The jury recommended a sentence of life without
parole, but in a sentence hearing on Aug. 5, 2009, Circuit Judge
Terry Dempsey overruled the jury’s decision and gave Scott the
death sentence stating, “Justice must be served and the only way
justice can be served in this case is by death.”
Scott has been housed at Julia Tutwiler Prison
for Women in Wetumpka on death row awaiting her case to go through
the appeals process.
Rushing said while this decision from the Court
of Criminal Appeals is a big hurdle to overcome, the appeals
process is far from over.
“The case will now be reviewed by the Alabama
Supreme Court, who could still overturn the case for a different
reason or something the Court of Criminal Appeals didn’t consider
to be an error,” Rushing said.
“But if the Supreme Court does affirm the other
courts’ decisions, it will then move on to the federal appeals
process, but we are committed to seeing this case through to the
end."
Scott was convicted last month of killing her
six year-old son, Mason Scott, last August. Prosecutors contend
that she set fire to her family's Signore Drive home in
Russellville and allowed Mason to die in the fire so she could
collect $175,000 in life insurance policies.
A jury voted 7-5 to recommend Scott, 31, be
sentenced to life in prison without the possibility of parole.
"Justice must be served and the only way
justice can be served in this case is by death," Dempsey said.
Scott becomes the first female and only the
second person in Franklin County history to be sentenced to death.
Dempsey sentenced a Red Bay man to death in 2007 after he was also
convicted of murdering his child.
Defense attorney Robert Tuten said he believes
the conviction and sentence will be overturned during the appeals
process.
He immediately began filing paperwork for a new
trial.
District Attorney Joey Rushing, who asked
Dempsey to impose the death penalty, said he is confident the
verdict and sentence will be upheld.
Appeals are automatic in capital murder
convictions.
By Josh Ault - Wsfa.com
July 10, 2009
RUSSELLVILLE, AL (WAFF) - A jury that convicted
a Russellville mother in the death of her son Wednesday
recommended Friday that she be sentenced to life in prison without
parole.
The jury started deliberating on the fate of
Christie Scott Friday morning at the Franklin County Courthouse
starting at 8:30 a.m. They made their decision around 10 a.m.
"The State of Alabama versus Christie Michelle
Scott, we the jury recommend the defendant Christie Michelle Scott
to punishment by life in prison without parole," read the
recommendation made by the jury.
Scott looked directly at her family as the
recommendation was made, then meet briefly with her lawyers before
being taken away.
After the recommendation was made, Scott's
family gathered in the courtroom and prayed. They all left the
courthouse without commenting.
"We have to be very careful what we say at this
point," said defense attorney Robert Tuten.
Tuten said the case isn't over. An appeal is
already in the works and will be processed after the judge
sentences Scott on August 5.
"We are pleased that a majority of the jury saw
fit to save her life," Tuten said.
Five jurors voted for the death penalty and the
remaining seven voted for life in prison without the possibility
of parole.
"That puts a burden on the judge when there is
just such a split," said Franklin County Defense Attorney Joe
Rushing.
Rushing said they are pleased with the jury's
recommendation, but will again ask the judge to consider death as
an option. This recommendation will be considered by Circuit Court
Judge Terry Dempsey, who will make the final decision in August.
After Dempsey makes his final decision, there
will be an automatic appeal.
The two most recent capital murder trials in
franklin county have involved the murders of children.
In October of 2007, Jodey Waldrop was sentenced
to death for the slaying of his 3-week-old son. The child was
killed at the family's Red Bay home in September of 2005. Waldrop
claimed his son died accidentally.
The most recent case is still unresolved in the
minds of many. Sixteen years ago, Andrea Gonzales, 5, was reported
missing. Investigators searched all over the county, but never
found the child's body.
Eventually, her father Paul Gonzales reached an
agreement with prosecutors. He pleaded guilty to manslaughter in
her death. Andrea's stepmother Kim was convicted of child abuse
charges and she served four years in prison. Andrea's body has
never been found.
Christie Michelle Scott Found Guilty in
2008 AL Murder of Son, May Face DP
Nbc13.com
July 8, 2009
A jury has convicted a north Alabama woman of
capital murder in the death of her 6-year-old son, who died in a
house fire last year. Jurors returned the verdict against
30-year-old Christie Michelle Scott on Wednesday during their
third day of deliberations. She could receive life imprisonment or
the death penalty at a sentencing hearing set for Thursday.
Prosecutors argued that Scott started the fire
that killed her son, Mason Scott, so she could collect life
insurance from the boy’s death. Evidence showed the woman
purchased a $100,000 policy the afternoon before the fire.
Scott testified that she is innocent and had no
idea how the fire began.
Boy was alive when burned
TimesDaily.com
A state medical examiner testified Monday that
6-year-old Mason Scott was alive at least briefly as he was being
burned in a fire that killed him and destroyed his bedroom Aug.
16.
His mother, Christie Michelle Scott, who is
charged with capital murder, is accused of starting the fire.
Dr. Emily Ward, who performed the autopsy on
Mason's body, testified he died of smoke inhalation and thermal
burns.
During questioning by Assistant Franklin County
District Attorney Doug Evans, Ward testified that soot found in
the child's throat and lungs during the autopsy indicates he was
alive as the fire began.
She could not say how long the child might have
lived as his body was being burned.
She said much of the child's skin was charred
during the fire.
"We don't think he was alive the whole time the
burning was going on," Ward said "But we don't know at what point
the death occurred."
Christie Scott wept when Ward testified the
youth could have been alive as he was being burned.
Evans displayed three photographs for jurors
that Ward made of the child's badly burned body before the
autopsy.
Scott buried her face in her hands and looked
away from the monitor screen as the photographs were displayed.
Jurors showed no visible emotion as they viewed
the photographs. Some appeared to be taking notes during Ward's
testimony.
Ward testified the autopsy revealed Mason Scott
had high levels of carbon monoxide in his blood.
In his opening statement June 11, defense
attorney Robert Tuten told jurors he expects the evidence will
show the high levels of carbon monoxide are a result of fire
smoldering for an extended period before being discovered. He told
jurors evidence will show the youth breathed smoke from the fire
for a prolonged period.
Scott told investigators when she awoke to
discover the pre-dawn fire, she attempted to rescue her son, but
was turned back by intense smoke and heat. Scott told
investigators she and her then-4-year-old son, Noah, escaped
through a window.
Tuten contends the fire was accidental.
Prosecutors say the fire began when Scott ignited a bed belonging
to her younger son, who shared a bedroom with Mason. Scott told
investigators that Noah slept in her room the night of the fire.
Mason Scott's body was found on the floor of
his bedroom.
During Monday's questioning by Evans, Ward said
high carbon monoxide levels are not unusual in children who die in
a fire. She said children have smaller lungs and more rapid
heartbeats than adults, which can elevate carbon monoxide levels
when they die in a fire.
Tuten asked Ward two questions during his cross
examination: If someone with a carboxyhemoglobin level (the
combination of carbon monoxide and hemoglobin blood) of 40 percent
in their blood could survive with medical attention; and if
someone with a carbon monoxide level of 90 percent would likely
die. She answered yes to both questions.
Ward had testified earlier that Mason Scott's
carboxyhemoglobin level was more than 90 percent.
Scott is being held in the Franklin Jail
without bond. If convicted of capital murder, she could be
sentenced to death.
Jury selection begins in capital murder
trial
TimesDaily.com
June 9, 2009
RUSSELLVILLE - Potential jurors in the capital
murder trial of Christie Michelle Scott have the day off today as
attorneys analyze responses to a list of questions jurors answered
Monday.
Jury selection resumes Wednesday.
Scott, 30, 180 Singore Drive, Russellville, is
accused of starting a fire at her home Aug. 16 that killed her
6-year-old son, Mason Scott.
The jury selection process got under way Monday
morning with 150 potential jurors. By the time the 12-page
questionnaires were handed out, 83 potential jurors remained.
Court officials had summoned 500 potential jurors for the trial
that is expected to last at least two weeks.
During questioning Monday, Franklin County
Circuit Court Judge Terry Dempsey asked potential jurors if they
had biases that would prevent them from rendering an impartial
verdict, such as forming an opinion about Scott's guilt or
innocence based on media reports. Dempsey said they must base
their verdict solely on the testimony they would hear as a juror.
"You need to search your heart and soul and tell me if you are
unable to do that."
After meeting with Dempsey and attorneys, those
who said they would be unable to render a verdict based only on
the testimony were dismissed. Those who said they have medical
conditions that would make it difficult for them to listen to the
testimony were also dismissed.
Dempsey is hopeful the questionnaires will help
speed the jury selection process by eliminating the need for
attorneys to question every potential juror individually.
Among the questions are several related to the
potential jurors' beliefs about the death penalty. If convicted of
capital murder, Scott could receive the death penalty.
"The questions are not meant to pry into your
personal life," Dempsey said. "We do ask for an honest response
from you to the questions."
Prosecutors remain confident an impartial jury
can be assembled.
Defense attorney Robert Tuten, of Huntsville,
has expressed concern about selecting a jury in Franklin because
of pre-trial publicity about the fire and Scott's arrest.
In May, Tuten asked Dempsey to move the trial
to another county. Dempsey denied the request, but said he would
move the trial if it proves impossible to convene an impartial
jury in Franklin.
Before dismissing the remaining potential
jurors Monday until Wednesday morning, Dempsey warned them to not
read, watch or listen to any news reports about the trial.
During Dempsey's questioning of potential
jurors Monday, Scott's husband, Jeremy, sat beside her at the
defense table. During breaks in the questioning, Scott's family
members would gather at the front of the courtroom to talk to her.
Christie Bray Scott's Road to Death Row
Joey Rushing requested that
Judge Terry Dempsey sentence Christie Scott to death by lethal
injection, an Old Testament eye for a eye. Surely spending the
rest of her natural life in the hell hole that is Tutwiler Prison
would have been enough punishment for this sick, sick woman.
Despite the jury's recommendation of life in prison without the
possibility of parole, on August 5, 2009, Judge Dempsey sentenced
Scott to die by lethal injection.
Shoalscrime.blogspot.com
Court of Criminal Appeals of Alabama
Scott v. State
Christie Michelle SCOTT v. STATE of Alabama.
CR–08–1747.
October 05, 2012
The appellant, Christie Michelle Scott, was
indicted for three counts of capital murder in connection with a
fire at her house that resulted in the death of her six-year-old
son Mason. Count I of the indictment charged that Scott murdered
Mason for pecuniary gain or other valuable consideration, i.e.,
the proceeds of a life-insurance policy, a violation of §
13A–5–40(a)(7), Ala.Code 1975; Count II charged that Scott
murdered Mason during the course of an arson in the first degree,
a violation of § 13A–5–40(a)(9), Ala.Code 1975; and Count III
charged that Scott murdered a child under the age of 14, a
violation of § 13A–5–40(a)(15), Ala.Code 1975. A jury found Scott
guilty on all counts and recommended, by a vote of 7 to 5, that
Scott be sentenced to life imprisonment without the possibility of
parole. The circuit court held a separate sentencing hearing and
sentenced Scott to death. This appeal followed.
More than 70 witnesses testified in the State's
case-in-chief. The evidence tended to show that in the early
morning hours of August 16, 2008, a fire was set in the Scott
house and that Mason died as a result of the fire. Dr. Emily Ward,
a pathologist with the Alabama Department of Forensic Sciences,
testified that Mason died from smoke in his airway and thermal
burns.
At the time of the fire, Scott and her
four-year-old son Noah were sleeping in Scott's bedroom, Mason was
in the boys' bedroom, and Jeremy Scott, Scott's husband, was not
at home and had been out of town for several weeks. Sgt. Brian
Shackelford of the Russellville Police Department testified that
he arrived minutes after the emergency call, that he kicked open
the back door, and that he was only able to make it four or five
feet inside the house because of the heat and smoke. Firefighters
testified that after extinguishing the fire they searched the
house several times before they were able to identify Mason's
badly charred body.
The Scott's neighbor, Jennifer Davidson,
testified that her doorbell rang around 2:30 a.m. on August 16,
2008. She opened the door and found Scott and Noah. Scott told her
that her house was on fire. Davidson went to the back of the house
to telephone emergency 911 because, she said, the telephone in the
front of the house was not working. When she got back to the front
door, she said, Scott told her that her other son, Mason, was
still in the house. Davidson telephoned 911 again to inform them
that a child was still in the house. Emergency 911 records showed
that the first call was made at 2:33:17 on the morning of August
16 and that the second call was made at 2:35:48—two and one half
minutes later.
After police and firefighters arrived at the
scene, Davidson stayed with Scott. Davidson testified that when
Scott was in the ambulance Scott said, “Don't call Jeremy. Don't
call Jeremy. He'll blame me or he'll try to hurt his self.” (R.
998.) Davidson also heard Scott ask what fire marshal was at the
scene. Scott said that she did not like one of the fire marshals
because he had worked her other house fire. Davidson also
testified that Scott was fully dressed and that at one point while
they were in the ambulance Scott patted her pant pocket and pulled
out a cell phone and said: “I had my cell phone the whole time. I
could have called 911.” (R. 997–98.)
Davidson's boyfriend, Brian Copeland, testified
that Scott came to the door of the house he shared with Davidson
in the early morning hours of August 16 and told them that her
house was on fire. Copeland ran to the Scott's house to try and
find a way inside to help Mason. Copeland said that Scott told him
that all the doors were locked and there was no way to get inside
the house, that Scott did not enter any numbers in the keypad to
open the garage door in his presence, that he did not enter any
numbers in the keypad, and that he did not have to restrain Scott
to prevent her from going into the house. These statements were
inconsistent with Scott's account of the events on August 16,
2008.
An emergency medical technician with Pleasant
Bay Ambulance Service, Elzie Malone, testified that he responded
to the fire. He said that Scott told him that she was alright and
that she did not need to go to the hospital. Malone said that
Scott then said: “How am I going to tell Jeremy that I have let
his baby die?” (R. 1061.)
Several officials testified concerning a
statement that Scott's father's, Donald Bray, made to Scott when
he arrived at the scene of the fire. William Crenshaw, a volunteer
firefighter, testified that when Scott's father arrived he said:
“What the hell have you done with my grandbabies?” (R. 1291.) Sgt.
Shackelford testified that Scott's father said: “Oh, my God. What
have you done to my babies?” (R. 1260.)
Jerry Yarborough, a paramedic with Pleasant Bay
Ambulance Service, testified that when Scott's father arrived at
the scene he was upset and said to Scott: “Where's my babies? Oh,
no, not my babies. What have you done?” (R. 1126.) When Yarborough
tried to calm Scott down, Yarborough testified, Scott said to him
“You don't understand. I killed his [Jeremy's] baby.” (R. 1128.)
Yarborough also testified that Scott said that she didn't know how
someone could be so unlucky as to have two fires in three years
and “I hope it ain't that one [the fire marshal] from Colbert
County. I don't want him here.” (R. 1128.)
Cpt. Steve Thornton with the Russellville Fire
Department testified that he arrived at the scene after the fire
had been extinguished. The fire, he said, originated in Mason's
and Noah's bedroom. He said that some of the electrical outlets
from the bedroom were cut out of the wall in his presence, that
each outlet was cut at a different length to identify it, and that
the outlets were photographed from all angles. One outlet, he
said, the outlet that was behind Mason's bed could not be located;
however, numerous photographs of this outlet had been made.
Thornton said that firefighters sifted through the fire debris for
8 to 10 hours but were unable to locate this missing outlet.
Dolan Gassett, a deputy fire marshal, testified
that he found a disabled smoke detector in the hallway outside the
boys's bedroom. (R. 1818.) Morris Brown, a former firearms and
toolsmark expert with the Alabama Department of Forensic Sciences,
testified that in his opinion the smoke detector had been forcibly
removed, or pulled from the wall, before the fire started and it
was lying on the floor, undamaged by the fire. He said: “[S]ome
force acted upon the wires enough to cause the tearing of this
housing and caused the collateral abrasion of the wire.” (R.
2399–40.) There was evidence indicating that everything else
mounted on the walls at the same height as the smoke detector—the
electrical box that housed the smoke detector, a thermostat, a
wooden doorbell cover, and a picture frame—had sustained serious
heat damage or had melted completely. Testing indicated that the
smoke detector would have worked properly if it had been on the
wall at the time of the fire.
James Edwards, a deputy with the State Fire
Marshal's Office, testified that he interviewed Scott at the
Russellville Fire Department on August 26. Scott gave the
following account of the events of August 16:
“I went back to watch TV. I was watching Fear
on HBO. I went back to check on them at 10:00 p.m. Mason was
asleep and Noah Riley was not. I turned on the satellite and told
him that he needed to go to sleep. I went back to watch my movie.
The movie went off around 11:00 p.m. I went in the room to check
on the boys. The TV was off and Noah Riley was still awake. I told
him to come get in the bed with me.
“We went to my room and went to bed. As I went
to sleep, the house was fine. The Jack and Jill bathroom light was
on and the night-light played and—plugged into the wall. In my
room I had turned the light on over the toilet for Noah Riley. We
went to sleep.
“The next thing I remember is something hitting
my face. As I started to wake up, I could smell the smoke and feel
the heat on my face. I rolled off the bed and covered Noah Riley
and told him to be still. I crawled over to the door. I looked out
in the hallway, which was covered in smoke. I could see flickering
that I thought at the time was coming from the laundry room.
“I went back into our room, pushed the door to.
I crawled back over to the bed and pulled Noah Riley off in the
floor. He began to cry at this point. I took a deep breath, stood
up, and opened the window. I punched the screen out. I picked up
Noah Riley, kissed him, told him I loved him, and dropped him out
of the window.
“At this time I could hear crackling and
popping. I began to try to get out of the window, got halfway out
and fell. When I got on the ground, I took, Noah Riley by the hand
and started around the house. He told me that I was hurting him.
So I picked him up and carried him through the front yard with me.
“Where there was—there was fire coming out of
the window in the boys' room and going over the top of the roof.
It was orange. I ran to Jennifer's house, banged on the door. When
she came to the door, I handed Noah Riley to her, told her to dial
911 that the house was on fire.
“I yelled to her that Mason was still in the
house as I headed back to the house. I ran over to the garage
doors. I put in the code and the doors would not open. I tried
several times to get in with the code. Then I ran around to the
front of the house. The flames had started running across the peak
of the roof.
“I was headed to the front door when Brian
[Copeland] grabbed me and held me down. Later I remembered the
light in my bathroom was off when I woke up.”
(R. 1762–64.)
A psychiatrist, Dr. Rebecca Dailey, testified
that Mason was brought to her for an evaluation in April 2007. She
diagnosed Mason with Attention Deficit Hyperactivity Disorder
(“ADHD”); Oppositional Defiant Disorder (“ODD”); and Pervasive
Developmental Disorder (“PDD”). She prescribed Abilify for his
obsessive behavior; Risperdal as a antipsychotic; and Vyvense for
his hyperactivity. Dr. Dailey testified that she last saw Mason 12
days before his death.
A pediatrician, Dr. Duane Carter, testified
that on February 6, 2008, he diagnosed Mason with bronchitis and
prescribed an antibiotic Omniced, a steroid drug Decadron, and a
codeine based cough syrup whose generic name is promethazine. He
prescribed promethazine again on April 16, 2008. Dr. Carter
testified that the cough syrup would make a child sleepy.
A toxicologist at the Department of Forensic
Sciences, Dr. Jack R. Kalin, analyzed Mason's blood. Dr. Kalin
testified that he identified the following drugs in Mason's
system: amphetamines, codeine, and promethazine, an antihistamine
typically used to treat nausea in postoperative patients. He said
that the amphetamine level in a typical child being treated for
ADHD is less than 100 but that Mason's level was 450—a level, he
said, that was consistent with what you would expect to see in a
DUI case. Dr. Kalin further testified that this was the first case
where he had seen codeine used in conjunction with promethazine
and that both substances would induce sleepiness and drowsiness.
Dr. Kalin said that he did not find the presence of Risperdal or
Abilify in Mason's blood. Mason's carbon-monoxide level, he said,
was greater than 90% which is extremely high.
The State's experts ruled out lightning,
spontaneous combustion, rechargeable batteries, and faulty
electrical wiring as the cause of the fire. Michael Haynes with
the State Fire Marshal's Office testified that there was no
indication that any hydrocarbon accelerant had been used.
(R.1927.) Dr. Raphael A. Franco, Jr., an electrical engineer,
testified that he was asked to examine the scene and to determine
whether the fire was electrical in origin. In August 2008, he
said, he went to the scene and stayed there for 12 hours
conducting his examination. Dr. Franco testified that there were
five electrical outlets in the boys's bedroom, that the wiring ran
under the floor, that the outlets were all on one circuit breaker,
that he inspected every outlet and receptacle, except outlet
number 1, that he took 425 photographs of the scene, that he
examined the wiring underneath the house, that he examined the
attic, that the night-light was not the cause of the fire, that
there was no damage to the underground wiring in the house, that
the fire did not originate in outlet number 1 because the
electrical box that housed the outlet was intact, and that, in his
opinion, the fire was not electrical in origin. He further
testified that the television had been plugged into outlet number
5, that the cord to the television was damaged by an external fire
which caused the circuit breaker to trip meaning, he said, that
the electricity had to pass through outlets number 1 through 4
before going to 5 and that the fire could not have been electrical
in origin.
A fire-protection consultant, James Munger,
testified for the State as an expert in the area of fire science.
Munger said that he visited the scene of the fire and reviewed
hundreds of photographs that had been taken of the damage. The
following occurred during his direct examination:
“[Prosecutor]: [D]id you form an opinion as to
whether all accidental nonintentional causes of the fire had been
eliminated?
“[Munger]: Yes, sir. I mean, obviously, one of
them was the electrical. I was aware of Dr. Franco's work. But I
was also, even though they had been there before I was, I was
still able to look at where all of the electrical receptacles were
located, and you can very clearly tell from the burn or lack of
burn damage around all of those receptacle locations that the fire
did not originate from any of those.”
(R. 2651.) It was his opinion that the fire was
incendiary, which he explained, is a fire “intentionally set by
someone. ․” (R. 2654.) Phillip Freeman, a deputy State fire
marshal, testified that it was his opinion that the fire
originated around the bed that was closest to the window—Noah's
bed. (R. 1891.) He said the following concerning the outlets:
“The plugs appeared to have external damage.
All the damage that I observed appeared to come from external
heat. When you looked at the actual—where the wires were attached
to the outlets in the box, the insulation was still in pretty good
shape on them.
“A couple of them even had the paper that is
inside. When you strip the outer insulation back that paper in
there, a couple of those even still had the paper in there. And if
it had been interior heating from inside the box that should
have—the insulation and that should have been a lot more damaged
than what it showed.”
(R. 1895.) Freeman testified that the outlet
the television was plugged into had the “least damage of any of
them in the room.” (R. 1896.) It was his opinion that the fire was
not electrical in origin. Mason's high level of carbon monoxide
did not change his opinion, he said: “I feel like that, as I
explained, the way the fire built up and ventilated out of that
hallway that it probably burned slow early on for several minutes
and that allowed [Mason] to breathe a large amount of this carbon
monoxide before the room actually built up enough to get
flashover, if, indeed, it did.” (R.1922.)
The State presented numerous witnesses who
testified concerning Scott's behavior immediately after the fire,
which was inconsistent with a grieving parent. Anna Kay Greenhill,
a hair stylist at Hello Gorgeous, testified that on the day of
Mason's death, Christie and Jeremy came to the shop for Jeremy's
scheduled appointment. She said that they joked and bantered about
how long Jeremy's hair had gotten but did not mention Mason's name
at any time during the 20–minute appointment. Heather McCalpin,
who was married to one of Scott's cousins, testified that at the
funeral Scott held her daughter and said: “Noah's always wanted a
baby sister, maybe he can get one now .” (R. 2982.)
Witnesses testified that Scott had been cruel
to Mason in public, the last time being on the morning of the fire
when Scott took Mason to school where she spoke harshly to him and
pushed him. Other witnesses testified that Scott had verbally
abused Mason and that she had yanked his hair, shoved him, and hit
him on the back of the head to make him be quiet. Another witness
testified that after the fire, Scott told him she did not know how
she could be so unlucky—that she had had three house fires in two
years and that God was punishing her for not wanting to raise
Mason, an autistic child.
The evidence also showed that Scott had
obtained two life-insurance policies on Mason and Noah within
months before Mason's death and on August 15, 2008, had applied
for a third life-insurance policy. Robert Robinson, a senior vice
president for Alfa Insurance, testified that Alfa had two
life-insurance policies on Mason Scott. The first policy, issued
on May 6, 2008, was for $50,000; a second policy issued on June
14, 2008, was for $25,000. The Scotts had the same coverage for
Noah. Jeremy and Christie Scott were the beneficiaries of the
policies, Robinson said. A check from Alfa had been issued to the
Scotts for $25,000 after Mason's death, but Alfa declined to pay
the remaining amount because Scott had omitted information
concerning Mason's health and his medications on the application
for the $50,000 policy. Lee Janacek, director of claims for the
Woodmen of the World Insurance Company, testified that on August
16, 2008, Scott obtained a third life-insurance policy on Mason in
the amount of $100,000. He further testified that Scott failed to
indicate in her policy application that Mason had health problems
or that medication had been prescribed for his condition. David
Swindall, a claims supervisor with Farmer's Insurance, testified
that after the August 2008 fire his company settled with the
Scotts on their homeowner's policy and paid them $188,000 for the
dwelling, $60,000 for its contents, and $5,500 for living
expenses. (R. 2374.)
Russell Yawn, chief investigator for the Office
of Prosecution Services, testified that he supervised the forensic
examination conducted on the computer taken from the Scott
residence. He examined the Internet search history for August 15
and August 16, 2008. On August 15, he said, the computer was used
to search numerous real-estate sites for houses for sale. Also, at
1:04 a.m. on the morning of August 16, 2008, the computer showed
that a user accessed the site boaterexam.com. There was also
testimony that the day before the fire Scott had asked a teacher
if her house was for sale.
Evidence was also presented indicating that two
fires had occurred at the Scotts' previous residence on Steel
Frame Road in 2006 and that as a result of the second fire the
Scotts had received over $185,000 in insurance monies. The
following testimony was presented concerning these two fires:
A real-estate broker, Willodean Davis testified
that in May 2005 her company, Davis Realty and Associates, listed
the Scott house on Steel Frame Road for sale. Davis testified that
the house did not sell in the six-month listing period and that
the Scotts did not relist the house. Kirk Berryman, a former agent
with Farm Bureau Insurance, testified that in February 2005 he
sold the Scotts insurance for their home on Steel Frame Road in
the amount of $116,000. In December 2005, he said, the Scotts
increased the coverage to $139,000—the maximum amount it could be
increased without a new appraisal. A ring, valued at $14,750, was
added to the insurance policy in November 2005.
