Anthony Orr v. State of Alabama
CR-2023-0752
Alabama Court of Criminal Appeals
June 27, 2025
COLE, Judge
OCTOBER TERM, 2024-2025; Appeal from Mobile Circuit Court (CC-20-2604)
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
COLE, Judge.
Anthony Orr appeals his convictions for intentional murder, a violation of
Facts and Procedural History
Valerie Reed (“Reed“) and Orr were married in 2013, but they divorced on September 26, 2019. Throughout Reed and Orr‘s marriage, there were allegations of domestic abuse. On February 22, 2020, despite Reed‘s having a protection-from-abuse order against Orr, while Reed and Orr were both attending the Dragon Ball, Reed‘s cellular telephone was taken from her by Orr. Orr subsequently chased and choked Reed at the Dragon Ball. Reed reported the incident to law-enforcement officers, and
On February 24, 2020, Reed, Hall, Malerie, Angela Thompson (“Thompson“), and Reed‘s nieces, among others, participated in a downtown parade that began at 2:00 p.m. According to Reed, while on the parade route, Orr, upon seeing Reed‘s float, “jumped the barricade” and proceeded to run “behind the float” for approximately “half of a mile.” (R. 375.) While Orr followed the float, Orr threatened to “kill” Hall and Reed. Hall, according to Reed, told Orr he was not scared of him and that Orr would only fight a woman. Orr eventually stopped chasing the float. Thompson also testified that Reed came up to her while on the float and told her “that [Orr] tried to pull her off the float.” (R. 341-42.)
After the parade was over, Reed and Thompson “unpack[ed] the float” while in the back of their U-Haul truck, while Hall loaded a generator into the back of his pickup truck. (R. 377-78.) Reed then heard Orr say, “I told you ‘I was going to kill you,‘” and she saw Orr with a gun
Thompson testified that, while she was in the back of the U-Haul truck, she saw Orr “out of the corner of her eye.” (R. 344.) Thompson saw that Orr had a gun pointed at Hall and heard Orr say, “‘motherfucker, I told you.‘” (R. 345.) Orr then fired his gun, and Hall fell to the ground. Once Hall fell, “Orr turned around in [Thompson‘s and Reed‘s] direction and ... started firing.” (R. 346.) Thompson agreed that she pulled Reed to the floor, told Reed to play dead, and called 911 using her cellular telephone. According to Malerie, as the U-Haul truck was being loaded, “Orr walked up and ... said, ... ‘I told you I was gonna get
Officer Daniel Hill, with the Mobile Police Department, who was working parade detail, heard the gunshots and proceeded to the area. Officer Hill arrived in the area “[l]ess than a minute” after the gunshots were fired and observed Hall lying on the ground with multiple gunshot wounds. (R. 227.) Officer Araka Young, with the Mobile Police Department, also heard the gunshots and arrived in the area “[l]ess than a minute” after the gunshots were fired. She observed Hall on the ground, Malerie in front of the U-Haul truck and Thompson and Reed in the back of the U-Haul truck. Officer Arthur Byrd, with the Mobile Police Department, was also working parade detail when he heard the gunshots and proceeded to the area. Officer Byrd arrived in the area “[a] minute and a half, two minutes tops” after the gunshots and found “a semi-automatic handgun l[]ying near” Hall. (R. 244-45.) Officer Ian Rebhorn, with the Mobile Police Department, was assigned to the crime-scene unit and arrived on scene around 6:30 p.m. Officer Rebhorn located “13 Sig .40 caliber Smith & Wesson casings, one RP 25 auto casing, four jacket
Neither Thompson nor Malerie were injured. However, Reed was shot “[o]ne time ... in [her] spine, and the bullet is still ... lodged in [her] back.” (R. 383.) She was also “grazed” by another projectile. Due to Reed‘s back injury, she will never be able to walk again. Dr. Jonathan Newsome, senior medical examiner for the Alabama Department of Forensic Sciences (“ADFS“), testified that he performed the autopsy on Hall. Hall‘s body had “five separate gunshot wounds, and ... also shrapnel wounds.” (R. 421.) Hall was shot in the back and front of his body. Dr. Newsom opined that the cause of Hall‘s death was “multiple gunshot wounds.” (R. 434.)