On January 12, 2006, the first fire occurred at
the Scott residence on Steel Frame Road. This fire was ruled an
accident. It started when a pizza box was left on top of a hot
burner. Little damage was done to the house and few repairs were
necessary. The second fire, which occurred on January 14, 2006,
started in the kitchen and destroyed the Scott's house. Dwight
Walden, a fire investigator, testified that, in his opinion, the
second fire was intentionally set. There was also evidence that
Scott was the last individual to leave the house before that fire,
that Scott had increased her insurance coverage three months
before that fire, and that the smoke alarm had been disconnected
when the house was being cleaned. As a result of the second fire
the Scotts received insurance monies of over $185,000.
In her defense, Scott presented the testimony
of two experts in fire investigation and numerous friends and
family members. The experts testified that the August 16, 2008,
fire was accidental and started in the enclosed wooden television
cabinet in the children's bedroom. Defense experts testified that
the State's experts had based their arson determination on
outdated methods, that the State investigation had numerous flaws,
and that the State's experts erred in concluding that the fire
originated near Noah's bed. It was their opinion that the fire was
a closed-cabinet fire because of the high level of carbon monoxide
in Mason's blood.
Scott testified in her own defense and said
that at approximately 11:00 p.m. on August 15 she turned off her
television and went to check on her sons. Noah was still up and
she had him come to bed with her. At approximately 2:30 a.m., she
said, she was awakened when Noah slapped her on the face. She
smelled smoke and tried to get to Mason's bedroom but was unable
to do so because of the thick smoke and intense heat. Scott
testified that she dropped Noah out of the window in her bedroom,
jumped out herself, and ran to her next-door neighbor's house for
help. She said that she returned with her neighbor and tried to
get back into the house:
“I pushed the code in, it wouldn't—and my hands
were jerking, and I thought it may be me that my hands were
jerking so bad that I was hitting the wrong buttons. So I told
Brian [Copeland] the code, and Brian pushed in the code and it
wouldn't open.
(R. 3667.) She said that she tried to put in
the code six times. Scott also testified that she gave Mason a
teaspoon of cough medicine the evening before the fire because he
was coughing. A good portion of Scott's testimony was inconsistent
with the testimony of numerous State witnesses.
Scott's father, Donald Bray, testified that he
did not ask Scott what she had done when he arrived at the scene
but that he asked where his babies where.
In rebuttal, the State presented the testimony
of Jim Hananah with the State Fire Marshal's Office. He testified
that Jeremy Scott initially cooperated with police and told them
that Scott said to him at Mason's graveside, “What do you think
about having another child now?” (R. 3863.)
Kelly Bragwell testified that she was related
to Scott's husband by marriage. She said that she retrieved some
jewelry out of Scott's home about one week after the fire.
Bragwell further testified that Scott told her that her “nice
wedding ring” was not in the house at the time of the fire but was
at her mother's house.
The jury chose not to believe Scott's account
of the events of August 16, 2008, and convicted Scott of three
counts of capital murder. A separate sentencing hearing was held.
Scott presented the testimony of more than 20 family members,
friends, and clergy members. The jury recommended, by a vote of 7
to 5, that Scott be sentenced to life imprisonment without the
possibility of parole. The circuit court held a separate
sentencing hearing, declined to follow the jury's recommendation,
and sentenced Scott to death. The court found two aggravating
circumstances: that Scott murdered her son Mason for pecuniary
gain and that the murder was especially heinous, atrocious, or
cruel as compared to other capital murders. The circuit court
found one statutory mitigating circumstance—that Scott had no
significant history of prior criminal activity. The court also
found as nonstatutory mitigating circumstances: that Scott was
loved, that Scott's death would have an impact on her surviving
son, that Scott had helped people throughout her life, and that
the jury had recommended a sentence of life imprisonment without
the possibility of parole. After weighing all these circumstances,
the circuit court sentenced Scott to death. This appeal, which is
automatic in a case involving the death penalty, followed. See §
13A–5–53, Ala.Code 1975.
Standard of Review
Because Scott has been sentenced to death, this
Court applies the standard of review set out in Rule 45A, Ala.
R.App. P., which states:
“In all cases in which the death penalty has
been imposed, the Court of Criminal Appeals shall 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.”
In discussing the scope of “plain error,” the
Alabama Supreme Court has stated:
“ “ “Plain error' arises only 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.1983) (quoting United States v.
Chaney, 662 F.2d 1148, 1152 (5th Cir.1981)). See also Ex parte
Woodall, 730 So.2d 652 (Ala.1998). “ ‘In other words, the
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.” ” Ex parte Land,
678 So.2d 224, 232 (Ala.1996) (quoting United States v. Young, 470
U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting in turn
United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584,
71 L.Ed.2d 816 (1982))). ‘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), cert.
denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001). This
Court may take appropriate action when the error ‘has or probably
has adversely affected the substantial rights of the appellant.’
Rule 45A, Ala. R.App. P. ‘[A] failure to object at trial, while
not precluding our review, will weigh against any claim of
prejudice.’ Ex parte Woodall, 730 So.2d at 657 (citing Kuenzel v.
State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd, 577 So.2d 531
(Ala.1991)).”
Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002).
“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).
With these principles in mind, we review the
issues raised by Scott in her brief to this Court.
I.
Scott argues that the circuit court erred in
denying her motion for a change of venue because, she says, the
community was so saturated with prejudicial pretrial publicity
that she was prevented from obtaining a fair and impartial trial.
The record shows that in March 2009 Scott moved
for a change of venue and argued the following:
“All the major newspapers in the area of
Franklin County, Lauderdale County, Limestone County, Madison
County, Alabama, and other surrounding counties have published and
circulated newspaper articles describing the acts with which
[Scott] is charged, and these papers included significant portions
of documentary and hearsay evidence relative to [Scott], the
admissibility of which has not been considered by this Honorable
Court. This information has severely prejudiced defendant.”
(C. 258.) In April 2009, Scott filed a second
motion for a change of venue and submitted the results of a
telephone survey of Franklin County that had been conducted within
the preceding three months. The survey showed that 80% of the
people polled had heard about the case and that 64% thought that
Scott should be punished. After a hearing, the circuit court
denied the motion for a change of venue. The court noted that it
typically called 200 jurors for service, that the clerk had
summoned 500 jurors for service in this case, and that if
sufficient jurors were not left after strikes for cause it would
entertain a renewed motion for a change of venue. (C. 358.)
During voir dire, after Scott read the juror
questionnaires, Scott renewed her motion for a change of venue.
The circuit court denied the motion and indicated that it would
see what happened during the voir dire examination. (C. 408.) It
does not appear that Scott renewed this motion after voir dire
examination.
“In connection with pretrial publicity, there
are two situations which mandate a change of venue: 1) when the
accused has demonstrated ‘actual prejudice’ against him on the
part of the jurors; 2) when there is ‘presumed prejudice’
resulting from community saturation with such prejudicial pretrial
publicity that no impartial jury can be selected. Sheppard v.
Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966);
Rideau [v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663
(1963) ]; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d
543 (1965); Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert.
denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985);
Coleman v. Zant, 708 F.2d 541 (11th Cir.1983).
“The ‘actual prejudice’ standard is defined as
follows:
“ ‘To find the existence of actual prejudice,
two basic prerequisites must be satisfied. First, it must be shown
that one or more jurors who decided the case entertained an
opinion, before hearing the evidence adduced at trial, that the
defendant was guilty. Irvin v. Dowd, 366 U.S. [717,] 727, 81 S.Ct.
[1639,] 1645, [6 L.Ed.2d 751, 758–59 (1961) ]. Second, these
jurors, it must be determined, could not have laid aside these
preformed opinions and “render[ed] a verdict based on the evidence
presented in court.” Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at
1643 [6 L.Ed.2d at 756].’
“Coleman v. Zant, 708 F.2d at 544.
“․ [The defendant] relies on the ‘presumed
prejudice’ standard announced in Rideau, and applied by the United
States Supreme Court in Estes and Sheppard. This standard was
defined by the Eleventh Federal Circuit Court of Appeals in
Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985), cert. denied, 476
U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). The court
stated: ‘Prejudice is presumed from pretrial publicity when
pretrial publicity is sufficiently prejudicial and inflammatory
and the prejudicial pretrial publicity saturated the community
where the trials were held.’ 778 F.2d at 1490 (emphasis added).
See also Holladay v. State, 549 So.2d 122, 125 (Ala.Cr.App.1988),
affirmed, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110
S.Ct. 575, 107 L.Ed.2d 569 (1989).
“In determining whether the ‘presumed
prejudice’ standard exists the trial court should look at ‘the
totality of the surrounding facts.’ Patton v. Yount, 467 U.S.
1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Murphy v. Florida,
421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd,
366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The presumptive
prejudice standard is ‘rarely’ applicable, and is reserved for
only ‘extreme situations.’ Coleman v. Kemp, 778 F.2d at 1537. ‘In
fact, our research has uncovered only a very few ․ cases in which
relief was granted on the basis of presumed prejudice.’ Coleman v.
Kemp, 778 F.2d at 1490.”
Hunt v. State, 642 So.2d 999, 1042–44
(Ala.Crim.App.1993).
“The burden of showing actual prejudice or
community saturation with prejudicial publicity lies with the
appellant. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16
L.Ed.2d 600 (1966). In addition, the appropriate method to
establish the existence of adverse publicity or actual prejudice
is through voir dire examination of potential jurors. Anderson v.
State, 362 So.2d 1296 (Ala.Cr.App.1978); Ex parte Grayson, 479
So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88
L.Ed.2d 157 (1985).”
Hart v. State, 612 So.2d 520, 527
(Ala.Crim.App.1992).
“[T]he determination of whether or not to grant
a motion for change of venue is generally left to the sound
discretion of the trial judge because he has the best opportunity
to assess any prejudicial publicity against the defendant and any
prejudicial feeling against the defendant in the community which
would make it difficult for the defendant to receive a fair and
impartial trial.”
Nelson v. State, 440 So.2d 1130, 1132
(Ala.Crim.App.1983).
Our examination of the juror questionnaires
shows that of the 82 jurors who completed questionnaires, 56 of
those jurors indicated that Scott was not guilty, 12 indicated
that Scott was guilty, 11 had no opinion, 2 left the question
blank, and 1 juror answered “n/y.”1
All 82 jurors indicated that they had not been exposed to anything
about the case that would make it difficult for them to sit on the
jury. Sixteen jurors were questioned concerning their responses on
the questionnaire to the questions concerning Scott's guilt. One
of these jurors was struck for cause. Those jurors who indicated
that they thought Scott was guilty said during voir dire
examination that they either did not understand the question or
the court system and that they could follow the court's
instructions.
The record clearly shows that the venire was
not biased based on any pretrial publicity. Accordingly, the
circuit court did not abuse its discretion in denying Scott's
motions for a change of venue. See Hunt, supra.
II.
Scott next argues that the circuit court erred
in failing to remove for cause five veniremembers who, she says,
had relationships or beliefs that impaired their ability to be
impartial and forced her to use her peremptory challenges to
remove these jurors.
“To justify a challenge for cause, there must
be a proper statutory ground or “ ‘some matter which imports
absolute bias or favor, and leaves nothing to the discretion of
the trial court.” ’ Clark v. State, 621 So.2d 309, 321
(Ala.Cr.App.1992) (quoting Nettles v. State, 435 So.2d 146, 149
(Ala.Cr.App.1983)). This Court has held that ‘once a juror
indicates initially that he or she is biased or prejudiced or has
deep-seated impressions' about a case, the juror should be removed
for cause. Knop v. McCain, 561 So.2d 229, 234 (Ala.1989). The test
to be applied in determining whether a juror should be removed for
cause is whether the juror can eliminate the influence of his
previous feelings and render a verdict according to the evidence
and the law. Ex parte Taylor, 666 So.2d 73, 82 (Ala.1995). A juror
‘need not be excused merely because [the juror] knows something of
the case to be tried or because [the juror] has formed some
opinions regarding it.’ Kinder v. State, 515 So.2d 55, 61
(Ala.Cr.App.1986). Even in cases where a potential juror has
expressed some preconceived opinion as to the guilt of the
accused, the juror is sufficiently impartial if he or she can set
aside that opinion and render a verdict based upon the evidence in
the case. Kinder, at 60–61. In order to justify disqualification,
a juror “ ‘must have more than a bias, or fixed opinion, as to the
guilt or innocence of the accused” ’; “ ‘[s]uch opinion must be so
fixed ․ that it would bias the verdict a juror would be required
to render.” ’ Oryang v. State, 642 So.2d 979, 987
(Ala.Cr.App.1993) (quoting Siebert v. State, 562 So.2d 586, 595
(Ala.Cr.App.1989)).”
Ex parte Davis, 718 So.2d 1166, 1171–72
(Ala.1998).
“A trial judge is in a decidedly better
position than an appellate court to assess the credibility of the
jurors during voir dire questioning. See Ford v. State, 628 So.2d
1068 (Ala.Crim.App.1993). For that reason, we give great deference
to a trial judge's ruling on challenges for cause. Baker v. State,
906 So.2d 210 (Ala.Crim.App.2001).”
Turner v. State, 924 So.2d 737, 754
(Ala.Crim.App.2002).
Section 12–16–150(7), Ala.Code 1975, states
that a juror should be removed for cause if “he has a fixed
opinion as to the guilt or innocence of the defendant which would
bias his verdict.”
A.
Scott first argues that the circuit court erred
in denying her motion to remove juror K.B. for cause because, she
argues, K.B. is the sister of Russellville Fire Cpt. Steve
Thornton who was a critical state witness: he testified, in depth,
concerning the investigations into the 2006 and the 2008 fires at
the Scotts' houses and was the evidence custodian. Scott relies on
Ex parte Tucker, 454 So.2d 552 (Ala.1984), and Simpson v. State,
666 So.2d 100 (Ala.Crim.App.1995), to support her argument.
The record shows that after voir dire of K.B.,
defense counsel made the following motion:
“[A]lthough [K.B.] continuously said that the
fact that her brother is a witness in this trial that that would
not affect her ability to be fair, it's our position and caselaw
supports our position that the jurors themselves are sometimes
ill-postured to make a determination as to whether or not they can
be fair.
“And because of that familial relationship with
a brother that's actually one of the key witnesses in the
prosecution of this case, we feel this is one of those situations
where her challenge for cause is warranted in spite of her
answers. And it's because of the familial association and the fact
that her own brother is one of the key witnesses in the case.
“Even though she says she can be fair, I think
that reason suggests otherwise.”
(R. 860–61.) The circuit court denied the
motion based on K.B.'s answers to voir dire questions. (R. 861.)
The Alabama Supreme Court in Ex parte Tucker,
reversing Tucker's conviction on an unrelated claim, stated:
“[W]e note that during the qualification of the
venire, it was discovered that a potential venireman, Jerry
Bradshaw, was the brother of a witness for the State. Counsel for
petitioner challenged the venireman for cause, stating, ‘He is the
brother of perhaps the most material witness in the entire case.’
The trial judge denied the challenge. To do so was reversible
error. Nobis v. State, 401 So.2d 191 (Ala.Crim.App.), cert.
denied, 401 So.2d 204 (Ala.1981).”
454 So.2d at 553.
In Simpson v. State, 666 So.2d 100
(Ala.Crim.App.1995), this Court relied on the Supreme Court's
decision in Tucker and reversed Simpson's murder conviction after
the circuit court failed to exclude a juror for cause whose
son-in-law was the chief investigator on Simpson's murder case.
Based on the Supreme Court's decision in Tucker
and this Court's decision in Simpson, we must hold that the
circuit court erred in refusing to remove juror K.B. for cause
based on her relationship to a critical state witness. However,
the inquiry does not end there. Scott was forced to use one of her
peremptory strikes to remove K.B. As the Alabama Supreme Court
stated in Bethea v. Springhill Memorial Hospital, 833 So.2d 1
(Ala.2002):
“The application of a ‘harmless-error’ analysis
to a trial court's refusal to strike a juror for cause is not new
to this Court; in fact, such an analysis was adopted as early as
1909:
“ ‘The appellant was convicted of the crime of
murder in the second degree. While it was error to refuse to allow
the defendant to challenge the juror C.S. Rhodes for cause,
because of his having been on the jury which had tried another
person jointly indicted with the defendant, yet it was error
without injury, as the record shows that the defendant challenged
said juror peremptorily, and that, when the jury was formed the
defendant had not exhausted his right to peremptory challenges.’
“Turner v. State, 160 Ala. 55, 57, 49 So. 304,
305 (1909). However, in Swain v. Alabama, 380 U.S. 202, 219, 85
S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds,
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986), the United States Supreme Court stated, in dicta, that
‘[t]he denial or impairment of the right is reversible error
without a showing of prejudice.’ (Emphasis added [in Bethea ].)
Some decisions of this Court as well as of the Alabama Court of
Criminal Appeals reflect an adoption of this reasoning. See Dixon
v. Hardey, 591 So.2d 3 (Ala.1991); Knop v. McCain, 561 So.2d 229
(Ala.1989); Ex parte Rutledge, 523 So.2d 1118 (Ala.1988); Ex parte
Beam, 512 So.2d 723 (Ala.1987); Uptain v. State, 534 So.2d 686,
688 (Ala.Crim.App.1988) (quoting Swain and citing Beam and
Rutledge ); Mason v. State 536 So.2d 127, 129 (Ala.Crim.App.1988)
(quoting Uptain ).
“․ [T]his Court has returned to the
‘harmless-error’ analysis articulated in the Ross v. Oklahoma, 487
U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and [United States
v.] Martinez–Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792
(2000), decisions. Because a defendant has no right to a perfect
jury or a jury of his or her choice, but rather only to an
‘impartial’ jury, see Ala. Const.1901 § 6, we find the
harmless-error analysis to be the proper method of assuring the
recognition of that right.
“In this instance, even if the Betheas could
demonstrate that the trial court erred in not granting their
request that L.A.C. be removed from the venire for cause (an issue
we do not reach), they would need to show that its ruling somehow
injured them by leaving them with a less-than-impartial jury. The
Betheas do not proffer any evidence indicating that the jury that
was eventually impaneled to hear this action was biased or
partial. Therefore, the Betheas are not entitled to a new trial on
this basis.”
833 So.2d at 6–7.
Later, in General Motors Corps. v. Jernigan,
883 So.2d 646 (Ala.2003), the Supreme Court revisited its holding
in Bethea and found reversible error in the trial court's failure
to remove five prospective jurors for cause. The Court stated:
“Because Ross [v. Oklahoma, 487 U.S. 81, 108
S.Ct. 2273, 101 L.Ed.2d 80 (1988) ], [United States v.]
Martinez–Salazar, [528 U.S. 304 (2000),] Bethea [v. Springhill
Memorial Hospital, 833 So.2d 1 (Ala.2002),] and Turner [v. State,
160 Ala. 55, 49 So. 304 (1909) ] all involved only one juror,
those cases can be distinguished. GM was forced to use 5 of its 19
peremptory challenges, over 25%, to eliminate potential jurors who
should have been struck by the trial court pursuant to GM's
challenges for cause. The jury that was seated consisted of jurors
who had been clients of one of the law firms representing
Jernigan, who knew Jernigan and/or his witnesses, and who had
either been injured themselves in automobile accidents or who had
relatives who had been injured, two of whom had filed lawsuits as
a result. Presumably, such jurors would have been struck by GM
through the exercise of its peremptory challenges had the full
arsenal of such challenges been available against jurors who
remained after correct rulings on the challenges for cause. The
fact that GM left one of Myron Penn's relatives on the jury,
albeit as an alternate, demonstrates that it could not exercise
enough peremptory challenges to remove all of the veniremembers it
had challenged for cause.
“Based upon the unique facts and circumstances
here presented, the trial court, by denying five of GM's
challenges for cause that should have been granted, substantially
impaired GM's right to the use of its peremptory challenges in
selecting a jury. In this case, unlike Bethea, the jurors who
ultimately were selected fell in the category of jurors who would
likely have been the subject of peremptory challenges had such
challenges been available. Therefore, we conclude that the
multiple errors on the part of the trial court in improperly
denying GM's challenges for cause were not harmless, whether or
not it could have been shown that the jury ultimately seated was
unbiased and impartial.
“The trial court erred in denying GM's
challenges for cause as to the five veniremembers related to
attorneys in this case.”
883 So.2d at 672–73. See also Ex parte Colby,
41 So.3d 1 (Ala.2009) (finding reversible error in court's failure
to remove three prospective jurors for cause).
Because we hold that there was no error in
regard to the remaining challenged jurors, we hold that any error
in failing to grant Scott's challenge for cause of juror K.B. was
harmless. See Bethea, supra.
B.
Scott argues that the circuit court erred in
denying her motion to remove juror L.H. for cause because, she
says, L.H. said during voir dire that she had discussed the case
with her husband, that she knew Scott's family, and that she was a
“tenderhearted” person.
The following occurred during the voir dire of
juror L.H.:
“[Defense counsel]: And are you telling us that
you don't think you would be able to sit and hear this case?
“[L.H.]: Probably not.
“[Defense counsel]: Okay.
“[L.H.]: I mean, without crying and carrying
on. I mean, that's just the truth.
“[Defense counsel]: Well, that's what we want
to hear.
“[L.H.]: Because I'm just real tender hearted.
“[Defense counsel]: But the question would
be—and I understand you said it may be emotional, but can you
follow the instructions, follow the law or would it be impossible
to do that because of your emotions?
“[L.H.]: No, I could. But I haven't slept the
last two nights worrying about it. I woke up at 2:00 and 2:30, and
I was just—it's just too close to kids.
“The Court: All right. I interrupted you. Did
you have anything?
“[Defense counsel]: I don't have anything else,
Your Honor.
“The Court: Okay. [Prosecutor], anything?
“[Prosecutor]: As the judge said, you could
follow the law—
“[L.H.]: Oh, yes.
“[Prosecutor]:—and apply the law to the facts
as you see them?
“[L.H.]: Right. Right.”
(R. 794–96.) Scott moved that juror L.H. be
removed for cause, and the following occurred:
“The Court: That would be denied. I think she
said she could follow the law. She doesn't want to serve, but I
don't think that's a legally justifiable excuse to let her out of
service.
“[Defense counsel]: Judge, she's one of the
teachers that commented yesterday that all teachers should be
excluded from the jury because of their close work with children
and the fact that a child is involved in this case.
“The Court: Yes, I do remember that, but she
said that she, personally, could follow the judge's instructions.
So that would be denied.”
(R. 862.)
“Because the qualification of a juror is a
matter within the discretion of the trial judge, on appeal this
Court will look to the questions asked and the answers given only
to see if the trial court's discretion was properly exercised.” Ex
parte Cochran, 500 So.2d 1179, 1183 (Ala.1985). “ ‘[T]he mere fact
that a prospective juror is personally acquainted with the victim
[or his family] does not automatically disqualify a person from
sitting on a criminal jury.” ’ Morrison v. State, 601 So.2d 165,
168 (Ala.Crim.App.1992), quoting Brownless v. State, 545 So.2d
151, 164 (Ala.Crim.App.1988).
“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 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.”
Dunning v. State, 659 So.2d 995, 997
(Ala.Crim.App.1994).
Clearly, juror L.H. indicated that she was
impartial, that she could follow the law, and that she could apply
the law to the facts of the case. The circuit court committed no
error in denying Scott's motion to remove juror L.H. for cause.
See Dunning.
C.
Scott next argues that the circuit court erred
in denying her motion to remove juror A.K. for cause because
A.K.'s daughter worked at the hair salon used by the Scott family,
because A.K. has a special-needs grandchild that would make it
difficult for her to serve on the jury, and because A.K. had
talked to her daughter about the case.
The record shows that juror A.K. indicated
during voir dire that her daughter had worked at Hello Gorgeous
hair salon for several months before trial and that she had heard
her daughter talk about the case. The following then occurred:
“[Prosecutor]: Okay. Could you still sit on
this jury and make a decision in the case based on the evidence in
the case?
“[A.K.]: Yes.
“[Prosecutor]: And not be swayed by what you
may have heard one way or the other?
“[A.K.]: Yes.”
(R. 481–82.) Scott moved that juror A.K. be
removed for cause without stating any basis for the motion. The
circuit court denied the motion. (R. 864.)
Scott asserts that because the record showed
“probable prejudice” in regard to juror A.K., the circuit court
erred in denying her motion to remove A.K. for cause. In regard to
probable prejudice, we have stated:
“In the event that probable prejudice is
demonstrated, the trial court should determine whether the
challenged juror can set aside that prejudice and render a verdict
solely on the evidence. See Dailey [v. State ], 828 So.2d [340]
343 [ (Ala.2001) ] (“ “[I]f the juror can lay aside his impression
or opinion and render a verdict based on the evidence presented in
court,' he is not subject to challenge for cause.” ' (quoting
Minshew v. State, 542 So.2d [307] at 309 [ (Ala.Crim.App.1988) ],
quoting in turn Mahan v. State, 508 So.2d 1180, 1182
(Ala.Crim.App.1986)))․”
Ex parte Colby, 41 So.3d 1, 5 (Ala.2009).
A.K. stated that she could sit on the case and
make a decision based on the evidence and that she would not be
swayed by what she had heard. A.K. also did not ask to be excused
from service because of her grandchild. She merely stated that
arrangements would have to be made. According to Colby, A.K. was
not subject to a challenge for cause. Thus, the court committed no
error in denying Scott's motion to strike A.K. for cause.
D.
Scott asserts that juror C.M. should be removed
for cause based on his responses to questions concerning the
appropriateness of the sentence.
The following occurred during voir dire
questioning:
“[Prosecutor]: [Y]ou said that if there is a
murder or a death, there should always be the death penalty. Is
that not what you said? Did I get you wrong?
“[C.M.]: I didn't mean it like that if I did.
“[Prosecutor]: But my point is, if it comes to
that point in the trial, you could sit here and you could make a
decision and listen to both sides and seriously consider the death
penalty along with the other choice that you might have in the
case?
“[C.M.]: (Nods head up and down.)
“[Prosecutor]: Okay. If you will, speak up so
he can take it down.
“[C.M.]: Yes, sir.”
(R. 473.) Later during voir dire, defense
counsel questioned C.M. and the following occurred:
“[Defense counsel]; Okay. You were also asked
some questions about the death penalty.
“[C.M.]: Uh-huh.
“[Defense counsel]: Can you tell us what your
views are about the death penalty, sir? And keep in mind, there
aren't any right or wrong answers here. We just want to hear how
you feel.
“[C.M.]: Well, I think there's things that's
done should get the death penalty.
“[Defense counsel]: Okay.
“[C.M.]: Certain crimes just make me sick, you
know.
“[Defense counsel]: What about a situation
where someone intentionally kills another individual? Do you
believe the death penalty should be imposed in some of those kind
of cases every time?
“[C.M.]: Well, maybe not every time because
sometimes, you know, life without parole is just about as bad as
death.
“The Court: Okay. What about a situation where
someone intentionally kills child? What do you think about that?
Was that appropriate for the death penalty every time?
“[C.M.]: I would have to give them the death.
Yep, I would have to give them the death [penalty] for killing a
child.
“[Defense counsel]: Are you pretty set in that
opinion?
“[C.M.]: Well, yeah. Pretty set in it. I feel
that I don't like people messing with kids.
“․
“[Prosecutor]: What I want to do is ask you
just a little bit about your views on the death penalty. And I
know you have those views and I know you said they were pretty set
as far as some types of death.
“Do you understand that under the law there are
certain intentional killings under the law where the death penalty
isn't even an option and that the Legislature has set out certain
types of murder where they have said that the death penalty is an
option?
“And my question to you is, after we talked
today, and I know what your feelings are, but after we talked
today, assuming that this defendant is found guilty of capital
murder, could you sit on this jury and listen to the judge's
instructions and despite your feelings, could you weigh those
aggravating circumstances we talked about and the mitigating
circumstances and in this case where there was the death of a
child come up with a decision, possibly after weighing those, come
up with a decision of life without parole?
“[C.M.]: Yes, I could. I'm open to it.
“[Prosecutor]: Okay.
“[C.M.]: I hate people killing kids.
“[Prosecutor]: Well, I understand that. But you
could, you could do that and you could follow the Court's
instructions about that?
“[C.M.]: Yes.
“[Prosecutor]: Okay.
“The Court: [C.M.] the law would say that there
are certain times that even the killing of a child does not
warrant the death penalty depending upon aggravating and
mitigating circumstances. You would have to put aside your
personal opinion that the murder of a child should always require
the death penalty.
“Can you do that or is that too deeply held a
belief for you to put that aside?
“[C.M.]: I could do that.
“The Court: You could set it aside?
“[C.M.]: Yeah, set it aside.
“The Court: Okay. Because you would be asked
and have a responsibility to weigh the mitigating and aggravating
circumstances if guilt was proven beyond a reasonable doubt, and
you couldn't come in with the idea that you're always going to
give the death penalty to someone that killed a child. Can you do
that?
“[C.M.]: I can do that.”
(R. 815–18.) Scott moved that juror C.M. be
removed for cause without stating any grounds. The circuit court
denied the motion. (R. 864.)
“ ‘[J]urors who give responses that would
support a challenge for cause may be rehabilitated by subsequent
questioning by the prosecutor or the court.’ Johnson v. State, 820
So.2d 842, 855 (Ala.Crim.App.2000). ‘The crucial inquiry is
whether the veniremen could follow the court's instructions and
obey his oath, notwithstanding his views on capital punishment.’
McNabb v. State, 887 So.2d 929, 944 (Ala.Crim.App.2001), quoting
other cases.”
Brownfield v. State, 44 So.3d 1, 34
(Ala.Crim.App.2007).
Though C.M. initially indicated that he thought
a person who killed a child should be given the death penalty,
upon further questioning C.M. indicated that he could follow the
law and consider the mitigating evidence. C.M. was rehabilitated.
Thus, the circuit court did not abuse its discretion in denying
Scott's motion to strike C.M. for cause.
E.
Scott next asserts that the circuit court
should have removed juror S.S. for cause based on her views toward
the death penalty and because she knew State witness Brian
Copeland.
The record shows that on S.S.'s juror
questionnaire she indicated the following in response to the
question about her feelings concerning the death penalty: “That
people guilty of murder deserve the death penalty.” In response to
the question about the appropriateness of the death penalty for a
person who intentionally kills another person, she checked the
line indicating: “The death penalty should or should not be used
depending on the facts of the case.” In answer to the question
whether she agreed with the statement: “Anyone who plans and
commits the crime of murder should get the death penalty,” she
checked the line indicating that she “[a]greed somewhat.”
During voir dire of S.S., the following
occurred:
“[Prosecutor]: Could you ․ if it comes to this
point in the trial, sit on the jury venire and during the
sentencing phase and listen to the mitigating circumstances and
the aggravating circumstances and fairly consider all of the
options you have?
“[S.S.]: Yes sir.
“[Prosecutor]: You could do that?
“[S.S.]: Yes, sir.”
(R. 473–74.) Later, the following occurred:
“The Court: The fact that Mr. Copeland may be a
witness in the case, do you feel like that would affect your
ability to be fair and impartial?
“[S.S.]: The only reason I'm saying that is I
have had discussions with his family as to what he may or may not
know. And I don't—as the person I know him to be, I know him to be
fair. And for what (inaudible) I've heard so much.
“The Court: So that—
“․
“All right. So based on that preexisting
information that you have, then you think that it may affect your
ability to be fair and impartial?
“[S.S.]: I would be fair, but I think I know—I
mean, I just feel that I know too much or I've heard too much.
“The Court: You couldn't put that knowledge out
of your mind and go solely on what the evidence from the witness
stand is?
“[S.S.]: I would listen to everything. I just
want y'all to know that I do know this man and his family.
“The Court: Okay. Well, the question that I
have to have satisfied is whether the information that you already
know regarding Mr. Copeland and any conversations you've had from
his family would affect you in some way?
“[S.S.]: No, sir. I would still listen and
be—and listen and go by the evidence.
“The Court: Okay.
“[S.S.]: I'm not saying I wouldn't.”
(R. 540–41.)
“The standard of fairness does not require
jurors to be totally ignorant of the facts and issues involved.
Murphy v. Florida, 421 U.S. 794, 799–800, 95 S.Ct. 2031,
2035–2036, 44 L.Ed.2d 589 (1975).” Ex parte Grayson, 479 So.2d 76,
80 (Ala.1985). “Even though a prospective juror admits to
potential bias, if further voir dire examination reveals that the
juror in question can and will base his decision on the evidence
alone, then a trial judge's refusal to grant a motion to strike
for cause is not error.” Perryman v. State, 558 So.2d 972, 977
(Ala.Crim.App.1989). “If a juror knows a witness or witnesses but
states that he can follow the trial judge's instructions and can
follow the law, that juror is not automatically subject to removal
for cause.” State v. Campbell, 359 N.C. 644, 702, 617 S.E.2d 1, 36
(2005). Juror S.S. indicated that she could follow the law and the
evidence. The circuit court did not err in denying Scott's motion
to remove juror S.S. for cause.
III.
Scott next argues that the circuit court erred
in denying her Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986), motion because, she says, the prosecutor used
two of his peremptory strikes to remove black prospective jurors
without having or providing race-neutral reasons for removing
those jurors. In Batson, the United States Supreme Court held that
it was a violation of the Equal Protection Clause to strike a
black prospective juror from a black defendant's jury based solely
on the juror's race. This holding has been extended to protect
white defendants from racial discrimination in jury selection, to
prohibit gender-based discrimination, and to prohibit defense
counsel from discriminating during jury selection. See Powers v.
Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991);
Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33
(1992); and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128
L.Ed.2d 89 (1994). The Alabama Supreme Court in White Consolidated
Industries, Inc. V. American Liberty Insurance Co., 617 S.2d 657
(Ala.1993), further extended this holding to white prospective
jurors.
Here, the record shows that at the conclusion
of striking the jury Scott argued that the State had violated
Batson when it struck jurors B.H. and M.W. because, she says,
there was no meaningful voir dire conducted on those jurors. (R.
874.) The State asserted that no prima facie case of
discrimination had been established; however, the State proceeded
to give its reasons for striking jurors B.H. and M.W.
“Because the prosecutor gave his reasons for
the strikes, we presume that a prima facie case of racial
discrimination was established and we proceed to the second and
third steps in the Batson inquiry—whether the prosecutor's reasons
for the strikes were race-neutral and whether they were
pretextual.”
Clark v. State, 896 So.2d 584, 609
(Ala.Crim.App.2000).
The prosecutor stated that he struck juror B.H.
for the following reasons:
“We've done a lot of research on the jury list
and as far as juror [B.H.], there's been several law enforcement
people that have indicated to us that juror [B.H.] may have a
close relationship with some individuals who, either family or
friends, with some individuals who have a strong dislike toward
the Russellville Police Department.
“And of course, that would be a big concern
since the Russellville Police Department is front and center in
this case. And that was the reason we struck her.”
(R. 875.)
The prosecutor stated the following concerning
juror M.W.:
“[A]s far as juror [M.W.], once again it comes
down to two things on him. Number one, he had a bumper sticker on
the back of his vehicle that says ‘Nekromantix,’ which upon
researching that on-line is a death metal group that has a lot of
death imagery and other things, and it concerned us very much that
he had a bumper sticker like that on a car when he was involved in
a death penalty case.
“And, secondly, he wrote on his questionnaire
he had no confidence in the Russellville Police Department, and
we've made it a point to strike all the people that had no
confidence in law enforcement.”
(R. 875–76.) Defense counsel again indicated
that no meaningful voir dire of either juror had occurred and that
these jurors were not questioned concerning their responses to
questions on the juror questionnaires. (R. 876.) The circuit court
denied the Batson motion. (R. 877.)
The Alabama Supreme Court in Ex parte Thomas,
601 So.2d 56 (Ala.1992), held that the State has “ ‘the burden of
articulating a clear, specific, and legitimate reason for the
challenge that relates to the particular case to be tried and that
is nondiscriminatory.” ’ 601 So.2d at 58, quoting Ex parte Bird,
594 So.2d 676, 679 (Ala.1991). The Thomas Court stated:
“The trial court cannot merely accept the
specific reasons given by the prosecutor at face value. Ex parte
Branch, 526 So.2d [609] at 624 [ (Ala.1987) ]. Rather, the court
must consider whether the facially neutral explanations are
contrived to avoid admitting acts of group discrimination. Id.”
Ex parte Thomas, 601 So.2d at 58.
Several years later in Ex parte McNair, 653
So.2d 353 (Ala.1994), the Supreme Court limited its holding in
Thomas and stated:
“McNair did not ask to see, and was not denied
access to, the prosecutor's notes that had been prepared by ․ law
enforcement officials. Given the substantial body of evidence in
this case indicating that there was no discriminatory intent on
the prosecutor's part, we refuse to extend the holding in Thomas
to require a prosecutor, in every case where a Batson objection
has been made, to provide an evidentiary foundation for each
peremptory strike used against a black member of the venire (e.g.,
testimony from victims, police officers, or any other individual
who may have supplied information about a member of the venire
that the prosecutor believes in good faith to be true). See Smith
v. State, 590 So.2d 388 (Ala.Crim.App.1991), citing Ex parte Lynn,
543 So.2d 709 (Ala.1988), cert. denied, Lynn v. Alabama, 493 U.S.
945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989).”
The voir dire examination shows that jurors
B.H. and M.W. answered few questions. However, B.H. completed a
12–page questionnaire and was very candid with her responses on
the questionnaire. B.H. answered that she only had “some” faith in
the Russellville Police Department, that her brother had been
convicted of assault, and that she had a family member or friend
who had been murdered. B.H.'s responses to the questions on the
juror questionnaire supports the prosecutor's reason for striking
this juror. M.W.'s juror questionnaire shows that he wrote that he
had a bumper sticker on his vehicle that read: “Caution I drive as
bad as you do, Nekromantix.” The prosecutor stated that he had
researched this and discovered that “Nekromantix” was a “death
metal group that has a lot of death imagery․” (R. 875.) M.W. also
responded that he had “no” confidence in the Russellville Police
Department.
“ ‘When reviewing a trial court's ruling on a
Batson motion, this court gives deference to the trial court and
will reverse a trial court's decision only if the ruling is
clearly erroneous.’ Yancey v. State, 813 So.2d 1, 3
(Ala.Crim.App.2001). ‘A trial court is in a far better position
than a reviewing court to rule on issues of credibility.’ Woods v.
State, 789 So.2d 896, 915 (Ala.Crim.App.1999). ‘Great confidence
is placed in our trial judges in the selection of juries. Because
they deal on a daily basis with the attorneys in their respective
counties, they are better able to determine whether discriminatory
patterns exist in the selection of juries.’ Parker v. State, 571
So.2d 381, 384 (Ala.Crim.App.1990).
“ ‘Deference to trial court findings on the
issue of discriminatory intent makes particular sense in this
context because, as we noted in Batson, the finding will “largely
turn on evaluation of credibility” 476 U.S., at 98, n. 21. In the
typical challenge inquiry, the decisive question will be whether
counsel's race-neutral explanation for a peremptory challenge
should be believed. There will seldom be much evidence bearing on
that issue, and the best evidence often will be the demeanor of
the attorney who exercises the challenge. As with the state of
mind of a juror, evaluation of the prosecutor's state of mind
based on demeanor and credibility lie “peculiarly within a trial
judge's province.” Wainwright v. Witt, 469 U.S. 412, 428, 105
S.Ct. 844, 83 L.Ed.2d 841 (1985), citing Patton v. Yount, 467 U.S.
1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).’
“Hernandez v. New York, 500 U.S. 352, 365, 111
S.Ct. 1859, 114 L.Ed.2d 395 (1991).”
Doster v. State, 72 So.3d 50, 73–74
(Ala.Crim.App.2010). “A hostile attitude toward law enforcement or
dissatisfaction with the police has also been upheld as a
sufficiently race-neutral explanation for the use of a peremptory
challenge.” Stephens v. State, 580 So.2d 11, 19
(Ala.Crim.App.1990).
Moreover, “[A] venire member's written answers
to a juror questionnaire may provide a valid reason for a
peremptory strike.” Grant v. State, 325 S.W.3d 655, 660
(Tex.Crim.App.2010).
“The Commonwealth can rely on a jury
questionnaire to derive its race neutral reasons for striking a
juror. Commonwealth v. Snodgrass, Ky., 831 S.W.2d 176 (1992). An
attitude of mistrust expressed on a juror questionnaire should be
given the same weight as an attitude of mistrust or bias expressed
by a juror on voir dire examination.”
Woodall v. Commonwealth, 63 S.W.3d 104, 120–21
(Ky.2001).
Affording the circuit court's ruling the
deference that it is due, we find no abuse of discretion in the
circuit court's denial of Scott's Batson motion.
IV.
Scott next argues that the circuit court
encouraged, and in fact, had ex parte communications with the
jurors.
The record shows that at the beginning of the
voir dire process the court stated the following to the entire
jury venire: “If we can accommodate you in any way, we will. Stop
us in the hallway, ask us for something. If you have any special
needs whatsoever whether it's medical or anything, let us know. We
will do anything we can to try to help in that process.” (R. 278.)
Later, after prospective jurors were struck based on their failure
to meet certain statutory qualifications, the circuit court
stated:
“[A]s I told you earlier, I will accommodate
you in any way, my staff will, Anita Scott will. We're fair and
impartial in this, we don't have a vested interest one way or the
other. So, yes, if you have a question, you can ask me, you can
ask my staff or you can say hello to me in the hallway, and I can
say hello to you.
“And it may be a question that we have to come
in here and put on the record with everyone present, but you can
ask that question. I would ask you not to talk to anyone at home
about the case tonight .”
(R. 358.)
Scott specifically challenges three instances
of what he asserts constituted ex parte communications between the
judge and the jurors.
A.
Scott first asserts that the circuit court
erred in excusing prospective juror D.T. after his wife informed
the circuit judge's office that her father was having emergency
surgery. The record shows that at the beginning of voir dire after
the court had played a videotape to the jury pool concerning jury
service, the circuit court indicated for the record that it had
excused juror D.T. because of a family emergency.
Section 12–16–63(b), Ala.Code 1975, provides:
“(b) A person who is not disqualified from jury
service may apply to be excused from jury service by the court
only upon a showing of undue or extreme physical or financial
hardship, a mental or physical condition that incapacitates the
person, or public necessity․”
In addressing the scope of § 12–16–63, Ala.Code
1975, this Court has stated:
“The trial court is vested with broad
discretion in excusing potential jurors from service under this
section. See Giles v. State, 632 So.2d 568, 574 (Ala.Cr.App.1992).
Trial courts have properly excused jurors pursuant to this section
for a myriad of reasons. See Madison v. State, 718 So.2d 90, 100
(Ala.Cr.App.1997) (potential juror excused because mother had
recently undergone surgery and suffered with Alzheimer's disease;
another potential juror excused because juror's mother was
terminally ill); Allen v. State, 683 So.2d 38, 42
(Ala.Cr.App.1996) (eight potential jurors were excused, most of
whom were students at the University of Alabama with pending final
exams); Knotts v. State, 686 So.2d 431, 480 (Ala.Cr.App.1995)
(veniremember excused by a ‘court strike’ because there was an odd
number of veniremembers remaining); Giles v. State, supra, at 574
(black potential juror properly excused because she was sole
caretaker of an infant and a five-year-old child). See also Gwin
v. State, 425 So.2d 500, 504 (Ala.Cr.App.1982) (appellant's claim
that judge had arbitrarily excused potential jurors was without
merit). Moreover, a trial court is not required to ask follow-up
questions or to have potential jurors elaborate on any possible
preventions of their hardships. See Madison v. State, supra, at
100.”
McWhorter v. State, 781 So.2d 257, 273
(Ala.Crim.App.1999).
“Section 12–16–74, Code of Alabama 1975,
expressly provides that a trial court in capital cases may excuse
prospective jurors outside the presence of parties and their
counsel, for reasons of ‘undue hardship, extreme inconvenience, or
public necessity,’ as provided in § 12–16–63(b).” Ex parte Pierce,
612 So.2d 516, 518 (Ala.1992).
The circuit court followed the law as set out
in § 12–16–63, Ala.Code 1975; therefore, we find no error.
B.
Scott next argues that the circuit court erred
in excusing prospective juror A.C. outside her presence. The
record shows the following discussion:
“Before we argue any motions, let me just tell
both sides, venireperson [A.C.], the circuit clerk brought her in
because she had told her about her hardship with school that she
has classes Tuesdays and Thursdays and asked to be excused, and I
went ahead and excused her during lunch.”
(R. 376.) The circuit court did not err in
excusing A.C. outside Scott's presence for hardship reasons under
§ 12–16–63, Ala.Code 1975.
C.
Scott further asserts that it was error for the
court to have an ex parte discussion with juror J.M. The following
occurred:
“The Court: [J.M.] just came to my office
during the break and stated he knew facts from both sides and just
does not feel like he can be fair and impartial and set aside
that. I'll let either attorney ask or either side ask questions.
“․
“Let me just ask you, though, the reason that
you do not feel that you can be fair and impartial to both sides
is?
“[J.M.]: Because I worked with the boy's
grandpa for a while, and I have, you know, been told what they
found in the—what that boy burned in. So I don't feel like I need
to be on it.
“The Court: Okay. You don't feel like you could
set aside what you've heard and the fact you've worked—when you
say ‘the boy's grandpa,’ are you talking—
“[J.M.]: No. I don't feel like—
“The Court: Are you talking about the deceased
child's grandpa?
“[J.M.]: Yeah. I don't feel like I would be
doing a fair deal.
“The Court: Either side? I'm going to excuse
him based on the fact he tells me he can't be fair and impartial
based on what he knows. Does either side have questions for him?
“[Defense counsel]: No.
“[Prosecutor]: No.”
(R. 295–96.)
Both the prosecutor and defense counsel
indicated that they had no problems with the circuit court's
method of handling the issue. Thus, if any error occurred, it was
invited by defense counsel's actions. “ “ ‘Invited error has been
applied to death penalty cases. ‘An invited error is waived,
unless it rises to the level of plain error.’ Ex parte Bankhead,
585 So.2d 112, 126 (Ala.1991).” ” ' Saunders v. State, 10 So.3d
53, 88 (Ala.Crim.App.2007), quoting Scott v. State, 937 So.2d
1065, 1075 (Ala.Crim.App.2005), quoting in turn Adams v. State,
955 So.2d 1037, 1050–51 (Ala.Crim.App.2003).
Moreover, “When an ex parte communication
relates to some aspect of the trial, the trial judge generally
should disclose the communications to counsel for all parties.”
Rushen v. Spain, 464 U.S. 114, 119, 104 S.Ct. 453, 78 L.Ed.2d 267
(1983). That is what the court did in this case. Scott had an
opportunity to question J.M. and J.M. indicated that he was biased
based on his knowledge of the case. Thus, we find no error in the
circuit court's actions in regard to juror J.M.
V.
Scott next argues that the circuit court erred
in death-qualifying the jurors because, she says, it produced a
conviction-prone jury that was more likely to vote for the death
penalty.
We have repeatedly upheld the practice of
death-qualifying prospective jurors in a capital-murder case.
“ ‘In Lockhart v. McCree, 476 U.S. 162, 106
S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Supreme Court held that the
Constitution does not prohibit states from “death qualification”
of juries in capital cases and that so qualifying a jury does not
deprive a defendant of an impartial jury. 476 U.S. at 173, 106
S.Ct. at 1764. Alabama Courts have consistently held likewise. See
Williams v. State, 556 So.2d 737 (Ala.Crim.App.1986), rev'd in
part, 556 So.2d 744 (Ala.1987); Edwards v. State, 515 So.2d 86, 88
(Ala.Crim.App.1987); Martin v. State, 494 So.2d 749
(Ala.Crim.App.1985).” ’
Lee v. State, 44 So.3d 1145, 1161–62
(Ala.Crim.App.2009), quoting Sockwell v. State, 675 So.2d 4, 18
(Ala.Crim.App.1993).
“A jury composed exclusively of jurors who have
been death-qualified in accordance with the test established in
Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841
(1985), is considered to be impartial even though it may be more
conviction prone than a non-death-qualified jury. Williams v.
State, 710 So.2d 1276 (Ala.Cr.App.1996). See Lockhart v. McCree,
476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). Neither the
federal nor the state constitution prohibits the state from ․
death-qualifying jurors in capital cases. Id.; Williams; Haney v.
State, 603 So.2d 368, 391–92 (Ala.Cr.App.1991), aff'd, 603 So.2d
412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122
L.Ed.2d 687 (1993).”
Davis v. State, 718 So.2d 1148, 1157
(Ala.Crim.App.1995) (footnote omitted).
The circuit court committed no error in
allowing the venire to be death-qualified.
VI.
Scott next argues that the circuit court erred
in allowing the State to introduce hearsay evidence concerning a
statement Scott's father made after he arrived at the scene of the
fire in the early morning hours of August 16, 2008.
Paramedic James Yarborough testified that about
20 minutes after he arrived Scott was in the ambulance and Scott's
parents and her mother-in-law arrived at the scene. He testified
that when Scott's father, Donald Bray, arrived Bray broke down and
said to Scott: “What have you done?” (R. 1115.) Counsel objected
and argued that Bray's statement was inadmissible hearsay. The
State asserted that the statement was an excited utterance;
therefore, it argued, it was an exception to the hearsay rule. The
circuit court held that the statement was admissible under Rule
803(2), Ala. R. Evid. (R. 1122.) Sgt. Brian Shackelford of the
City of Russellville Police Department testified that when Scott's
family arrived at the scene of the fire, Scott got out of the
ambulance to meet them. He said that Scott's father was “really
irate” and upset and that he screamed at Scott “Oh, my God.
What's—what have you done to my babies?” (R. 1260.) Scott objected
and asserted that the statement was inadmissible hearsay. The
circuit court overruled the objection. (R. 1260.) William
Crenshaw, a volunteer firefighter, testified that an older man
hollered at Scott: “What the hell have you done with my
grandbabies? What the hell have you done? Where is my
grandbabies?” (R. 1291.) Scott did not object to this testimony.
Christopher Aaron Nichols, an officer with the Russellville Police
Department, testified that Scott's family was “very, very
emotional” and that when her father approached her he screamed,
“What did you do to my grandbaby?” (R. 1312.) The circuit court
allowed the statement to be received into evidence over Scott's
objection. (R. 1312.)
Rule 803(2), Ala. R. Evid., defines “excited
utterance” as: “A statement relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition.” “The excited
utterance exception establishes no prerequisite that a declarant
have participated in the event or condition which caused the
stress of excitement. The excited utterance of a bystanding
observer is admissible the same as if the declarant had been a
participant in the exciting occurrence.” C. Gamble and R. Goodwin,
McElroy's Alabama Evidence § 265.01(8) (6th ed 2009). See Harville
v. State, 386 So.2d 776 (Ala.Crim.App.1980); Bass v. State, 375
So.2d 540 (Ala.Crim.App.1979).
The Alabama Supreme Court in Ex parte C.L.Y.,
928 So.2d 1069 (Ala.2005), stated the following concerning this
exception to the hearsay rule:
“ ‘[S]trict contemporaneity should not be
required between the statement and the occurrence in order for the
declaration to qualify for the present hearsay exception. Indeed,
our courts have said that time alone is not a determining
criterion and that applicability of this exception cannot be
decided upon the basis of any specified time or number of minutes
between the act and the declaration. The critical factor is
whether the person who made the statement is still under the
influence of the emotions arising from the startling event. Stated
differently, the statement does not have to be made
contemporaneously with the startling event or condition but it
must be uttered contemporaneously with the excitement resulting
from the startling event or condition. How long the excitement
prevails is largely determined by the character of the event or
condition.” ’
928 So.2d at 1072–73, quoting Charles W.
Gamble, McElroy's Alabama Evidence § 265.01(2) (5th ed.1996)
(footnotes omitted).3
“In deciding whether the declarant remained under the stress of
excitement, the trial court may consider the context of the
statement itself.” McElroy's Alabama Evidence § 265.01(2). “The
question of whether the statement is spontaneous in a given case
is to be decided upon the facts and circumstances of that case,
and such determination is a question for the trial court.” O'Cain
v. State, 586 So.2d 34, 38 (Ala.Crim.App.1991).
Testimony showed that Bray had been called in
the middle of the night to come to his daughter's house because
her house was on fire. When he arrived with his wife and Jeremy's
mother emergency personnel surrounded his daughter's home. The
content of the statement itself shows excitement based on a
“startling event.” The circuit court correctly found that the
statement was properly admissible as an excited utterance. See Ex
parte C.L.Y. Thus, we find no error in the circuit court's
admission of Bray's statement to Scott.
VII.
Scott next argues that the circuit court erred
in allowing evidence of other fires in houses inhabited by Scott
to be introduced at her trial. Specifically, Scott argues that the
court misapplied Rule 404(b), Ala. R. Evid., because, she argues,
there was no evidence that Scott started the other fires.
The record shows that Scott moved in limine
that the State be prohibited from offering testimony concerning
other fires. (C.R. 323 .) The State gave notice, pursuant to Rule
404(b), Ala. R. Evid., of its intent to introduce evidence of six
other fires: (1) a fire in January 1985 at Scott's father's house;
(2) a fire in July 1985 at Scott's father's house; (3) a fire in
January 1990 at Scott's father's house; (4) a fire in March 1999
on property owned by Scott's father; (5) a fire on January 12,
2006, at Scott's house; and (6) a fire on January 14, 2006, at
Scott's house. The State asserted that it intended to introduce
this evidence to show plan, motive, and identity. An extensive
motion hearing was held on this issue. (R. 175–214.) At the
hearing, the State made the following argument:
“On the 2006 fire, there's two in 2006 that we
have an abundance of evidence including people that were there at
the fire, we have the fire marshal's office that investigated that
fire, we have the origin and cause examiner from the insurance
company that he listed the fire as incendiary.
“We have the facts as far as Ms. Scott being
the last one to leave those fires in both situations in 2006. We
have a lot of details to those fires that we think would
definitely establish a similar type of plan as [the prosecutor]
already discussed to burn down houses to get insurance proceeds.
“And that is one of the reasons she was
indicted in this case. One of three alternative counts was that
Ms. Scott is indicted for, as far as a motive, for pecuniary gain.
And in this case, the 2006 cases, it was the very same situations
where the fire occurred two days apart, Ms. Scott was the last
person to leave those fires, one fire was caused by the stove eye
being left [on] and she was [the] last person to leave that house.
“The second fire was ruled incendiary, and it
started in right around the same area even though nobody was in
the house for, at least, 12 hours prior to Ms. Scott's entry to
raise windows. And as soon as she left, within a short time
period, the house burned again. And then, of course, she's
collected the full insurance proceeds for that house.
“These are very similar issues to this case in
which she had taken out insurance policies the day before the fire
on her son, and she also had her house insured with a very large
amount of money at the time of which these houses—the house burned
down on Signore Drive.
“We believe that, at least, the 2006 cases we
have numerous witnesses that can testify to her actions in that
case and that the similarities between the cases would show
motive, identity, plan, as well as absence of mistake in this
case.
“And the motive, especially in this case being
the fact that this was done for a pecuniary gain, which is alleged
in the indictment, is a huge issue for us, and we believe the
evidence is very telling that on 2006 fires the motives for the
exact same purpose.”
(R. 184–86.)
The circuit court issued the following order
granting the State's request to introduce evidence concerning the
two 2006 fires:
“The Court finds that the State may introduce
evidence of the January 12, 2006, fire and the January 14, 2006,
fire. The Court finds that these fires can be used in regard to
show plan, motive, and identity. Any witness that has been listed
by the State on its notice pertaining to these two fires will be
permitted to testify. The Court finds that the probative value of
this evidence outweighs and prejudicial effect.
“The Court finds that the 1985 fires, the 1990
fire, and the 1999 fires are excluded from evidence. The
remoteness in time and dissimilar nature of these fires would keep
these fires from falling under any exception under 404(b).
Further, any probative value would be outweighed by the
prejudicial effect of these fires.”
(C.R.378.)
Rule 404(b), Ala. R. Evid., states:
“Evidence of other crimes, wrongs, or act is
not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for
other purposes such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.”
Initially, we question whether the admission of
evidence of the January 12, 2006, fire was governed by Rule
404(b), Ala. R. Evid., given that the undisputed testimony showed
that this fire was accidental and was not incendiary in origin. As
this Court stated in Ward v. State, 440 So.2d 1227
(Ala.Crim.App.1983):
“Appellant contends that the trial court erred
in failing to exclude testimony of the prior unrelated fire of
November 2, 1981, at his and his wife's residence. Appellant
contends that since no evidence was offered connecting either
appellant or his wife with the first fire, the trial court erred
in overruling his ‘motion in limine,’ or in the alternative, his
motion for new trial. Appellant relies on Moreland v. State, 373
So.2d 1259 (Ala.Cr.App.1979), which states:
“ ‘of a person for the alleged commission of a
particular crime, evidence of other acts which of themselves
constitute distinct and independent offenses is not admissible․
[B]efore evidence of a second fire is introduced, there must be
some legitimate evidence which would at least furnish a reasonable
inference of the involvement of the accused.’
“(citations omitted)
“Moreland, supra, at 1261.
“Appellant cites to this court a correct
proposition of law, but one that is inapplicable to the case at
bar. Unlike Moreland, the State in the case sub judice never
introduced evidence showing directly or by inference that the
first fire on November 2, 1981, was the result of criminal
activity. Furthermore, there was no argument by the prosecution
implying the same. As such, the prior fire cannot be said to
constitute an ‘offense’ to which the general exclusionary rule
applies.”
440 So.2d at 1229. See also Baxter v. State,
176 Ga.App. 154, 225 S.E.2d 607 (1985) (“[T]here was no contention
by the state that these fires were the result of criminal activity
on the part of appellant or anyone else; hence, the questioning
cannot be considered an improper attempt to introduce evidence of
prior offense.”); State v. Roberts, 250 Ga. 414, 415, 297 S.E.2d
274, 275 (1982) (“[W]e cannot find error in the admission of
evidence of prior fires which were not shown to have been the
result of criminal activity.”).
Even if the evidence of the fire that was ruled
accidental was subject to review under Rule 404(b), Ala. R. Evid.,
we would find that evidence was correctly admitted for the
following reasons.
A.
First, Scott argues that evidence of the two
2006 fires was not admissible because, she says, the State failed
to establish sufficient evidence of Scott's connection to the
fires.
“When it is decided that prior crimes or acts
of the accused are admissible to prove a proper purpose asserted
under Rule 404(b), the question naturally arises as to what degree
of proof is required to show such a prior criminal act. If the
accused was convicted for the former misconduct then, of course,
the record of the conviction will generally suffice. However, if
there was no conviction for the other crime or misconduct then it
has been stated that the court should proceed slowly and require
more than mere rumors and suspicions. Some courts require that
extrinsic acts be proven beyond a reasonable doubt while others
require clear and convincing proof. All of these tests, however,
appear more strict than that applied in the courts of Alabama. The
Alabama requirement is more like that now affirmed by the United
States Supreme Court under which the judge must simply decide
whether the evidence is sufficient for the jury to decide that the
collateral act did occur and that the accused committed it.”
C. Gamble and R. Goodwin, McElroy's Alabama
Evidence § 69.02(4) ( 6th ed.2009) (emphasis added).
“In Huddleston v. United States, 485 U.S. 681,
687, 108 S.Ct. 1496, 1500, 99 L.Ed.2d 771 (1988), the United
States Supreme Court ‘expressly declined to require a level of
proof of at least a preponderance of the evidence before the trial
court could allow evidence of an extrinsic act to go before the
jury.’ Ex parte Hinton, 548 So.2d [562] at 567 [ (Ala.1989) ].
‘Rather, “similar” acts evidence should be admitted if there is
sufficient evidence to support a finding by the jury that the
defendant committed the similar act.’ Huddleston, 485 U.S. at 685,
108 S.Ct. at 1499.”
Akin v. State, 698 So.2d 228, 235
(Ala.Crim.App.1996). “The judge is not required to be convinced
beyond a reasonable doubt, by clear and convincing evidence, or by
a preponderance of the evidence that defendant committed the
extrinsic act.” State v. Haskins, 104 N.C.App. 675, 680, 411
S.E.2d 376, 380 (1991).
“In United States v. Herndon, 982 F.2d 1411
(10th Cir.1992), the defendant argued that similar acts evidence
was irrelevant because the government had failed to prove that he
had committed the earlier similar offense on which proof had been
admitted. We noted that Huddleston [v. United States, 485 U.S.
681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) ] had ‘held that a
trial court need not make a preliminary finding that the
government proved the existence of the similar act’ by the
defendant before submitting the similar acts evidence to the jury.
Id. at 1415 (emphasis added). Obviously, as Huddleston and [United
States v.] Beechum [, 582 F.2d 898 (5th Cir.1978),] make clear,
the trial judge's function is to determine only the presence of
‘sufficient evidence to support a finding by the jury that the
defendant committed the similar act,’ id. (quoting Rule 404(b))—a
‘relevancy conditioned on fact’ question under Rule 104(b) as
opposed to a preliminary question of admissibility of the type
enumerated in Rule 104(a) (e.g., qualification of a witness,
existence of a privilege).”
United States v. Platero, 72 F.3d 806, 814
(10th Cir.1995).
In Briggs v. State, 549 So.2d 155
(Ala.Crim.App.1989), the defendant was convicted of arson and
argued on appeal that the circuit court erred in admitting
evidence of two earlier fires for which he had never been charged.
Briggs argued on appeal that the prior fires were not admissible
because he was never charged with those fires, that he was not
seen starting those fires, and that the evidence was admitted only
to show his propensity to commit the charged arson. In upholding
the admission of the prior fires, we stated:
“ “ ‘The general rule is that evidence of other
crimes not charged in the indictment is inadmissible if its only
purpose is to show the bad character, inclination or propensity of
the accused to commit the type of crime for which he is being
prosecuted.” ’ Barton v. State, 494 So.2d 943, 952
(Ala.Cr.App.1986) (citations omitted). See also, C. Gamble,
McElroy's Alabama Evidence, § 69.01(1) (3d ed.1977). However,
evidence of distinct and independent offenses is admissible in the
trial of a person accused of a specific crime when its purpose is
to establish identity or a single plan, design, scheme, or system.
Dowdell v. State, 480 So.2d 45 (Ala.Cr.App.1985).
“In the case sub judice, identity was very much
in question at the appellant's trial, as he denied setting fire to
his estranged wife's house, because there were no witnesses who
could place him at the house at the time the blaze began. Evidence
of the two fires that occurred in February 1987 was properly
admissible in the present case as tending to prove that the
appellant was the person who set the house fire.
“The appellant contends in his brief that he
was never charged with the two earlier fires, that no one saw him
set them, and therefore that they should not have been allowed
into evidence. In support of his argument, the appellant cites
Williams v. State, 350 So.2d 708 (Ala.1977). Initially, this Court
notes that, ‘[i]f the accused's commission of another crime is
otherwise competent and admissible under one of the exceptions to
the general exclusionary rule, the state may prove his guilt of
the other crime by the same kind of evidence—both circumstantial
and direct—that would be admissible if the accused were being
tried for the other crime.’ McElroy's Alabama Evidence, supra, at
§ 69.02(5). See also, Eslava v. State, 473 So.2d 1143, 1146
(Ala.Cr.App.1985).
“In this case, evidence showed that the clothes
burned in the first of the two February 1987 fires had been in a
closet in Ms. Briggs's home immediately before the fire, and that
the appellant was the only one in the house at that time. Other
evidence indicated that, although the appellant was not living in
the house at the time of the second fire, he still had a key to
the dwelling. Evidence also suggested that the appellant and Ms.
Briggs were experiencing serious marital problems when the two
fires occurred. In the opinion of this Court, this evidence was
sufficient to connect the appellant to the two prior fires.”
549 So.2d at 158–59.
Here, the 2006 fires occurred in Scott's house,
the house was heavily insured at the time of the fires, Scott had
increased the insurance on the house within months of the fires,
Scott and her husband collected approximately in $185,000 in
insurance as a result of the second fire, and Scott was the last
person to leave the house before each fire. There was also
testimony that Scott made a detailed account of the items that had
been destroyed in the second fire to the extent that the list
consisted of 109 pages and contained items valued at one dollar.
Based on this Court's holding in Briggs, the evidence presented
was sufficient to connect Scott to the 2006 fires.
B.
Second, Scott argues that the prior fires were
not admissible under the common-plan or identity exception to the
general exclusionary rule.
“[T]he common plan, scheme, or design exception
is ‘essentially coextensive with the identity exception,’ Ex parte
Darby, 516 So.2d 786, 789 (Ala.1987), and ‘applies only when
identity is actually at issue.” ’ Lewis v. State, 889 So.2d 623,
661 (Ala.Crim.App.2003).
When discussing this exception to the general
exclusionary rule, the Alabama Supreme Court has stated:
“Rule 404(b) provides that evidence of a
collateral act by the defendant is not admissible to prove the bad
character of the defendant. “ ‘Evidence of prior [or subsequent]
bad acts of a criminal defendant is presumptively prejudicial to
the defendant.” ’ Bolden v. State, 595 So.2d 911, 913
(Ala.Crim.App.1991), cert. denied, 595 So.2d 914 (Ala.1992)
(quoting Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983)).
However, such evidence is admissible for other material purposes,
including proof of identity. Rule 404(b). Collateral-act evidence
is admissible to prove identity only when the identity of the
person who committed the charged offense is in issue and the
charged offense is committed in a novel or peculiar manner. C.
Gamble, McElroy's Alabama Evidence § 69.01(8) (5th ed.1996); Ex
parte Arthur, 472 So.2d 665 (Ala.1985); and Robertson v. State,
680 So.2d 929 (Ala.Crim.App.1994). ‘Under the identity exception
to the general exclusionary rule prohibiting the admission of
other or collateral crimes as substantive evidence of the guilt of
the accused, the prior crime is not relevant to prove identity
unless both that and the now-charged crime are “signature crimes”
having the accused's mark and the peculiarly distinctive modus
operandi so that they may be said to be the work of the same
person.’ Bighames v. State, 440 So.2d 1231, 1233
(Ala.Crim.App.1983) (emphasis added). ‘[E]vidence of a prior crime
is admissible only when the circumstances surrounding the prior
crime and those surrounding the presently charged crime “exhibit
such a great degree of similarity that anyone viewing the two
offenses would naturally assume them to have been committed by the
same person.” ’ Ex parte Arthur, 472 So.2d at 668 (quoting Brewer
v. State, 440 So.2d 1155, 1161 (Ala.Crim.App.1983)). See also
Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953); and Govan v.
State, 40 Ala.App. 482, 115 So.2d 667 (1959) (recognizing that the
identity exception is applicable only where both the prior crime
and the charged offense were committed in the same special or
peculiar manner).”
Ex parte Baker, 780 So.2d 677, 679 (Ala.2000)
(emphasis in original). See Annot., Admissibility, in Prosecution
for Criminal Burning of Property, or for Maintaining Fire Hazard,
of Evidence of Other Fires, 87 A.L.R.2d 891 (1963). See also State
v. Lowther, 434 N.W.2d 747, 753 (S.D.1989) (“There was a similar
sequential relationship between the January fire and the December
fire. Both fires occurred in the early morning hours when the
mobile homes were unoccupied. In both cases, the point of the
fire's origin was a hole which burned through the floor with an
electrical appliance nearby and the use of accelerants was
suspected. Defendant had insurance on both structures and their
contents and collected insurance proceeds after the January fire.
These similarities suggest motive, plan, preparation, knowledge,
and absence of accident.”); Kinser v. State, 501 N.E.2d 1041, 1043
(Ind.1986) (“Here, the challenged evidence revealed prior fires of
heavily insured property owned by Appellant, incendiary in nature
and showing signs of tampered-with electrical wiring.”); Eps v.
State, 52 Md.App. 308, 318, 450 A.2d 913, 919 (1982) ( “[In
Ellerba v. State, 41 Md.App. 712, 398 A.2d 1250 (1979), we]
recognized that a ‘common scheme or plan’ exception would have
available if there had been evidence that the appellant had
started the fires to make and collect insurance claims.”).
In this case, the 2006 fires and the 2008 fire
were in houses owned and occupied by Scott. Both homes were
heavily insured at the times of the fires, Scott had increased her
insurance within months of the fires, the Scotts received over
$185,000 in insurance monies as a result of the second 2006 fire
and over $250,000 as a result of the 2008 fire, Scott was the only
adult present at the time of the fires, the smoke alarms had been
disabled at the time of the fires, and the ignition source for
each fire could not be determined. Based on the facts presented in
this case, we find that evidence of the 2006 fires was admissible
under the identity and common-plan exception to the general
exclusionary rule.
C.
Scott next argues that the evidence of the
other fires was not admissible to prove motive.
“ ‘Motive is defined as “an inducement, or that
which leads or tempts the mind to do or commit the crime charged.”
Spicer v. State, 188 Ala. 9, 11, 65 So. 972, 977 (1914). Motive
has been described as “that state of mind which works to ‘supply
the reason that nudges the will and prods the mind to indulge the
criminal intent.” ’ [Charles Gamble, Character Evidence: A
Comprehensive Approach 42 (1987).]
“ ‘Furthermore, testimony offered for the
purpose of showing motive is always admissible. McClendon v.
State, 243 Ala. 218, 8 So.2d 883 (1942). Accord, Donahoo v. State,
505 So.2d 1067 (Ala.Cr.App.1986). “ ‘It is permissible in every
criminal case to show that there was an influence, an inducement,
operating on the accused, which may have led or tempted him to
commit the offense.’ McAdory v. State, 62 Ala. 154 [ (1878) ].”
Nickerson v. State, 205 Ala. 684, 685, 88 So. 905, 907 (1921).” '
Hatcher v. State, 646 So.2d 676, 679 (Ala.1994)
quoting Bowden v. State, 538 So.2d 1226, 1235 (Ala.1988).
Moreover,
“ “ “Testimony going to show motive, though
motive is not an element of the burden of proof resting on the
state, is always admissible.' ․ Even slight evidence to show a
motive for doing the act in a criminal case is not to be excluded,
but should be left to the consideration of the jury.” Kelley [v.
State ], 409 So.2d [909] at 914 [ (Ala.Cr.App.1981) ] (emphasis
omitted).” '
Silver v. State, 705 So.2d 552, 556–67
(Ala.Crim.App.1997), quoting Giddens v. State, 565 So.2d 1277,
1281 (Ala.Crim.App.1990).
“Although motive is not an element of the
offense, and is not a matter that must be proven by the state nor
a fact to be submitted to the jury for their determination, where
the evidence against the accused is entirely circumstantial, its
presence or absence is of great significance in determining the
sufficiency of the evidence.” 6A C.J.S. Arson § 64 (2012).
“Evidence of life insurance on the life of the victim which
benefits the accused is relevant in a murder prosecution to show
motive.” State v. Stenson, 132 Wash.2d 668, 706, 940 P.2d 1239,
1259 (1997). “While it is true that it is not necessary for the
prosecution to prove a motive for murder, if a motive is
proveable, it certainly is relevant to a material issue which the
state must prove—the guilt of the accused.” Fountain v. State, 681
S.W.2d 858, 864 (Tex.App.1984). “Insurance coverage is relevant
evidence of motive. Although motive is not an element of
first-degree murder, it is evidence of intent. The greater the
amount of insurance, the greater [the defendant's] motive for
killing [the victim].” State v. Clay, 115 Wis.2d 697, 341 N.W.2d
417 (1983). (unpublished memorandum).
Evidence of the 2006 fires was properly
admitted under the motive exception to the general exclusionary
rule.
However, our analysis does not end here. In Ex
parte Jackson, 33 So.3d 1279 (Ala.2009), the Supreme Court
cautioned that before Rule 404(b) evidence may be admitted the
evidence must be “reasonably necessary to [the State's] case” and
its probative value must outweigh any prejudicial impact. 33 So.3d
at 1286. Rule 403, Ala. R. Evid., provides that evidence “may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” (Emphasis added.)
In addressing Rule 403, Ala. R. Evid., this Court has stated:
“ ‘The basis for the evidentiary rule excluding
evidence of the accused's commission of crimes not charged in the
indictment “lies in the belief that the prejudicial effect of
prior crimes will far outweigh any probative value that might be
gained from them.” [C. Gamble,] McElroy's [Alabama Evidence] at §
69.01(1) [ (3d ed.1977) ]. Consequently, not only must it be
determined that the other offenses are material and relevant to an
issue other than the character of the accused and fall within an
exception to the exclusionary rule, but the probative value must
not be substantially outweighed by undue prejudice.
“ “ ‘Judicial inquiry does not end with a
determination that the evidence of another crime is relevant and
probative of a necessary element of the charged offense. It does
not suffice simply to see if the evidence is capable of being
fitted within an exception to the rule. Rather, a balancing test
must be applied. The evidence of another similar crime must not
only be relevant, it must also be reasonably necessary to the
government's case, and it must be plain, clear, and conclusive,
before its probative value will be held to outweigh its potential
prejudicial effects. United States v. Turguitt, 557 F.2d 464,
468–69 (5th Cir.1977) (citations omitted).
“ ‘However, it is “only when the probative
value of evidence is ‘substantially outweighed by the danger of
unfair prejudice,’ ․ that relevant evidence should be excluded.”
United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir.1982)
(emphasis in original). “[T]he probative value of the evidence of
other offenses must also be balanced against its ‘prejudicial
nature’ to determine its admissibility. ‘Prejudicial’ is used in
this phrase to limit the introduction of probative evidence of
prior misconduct only when it is unduly and unfairly prejudicial.'
State v. Daigle, 440 So.2d 230, 235 (La.Ct.App.1983).
“ “ ‘Of course, ‘prejudice, in this context,
means more than simply damage to the opponent's cause. A party's
case is always damaged by evidence that the facts are contrary to
his contention; but that cannot be ground for exclusion. What is
meant here is an undue tendency to move the tribunal to decide on
an improper basis, commonly, though not always, an emotional one.’
State v. Hurd, Me., 360 A.2d 525, 527 n. 5 (1976), quoting
McCormick, Handbook on the Law of Evidence § 185 at 439 n. 31 (2nd
ed.1972).”
“ ‘State v. Forbes, 445 A.2d 8, 12 (Me.1982).”
’
Draper v. State, 886 So.2d 105, 120
(Ala.Crim.App.2002), quoting Averette v. State, 469 So.2d 1371,
1373–74 (Ala.Crim.App.1985).
Here, Scott denied starting the fire, and the
evidence against Scott was circumstantial. Evidence of the 2006
fires at Scott's house was crucial to the State's case to prove
the identity of the perpetrator of the 2008 fire and the motive
behind the 2008 fire. We cannot say that the admission of evidence
of the 2006 fires was “unduly prejudicial” to Scott or that it
caused the jury to convict her for improper reasons.
Last, in Ex parte Billups, 86 So.3d 1079
(Ala.2010), the Alabama Supreme Court held that the court must
instruct the jury on the purpose for which the evidence was
admitted and not merely recite to it the “laundry list” of Rule
404(b) exceptions. The Court stated:
“By simply reciting the complete ‘laundry list’
of permissible theories under Rule 404(b), the trial court's
instruction in this case gave the jury inadequate guidance. See Ex
parte Belisle, 11 So.3d 323, 333 (Ala.2008) ( ‘[A]n appellate
court “presume[s] that the jury follows the trial court's
instructions unless there is evidence to the contrary.” ’ (quoting
Cochran v. Ward, 935 So.2d 1169, 1176 (Ala.2006))). The trial
court's instruction also failed to limit the State to the
purposes—as nonspecific as they were—that it advanced in support
of admission of the evidence regarding Billups's involvement in
the Avanti East killings. Thus, we conclude that the trial court
erred by failing to limit the jury's consideration of that
evidence to only those purposes for which the evidence was
purportedly offered by the State (plan, identity, motive, and
intent). See Huddleston v. United States, 485 U.S. 681, 108 S.Ct.
1496, 99 L.Ed.2d 771 (1988) ]; cf. United States v. Tse, 375 F.3d
148, 158 (1st Cir.2004) (finding that the district court
‘adequately limited the jury's consideration of [certain Rule
404(b) ] evidence’ when the court instructed the jury that it
could not use that evidence ‘to make a propensity inference’ and
that the jury could use that evidence to determine only the
defendant's ‘knowledge and intent’).''
Ex parte Billups, ––– So.3d at ––––.
In this case, when evidence of the 2006 fires
was admitted, the court gave the jury the following instruction:
“Now, the law says any evidence concerning any
other fire cannot be used as evidence to prove the character of
the defendant in order to show action and conformity therein. The
state in this case is being allowed to show this evidence as to
plan, motive, and identity.
“The evidence of the past fire cannot be used
as substantive evidence that the defendant committed this charged
offense that she is charged with now.”
(R. 1185.)
For the reasons set out above, we hold that the
circuit court did not abuse its discretion in allowing evidence of
the 2006 fires to be admitted. See Briggs, supra.
VIII.
Scott next argues that the circuit court erred
in allowing evidence of how Scott treated Mason. The record shows
that four witnesses testified concerning Scott's disciplining
Mason in their presence. Scott asserts that the admission of this
evidence violated Rule 404(b), Ala. R. Evid.
The record shows that Carolyn Scott, the owner
of Hello Gorgeous, a hair salon used by the Scotts, testified that
she had seen Scott yell at Mason and spank him when they were in
the salon. Scott objected and argued that this evidence was
irrelevant. (R. 2700.) The court allowed the evidence to be
admitted. Keyla McKinney, a hair stylist at Hello Gorgeous,
testified that she had seen Scott upset with Mason, that she had
seen Scott grab Mason, and that she had seen Scott spank Mason.
Scott did not object to McKinney's testimony. Ashley Pharr, a hair
stylist at Hello Gorgeous, testified that she had seen Scott hit
Mason on the back of the head and “pop” him on the leg and that
Scott disciplined Mason more than her other son. Anna Kay
Greenhill, a hair stylist at Hello Gorgeous, testified that she
had seen Scott angry at Mason, that she had seen Scott “whoop”
Mason on his legs and arms, and that she had heard Scott yell at
Mason. Scott did not object to Greenhill's testimony. Christie
Franks testified that her son attended preschool with Mason. She
testified that she had seen Scott yell at Mason and handle him
“firmly.” Scott did not object to Franks's testimony.
Although we question the applicability of Rule
404(b), Ala. R. Evid., to the above testimony, other courts have
held that the scope of Rule 404(b), Ala. R. Evid., is broad. The
United States Court of Appeals for the First Circuit has stated:
“Rule 404(b) allows evidence of ‘crimes,
wrongs, or acts' to be introduced. This disjunctive terminology
shows unmistakably that Rule 404(b) reaches conduct which is
neither criminal nor unlawful so long as the conduct is probative
of, and revelatory as to, a permitted purpose.”
United States v. Devin, 918 F.2d 280, 286 (1st
Cir.1990).
The United States Court of Appeals for the
Second Circuit has stated:
“By its very terms, Rule 404(b) addresses
‘other crimes, wrongs, or acts.’ (emphasis added). Nothing about
these words implies that the ‘other ․ acts' to which Rule 404(b)
refers must be ‘bad.’ Indeed, to read the Rule as such ‘violate[s]
the cardinal principle of statutory interpretation that courts
must “give effect, if possible, to every clause and word of a
statute.” ’ Triestman v. United States, 124 F.3d 361, 375 (2d
Cir.1997) (quoting United States v. Menasche, 348 U.S. 528,
538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955)). While crimes, wrongs,
or bad acts may be more likely than other kinds of acts to
demonstrate criminal propensity and thus be inadmissible for that
reason under Rule 404(b), the Rule itself is in no sense limited
to such acts. Each of our sister Circuits to consider the issue
has concluded that Rule 404(b) extends to non-criminal acts or
wrongs, and we now join them.''
United States v. Scott, 677 F.3d 72, 74 (2d
Cir.2012). See also United States v. Terebecki, 692 F.2d 1345,
1348 n. 2 (11th Cir.1982). “To fall within the scope of Rule
404(b), an act need not be criminal so long as it tends to impugn
a defendant's character.” United States v. Rawle, 845 F.2d 1244,
1247 (4th Cir.1988). “The question of admissibility of evidence is
generally left to the discretion of the trial court, and the trial
court's determination on that question will not be reversed except
upon a clear showing of abuse of discretion.” Ex parte Loggins,
771 So.2d 1093, 1103 (Ala.2000). “The admission or exclusion of
evidence is a matter within the sound discretion of the trial
court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000).
Alabama has long held that “[t]he prosecution
may prove former acts of hostility by the accused toward the
victim for the purpose of showing motive and malice.” Carroll v.
State, 370 So.2d 749, 759 (Ala.Crim.App.1979). See also Phelps v.
State, 435 So.2d 158, 163 (Ala.Crim.App.1983).
“In a prosecution for murder, evidence of
former acts of hostility between the accused and the victim are
admissible as tending to show malice, intent, and ill will on the
part of the accused. Bennefield v. State, 281 Ala. 283, 286, 202
So.2d 55, 58 (1967); Blue v. State, 246 Ala. 73, 81, 19 So.2d 11,
18 (1944). ‘In a prosecution for the murder of a wife by her
husband, their general relations toward each other and evidence of
actual cruelty by the defendant upon his wife prior to the
shooting are admissible on the question of whether the shooting
was intentional or accidental ․ and on the questions of malice and
intent.’ Akers v. State, 399 So.2d 929, 931 (Ala.Cr.App.1981)
(citations omitted).”
White v. State, 587 So.2d 1218, 1230
(Ala.Crim.App.1990). “Evidence of recent abuse to the deceased
child by the defendant is admissible to show intent, motive or
scienter. Layne v. State, 54 Ala.App. 529, 534, 310 So.2d 249
(1975), and cases cited; Cameron v. State, 24 Ala.App. 438, 136
So. 418 (1931).” Carroll v. State, 370 So.2d 749, 759
(Ala.Crim.App.1979).
The circuit court did not abuse its discretion
in allowing evidence concerning Scott's treatment of Mason.
Scott further argues that the circuit court
erred in allowing testimony of Scott's post-fire conduct which,
she says, was irrelevant and prejudicial.
The record shows that Melinda Swinney, a
stylist in a hair salon at Wal–Mart discount store, testified that
on Monday after the Saturday fire she saw Scott. Swinney said that
she asked Scott how she was doing and she said: “I'm fine. How are
you?” (R. 2721.) She said that Scott showed no emotion. Scott did
not object to this testimony. Jana Boyd, a stylist at the Wal–Mart
hair salon, testified that a lady came in the store on the Monday
after the fire and that Swinney got upset and Boyd had to wait on
the customer.
Anna Kay Greenhill, an employee of Hello
Gorgeous, testified that on Saturday at around 2:00 p.m. on the
day of the fire Scott and Jeremy came to the salon for Jeremy to
get a haircut. Scott showed no emotion, she said, she did not
mention her son the entire time, and Scott and her husband
bantered back and forth about the length of his hair.
“ ‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.” Rule 401, Ala. R. Evid.
“Alabama recognizes a liberal test of relevancy․” Haves v. State,
717 So.2d 30, 36 (Ala.Crim.App.1997). “[A] fact is admissible
against a relevancy challenge if it has any probative value,
however slight, upon a matter in the case.” Knotts v. State, 686
So.2d 431, 468 (Ala.Crim.App.1995).
“Any indications of conscious guilt arising
from the conduct, demeanor, or expressions of an accused are legal
evidence against him. ‘The law can never limit the number or kind
of such indications .’ Johnson v. State, 17 Ala. 618, 624 (1850).
‘The number of such indications is impossible to limit, nor can
their nature or character be defined.’ McAdory v. State, 62 Ala.
154, 159 (1878) .”
Conley v. State, 354 So.2d 1172, 1179
(Ala.Crim.App.1977)
“Whenever a person is on trial for a criminal
offense, evidence of the defendant's post-crime conduct that may
fairly be inferred to have been influenced by the criminal act is
admissible. The post-crime conduct of the defendant shows his or
her state of mind which has been characterized by our courts as
consciousness of guilt, and may be admitted as circumstantial
evidence of guilt. Conley v. State, 354 So.2d 1172, 1179
(Ala.Cr.App.1977). When post-crime conduct is introduced as
circumstantial evidence of a defendant's guilt, there must be a
link between the defendant and the evidence. See Stewart v. State,
398 So.2d 369, 375 (Ala.Cr.App.), cert. denied, 398 So.2d 376
(Ala.1981); see C. Gamble, McElroy's Alabama Evidence, § 190.03
(5th ed.1996).”
Ballard v. State, 767 So.2d 1123, 1130
(Ala.Crim.App.1999).
“A person's post-crime behavior often is
considered relevant to the question of guilt because the
particular behavior provides clues to the person's state of mind.
The reason why a person's post-crime state of mind may be relevant
is because, as Professor Wigmore suggested, the commission of a
crime can be expected to leave some mental traces on the criminal.
1 Wigmore, [Evidence ] § 173, at 632 [3d ed 1940) ].”
Thomas v. State, 372 Md. 342, 352, 812 A.2d
1050, 1056 (2002). See State v. Day, 51 Wash.App. 544, 552, 754
P.2d 1021 (1988) (testimony that defendant showed no reaction to
news of wife's death was properly admitted).
Testimony of Scott's actions after the fire and
the death of her son was relevant to Scott's guilt and was
properly admitted.
IX.
Scott next argues that the circuit court erred
in allowing Deputy James Edwards of the Alabama State Fire
Marshal's Office to testify about Scott's demeanor during her
interview.
The record shows that Deputy Edwards testified
that he interviewed Scott on August 26, 2008. Deputy Edwards read
Scott's statement to the jury. On cross-examination, defense
counsel asked Deputy Edwards whether he used “kinesic interview
techniques” when he conducted interviews and he asked Deputy
Edwards to define those techniques. Defense counsel then asked
Deputy Edwards about what Scott meant when she said: “I don't want
to talk anymore. I'm leaving.” (R. 1787.) Deputy Edwards responded
that Scott was trying to take control of the interview. On
redirect examination by the State, the following occurred:
“[Prosecutor]: Is that something that you
notice or something is involved in kinesics when persons leave
long periods of silence before answering questions?
“[Deputy Edwards]: Yes. It could be, yes.
“[Prosecutor]: Is that again—what does that
usually infer to you or tell you?
“[Deputy Edwards]: They're trying to think of—
“[Defense counsel]: We object to what is
usually inferred.
“[Prosecutor]: I'll rephrase the question.
“The Court: Okay. Go ahead.
“[Prosecutor]: What is inferred to you in this
case by the long silences of—
“[Defense counsel]: Objection, Your Honor. It
calls for speculation and conclusion and mental operation of
another person.
“The Court: Overruled.
“[Deputy Edwards]: I'm sorry, could you repeat
it one more time?
“[Prosecutor]: What is inferred—what did you
infer from her actions as far as long dead periods or long periods
of silence in answering questions?
“[Defense counsel]: Objection, Your Honor. Same
objection.
“The Court: Overruled.
“[Deputy Edwards]: With the long pauses, again,
with truthful answers, they come pretty quick. You ask a question,
they answer right away. When they are trying to deviate from what
may actually be truthful, you may have them where you ask—
“[Defense counsel]: Objection as to what may
happen, Your Honor.
“[Prosecutor]: He's going into more explanation
as to why—
“The Court: Just address it specifically to
this case.
“[Deputy Edwards]: Yea, I was concerned she was
trying to think of what the answer should be than, necessarily,
what it actually is.”
(R. 1796–98.)
The challenged conduct occurred on redirect
examination. “The purpose of redirect examination is ‘to answer
any matters brought out on the cross-examination of the witness by
[the] adversary.” ’ Sistrunk v. State, 596 So.2d 644, 647
(Ala.Crim.App.1992). “The prosecution was entitled, on redirect,
to further explore matters elicited during cross-examination by
defense counsel.” Mangione v. State, 740 So.2d 444, 455
(Ala.Crim.App.1998).
“ ‘The appellant cannot be heard to complain “
‘about exploration of the issue ․ which he himself improperly
injected into the trial.’ [Morgan v. State, 440 So.2d 1240, 1241
(Ala.Cr.App.1983) ]. ‘Rebuttal evidence, even evidence of prior
crimes, is generally admissible within the sound discretion of the
trial Court. Vincent v. State, 231 Ala. 657, 165 So. 844 (1936);
Jones v. State, [362 So.2d 1303 (Ala.Cr.App.1978) ]; Norris v.
State, 429 So.2d 649 (Ala.Cr.App.1982).’ Peterson v. State, 452
So.2d 1372 (Ala.Cr.App.1984).” Campbell v. State, 508 So.2d 1186,
1189 (Ala.Cr.App.1986). “The state may examine a witness on
redirect as to matter injected into a case on cross-examination by
the defense.” Hollingsworth v. State, 549 So.2d 110, 111
(Ala.Cr.App.1988), and cases cited therein.” '
Brown v. State, 11 So.3d 866, 903
(Ala.Crim.App.2007), quoting Walker v. State, 631 So.2d 294, 301
(Ala.Crim.App.1993).
In Ex parte D.L.H., 806 So.2d 1190 (Ala.2001),
the Alabama Supreme Court stated:
“When one party opens the door to otherwise
inadmissible evidence, the doctrine of ‘curative admissibility’
provides the opposing party with ‘the right to rebut such evidence
with other illegal evidence.’ McElroy's Alabama Evidence, § 14.01,
p. 49 (5th ed.1996). ‘[T]he law [is] that even though a party
introduces evidence that may be immaterial or illegal, his
opponent has the right to rebut such evidence and this right is
unconditional.’ Clark v. State, 54 Ala.App. 183, 186, 306 So.2d
51, 54 (1974). “ ‘A party who has brought out evidence on a
certain subject has no valid complaint as to the trial court's
action in allowing his opponent or adversary to introduce evidence
on the same subject.” ’ Hubbard v. State, 471 So.2d 497, 499
(Ala.Crim.App.1984) (quoting Brown v. State, 392 So.2d 1248, 1260
(Ala.Crim.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981)).”
806 So.2d at 1193. “These rules apply even
where the testimony on redirect examination concerns other
criminal conduct by the defendant.” Sistrunk, 596 So.2d at 647.
Scott opened the door to testimony concerning
her demeanor during her entire interview when she first elicited
testimony regarding her purposes in the interview process during
cross-examination. The prosecutor's questions were within the
proper scope of rebuttal examination. Accordingly, we find no
reversible error.
X.
Scott next argues that she was precluded from
presenting her defense because, she says, the State lost crucial
evidence—two electrical outlets removed from Mason's bedroom.
Specifically, she argues that the circuit court erred in failing
to suppress the testimony of Dr. Raphael Franco, a State expert in
the field of electrical engineering and electricity, who testified
that electricity was not the cause of the fire; that the court
failed to apply the three-part test set out in Ex parte Gingo, 605
So.2d 1237 (Ala.1992); and that the State was responsible for the
critical lost evidence that was not available to prove her theory
of defense.
The record shows that Scott moved to dismiss
the charges at various times throughout the course of the trial.
Before trial, Scott moved to dismiss the indictment, arguing that
the State had failed to disclose the outlets that had been taken
from Mason's bedroom. Scott further asserted that she was not
alleging, at that time, any bad faith on the part of the State.
(R. 340.) The State responded that it had only learned in April
2009 that the outlet receptacles were missing and that dismissal
of the charges was not the appropriate remedy. (R. 369.) The
circuit court denied the motion and indicated that it would
entertain the motion at a later date if anything else developed.
(R. 1489.) During Cpt. Steve Thornton's testimony the circuit
court indicated that it would allow the outlet in Cpt. Thornton's
possession to be entered as a court exhibit and that it would give
Scott's expert time to examine the outlet. In her motion for a new
trial, Scott again raised this issue. When denying this motion,
the court stated:
“All testimony indicated that there was no
showing that anyone intentionally destroyed any evidence or acted
in bad faith. Any lost receptacle was done unintentionally or
negligently. Further, [Scott's] experts testified the fire began
close to a television in the child's room. The missing outlet is
not relevant to this theory of what caused the fire. To argue that
the Defense experts might argue a different theory if the outlet
was produced, is not credible .”
(C.R.578.)
Scott relies on the Alabama Supreme Court's
decision in Ex parte Gingo to support her argument. In discussing
the Supreme Court's decision in Gingo, this Court in Gurley v.
State, 639 So.2d 557 (Ala.Crim.App.1993), stated:
“In Arizona v. Youngblood, 488 U.S. 51, 109
S.Ct. 333, 102 L.Ed.2d 281 (1988), the police failed to
refrigerate a sodomy victim's semen-stained clothing. Therefore,
the clothing could not be subjected to tests the results of which
might have exonerated the accused. At trial, the prosecution
presented evidence that the victim had identified the accused as
his assailant, but it did not introduce any evidence pertaining to
the victim's clothing in its case-in-chief.
“The United States Supreme Court held that
‘unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.’ 488 U.S. at 58, 109
S.Ct. at 337. The Court explained its holding as follows:
“ ‘The Due Process Clause of the Fourteenth
Amendment, as interpreted in Brady [v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], makes the good or bad faith
of the State irrelevant when the State fails to disclose to the
defendant material exculpatory evidence. But we think the Due
Process Clause requires a different result when we deal with the
failure of the State to preserve evidentiary material of which no
more can be said than that it could have been subjected to tests,
the results of which might have exonerated the defendant. Part of
the reason for the difference in treatment is found in the
observation made by the Court in [California v.] Trombetta, [467
U.S. 479, 486, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984),] that
“[w]henever potentially exculpatory evidence is permanently lost,
courts face the treacherous task of divining the import of
materials whose contents are unknown and, very often, disputed.”
Part of it stems from our unwillingness to read the “fundamental
fairness” requirement of the Due Process Clause, see Lisenba v.
California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166
(1941), as imposing on the police an undifferentiated and absolute
duty to retain and preserve all material that might be of
conceivable evidentiary significance in a particular prosecution.
We think that requiring a defendant to show bad faith on the part
of the police both limits the extent of the police's obligation to
preserve evidence to reasonable bounds and confines it to that
class of cases where the interests of justice most clearly require
it, i.e ., those cases in which the police themselves by their
conduct indicate that the evidence could form a basis for
exonerating the defendant.’
“Youngblood, 488 U.S. at 57–58, 109 S.Ct. at
337. Concurring in the judgment, Justice Stevens wrote:
“ ‘[A]lthough it is not possible to know
whether the lost evidence would have revealed any relevant
information, it is unlikely that the defendant was prejudiced by
the State's omission. In examining witnesses and in her summation,
defense counsel impressed upon the jury the fact that the State
failed to preserve the evidence and that the State could have
conducted tests that might well have exonerated the defendant.
More significantly, the trial judge instructed the jury: “If you
find that the State has ․ allowed to be destroyed or lost any
evidence whose content or quality are in issue, you may infer that
the true fact is against the State's interest.” As a result, the
uncertainty as to what the evidence might have proved was turned
to the defendant's advantage.
“ ‘․ In declining defense counsel's and the
court's invitation to draw the permissive inference, the jurors in
effect indicated that, in their view, the other evidence at trial
was so overwhelming that it was highly improbable that the lost
evidence was exculpatory. In Trombetta, this Court found no due
process violation because “the chances [were] extremely low that
preserved [breath] samples would have been exculpatory.”
[Trombetta, 467 U.S.] at 489, 104 S.Ct. at 2534. In this case, the
jury has already performed this calculus based on its
understanding of the evidence introduced at trial. Presumably, in
a case involving a closer question as to guilt or innocence, the
jurors would have been more ready to infer that the lost evidence
was exculpatory.
“ ‘With these factors in mind, I concur in the
Court's judgment. I do not, however, join the Court's opinion
because it announces a proposition of law that is much broader
than necessary to decide this case. It states that ‘unless a
criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not
constitute a denial of due process of law.’ In my opinion, there
may well be cases in which the defendant is unable to prove that
the State acted in bad faith but in which the loss or destruction
of evidence is nonetheless so critical to the defense as to make a
criminal trial fundamentally unfair. This, however, is not such a
case.'
“Youngblood, 488 U.S. at 59–61, 109 S.Ct. at
338–39 (Stevens, J., concurring in the judgment) (citations to the
record omitted).
“Following Youngblood, this court decided State
v. Gingo, 605 So.2d 1233 (Ala.Cr.App.1991). In that case, the
defendants were indicted for disposing of hazardous wastes at an
unpermitted site. Both the Alabama Department of Environmental
Management and the Environmental Protection Agency had collected
and analyzed test samples of the waste material. In response to a
defense motion for production of the test samples, the State had
notified the defendants that the samples no longer existed. The
circuit court suppressed the test results because the defendants
had been denied access to “ ‘potentially exculpatory material.” ’
Ginqo, 605 So.2d at 1236.
“This Court reversed the circuit court's
suppression order on the authority of Youngblood. We held that
‘the destruction of the test samples ․ did not deny the defendants
due process of law because those defendants have failed to show
any “bad faith” on the part of the prosecution.’ Gingo, 605 So.2d
at 1236–37.
“However, the Alabama Supreme Court disagreed
with our reliance on Youngblood and, in Ex parte Gingo, 605 So.2d
1237 (Ala.1992), cert. denied, 506 U.S. 1049, 113 S.Ct. 967, 122
L.Ed.2d 123 (1993), reversed this Court's decision. The Court
distinguished Youngblood on its facts, finding that ‘the test
results [on the waste material] were part of the State's
case-in-chief, i.e., the State had to use those test results to
carry its burden of proving the hazardous waste violations.’ Ex
parte Gingo, 605 So.2d at 1240. Quoting Justice Stevens' special
concurrence in Youngblood, our Supreme Court further observed:
“ ‘Although to show bad faith, for the purpose
of showing a due process violation, the defendant must show that
the State had knowledge of the exculpatory value of the destroyed
evidence, “there may well be cases in which the defendant is
unable to prove that the State acted in bad faith but in which the
loss or destruction of evidence is nonetheless so critical to the
defense as to make a criminal trial fundamentally unfair.”
Youngblood, 488 U.S. at 67, 109 S.Ct. at 342 (Stevens, J.,
concurring in the result). We think that this is such a case.’
“Ex parte Gingo, 605 So.2d at 1241.
“Because it focused on the fact that the test
results in Gingo were ‘part of the State's case-in-chief,’ and
were ‘necessary to convict the defendants,’ 605 So.2d at 1240, the
Alabama Supreme Court appears to have aligned itself with the
‘materiality and prejudice analysis' advocated by Justice Stevens,
several commentators, and a growing minority of other courts that
have rejected Youngblood's single ‘bad faith’ standard. See, e.g
., Note, The Role of Police Culpability in Leon and Youngblood, 76
Va.L.Rev. 1213 (1990), wherein the author explains that Youngblood
did not establish a test balancing the materiality of the lost
evidence against the culpability of the police for the loss.
Instead, Youngblood
“ ‘created a single requirement that a
defendant must meet to establish a constitutional violation: the
defendant must show that, in destroying the evidence, the police
acted in bad faith, If the defendant fails to make this showing,
there is no constitutional violation and there is no relief.’
“76 Va.L.Rev. at 1213 (emphasis added). See
also Jones v. McCaughtry, 775 F.Supp. 309, 315 n. 17
(W.D.Wis.1991), affirmed, 965 F.2d 473 (7th Cir.1992), cert.
denied, 506 U.S. 929, 113 S.Ct. 360, 121 L.Ed.2d 272 (1992) (‘[i]t
is worth noting ․ that neither Justice Stevens (concurring in the
judgment only) nor Justice Blackmun (dissenting) read the majority
opinion in Youngblood as adopting anything short of a flat bad
faith requirement, absent which there is no need for any
materiality inquiry’) (emphasis added).
“The majority of courts addressing due process
claims based on lost or destroyed evidence have not found
constitutional violations in the absence of Youngblood's ‘flat bad
faith requirement.’ See, e.g., United States v. Hamell, 931 F.2d
466, 469 (8th Cir.), cert. denied, 502 U.S. 928, 112 S.Ct. 347,
116 L.Ed.2d 286 (1991); United States v. Westerdahl, 727 F.Supp.
1364 (D.Ore.1989), affirmed in part and reversed in part, 945 F.2d
1083 (9th Cir.1991) (disapproving district court's use of a test
balancing culpability of police, materiality of lost evidence, and
prejudice to accused); United States v. Rodriguez, 917 F.2d 1286,
1291–92 (11th Cir.1990), cert. denied, 502 U.S. 1047, 112 S.Ct.
911, 116 L.Ed.2d 811 (1992); People v. Stallings, 211 Ill.App.3d
1032, 156 Ill.Dec. 344, 348–49, 570 N.E.2d 820, 824–25, appeal
denied, 141 Ill.2d 556, 162 Ill.Dec. 504, 580 N.E.2d 130 (1991).
“In contrast to the ‘flat bad faith
requirement’ of Youngblood, some commentators and a growing
minority of appellate courts have proposed that trial judges
dealing with lost or destroyed evidence focus not only on the
culpability of the police but also on ‘the materiality of the
[lost] evidence ․ the type of evidence and the impact it could
have had at trial.’ Note, 76 Va.L.Rev. at 1242. See generally
State v. Steffes, 500 N.W.2d 608 (N.D.1993), wherein the court
observed:
“ ‘Relying upon state constitutional law, some
states hold that even in situations where defendants cannot show
bad faith on the part of the state in failing to preserve material
evidence, defendants may nonetheless be entitled to an
adverse-inference instruction, dismissal, or new trial if they can
make a sufficient showing of substantial prejudice. These states
take authority from Justice Stevens's concurring opinion in
Arizona v. Youngblood wherein he wrote: “there may well be cases
in which the defendant is unable to prove that the State acted in
bad faith but in which the loss or destruction of evidence is
nonetheless so critical to the defense as to make a criminal trial
fundamentally unfair.” ․
“ ‘Fairness and an aversion to prejudice have
prompted these states to look to their state constitutions to
build upon, further expand, or limit the Arizona v. Youngblood
test to encompass an “unfair prejudice” prong—either in addition
to or at the expense of the bad faith prong. These jurisdictions
hold that when the state loses or destroys evidence, the state is
subjected to a higher due process standard under their state
constitutions than the bad faith test as stated in Arizona v.
Youngblood. See, e.g., Lolly v. State, 611 A.2d 956 (Del.1992);
State v. Riggs, 114 N.M. 358, 838 P.2d 975 (1992); State v.
Schmid, 487 N.W.2d 539 (Minn.Ct.App.1992); Commonwealth v.
Henderson, 411 Mass. 309, 582 N.E.2d 496 (1991); State v. Matafeo,
71 Haw. 183, 787 P.2d 671 (1990); State v. Smagula, 133 N.H. 600,
578 A.2d 1215 (1990); Spaulding v. State, 195 Ga.App. 420, 394
S.E.2d 111 (1990); Thorne v. Department of Public Safety, 774 P.2d
1326 (Alaska 1989); State v. Fain, 116 Idaho 82, 774 P.2d 252
(1989). See also, State v. Youngblood, 173 Ariz. 502, 844 P.2d
1152 (1993) [Feldman, C.J. concurring and dissenting]. Contra
People v. Cooper, 53 Cal.3d 771, 281 Cal.Rptr. 90, 809 P.2d 865
(1991) [adopting Arizona v. Youngblood bad faith standard as a
matter of state constitutional law].’
“State v. Steffes, 500 N.W.2d at 611–12 n. 3.
“The balancing approach taken by the Delaware
Supreme Court in Hammond v. State, 569 A.2d 81, 87 (Del.1989), is
representative of the approach used by other courts that have
rejected Youngblood's single bad faith standard. That approach is
based on the premise that ‘fundamental fairness, as an element of
due process, requires the State's failure to preserve evidence
that could be favorable to the defendant “[t]o be evaluated in the
context of the entire record.” ’ Hammond, 569 A.2d at 87 (quoting
United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49
L.Ed.2d 342 (1976)) (emphasis added).
“The Delaware court noted that prior to
Youngblood, it had employed a three-factor analysis to decide due
process claims arising out of lost or destroyed evidence. In
Hammond, ‘the State argue[d] that Youngblood has now established a
single bright line “good faith” test which should be applied by
this Court in lieu of the ․ three-part analysis, whenever a denial
of access is asserted with respect to evidence that could be
favorable to the defendant.’ Hammond, 569 A.2d at 87 (emphasis in
original). Declining to accept the State's invitation to adopt a
single bright line test, the Hammond court held:
“ ‘When evidence has not been preserved, the
conduct of the State's agents is a relevant consideration, but it
is not determinative. Equally relevant is a consideration of the
importance of the missing evidence, the availability of secondary
evidence, and the sufficiency of the other evidence presented at
trial.’
“Hammond, 569 A.2d at 87. The court supported
the foregoing statement by citing the same quote from Justice
Stevens' concurrence in Youngblood that was acknowledged, in State
v. Steffes, supra, to be the source of authority for jurisdictions
rejecting Youngblood, and that was cited by the Alabama Supreme
Court in Ex parte Gingo.
“The Hammond court concluded that it would
continue to rely on the following three-part analysis ‘pursuant to
the “due process” requirements of the Delaware Constitution,’ 569
A.2d at 87:
“ ‘[I]f the duty to preserve evidence has been
breached, a Delaware court must consider “(1) the degree of
negligence or bad faith involved; (2) the importance of the
missing evidence, considering the probative value and reliability
of secondary or substitute evidence that remains available; and
(3) the sufficiency of the other evidence used at trial to sustain
conviction.” ’
“Id. (quoting Bailey v. State, 521 A.2d 1069,
1091 (Del.1987), and Deberry v. State, 457 A.2d 744, 752
(Del.1983)) (footnote omitted). See also State v. Shaw, 154 Vt.
648, 577 A.2d 286, 287 (1990) (wherein the court employed “ ‘a
pragmatic balancing” of three factors: (1) the degree of
negligence or bad faith on the part of the government; (2) the
importance of the evidence lost; and (3) other evidence of guilt
adduced at trial’).
“This three-part analysis—which weighs
culpability, materiality, and prejudice—is what the Alabama
Supreme Court seems to have employed in Ex parte Gingo. In that
case, the court considered not only the State's accountability for
destroying the evidence, but also the critical nature of the
results of the tests on the allegedly hazardous waste and the
defendants' inability to refute those test results. But compare
United States v. White, 766 F.Supp. 873, 884 (E.D.Wash.1991) (a
case whose facts are virtually identical to Gingo, wherein the
court, without commenting on the materiality of the evidence or
the prejudice to the defendant from its loss, held that the
destruction of test samples on allegedly hazardous waste material
did not amount to a due process violation in the absence of bad
faith).
“We conclude that our Supreme Court has adopted
in theory, if not in name, a multi-factor balancing test similar
to the one used by the Delaware court in Hammond to determine
whether the State's loss or destruction of evidence constitutes a
due process violation in any given case. We also conclude that
that balance will necessarily be drawn differently in every case
because ‘fundamental fairness, as an element of due process,
requires the State's failure to preserve evidence that could be
favorable to the defendant “[t]o be evaluated in the context of
the entire record.” ’ Hammond, 569 A.2d at 87 (quoting United
States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d
342. (1976)) (emphasis added). See State v. Youngblood, 173 Ariz.
502, 844 P.2d 1152, 1161 (1993) (Feldman, C.J., concurring in part
and dissenting in part) (‘The answer [to the question whether the
accused had a fundamentally fair trial despite the State's good
faith failure to preserve evidence] is fact-intensive and depends
on the quality and quantity of the other evidence, the type of
evidence that was lost, its potential value for exculpatory
purposes, and similar issues').
“Since the decision in Ex parte Gingo, this
court has employed an abbreviated ‘materiality and prejudice
analysis.’ See Grissom v. State, 624 So.2d 706 (Ala.Cr.App.1993)
(wherein this Court, before discussing the lack of bad faith,
observed: ‘we are not prepared to say that the tape recording was
so critical that the police's destruction of the evidence rendered
a fair trial impossible’) (emphasis added).”
Gurley v. State, 639 So.2d 557, 563–68
(Ala.Crim.App.1993). Compare Brent G. Filbert, Failure of Police
To Preserve Potentially Exculpatory Evidence as Violating Criminal
Defendant's Rights Under State Constitution, 40 A.L.R.5th 113
(1996).
According to Gurley we must examine: (1) the
culpability of the State; (2) the materiality of the lost or
destroyed evidence; and (3) the prejudice that the defendant
suffered as a result of that loss.
(1) Culpability of the State. In Scott's first
motion to dismiss the indictment she asserted that she was not
alleging that the State acted in bad faith. Indeed, our review of
the record fails to show that police officers, firefighters, or
any other State officials acted in bad faith during the
investigation of the fire/homicide.
(2) Materiality of the lost outlet. “To meet
this standard of constitutional materiality ․ evidence must both
possess an exculpatory value that was apparent before the evidence
was destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available
means.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct.
2528, 81 L.Ed.2d 413 (1984).
A review of the evidence at Scott's trial is
essential when examining this issue: Cpt. Steve Thornton testified
that he was present when the outlets were removed from Mason's
bedroom. Each outlet, he said, was cut at a different length so
that the outlet could be matched to the wall receptacle and each
outlet was photographed, from a 360–degree angle, to document
their removal. Outlet number 1, the outlet behind Mason's bed, was
misplaced at the scene, and Russellville firefighters sifted
through the debris for 8 to 10 hours to try and locate the outlet,
but were unsuccessful. Cpt. Thornton further testified that outlet
number 2, the outlet behind Noah's bed, was never removed from the
wall because it was “melted out”; this outlet was photographed.
Outlet number 3 was located between Noah's bed and the window but
had been misidentified as coming from another room in the house.
Outlet number 5 remained intact, he said, and was not removed from
the wall. Cpt. Thornton testified that almost 2,000 photographs
had been taken at the scene.
Dr. Raphael Franco, an electrical engineer,
testified that he was contacted by an Alcohol, Tobacco, and
Firearms agent to evaluate whether the fire was electrical in
origin. He went to the Scott residence and examined the fire
scene. When he examined the scene, he said, outlet number 1 could
not be located, but the electrical receptacle for that outlet was
still in the wall. The outlets, he said, that had been removed
were put back into place, and two outlets had not been removed
from the wall. Dr. Franco testified that he took 425 photographs
at the scene because he knew that his work would be reviewed by
other electrical engineers. Though outlet number 1 could not be
located, the receptacle that housed the outlet was there and the
“wire insulation [was] still there and [was] undamaged.” (R.
2166.) Dr. Franco further testified that if a fire had started in
outlet number 1, you would expect to see bare copper wire and
melted insulation, which was not present in that receptacle.
Concerning outlet number 2, Dr. Franco said: “[E]ven though the
wire insulation is burned out here, consumed out here near these
terminal screws inside that box, I still have wire insulation back
here. And, again, if the fire had started in that box, this would
have melted and it would have been consumed.” (R. 2175.) Outlet
number 3 was not destroyed, and, in his opinion, no fire had
occurred in that outlet. Outlet number 4, Dr. Franco said,
contained “too much plastic” “that wasn't consumed by the fire”
for any fire to have been present in that outlet. (R. 2181.)
Outlet number 5 had a power cord that led to the television. Dr.
Franco testified:
“That bead tells me that it's on the TV power
cord. It says, I have to have electricity present when that
occurred. Because that's what caused that bead. And in order to
have electricity present, I have to have electricity passing
through receptacle number one, passing through receptacle two,
through three, through four, through five, out to the cord.
“So what that tells me is that all that is
intact, it's uncompromised, and it's still working.
“․
“And looking at that, you know, I can basically
say none of those receptacles—I didn't have any problem with any
of those receptacles. It's literally impossible for me to have a
fire over here in receptacle one that started over here. Okay. And
for it not to trip a breaker or not to cause problems, and I still
have electricity over here in receptacle number five.”
(R. 2206–07.) It was Dr. Franco's opinion that
the fire was not electrical in origin.
James Munger testified that in his opinion the
fire did not originate in the television cabinet because “[h]ad
the fire started inside the television, and we've set fires inside
of televisions in test scenarios in burn cells, it will basically
cook its way down through whatever surface it is sitting on.” (R.
2633.) It was Munger's opinion that the fire originated in the
“quadrant of the room that contained Noah's bed.” (R. 2650.)
Scott called two experts to testify concerning
the cause of the fire. John Joseph Lentini, a fire-investigation
consultant, testified that it was his opinion that the reason
Noah's bed had the heaviest damage was that the bed was near the
window and when flashover broke the window the ventilation caused
the excessive damage. Because of the high level of carbon monoxide
in the victim's blood—more than 90 percent—because the television
cord had melted copper on the end, because there was fire behind
the cabinet before the circuit breaker was tripped, it was
Lentini's opinion that the fire was a closed-cabinet fire that
originated in the cabinet that housed the television.
Douglas James Carpenter, a fire-protection
engineer, stated that he examined the fire scene and the evidence.
It was his opinion that the fire originated in the television
cabinet. Carpenter testified that the basis for his conclusion was
that the victim had a carbon-monoxide level in his blood that was
greater than 90 percent which, he said, is extremely high:
“So in this particular case, a fire starting on
the bed will not produce the extremely high levels of [carbon
monoxide] found in the blood of the victim. Ninety percent is a
very high [carbon monoxide] level. It should set off bells and
whistles to investigators.
“All right. A fire starting within the
television cabinet will produce the extremely high levels of
[carbon monoxide] found in the blood of the victim.”
(R. 3234.) On cross-examination, Carpenter
indicated that he had a “tremendous amount” of fire photographs
and that he “had what [he] needed to arrive at [his] conclusions.”
(R. 3287–88.)
The State took numerous photographs of the
outlets after they had been loosened and pulled slightly from the
wall but while they were still connected to the electrical wires,
and still more photographs of the electrical boxes that housed the
outlets. The photographs and the electrical boxes were available
for examination by defense experts. Neither defense expert
testified that faulty outlets were the cause of the fire; rather,
they testified that the fire started in the television cabinet in
the boys' room. The outlet receptacles were all in place, numerous
photographs were taken of the outlets, one of Scott's experts
testified that he had everything he needed to make a conclusion
concerning the cause of the fire, and neither of Scott's experts
testified that the fire originated in the area that housed the
missing outlet. Given the unique circumstances presented in this
case, we cannot say that the missing evidence was material to
Scott's defense.
(3) Prejudice to Scott. Based on our discussion
above, we find no evidence that Scott suffered any prejudice as a
result of the lost evidence, given that it was not material to
Scott's defense.
After evaluating the above factors, we are
confident that the loss of outlet number 1 and the late disclosure
of outlet number 3 did not deprive Scott of her ability to present
her defense.
Scott next contends that the circuit court
erred when it failed to give the jury an adverse-inference
instruction that the State's loss of the outlet was a basis for
doubting Dr. Franco's conclusions regarding the conditions of the
outlets. Scott cites the case of Gurley v. State, 639 So.2d 557
(Ala.Crim.App.1993), to support her argument.
The record shows that Scott requested jury
instructions concerning the spoliation of evidence. The following
occurred:
“[Defense counsel]: Judge, there was some
requested instructions dealing with spoliation of evidence.
“The Court: Right. Now, most of your
instructions were the intentional spoliation of evidence. I really
didn't read any instructions about the, I guess you would say,
innocent, or negligent mishandling of that.
“The particular instructions that you presented
me in regard to intentional, I'm not going to present. I'll give
you leave if you can find any one charge from a case that deals
with something that's not intentional, I'll consider giving it.
“[Defense counsel]: All right, sir.”
(R. 3893.) At the end of the jury charges,
defense counsel objected to the court's failure to charge on
spoliation of evidence. The court declined to charge the jury on
this issue. (R. 4063.)
In Gurley, we stated:
“Depending on the degree of the State's
culpability for the loss of the evidence, the court may decide
that the State should be precluded, on retrial, from introducing
any evidence relating to the charred object, see Commonwealth v.
Olszewski, 401 Mass. 749, 519 N.E.2d 587, 592 (1988), or it may
conclude that an ‘adverse inference’ instruction similar to the
one given in Youngblood is sufficient to ensure fairness to the
appellant, see Thorne v. Department of Public Safety, 774 P.2d
1326, 1331–32 (Alaska 1989); State v. Youngblood, 844 P.2d at
1157; State v. Gonzalez, 206 Conn. 213, 537 A.2d 460, 466 (1988);
Tinsley v. Jackson, 771 S.W.2d 331, 332 (Ky.1989).”
639 So.2d at 569.
In State v. Steffes, 500 N.W.2d 608 (N.D.1993),
a case relied on in Gurley, the court stated:
“[C]ourts enjoy a large measure of discretion
in determining the appropriate sanction that should be imposed
because of the destruction of discoverable evidence; and whether
the sanction of an adverse-inference instruction would be
appropriate is a matter within the sound discretion of the trial
court. People v. Morton, 189 A.D.2d 488, 596 N.Y.S.2d 783
(N.Y.App.Div.1993); People v. Miller, 156 Misc.2d 824, 594
N.Y.S.2d 978 (N.Y. Sup.Ct.Crim. Term 1993); People v. Von Villas,
10 Cal.App.4th 201, 13 Cal.Rptr.2d 62 (1992); People v. Wimberly,
5 Cal.App.4th 773, 7 Cal.Rptr.2d 152 (1992). If there is no
evidence of bad faith, the sanction imposed by the trial court
should be no more than is necessary to assure the defendant a fair
trial. Von Villas, supra.”
500 N.W.2d at 614 n. 6.
The circuit court did not err in declining to
give the jury an adverse-inference instruction on the loss of the
evidence given that there was no evidence of bad faith on the part
of the State nor was the missing evidence material to Scott's
defense. Accordingly, we find no error in regard to this claim.
XI.
Scott next argues that the State failed to
establish a proper chain of custody for an electrical outlet,
outlet number 3, that was admitted during Cpt. Thornton's
testimony. He cites Ex parte Holton, 590 So.2d 918 (Ala.1991), in
support of his argument. Outlet number 3 was marked and admitted
as State's exhibit number 78.
Cpt. Thornton testified that he was present at
the scene when Michael Haynes and Jim Hannah, of the State Fire
Marshal's Office, removed outlet number 3 from the wall of Mason's
bedroom on August 18, 2008. Haynes testified that on the Monday
after the fire, August 18, 2012, he and Hannah cut the outlet out
in Mason's bedroom and photographed it from a 360–degree angle.
The outlet was put in a bag and left at the scene. Cpt. Thornton
testified that the outlets that were removed were cut at different
lengths and at different angles so that they would be readily
identifiable. When the State's expert came to the scene, the
outlet was retrieved and placed in its original location. Outlet
number 3 was in Cpt. Thornton's custody until May 22, 2009, when
it was mailed to one of the defense experts. (R. 1514.) Cpt.
Thornton testified that he originally thought that this outlet
came from another location in the house but upon closer inspection
of the outlet and the numerous photographs he realized that this
outlet was taken from one of the outlets cut from Mason's bedroom.
Scott made no objection when this exhibit was admitted into
evidence. (R. 1583.)
“The Alabama Supreme Court in Ex parte Holton,
590 So.2d 918 (Ala.1991), addressed the requirements for a chain
of custody:
“ ‘Proof of [an] unbroken chain of custody is
required in order to establish sufficient identification of the
item and continuity of possession, so as to assure the
authenticity of the item. [Ex parte Williams, 548 So.2d 518, 520
(Ala.1989) ] In order to establish a proper chain, the State must
show to a “reasonable probability that the object is in the same
condition as, and not substantially different from, its condition
at the commencement of the chain.” McCray v. State, 548 So.2d 573,
576 (Ala.Crim.App.1988).’
“590 So.2d at 919–20. Later, in Hale v. State,
848 So.2d 224 (Ala.2002), the Supreme Court reexamined its holding
in Holton after the 1995 codification of § 12–21–13, Ala.Code
1975. The Supreme Court stated:
“ ‘Section 12–21–13, Ala.Code 1975, provides:
“ “ ‘Physical evidence connected with or
collected in the investigation of a crime shall not be excluded
from consideration by a jury or court due to a failure to prove
the chain of custody of the evidence. Whenever a witness in a
criminal trial identifies a physical piece of evidence connected
with or collected in the investigation of a crime, the evidence
shall be submitted to the jury or court for whatever weight the
jury or court may deem proper. The trial court in its charge to
the jury shall explain any break in the chain of custody
concerning the physical evidence.”
“ ‘(Emphasis added.) This statute, by its
terms, applies only to “[p]hysical evidence connected with or
collected in the investigation of” the charged crime. To invoke
the statute the proponent of the evidence must first establish
that the proffered physical evidence is in fact the very evidence
“connected with or collected in the investigation.” Moreover,
“ “ ‘[i]n Land v. State, 678 So.2d 201
(Ala.Cr.App.1995), aff'd, 678 So.2d 224 (Ala.1996), a case which
appears to rely on § 12–21–13, this court ruled that where a
witness can specifically identify the evidence, and its condition
is not an issue in the case, then the State is not required to
establish a complete chain of custody in order for the evidence to
be admitted into evidence. We stated: ‘The eyeglasses were
admissible without establishing a chain of custody because [the
testifying officer] was able to specifically identify them, and
their condition was not an issue in the case.’ Land, 678 So.2d at
210.” '
“848 So.2d at 228 (emphasis in original).”
Wilson v. State, [Ms. CR–07–0684, March 23,
2012] ––– So.3d ––––, –––– (Ala.Crim.App.2012) (opinion on return
to remand).
Scott relies on Birge v. State, 973 So.2d 1085
(Ala.Crim.App.2007), to support her assertion that there was
reversible error in the State's failure to establish a proper
chain of custody for the outlet. However, Birge involved the chain
of custody for a biological sample collected from a victim's
body—not physical evidence collected during the course of an
investigation. Biological evidence is not governed by § 12–21–13,
Ala.Code 1975, because it is not readily identifiable.
Section 12–21–13, Ala.Code 1975, specifically
allows for the admission of outlet number 3 even though there was
a weak link in the chain of custody. Outlet number 3 was correctly
admitted into evidence pursuant to § 12–21–13, Ala.Code 1975.
XII.
Scott next argues that the State failed to
disclose exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically,
he asserts that the State failed to disclose that it intended to
introduce outlet number 3 into evidence until the middle of trial
and that he was prejudiced by the late disclosure.
Cpt. Thornton testified that outlet number 3
had been in his possession, that he had sent the outlet to the
defense expert, that the outlet was returned to him, that he had
until trial believed that the outlet was not from Mason's bedroom,
and that he realized after examining all the numerous photographs
that the outlet was in fact outlet number 3 from Mason's bedroom.
After Cpt. Thornton testified, Scott moved to dismiss the
indictment based on the mislabeling of this outlet. The circuit
court indicated that it was going to deny the motion and allow the
defense expert to examine the outlet before he testified. (R.
1737.) On cross-examination, Lentini testified that he had an
opportunity to examine this outlet when he arrived in town to
testify but he did not do so. (R. 3458.)
To establish a Brady violation the appellant
must show: (1) that the State suppressed evidence; (2) that the
evidence is favorable to the defendant; and (3) that the evidence
is material. “In the Brady context, ‘evidence is material only if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” ’ Barber v. State, 952 So.2d 393, 429
(Ala.Crim.App.2005), quoting in part United States v. Bagley, 473
U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
“Although we do not condone noncompliance with
discovery rules, not every violation requires a new trial. ‘Rule
16.5, “gives a trial judge a number of options to consider in
imposing sanctions on a party who has failed to comply with the
court's discovery order.” ’ Pettway v. State, 607 So.2d 325, 330
(Ala.Cr.App.1992) (quoting Clifton v. State, 545 So.2d 173, 178
(Ala.Cr.App.1988)).
“ ‘The imposition of sanctions upon
noncompliance with a court's discovery order is within the sound
discretion of the court. United States v. Koopmans, 757 F.2d 901,
906 (7th Cir.1985); United States v. Saitta, 443 F.2d 830, 831
(5th Cir.1971); Hansen v. United States, 393 F.2d 763, 770 (8th
Cir.1968). Moreover, the trial court should not impose a sanction
which is harsher than necessary to accomplish the goals of the
discovery rules. United States v. Gee, 695 F.2d 1165, 1169 (9th
Cir.1983) .’
“McCrory v. State, 505 So.2d 1272, 1279
(Ala.Cr.App.1986).”
Wilson v. State, 777 So.2d 856, 918
(Ala.Crim.App.1999).
The outlet was extensively photographed and
documented. One of Scott's experts was given an opportunity to
examine the outlet but failed to do so. Scott's other expert,
Douglas Carpenter, testified that he had all the materials he
needed in order to give his opinion on the cause of the fire. Both
of Scott's experts testified that the fire originated in the
television cabinet and not near or around outlet number 3. The
television had been plugged into outlet number 5. Scott cannot
establish that the State suppressed evidence, that that evidence
was favorable to Scott, or that the evidence was material to
Scott's defense. Accordingly, Scott failed to establish a Brady
violation.
XIII.
Scott next argues that the circuit court erred
in allowing James Munger to be qualified as an expert in fire
science.
The record shows that the State called Munger
to testify concerning the origin of the fire. Munger testified
that his firm is often retained to do an “origin and cause
analysis of a fire,” that since 1984 he has been on the adjunct
faculty for the National Fire Academy, that he taught and
developed courses in fire prevention and fire investigation, that
he had done some instructional work for the Alabama Fire College,
that from 1980 through 1985 he was a deputy fire marshal in
Montgomery and was responsible for 11 counties, that prior to
becoming a fire marshal he had been a firefighter in the City of
Cullman for three years, that he had taken specialty classes from
the National Fire Academy, that he had attended seminars in fire
investigation, that he has attended numerous classes sponsored by
the National Fire Academy, that he had attended training seminars
sponsored by the Department of Homeland Security, that he had
attended classes sponsored by the International Association of
Arson Investigators, that his doctoral dissertation was on
residential smoke alarms, that he is member of the National Fire
Protection Association and the Society of Fire Protection
Engineers, that he had been qualified as expert in fire protection
or fire causes in several hundred cases, that he had received
various professional awards for his work, that he had published
articles on the subject of fire prevention and investigation, and
that he had been certified as an expert by the Alabama Supreme
Court. The State moved that Munger be qualified as an expert.
Scott objected and requested that she be allowed to voir dire
Munger. (R. 2562.) An extensive voir dire took place at which time
Scott questioned Munger concerning his lack of a four-year college
degree and having an associate degree from what she characterized
as a diploma mill. The circuit court held that based on the
Supreme Court's opinion in Carruth v. Pittway Corps, 643 So.2d
1340 (Ala.1994), Munger was a qualified expert in “fire science
and technology” and that Scott could attack Munger's credentials
on cross-examination. (R. 2588.)
In Carruth, the Alabama Supreme Court
considered the validity of the circuit court's grant of Pittway's
summary-judgment motion after the court failed to state whether it
considered Munger's testimony. On appeal, Pittway argued that
Munger's testimony should not have been considered because Munger
lacked a four-year college degree, because he was not an engineer,
and because he was not a proper expert. After detailing Munger's
qualifications, the Supreme Court stated: “[W]e are persuaded that
Munger possessed the qualifications to testify as an expert in
matters of fire science and technology.” 643 So.2d at 1343.
Rule 702, Ala. R. Evid., provides:
“If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.”
“As under preexisting Alabama law, both
questions—whether a witness is qualified as an expert and whether,
if so qualified, that witness may give expert opinion testimony on
the subject in question—are left largely to the discretion of the
trial judge.” Advisory Committee's Notes to Rule 702, Ala. R.
Evid.
“[U]nder Rule 702 ‘qualification’ should
continue to be defined broadly, so that one may gain an expertise
through practical experience as well as through formal training or
education. See, e.g ., International Telecommunications Sys. v.
State, 359 So.2d 364 (Ala.1978) (recognizing that experience and
practical knowledge, as fully as formal education, qualify one to
make technical judgments).”
Advisory Committee's Notes, Rule 702, Ala. R.
Evid.
“Alabama courts have recognized that an
individual might qualify as an expert based on ‘study, practice,
experience, or observation.’ In addition, the fact that a witness
has previously testified as an expert may be relevant in
determining his qualifications. Not one of these qualities has
been exalted over the others, and it has been said that
‘[e]xperience and practical knowledge may qualify one to make
technical judgments as readily as formal education.” ’
William A. Schroeder and Jerome A. Hoffman,
Alabama Evidence § 7:17 (3d ed.2006). See also Cherry v. Audubon
Ins. Co., 51 So.3d 109, 113 (La.App.2010) (“Formal education is
‘not always necessary’ and experience may be sufficient.”); In re
C.W.D., 232 Ga.App. 200, 206, 501 S.E.2d 232, 239 (1998) (“Formal
education or training in an area of expertise is not necessary,
provided the witness possesses the qualifications of such area of
expertise through skill and experience.”); Williams v. State, 239
Ga.App. 30, 32, 521 S.E.2d 27, 30 (1999) (“Also, an expert's
credentials are relevant to the weight and credit to be given to
his testimony by the jury.”); Khairkhwa v. Obama, 793 F.Supp.2d 1,
11 (D.D.C.2011) (“There is ․ no requirement that an expert possess
formal education, and an expert may be qualified on the basis of
his or her practical experience.”); State v. Hollingsworth, 160
Wis.2d 883, 896, 467 N.W.2d 555, 560 (1991) (“A person may be an
‘expert’ under [W.S.A. Rule 907.02, similar to Rule 702, Ala. R.
Evid.] based on experience alone and need not have any special
education or training.”). “A combination of specialized training,
work experience and practical application of the expert's
knowledge can combine to establish that person as an expert․
Courts can also consider whether a witness has previously been
qualified as an expert.” State v. Marlowe, 81 So.3d 944, 970
(La.Ct.App.2011).
The circuit court did not abuse its
considerable discretion in determining that Munger was an expert
in the field of fire science based on his extensive qualifications
and the Supreme Court's opinion in Carruth.
XIV.
Scott next asserts that the prosecutor made
improper victim-impact statements in his closing arguments in the
guilt phase of Scott's trial that were immaterial to any issue of
guilt and that amounted to error.
When evaluating prosecutorial arguments, we
keep in mind the following:
“ ‘The relevant question is whether the
prosecutor's comments “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” ’ Darden
v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d
144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94
S.Ct. 1868, 40 L.Ed.2d 431 (1974). Comments made by the prosecutor
must be evaluated in the context of the whole trial. Duren v.
State, 590 So.2d 360, 364 (Ala.Cr.App.1990), aff'd, 590 So.2d 369
(Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118
L.Ed.2d 310 (1992).''
Simmons v. State, 797 So.2d 1134, 1162
(Ala.Crim.App.1999). “A prosecutor may argue every legitimate
inference from the evidence ‘and may examine, collate, [sift] and
treat the evidence in his own way.” ’ Woodward v. State, [Ms.
CR–08–0145, December 16, 2011] ––– So.3d ––––, ––––
(Ala.Crim.App.2011). Specifically, Scott challenges the following
arguments.
A.
Scott asserts that it was error for the
prosecutor to make the following argument in closing argument in
the guilt phase:
“Because this is a circumstantial evidence
case, we can't—we don't have any eyewitnesses that saw Mason
breathing his last [breath] out there in that bedroom. We don't
have any eyewitnesses that can show you how much pain he went
through and what kind of horror he went through as he was leaned
up against that bedpost and that fire in that room and that smoke
and those gases. We can't show you that.”
(R. 3922.) Scott did not object to this
argument; therefore, we review this claim for plain error. See
Rule 45A, Ala. R.App. P. “While this failure to object does not
preclude review in a capital case, it does weigh against any claim
of prejudice.” Ex parte Kennedy, 472 So.2d 1106, 1111 (Ala.1985).
“ ‘During closing argument, the prosecutor, as
well as defense counsel, has a right to present his impressions
from the evidence, if reasonable, and may argue every legitimate
inference.” ’ Reeves v. State, 807 So.2d 18, 45
(Ala.Crim.App.2000). “A prosecutor may argue every legitimate
inference from the evidence ‘and may examine, collate, [sift] and
treat the evidence in his own way.” ’ Woodward v. State, [Ms.
CR–08–0145, December 16, 2011] ––– So.3d ––––, ––––
(Ala.Crim.App.2011). “[S]tatement of counsel in argument to the
jury must be viewed as delivered in the heat of debate; such
statements are usually valued by the jury at their true worth and
are not expected to become factors in the formation of the
verdict.” Bankhead v. State, 585 So.2d 97–106–07
(Ala.Crim.App.1989).
The prosecutor's argument was a legitimate
inference that could have been drawn from the evidence and did not
so infect the trial with unfairness that Scott was denied due
process. See Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464,
91 L.Ed.2d 144 (1986).
B.
Scott next challenges the following remarks
made by the prosecutor in closing argument in the guilt phase of
her trial:
“[Prosecutor]: One thing I don't want you to
lose focus on in this case, it's what this case is really about,
is that right there (indicating). Mason Scott, six years old the
time of his death. He's never going to play ball again—
In addressing a similar argument, the North
Carolina Supreme Court found no error and stated:
“Although the prosecutor's arguments that the
victim might have married and had children was speculative, it was
not excessive. The life the prosecutor posited for the victim if
she had lived was a conventional one. Even assuming arguendo that
this part of the argument was improper, we do not believe that the
trial court abused its judgment in overruling defendant's
objection.”
State v. Berry, 356 N.C. 490, 519, 573 S.E.2d
132, 151 (2002). State v. Edwards, 116 S.W.3d 511, 538 (Mo.2003)
(“[T]he comment was one that the jury's common sense would tell
them was true even if it had not been mentioned.”). See also
Kenneth J. Rampino, J.D., Propriety and Prejudicial Effect of
Prosecutor's Remarks as to Victim's Age, Family Circumstances, or
the Like, 50 A.L.R.3d 8 (1973).
The jury was instructed that arguments of
counsel were not evidence. Neither of the prosecutor's arguments
so infected the trial with unfairness that Scott was denied due
process. The prosecutor's arguments did not constitute error.
XV.
Scott argues that the evidence was not
sufficient to convict her of murder. Specifically, she argues that
there was no evidence that she intentionally started or caused a
fire and that she intended to kill Mason.
Scott was charged with three counts of capital
murder. Count I charged that Scott murdered her son Mason for
pecuniary gain; Count II charged that Scott murdered Mason during
the course of an arson; and Count III charged that Scott murdered
Mason, a child under the age of 14. Scott was convicted on all
counts.
Murder for purposes of the capital-murder
statute is defined in § 13A–6–2, Ala.Code 1975:
“(a) A person commits the crime of murder if he
or she does any of the following:
“(1) With intent to cause the death of another
person, he or she causes the death of that person or of another
person ․”
Section 13A–7–41, Ala.Code 1975, defines the
crime of arson in the first degree:
“(a) A person commits the crime of arson in the
first degree if he intentionally damages a building by starting or
maintaining a fire or causing an explosion, and when:
“(1) Another person is present in such building
at the time ․”
In addressing the sufficiency of the evidence
to sustain a conviction, the Alabama Supreme Court has stated:
“ ‘In determining the sufficiency of the
evidence to sustain a conviction, a reviewing court must accept as
true all evidence introduced by the State, accord the State all
legitimate inferences therefrom, and consider all evidence in a
light most favorable to the prosecution. Faircloth v. State, 471
So.2d 485 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985).’
Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the
function of this Court to decide whether the evidence is
believable beyond a reasonable doubt, Pennington v. State, 421
So.2d 1361 (Ala.Crim.App.1982); rather, the function of this Court
is to determine whether there is legal evidence from which a
rational finder of fact could have, by fair inference, found the
defendant guilty beyond a reasonable doubt. Davis v. State, 598
So.2d 1054 (Ala.Crim.App.1992). Thus, ‘[t]he role of appellate
courts is not to say what the facts are. [Their role] is to judge
whether the evidence is legally sufficient to allow submission of
an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d
1040, 1042 (Ala.1978) (emphasis original).”
Ex parte Tiller, 796 So.2d 310, 312 (Ala.2001).
“In deciding whether there is sufficient
evidence to support the verdict of the jury and the judgment of
the trial court, the evidence must be reviewed in the light most
favorable to the prosecution. Cumbo v. State, 368 So.2d 871
(Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).
Conflicting evidence presents a jury question not subject to
review on appeal, provided the state's evidence establishes a
prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.),
cert. denied, 387 So.2d 283 (Ala.1980). The trial court's denial
of a motion for a judgment of acquittal must be reviewed by
determining whether there existed legal evidence before the jury,
at the time the motion was made, from which the jury by fair
inference could have found the appellant guilty. Thomas v. State,
363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the
appellate court will determine only if legal evidence was
presented from which the jury could have found the defendant
guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199
(Ala.Cr.App.1983); Thomas v. State. When the evidence raises
questions of fact for the jury and such evidence, if believed, is
sufficient to sustain a conviction, the denial of a motion for a
judgment of acquittal by the trial court does not constitute
error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis
v. State. A verdict of conviction will not be set aside on the
ground of insufficiency of the evidence unless, allowing all
reasonable presumptions for its correctness, the preponderance of
the evidence against the verdict is so decided as to clearly
convince this court that it was wrong and unjust. Duncan v. State,
436 So.2d 883 (Ala.Cr.App.1983), cert. denied, 464 U.S. 1047, 104
S.Ct. 720, 79 L.Ed.2d 182 (1984); Johnson v. State, 378 So.2d 1164
(Ala.Cr.App.), cert. quashed, 378 So.2d 1173 (Ala.1979).”
Breckenridge v. State, 628 So.2d 1012, 1018
(Ala.Crim.App.1993).
“Whenever the sufficiency of evidence is in
question, the evidence must be reviewed in the light most
favorable to the State. Any conflicting evidence presents a jury
question that is not subject to review on appeal so long as the
State's evidence establishes a prima facie case, an appellate
court must accept as true the evidence introduced by the State,
accord the State all legitimate inferences from that evidence, and
consider the evidence in the light most favorable to the State.
Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368
So.2d 877 (Ala.1979).”
Carden v. State, 621 So.2d 342, 347
(Ala.Crim.App.1992).
“ ‘Circumstantial evidence alone is enough to
support a guilty verdict of the most heinous crime, provided the
jury believes beyond a reasonable doubt that the accused is
guilty.’ White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert.
denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975).
‘Circumstantial evidence is in no way considered inferior evidence
and is entitled to the same weight as direct evidence provided it
points to the guilt of the accused.’ Cochran v. State, 500 So.2d
1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed
in part on other grounds, Ex parte Cochran, 500 So.2d 1179
(Ala.1985).”
White v. State, 546 So.2d 1014, 1017
(Ala.Crim.App.1989).
“[I]ntent is a question for the jury․ ‘Intent,
․ being a state or condition of the mind, is rarely, if ever,
susceptible of direct or positive proof, and must usually be
inferred from the facts testified to by witnesses and the
circumstances as developed by the evidence.’ Pumphrey v. State,
156 Ala. 103, 47 So. 156, 157 (1908).”
McCord v. State, 501 So.2d 520, 528–29
(Ala.Crim.App.1986).
“ ‘Whether circumstantial evidence tending to
connect the defendant with the crime excludes, to a moral
certainty, every other reasonable hypothesis than that of the
defendant's guilt is a question for the jury and not the court.’
Cumbo [v. State, 368 So.2d 871 (Ala.Crim.App.1978) ]; Cannon v.
State, 17 Ala.App. 82, 81 So. 860 (1919). Our function is not to
be factfinders, however tempting that may sometimes be. We must
not substitute ourselves for jurors, nor play their role in the
criminal process.”
Linzy v. State, 455 So.2d 260, 262
(Ala.Crim.App.1984).
In discussing the sufficiency of the evidence
as it relates to arson cases, we have stated:
“In order to establish the corpus delicti of
arson, burning by natural or accidental causes must also be
satisfactorily excluded. C.L.M., Jr. v. State, 531 So.2d 699
(Ala.Crim.App.1988). The corpus delicti of the offense of arson
may be established by inference, see Bolden v. State, 568 So.2d
841 (Ala.Crim.App.1989), and by circumstantial evidence. Bolden;
Smiley v. State, 376 So.2d 813 (Ala.Crim.App.1979).”
McCostlin v. State, 594 So.2d 214, 218
(Ala.Crim.App.1991).
“In arson cases, the trier of fact usually
draws inferences from circumstantial evidence:
“[T]here is rarely direct evidence of the
actual lighting of a fire by an arsonist; rather, the evidence of
arson is usually circumstantial. Such evidence is often of a
negative character; that is, the criminal agency is shown by the
absence of circumstances, conditions, and surroundings indicating
that the fire resulted from an accidental cause. [Fox v. State,
179 Ind.App. 267, 277, 384 N.E.2d 1159 (1979).]”
People v. Nowack, 462 Mich. 392, 403, 614
N.W.2d 78, 83 (2000). “ ‘[T]he crime of arson is, by its very
nature, secretive and usually incapable of direct proof.” ’ People
v. Smith, 253 Ill.App.3d 443, 449, 191 Ill.Dec. 648, 653, 624
N.E.2d 836, 841 (1993), quoting People v. Smith, 44 Ill.App.3d
237, 241, 2 Ill.Dec. 877, 357 N.E.2d 1320 (1976).
“[T]he evidence focused on four circumstantial
elements of guilt: presence at the scene, conduct before and after
the fire, proof that the fire was intentionally set, and motive.
Although standing alone, evidence of motive, presence, or
opportunity is insufficient to prove guilt, McGowan v. State, 671
N.E.2d 1210, 1214 (Ind.Ct.App.1996), here the evidence, taken
together, was sufficient to link [the appellant] with the fire. It
is well within the jury's province to disbelieve [the appellant's]
version of the events.”
Belser v. State, 727 N.E.2d 457, 465
(Ind.App.2000).
The facts, as set out extensively in the
beginning of this opinion, were sufficient to present the issue of
Scott's guilt to the jury for its consideration. There was
sufficient circumstantial evidence from which to conclude that
Scott was guilty of murdering Mason during the course of an arson
and for pecuniary gain. There is no reason to disturb the jury's
verdict in this case.
XVI.
Penalty–Phase Issues
Scott argues that the circuit court's jury
instructions in the penalty phase were erroneous. He makes two
separate arguments in support of this claim. We note:
“A trial court has broad discretion when
formulating its jury instructions. See Williams v. State, 611
So.2d 1119, 1123 (Ala.Cr.App.1992). When reviewing a trial court's
instructions, “ ‘the court's charge must be taken as a whole, and
the portions challenged are not to be isolated therefrom or taken
out of context, but rather considered together.” ’ Self v. State,
620 So.2d 110, 113 (Ala.Cr.App.1992) (quoting Porter v. State, 520
So.2d 235, 237 (Ala.Cr.App.1987)); see also Beard v. State, 612
So.2d 1335 (Ala.Cr.App.1992); Alexander v. State, 601 So.2d 1130
(Ala.Cr.App.1992).”
Williams v. State, 795 So.2d 753, 780
(Ala.Crim.App.1999). “When reviewing a trial court's jury
instructions, we must view them as a whole, not in bits and
pieces, and as a reasonable juror would have interpreted them.”
Johnson v. State, 820 So.2d 842, 874 (Ala.Crim.App.2000).
A.
First, Scott asserts that the circuit court
erred in failing to instruct the jury that the death penalty is
never a required punishment.
After the trial court instructed the jury in
the penalty phase, Scott objected, stating that the court failed
to give her requested instruction that the death penalty was never
a required punishment. The court declined to give this
instruction. (R. 4256.)
The Florida Supreme Court has addressed a
similar issue:
“Among the proposed jury instructions requested
by Partin was an instruction to the jury that it was ‘never
required to recommend a sentence of death.’ ‘[F]ailure to give
special jury instructions does not constitute error where the
instructions given adequately address the applicable legal
standards.’ Coday v. State, 946 So.2d 988, 994 (Fla.2006) (quoting
Stephens v. State, 787 So.2d 747, 755 (Fla.2001)). A trial court's
denial of special jury instructions is reviewed for abuse of
discretion. See Hudson v. State, 992 So.2d 96, 112 (Fla.2008).
“Here, the trial court provided standard
instructions repeatedly approved by this Court as an adequate
description on the role of the penalty-phase jury. See Phillips v.
State, 39 So.3d 296, 304 (Fla.), cert. denied, ––– U.S. ––––, 131
S.Ct. 520, 178 L.Ed.2d 384 (2010). And in any event, the trial
court did not abuse its discretion in rejecting Partin's request
because his requested instruction was more stringent than required
under applicable case law. See In re Std. Jury Instr. in Crim.
Cases–Report No. 2005–2, 22 So.3d 17, 22 (Fla.2009) (rejecting a
proposed amendment stating that the jury is ‘never required to
recommend a sentence of death’ in favor of ‘less stringent’
language consistent with ‘our state and federal case law in this
area’).”
Partin v. State, 82 So.3d 31, 44 (Fla.2011).
The circuit court's instructions on weighing
the mitigating circumstances and the aggravating circumstances
were consistent with Alabama law. Indeed, we have frequently held
that a court does not err in instructing the jury that it should
“avoid the influence of any passion, prejudice, or any other
arbitrary factor.” Vanpelt v. State, 74 So.3d 32, 93
(Ala.Crim.App.2009). Thus, the requested instruction was more
stringent than Alabama law. The circuit court did not abuse its
discretion in denying Scott's request to instruct the jury that it
was never required to recommend a sentence of death.
B.
Scott next argues that the court's instructions
erroneously allowed the jury to believe that it could not consider
a mitigating circumstances unless the entire jury agreed upon its
existence. Scott cites Mills v. Maryland, 486 U.S. 367, 108 S.Ct.
1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494
U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), to support her
argument.
At the conclusion of the court's instructions,
Scott did not object to the court's failure to charge the jury on
the agreement necessary to find the existence of mitigating
circumstances. Accordingly, we review this claim for plain error.
See Rule 45A, Ala. R.App. P.
“ ‘Mills [v. Maryland, 486 U.S. 367, 108 S.Ct.
1860, 100 L.Ed.2d 384 (1988) ] requires that each juror be
permitted to consider and give effect to ․ all mitigating evidence
in deciding ․ whether aggravating circumstances outweigh
mitigating circumstances․” ’ McKoy v. North Carolina, 494 U.S.
433, 442–43, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). This Court
has stated the following when addressing a Mills claim:
“The appellate courts of this state have
consistently held, since the United States Supreme Court's
decision in Mills [v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100
L.Ed.2d 384 (1988) ], that as long as there is no ‘reasonable
likelihood or probability that the jurors believed that they were
required to agree unanimously on the existence of any particular
mitigating circumstances,’ there is no error in the trial court's
instruction on mitigating circumstances. Freeman [v. State ], 776
So.2d [160] at 195 [ (Ala.Crim.App.1999) ]. See also Ex parte
Martin, 548 So.2d 496 (Ala.1989), cert. denied, 493 U.S. 970, 110
S.Ct. 419, 107 L.Ed.2d 383 (1989); Williams v. State, 710 So.2d
1276 (Ala.Cr.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert.
denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998);
Brown v. State, 686 So.2d 385 (Ala.Cr.App.1995); Rieber v. State,
663 So.2d 985 (Ala.Cr.App.1994), aff'd, 663 So.2d 999 (Ala.),
cert. denied, 516 U.S. 995, 116 S.Ct. 531, 133 L.Ed.2d 437 (1995);
Holladay v. State, 629 So.2d 673 (Ala.Cr.App.1992), cert. denied,
510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994).”
Tyson v. State, 784 So.2d 328, 351
(Ala.Crim.App.2000).
More recently, the United States Supreme Court
revisited Mills in Smith v. Spisak, 558 U.S. 139, 130 S.Ct. 676,
175 L.Ed.2d 595 (2010), and stated:
“[T]he instructions did not say that the jury
must determine the existence of each individual mitigating factor
unanimously. Neither the instructions nor the forms said anything
about how—or even whether—the jury should make individual
determinations that each particular mitigating circumstance
existed. They focused only on the overall balancing question. And
the instructions repeatedly told the jury to ‘conside[r] all of
the relevant evidence.’ Id., at 2974. In our view the instructions
and verdict forms did not clearly bring about, either through what
they said or what they implied, the circumstance that Mills found
critical, namely,
“ ‘a substantial possibility that reasonable
jurors, upon receiving the judge's instructions in this case, and
in attempting to complete the verdict form as instructed, well may
have thought they were precluded from considering any mitigating
evidence unless all 12 jurors agreed on the existence of a
particular such circumstance.’ 486 U.S., at 384.”
558 U.S. at ––––, 130 S.Ct. at 684.
The instructions, taken as a whole, did not
imply that the jurors had to unanimously agree on a mitigating
circumstance before finding that a mitigating circumstance was
present. “We have considered the trial court's charge to the jury
in light of the holding in Mills and are of the opinion that the
jurors could not have reasonably believed that they were required
to agree unanimously on the existence of any particular mitigating
factor.” Ex parte Martin, 548 So.2d 496, 499 (Ala.1989).
Accordingly, we find no error.
XVII.
Scott next argues that the United States
Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002), requires that her death
sentence be vacated. She asserts: “While acknowledging Ex parte
Waldrop, 859 So.2d 1181 (Ala.2002), Scott maintains that Ring
invalidates critical aspects of Alabama's capital sentencing
scheme and renders her death sentence unconstitutional” (Scott's
brief at p. 123.), and that Waldrop “undermines the reliability of
the capital sentencing process.” (Scott's brief at p. 125.)
Scott was convicted of capital murder for
committing an intentional murder for pecuniary gain. Committing an
intentional murder for pecuniary gain is an aggravating
circumstance defined in § 13A–5–49(6), Ala.Code 1975. As the
Alabama Supreme Court stated:
“ ‘[W]hen a defendant is found guilty of a
capital offense, “any aggravating circumstance which the verdict
convicting the defendant establishes was proven beyond a
reasonable doubt at trial shall be considered as proven beyond a
reasonable doubt for purposes of the sentencing hearing.” Ala.Code
1975, § 13A–5–45(e)․’
“Because the jury convicted Waldrop of two
counts of murder during a robbery in the first degree, a violation
of Ala.Code 1975, § 13A–5–40(a)(2), the statutory aggravating
circumstance of committing a capital offense while engaged in the
commission of a robbery, Ala.Code 1975, § 13A–5–49(4), was ‘proven
beyond a reasonable doubt.’ Ala.Code 1975, § 13A–5–45(e); Ala.Code
1975, § 13A–5–50. Only one aggravating circumstance must exist in
order to impose a sentence of death. Ala.Code 1975, § 13A–5–45(f).
Thus, in Waldrop's case, the jury, and not the trial judge,
determined the existence of the ‘aggravating circumstance
necessary for imposition of the death penalty.’ Ring [v. Arizona
], 536 U.S. [584,] 609, 122 S.Ct. [2428,] 2443, 153 L.Ed.2d 556 [
(2002) ]. Therefore, the findings reflected in the jury's verdict
alone exposed Waldrop to a range of punishment that had as its
maximum the death penalty. This is all Ring and Apprendi [v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),]
require.”
Ex parte Waldrop, 859 So.2d at 1188.
“Ring and Apprendi do not require that the jury
make every factual determination; instead, those cases require the
jury to find beyond a reasonable doubt only those facts that
result in ‘an increase in a defendant's authorized punishment ․’
or “ ‘expose[ ] [a defendant] to a greater punishment․” ’ Ring,
536 U.S. at 602, 604, 122 S.Ct. At 2439, 2440 (quoting Apprendi,
530 U.S. at 494, 120 S.Ct. 2348, 147 L.Ed.2d 435.) Alabama law
requires the existence of only one aggravating circumstance in
order for a defendant to be sentenced to death.”
Waldrop, 859 So.2d at 1190.
Scott further argues, in this section of her
brief, that Alabama's judicial override is standardless and
unconstitutional. However, this Court on numerous occasions has
upheld that statute against similar attacks.
“The appellant further contends that, in light
of Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556
(2002) ], Alabama's standardless override results in the arbitrary
application of the death penalty in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments and the Equal Protection Clause.
‘The United States Supreme Court in Ring did not invalidate its
earlier holding in Harris v. Alabama, 513 U.S. 504, 115 S.Ct.
1031, 130 L.Ed.2d 1004 (1995), which upheld § 13A–5–47(e),
Ala.Code 1975—commonly referred to as the judicial-override
statute—against constitutional attack.’ Tomlin v. State, 909 So.2d
213, 282 (Ala.Crim.App.2002), rev'd on other grounds, 909 So.2d
283 (Ala.2003). Therefore, the appellant's argument is without
merit.”
Sneed v. State, 1 So.3d 104, 143–44
(Ala.Crim.App.2007). See also Woodward v. State, [Ms. CR–08–0145,
December 16, 2011] ––– So.3d –––– (Ala.Crim.App.2011); Stanley v.
State, [Ms. CR–06–2236, April 29, 2011] ––– So.3d ––––
(Ala.Crim.App.2011); Doster v. State, 72 So.3d 50
(Ala.Crim.App.2010); Minor v. State, 914 So.2d 372
(Ala.Crim.App.2004). Scott's argument is without merit.
XVIII.
Scott next argues that the prosecution misled
the jury by referring to the jury's verdict in the penalty phase
as a recommendation. This Court has repeatedly held that a trial
court does not commit reversible error in referring to the jury's
verdict in the penalty phase as a recommendation.
“After reviewing the record in its entirety, as
well as the context in which the allegedly inappropriate comments
were made, we find that ‘there is “no reasonable possibility that
the jury was misled, misinformed, or confused as to its critical
role in sentencing under Alabama law.” ’ Price [v. State, 725
So.2d 1003, 1027 (Ala.Crim.App.1997) ], quoting Taylor v. State,
666 So.2d 36, 51 (Ala.Cr.App.1994). ‘The prosecutor's comments and
the trial court's instructions “accurately informed the jury of
its sentencing authority and in no way minimized the jury's role
and responsibility in sentencing.” ’ Weaver v. State, 678 So.2d
260, 283 (Ala.Cr.App.1995), rev'd on unrelated grounds, 678 So.2d
284 (Ala.1996).”
Hagood v. State, 777 So.2d 162, 203
(Ala.Crim.App.1998). Accordingly, Scott is due no relief on this
claim.
XIX.
Scott argues that double-counting the
aggravating circumstance that the murder was committed for
pecuniary gain as both as an aggravating circumstance and as an
element of the capital-murder offense violates her rights to due
process and to a fair and impartial jury.
“Contrary to Vanpelt's assertions, there is no
constitutional or statutory prohibition against double counting
certain circumstances as both an element of the offense and an
aggravating circumstance. See § 13A–5–45(e), Ala.Code 1975
(providing that ‘any aggravating circumstance which the verdict
convicting the defendant establishes was proven beyond a
reasonable doubt at trial shall be considered as proven beyond a
reasonable doubt for purposes of the sentence hearing’). The
United States Supreme Court, the Alabama Supreme Court, and this
court have all upheld the practice of double counting. See
Lowenfield v. Phelps, 484 U.S. 231, 241–46, 108 S.Ct. 546, 98
L.Ed.2d 568 (1988) (‘The fact that the aggravating circumstance
duplicated one of the elements of the crime does not make this
sentence constitutionally infirm.’); Tuilaepa v. California, 512
U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (‘The
aggravating circumstance may be contained in the definition of the
crime or in a separate sentencing factor (or in both).’); Ex parte
Kennedy, 472 So.2d 1106, 1108 (Ala.1985) (rejecting a
constitutional challenge to double counting); Brown v. State, 11
So.3d 866 (Ala.Crim.App.2007); Harris v. State, 2 So.3d 880
(Ala.Crim.App.2007); Jones v. State, 946 So.2d 903, 928
(Ala.Crim.App.2006); Peraita v. State, 897 So.2d 1161, 1220–21
(Ala.Crim.App.2003); Coral v. State, 628 So.2d 954
(Ala.Crim.App.1992); Haney v. State, 603 So.2d 368
(Ala.Crim.App.1991). Because double counting is constitutionally
permitted and statutorily required, Vanpelt is not entitled to any
relief on this issue. § 13A–5–45(e), Ala.Code 1975.”
Vanpelt, 74 So.2d at 89. See also McCray v.
State, 88 So.3d 1 (Ala.Crim.App.2010); Mitchell v. State, 84 So.3d
968 (Ala.Crim.App.2010); James v. State, 61 So.3d 357
(Ala.Crim.App.2010). This issue has no merit.
XX.
Scott next argues that evolving standards of
decency have rendered Alabama's method of execution—lethal
injection—unconstitutional. Scott does not argue that Alabama's
method of execution is unconstitutional because it is cruel and
unusual.
The Alabama Supreme Court addressed this issue
in Ex parte Belisle, 11 So.3d 323 (Ala.2008), and held:
“The Supreme Court upheld the constitutionality
of Kentucky's method of execution, Baze [v. Rees, 553 U.S. 35,
62,] 128 S.Ct. [1520] 1538 [170 L.Ed.2d 420 (2008) ], and noted
that ‘[a] State with a lethal injection protocol substantially
similar to the protocol we uphold today would not create a risk
that meets this standard.’ Baze, [553 U.S. at 61], 128 S.Ct. at
1537. Justice Ginsburg and Justice Souter dissented from the main
opinion, arguing that ‘Kentucky's protocol lacks basic safeguards
used by other States to confirm that an inmate is unconscious
before injection of the second and third drugs.’ Baze, [553 U.S.
at 114], 128 S.Ct. at 1567 (Ginsburg, J., dissenting). The
dissenting Justices recognized, however, that Alabama's
procedures, along with procedures used in Missouri, California,
and Indiana ‘provide a degree of assurance—missing from Kentucky's
protocol—that the first drug had been properly administered.’
Baze, [553 U.S. at 121], 128 S.Ct. at 1571 (Ginsburg, J.,
dissenting).
“The State argues, and we agree, that Belisle,
like the inmates in Baze, cannot meet his burden of demonstrating
that Alabama's lethal-injection protocol poses a substantial risk
of harm by asserting the mere possibility that something may go
wrong. ‘Simply because an execution method may result in pain,
either by accident or as an inescapable consequence of death, does
not establish the sort of “objectively intolerable risk of harm”
that qualifies as cruel and unusual.’ Baze, [553 U.S. at 50], 128
S.Ct. at 1531. Thus, we conclude that Alabama's use of lethal
injection as a method of execution does not violate the Eighth
Amendment to the United States Constitution.”
11 So.3d at 339. See also McCray, supra;
Phillips v. State, 65 So.3d 971 (Ala.Crim.App.2010). Other states
have also considered this issue since the United States Supreme
Court's decision in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170
L.Ed.2d 420 (2008). See State v. Hester, 324 S.W.3d 1, 80
(Tenn.2010) (“[W]e find that Mr. Hester has not offered a
persuasive argument for revisiting this Court's previous decisions
upholding the constitutionality of Tennessee's lethal injection
protocol.”); Henyard v. State, 992 So.3d 120, 130 (Fla.2009) (“We
have previously concluded in Lightbourne [v. McCollum, 969 So.2d
326 (Fla.2007),] and Schwab [v. State, 969 So.2d 318 (Fla.2007),]
that the Florida protocols do not violate any of the possible
standards, and that holding cannot conflict with the narrow
holding in Baze. ”); Goff v. State, 14 So.3d 625, 665 (Miss.2009)
(“Goff's claim that Mississippi method of inflicting death by
lethal injection constitutes cruel and unusual punishment was
dispositively rejected in favor of the State by the United States
Supreme Court's holding in Baze v. Rees and by this Court's
holding in Bennett v. State [, 990 So.2d 155 (Miss.2008) ].”);
O'Kelley v. State, 284 Ga. 758, 770, 670 S.E.2d 388, 399 (2008)
(“[W]e conclude that O'Kelley failed to meet the standard as
enunciated by the United States Supreme Court for finding a
state's lethal injection procedures cruel and unusual, in that he
has not demonstrated that Georgia's procedures create “ ‘a
substantial risk of serious harm.” ” ’).
The Alabama Supreme Court in Ex parte Belisle
held that Alabama's method of imposing death by lethal injection,
a three-drug protocol, did not violate the Eighth Amendment to the
United States Constitution. This Court is bound by the decisions
of the Alabama Supreme Court. See 12–3–16, Ala.Code 1975. Scott
cites no new evidence or argument that distinguishes this case
from Ex parte Belisle. Accordingly, Scott's argument is without
merit.
XXI.
Scott argues that the trial court erred in
overriding the jury's recommendation of life imprisonment without
the possibility of parole and sentencing her to death. Seven
members of the jury, the minimum required by law, voted to impose
a sentence of life imprisonment without the possibility of parole
and five voted to impose the death sentence. See 13A–5–46(f),
Ala.Code 1975.4
Specifically, Scott argues that the compelling mitigation evidence
that was presented from over 20 friends and family members
warranted a sentence of life imprisonment without the possibility
of parole and that the court's override of the jury's
recommendation violates the Alabama Supreme Court's decisions in
Ex parte Taylor, 808 So.2d 1215 (Ala.2001), and Ex parte Carroll,
852 So.2d 833 (Ala.2002).
Section 13A–5–47(e), Ala.Code 1975, grants the
sentencing judge exclusive authority to fix the sentence for a
capital-murder conviction. This section provides:
“In deciding upon the sentence, the trial court
shall 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, unless such a verdict
has been waived pursuant to Section 13A–5–46(a) or Section
13A–5–46(g). While the jury's recommendation concerning sentence
shall be given consideration, it is not binding upon the court.”
In Ex parte Taylor, 808 So.2d 1215 (Ala.2001),
the Alabama Supreme Court considered the scope of § 13A–5–47(e),
Ala.Code 1975, when it evaluated the legality of Taylor's death
sentence after the jury recommended, by a vote of 7 to 5, that
Taylor be sentenced to life imprisonment without the possibility
of parole. In upholding Taylor's death sentence, the Alabama
Supreme Court stated:
“In this case, the trial judge stated that
‘[t]he sentence recommendation of a properly functioning jury is
entitled to great respect.’ He reasoned, however, that ‘[w]hile
the jurors in this case were cooperative, harmonious, diligent,
and attentive, some jurors' outbursts of emotion after they found
the defendant guilty of capital murder indicated that they were
overwhelmed by their impending duty to consider the death penalty
as required by law.’ The trial judge then concluded that the
crimes proved against Taylor were ‘abominably aggravated and, at
best, only faintly mitigated.’ Thus, the trial judge considered
the jury's recommendation, as required by Alabama's death-penalty
statute, but permissibly assessed it very little weight, given the
particular circumstances of this case. Therefore, we agree with
the conclusion of the Court of Criminal Appeals that ‘the trial
court complied with the sentencing scheme of Alabama's
death-penalty statute and that the sentence it imposed, overriding
the jury's recommendation, met constitutional requirements and was
not arbitrary, discriminatory, or fundamentally unfair.’ Taylor v.
State, 808 So.2d [1148] at 1190 [ (Ala.Crim.App.2000) ].”
808 So.2d at 1219. Ex parte Taylor was the
first case to hold that when a circuit judge chooses to override a
jury's recommendation of life imprisonment without the possibility
of parole, the judge must set out specific reasons for giving the
jury's recommendation the consideration that it did.
The next year in Ex parte Carroll, the Alabama
Supreme Court considered the validity of a death sentence after
the jury had recommended, by a vote of 10 to 2, life imprisonment
without the possibility of parole. The Supreme Court found that
Carroll's lack of a significant criminal history, the victim's
family requests to spare Carroll's life, and the jury's 10 to 2
recommendation “tip [ed] the scales in favor” of a sentence of
life imprisonment. The Supreme Court stated the following
concerning the scope of § 13A–5–47(e), Ala.Code 1975:
“We take this opportunity to further explain
the effect of a jury's recommendation of life imprisonment without
the possibility of parole. Such a recommendation is to be treated
as a mitigating circumstance. The weight to be given that
mitigating circumstance should depend upon the number of jurors
recommending a sentence of life imprisonment without parole, and
also upon the strength of the factual basis for such a
recommendation in the form of information known to the jury, such
as conflicting evidence concerning the identity of the
‘triggerman’ or a recommendation of leniency by the victim's
family; the jury's recommendation may be overridden based upon
information known only to the trial court and not to the jury,
when such information can properly be used to undermine a
mitigating circumstance.
“․
“ ‘Given the jury's recommendation of life
imprisonment without parole; the recommendation of the victim's
family that the defendant be sentenced to life imprisonment
without parole; the fact that the defendant was 17 years old when
he committed the crime; and the circumstances of the crime
(particularly that the defendant made no attempt to kill the
witnesses to the crime), ․ the sentence of death is excessive and
disproportionate.”
“852 So.2d at 828 (Houston, J., concurring in
part and dissenting in part). Because of Carroll's age at the time
of the offense, his lack of a significant criminal history, and
the recommendation of the victim's family that he be sentenced to
life imprisonment without parole, the jury's 10–2 recommendation
that he not be sentenced to death tips the scales in favor of
following the jury's recommendation. We therefore reverse the
judgment of the Court of Criminal Appeals as to Carroll's sentence
and remand the case for that court to instruct the trial court to
resentence Carroll following the jury's recommendation of life
imprisonment without the possibility of parole.”
852 So.2d at 836–37.
Later, in Ex parte Tomlin, 909 So.2d 283
(Ala.2003), the jury unanimously recommended that Tomlin be
sentenced to life imprisonment without the possibility of parole
and the court's only explanation for overriding its recommendation
was that Tomlin's codefendant had been convicted of capital murder
and sentenced to death. The Alabama Supreme Court, in setting
aside the death sentence, stated:
“ ‘[T]he death penalty should be carried out
only after this Court has found it appropriate to do so by
independently weighing the aggravating and mitigating
circumstances.’ Ex parte Hays, 518 So.2d 768, 780 (Ala.1986)
(opinion on rehearing). Therefore, while the trial court, acting
without the guidance offered by Carroll, gave ‘serious
consideration to the unanimous recommendation of the jury for life
[imprisonment] without parole,’ we are compelled to treat the
jury's recommendation as a mitigating circumstance. Indeed, we
must give that mitigating circumstance great weight.
“The weight to be given [a jury's
recommendation of life imprisonment without the possibility of
parole] should depend upon the number of jurors recommending a
sentence of life imprisonment without parole.' [Ex parte ]
Carroll, 852 So.2d [833] at 836 [ (Ala.2002) ]. In Carroll, we
found that a jury's 10–2 vote for a sentence of life imprisonment
without the possibility of parole demonstrated ‘overwhelming
support’ of such a sentence. 852 So.2d at 837. Therefore, it is
only logical to conclude that a unanimous recommendation like the
one here provides even more ‘overwhelming support’ of such a
sentence and, therefore, must be afforded great weight.
“․
“[T]he jury's recommendation [of life
imprisonment without the possibility of parole] may be overridden
based upon information known only to the trial court and not to
the jury, when such information can properly be used to undermine
a mitigating circumstance.' Carroll, 852 So.2d at 836. Here, the
trial court overrode the jury's recommendation, because ‘[t]he
other perpetrator in this crime, John Ronald Daniels, was
convicted of the capital offense of first degree murder of the
same two people and [was] sentenced to death.’ Although the jury
was not aware of Daniels's sentence, his sentence cannot properly
be used to undermine a mitigating circumstance.”
909 So.2d at 286–87.
The circuit court's order sentencing Scott to
death, states, in part:
“The final non-statutory mitigating factor is
the jury's recommendation of life without parole. It is clear to
the Court that excluding this final mitigating factor of the
jury's recommendation, the aggravating factors clearly outweigh
the mitigating factors. The Court will now discuss the jury's
recommendation as a mitigating factor. Ex parte Carroll, 852 So.2d
833 (Ala.2002), outlines as factors in determining whether to
override a jury's recommendation.
“Ex parte Carroll sets out that the weight to
be given the mitigating circumstance should depend upon the number
of jurors recommending a sentence of life imprisonment without
parole. In Carroll, then jurors recommended life without parole.
In the present case, seven made such a recommendation, the
statutory minimum to allow a life without parole recommendation.
To override the jury's recommendation, Ex parte Carroll directs
the trial court to try to discern why the jury made their
recommendation.
“The jury found [Scott] guilty of three counts
of capital murder. In other words, this particular murder fit the
definition of three different ways the Alabama legislature has set
out to be bad enough to justify capital murder. That is a powerful
statement. Not only did [Scott] commit the capital murder making
her eligible for the death penalty, but three different elements
were proven to make her eligible for the death penalty three
different ways.
“The States's case was based on circumstantial
evidence. The jury may have taken that into consideration in its
recommendation. The Court has tried cases involving circumstantial
evidence, cases based on confessions, and cases involving direct
eyewitness testimony. This Court has no doubt of [Scott's] guilt
after listening to all the evidence. Residual doubt is not a
factor that should be used in the sentencing portion of the case;
however, the jury may have considered this. The Court would not
use residual doubt in its consideration, but that being stated,
this Court has no residual doubt as to [Scott's] guilt.
“The jury also heard very emotional testimony
from [Scott's] family asking that her life be spared. The jury had
already spent over four weeks hearing testimony in this case. The
jury was probably emotionally and mentally worn out. The jury may
have given too much weight to the mitigating factor of the
emotional testimony of family and friends of [Scott].
“In the same vein, most juries hear emotional
testimony from the victim's family in a capital murder case. In
this case there was no one there to take that position. [Scott's]
family is also the family of the victim. Testimony indicates that
they feel [Scott] is not guilty. The Court understands and
sympathizes with their position, but it deprives the jury of
hearing testimony from someone willing to stand up for the victim.
“The jury is also asked to view this capital
murder with other capital murders and determine whether it is more
heinous, atrocious, and cruel than other capital murders. The jury
does this without having specific knowledge of any other
capital-murder cases. The Court, however, has the ability to learn
of other capital-murder cases where the Court ordered the death of
the defendant. This Court is convinced that other defendants have
been sentenced to death for murders that are less heinous,
atrocious and cruel than this murder. In particular, this Court
followed the jury's recommendation of death in the case of Jodey
Waldrop, where the facts were less heinous, atrocious, and cruel
than the facts of this case. The jury in this case is not privy to
the information in the other cases, and this may lead to less
emphasis on this aggravating factor.
“The process of rejecting a jury's recommended
sentence is not an undertaking that most trial judges relish.
However, under Alabama's law the trial judge is required to accept
this responsibility. In Harris v. Alabama, 513 U.S. 504 [, 515]
(1995), the Supreme Court of the United States held: ‘The
Constitution permits the trial judge, acting alone, to impose a
capital sentence. It is thus not offended when a State further
requires the sentencing judge to consider a jury's recommendation
and trusts the judge to give it the proper weight.’ The Alabama
Legislature has embraced this position and it has accordingly
placed the weight of this decision squarely in the hands of this
Court.
“The law requires this Court to weigh the
aggravating circumstances against the mitigating circumstances,
which includes the jury's recommended sentence of life without
parole.
“The Court has weighed the aggravating
circumstances against the mitigating circumstances. Heavy weight
is placed on the jury's recommendation.
“The Court is a great believer in the jury
system and following the jury when at all possible. Killing your
own child for money by burning him alive is too much to overcome.
Even with the jury's recommendation, the aggravating factors
clearly outweigh the mitigating factors. Justice must be served.
The only way justice can be served in this case is by a sentence
of death.”
(C.R.10–12) (Emphasis added).
Scott specifically challenges the emphasized
portion of the circuit court's sentencing order. We will address
each of her arguments.
A.
Scott first argues that the circuit court
violated the Supreme Court's holding in Carroll by disregarding
the wishes of the victim's family and, in fact, using the victim's
family's wishes to support a death sentence. Scott specifically
challenges the second paragraph emphasized in the circuit court's
sentencing order.
The Carroll Court stated the following
concerning the relevance of the wishes of the victim's family:
“[I]n light of the wish of the victim's family
that Carroll be sentenced to life imprisonment without parole
rather than sentenced to death, evidence that was admitted without
objection, we find it hard to reconcile the trial court's reliance
upon the ‘pain of the victim's family’ as one of its reasons for
overriding the jury's recommendation.
“․
“We take this opportunity to further explain
the effect of a jury's recommendation of life imprisonment without
the possibility of parole. Such a recommendation is to be treated
as a mitigating circumstance. The weight to be given that
mitigating circumstance should depend upon the number of jurors
recommending a sentence of life imprisonment without parole, and
also upon the strength of the factual basis for such a
recommendation in the form of information known to the jury, such
as conflicting evidence concerning the identity of the
‘triggerman’ or a recommendation of leniency by the victim's
family; the jury's recommendation may be overridden based upon
information known only to the trial court and not to the jury,
when such information can properly be used to undermine a
mitigating circumstance.”
852 So.2d at 836.
Unlike the circumstances presented in Carroll,
in this case, the victim and Scott were members of the same
family. The sentencing judge had the opportunity to view the
family members as they testified in the penalty phase—an
opportunity that this Court lacks—and he specifically found that
the family members believed that Scott was innocent of the
charges. We cannot find error in the circuit court's assignment of
little weight to the victims's family's wishes given that they
disagreed with the jury's finding of guilt and that they were also
Scott's family. Indeed, we have held that “the opinion of the
friends or relatives of the defendant that the defendant should
not be sentenced to death is not a relevant mitigating
circumstances for the jury to consider at the penalty phase of a
capital case.” Taylor v. State, 666 So.2d 36, 53
(Ala.Crim.App.1994). See also Woods v. State, 13 So.3d 1, 33
(Ala.Crim.App.2007). Annot., Propriety of Imposition of Death
Sentence by State Court Following Jury's Recommendation of Life
Imprisonment or Lesser Sentence, 8 A.L.R.4th 1028 (1981).
Given the facts presented in this case, the
circuit court's failure to give the victim's family members wishes
great weight does not conflict with the Supreme Court's decision
in Carroll.
B.
Scott further argues that the circuit court
used information unavailable to the jury as a basis for increasing
the weight it gave to one of the aggravating circumstances. She
argues that according to Carroll, the court could use information
not available to the jury only to undermine a mitigating
circumstance. Specifically, Scott challenges the third paragraph
emphasized in the circuit court's sentencing order.
The Supreme Court's holding in Carroll did not
purport to be an exhaustive list of what the court could consider
when sentencing a defendant to death after a jury has recommended
a sentence of life imprisonment without the possibility of parole.
A defendant in a capital-murder case is entitled to an
individualized sentencing determination. The circuit court's order
was consistent with the provisions of § 13A–5–47(e), Ala.Code
1975, and with our holding in Harris v. State, 2 So.3d 880
(Ala.Crim.App.2008).
Section 13A–5–47(e), states, in pertinent part:
“In deciding upon the sentence, the trial court
shall 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․”
(Emphasis added.)
In Harris, we upheld the circuit court's
override of the jury's recommendation of life imprisonment without
the possibility of parole after the court indicated in its order
that it considered evidence outside the record as it related to
the aggravating circumstance that two or more persons were killed
pursuant to one scheme. We stated:
“In its order, the trial court outlined its
reasons for overriding the jury's verdict recommending a sentence
of life without parole. It added that it had seen no case in which
a defendant had killed six victims pursuant to one scheme or
course of conduct. It cited a number of cases with multiple
victims—all of which involved fewer than six victims—in which the
trial courts overrode the juries' recommendations for life in
prison without the possibility of parole. In each case, this Court
upheld the trial courts' decisions to override the juries'
recommendations. As the trial court pointed out, when compared
with the fact of similar cases, a task the jury could not
undertake, ‘the only disproportionate sentence in this case would
be to sentence Harris to life without parole instead of death.” ’
2 So.3d at 930. See also Woodward v. State,
[Ms. CR–08–0145, December 16, 2011] ––– So.3d ––––
(Ala.Crim.App.2011).
This portion of the circuit court's order did
not violate Carroll and was consistent with the provisions of §
13A–5–47(e), Ala.Code 1975.
C.
Scott next argues that the court erred in
discounting evidence because the witnesses and jury were
emotional. Specifically, she challenges the first emphasized
paragraph in the court's order.
“[T]he Alabama Supreme Court in Ex parte
Taylor, specifically held that it is a valid consideration to
consider the emotionalism of the jury when overriding a jury's
recommendation.” 808 So.2d at 1219.” Doster v. State, 72 So.3d 50,
121 (Ala.Crim.App.2010). The circuit court committed no error in
considering the emotions displayed by the witnesses and the
jurors.
D.
Scott next argues that the circuit court erred
in considering nonstatutory aggravating circumstances when
overriding the jury's verdict. Specifically, Scott challenges the
following portion of the court's order:
“The jury found [Scott] guilty of three counts
of capital murder. In other words, this particular murder fit the
definition of three different ways the Alabama legislature has set
out to be bad enough to justify capital murder. That is a powerful
statement. Not only did [Scott] commit capital murder making her
eligible for the death penalty, but three different elements were
proven to make her eligible for the death penalty three different
ways.”
(C.R.11) (emphasis added).
Although Scott was charged with and convicted
of three counts of capital murder, only one count—murder for
pecuniary gain—has a corresponding aggravating circumstance
defined in § 13–5–49, Ala.Code 1975, that made Scott eligible for
the death penalty. However, when detailing the aggravating
circumstances in its sentencing order, the circuit court correctly
found the existence of two aggravating circumstances: that the
murder was committed for pecuniary gain and that the murder was
especially heinous, atrocious, or cruel when compared to other
capital murders. “Trial courts are presumed to know and to follow
existing law.” Harris v. State, 2 So.3d 880, 925
(Ala.Crim.App.2007).
“While the trial court's sentencing order is
defective, the errors are not so egregious or substantial as to
require a new sentencing order. ‘The sole purpose of requiring
that the trial judge, as the sentencing authority, make a written
finding of the aggravating circumstance is to provide for
appellate review of the sentence of death.’ Ex parte Kyzer, 399
So.2d 330, 338 (Ala.1981). ‘[T]he harmless error rule does apply
in capital cases at the sentence hearing.’ Ex parte Whisenhant,
482 So.2d 1241, 1244 (Ala.1983).”
Fortenberry v. State, 545 So.2d 129, 144
(Ala.1989). “[T]his court has before it sufficient basis for
reviewing the appellant's death sentence.” Stewart v. State, 730
So.2d 1203, 1219 (Ala.Crim.App.1996).
It is clear that the above comment was a
reference to the severity of the murder and was not the improper
application of a nonstatutory aggravating circumstance. Any
misstatement in the above paragraph of the circuit court's order
was harmless.
E.
Scott last argues that the circuit court failed
to consider uncontested mitigating evidence, i.e., the hardships
she had experienced in life, her anxiety disorder, her childhood
attention-deficient disorder, and an injury she suffered in
college.
“The circuit court must consider evidence
offered in mitigation, but it is not obliged to find that the
evidence constitutes a mitigating circumstance.” Calhoun v. State,
932 So.2d 923, 975 (Ala.Crim.App.2005). “Merely because an accused
proffers evidence of a mitigating circumstance does not require
the judge or the jury to find the existence of that fact.” Harrell
v. State, 470 So.2d 1303, 1308 (Ala.Crim.App.1984).
“It is not required that the evidence submitted
by the accused as a non-statutory mitigating circumstance be
weighed as a mitigating circumstance by the sentencer, in this
case, the trial court; although consideration of all mitigating
circumstances is required, the decision of whether a particular
mitigating circumstance is proven and the weight to be given it
rests with the sentencer. Cochran v. State, 500 So.2d 1161
(Ala.Crim.App.1984), aff'd in pertinent part, remanded on other
part, 500 So.2d 1179 (Ala.1985), aff'd on return to remand, 500
So.2d 1188 (Ala.Cr.App.), aff'd 500 So.2d 1064 (Ala.1986), cert.
denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987).”
Haney v. State, 603 So.2d 368, 389
(Ala.Crim.App.1991). See also Ex parte Hart, 612 So.2d 536, 542
(Ala.1992).
The circuit court's order clearly reflects that
it considered all mitigating evidence that had been offered by
Scott. All that is required is that the court consider the
evidence, whether it is found to be mitigating is within the
discretion of the court. See Haney.
Consistent with the Supreme Court's holding in
Ex parte Taylor, the circuit court considered the jury's
recommendation as a mitigating circumstance and gave it great
weight. Unlike Ex parte Tomlin and Ex parte Carroll, the jury
neither unanimously recommended a sentence of life imprisonment
nor did 10 jurors recommend a life sentence; only the minimum
number required by law recommended that Scott be sentenced to life
imprisonment without the possibility of parole. The circuit court
complied with Alabama law by setting out its reasons for declining
to follow the jury's recommendation. We can find no legal basis
for disturbing the circuit court's sentence in this case.
XXII.
Section 13A–5–53, Ala.Code 1975, requires that
we address the propriety of Scott's capital-murder conviction and
her sentence of death. Scott was indicted for, and was convicted
of, murdering six-year-old Mason during the course of an arson and
for pecuniary gain, violations of § 13A–5–40(a)(7), (a)(9), and
(a)(15), Ala.Code 1975. The jury recommended, by a vote of 7 to 5,
that Scott be sentenced to life imprisonment without the
possibility of parole. The circuit court chose not to follow the
jury's recommendation and sentenced Scott to death.
The record shows that Scott's sentence was not
imposed under the influence of passion, prejudice, or any other
arbitrary factor. See § 13A–5–53(b)(1), Ala.Code 1975.
The circuit court found as aggravating
circumstances that the murder was committed for pecuniary gain, §
13A–5–49(6), Ala.Code 1975, and that the murder was especially
heinous, atrocious, or cruel as compared to other capital murders,
§ 13A–5–49(8), Ala.Code 1975. The court found the existence of one
statutory mitigating circumstance, that Scott had no significant
history of prior criminal activity. See § 13A–5–51(1), Ala.Code
1975. The circuit court found the following nonstatutory
mitigating circumstances:
“[Scott] presented testimony from family and
friends that indicated they loved her and did not want to see her
die. They testified to the detrimental effect this would have on
her living minor son and the remainder of her family. The Court
does consider the impact on her family, particularly her younger
son, and gives this circumstance its due weight.
“Testimony was given that [Scott] had helped
people throughout her life and had performed good deeds. The Court
finds that this is a mitigating factor and gives it is due weight.
“The final nonstatutory mitigating factor is
the jury's recommendation of life without parole․
“Ex parte Carroll sets out that the weight to
be given the mitigating circumstance should depend upon the number
of jurors recommending a sentence of life imprisonment without
parole. In Carroll, 10 jurors recommended life without parole. In
the present case, seven made such a recommendation, the statutory
minimum to allow a life without parole recommendation.”
(C.R.12.) The circuit court concluded by
stating that it gave “heavy weight” to the jury's recommendation.
However, the court found that the aggravating circumstances
outweighed the mitigating circumstances and sentenced Scott to
death.
This Court has independently weighed the
aggravating circumstances and the mitigating circumstances as
required by § 13A–5–53(b)(2), Ala.Code 1975, and is convinced, as
was the circuit court, that death was the appropriate sentence for
the horrific murder of six-year-old Mason.
Neither is Scott's death sentence
disproportionate nor excessive as compared to the penalties
imposed in similar cases. See Vanpelt v. State, 74 So.3d 32
(Ala.Crim.App.2009); Smith v. State, 908 So.2d 273
(Ala.Crim.App.2000); Sockwell v. State, 675 So.2d 4
(Ala.Crim.App.1993).
Last, as required by Rule 45A, Ala. R.App. P.,
this Court has searched the record for any error that may have
affected Scott's substantial rights, and we have found none.
For the forgoing reasons, we affirm Scott's
capital-murder convictions and her sentence of death.
AFFIRMED.
WELCH, Judge.
WINDOM, P.J., and KELLUM, BURKE, and JOINER,
JJ., concur.