Patricia Lindley, a firearm and toolmarks specialist with ADFS, performed “a firearm analysis, a bullet analysis, [and] a cartridge case analysis.” (R. 456.) Through testing, Lindley determined that the “Beretta pistol, caliber .25” was responsible for the one fired .25 caliber cartridge casing found on the scene. (R. 456-57.) Lindley was also able to determine that the “13 fired .40 caliber cartridge cases” were “all ... fired from the same firearm.” (R. 461.)
In his defense, Orr called Lewis Hawkins IV (“Hawkins“), Juan Bowling (“Bowling“), and James Orr (“James“) to testify. Hawkins, Orr‘s
The jury convicted Orr for the intentional murder of Hall, the attempted murder of Reed, the attempted first-degree assault of Thompson, and discharging a firearm into an occupied vehicle. Orr was subsequently sentenced to concurrent sentences of life imprisonment for
Discussion
On appeal, Orr raises three arguments: (1) whether the trial court erred in striking for cause seven prospective jurors, (2) whether the trial court erred in denying his motion for a mistrial based on an allegedly improper argument the State made in its rebuttal closing argument, and (3) whether the trial court erred in denying his motion for a new trial based on the same allegedly improper argument made by the State in its rebuttal closing argument. None of these issues entitle Orr to relief.
I. Jury Strikes
Orr argues that the trial court erred in striking for cause seven prospective jurors without any evidence supporting a legal basis to do so. Specifically, Orr argues that the trial court erred “in striking A.S. (panel number 2), K.B. (number 9), T.H. (number 21), J.L. (number 24), G.M. (number 27), P.P. (number 29), and D.S. (number 34) for cause, based on a bare allegation by the State that [each] had prior arrests/convictions
Following voir dire, the following occurred:
“[THE STATE]: Then the second category of strikes for cause, Judge, we are able to pull up NCIC for various witnesses. Looked at their arrest and conviction records, and I asked every person have you ever been accused, arrested, or convicted, and have a list here of witnesses who failed to disclose that information.
“THE COURT: You keep saying witnesses.
“....
“[THE STATE]: We don‘t have any witnesses. The list [of] jurors who failed to disclose that information.
“THE COURT: Potential jurors.
“[DEFENSE COUNSEL]: Your Honor, and I always object to this. This is NCIC -- we -- defense attorneys cannot have access to, do not have access to. And they‘re in realtime going back and looking at them. And, you know, I mean, unless they give us access to this, I mean, I think we don‘t --
“THE COURT: I don‘t think they can give you access to it. I mean, they can tell you what they have found and we can explore it as to each and every potential venire person.
“[DEFENSE COUNSEL]: Okay.
“THE COURT: But the question was asked whether or not anyone had any convictions and no one answered affirmatively that I recall.
“[THE STATE]: The only one that did said that she had a car tag. And that‘s actually one of the witnesses we found that she was -- sorry, jurors. Goodness gracious. Jurors. That‘s one of the jurors that we saw had a battery, domestic violence, a great number of things.
“THE COURT: And that was number --
“[THE STATE]: 33. You already struck her.
“THE COURT: Right.
“[THE STATE]: The ones that the State have were No. 9, 24, 27, 29.
“[DEFENSE COUNSEL]: Wait, wait, wait. You said 9, 24, and 27?
“[THE STATE]: 29, 21 -- I‘m sorry, I went out of order. 33, we already did her, and 34. Oh. And No. 2.
“I know [defense counsel] probably wants him struck. Some of these witnesses -- or jurors I would like. Some of these jurors I would not like, but the State has a duty to be honest about this, so if there‘s someone who didn‘t report honestly that I would want to keep, I still have to report that as well.
“....
“THE COURT: All right. You have any questions, [defense counsel]?
“[DEFENSE COUNSEL]: We‘re getting down to -- for a murder case down to 26 jurors. 26.
“THE COURT: You have to have 24.
“[THE STATE]: In order to qualify, you need 24.
“....
“[DEFENSE COUNSEL]: And what do they have? I mean, that --
“[THE STATE]: So No. 2 that failed to disclose an arrest for theft. No. 9 an arrest for theft, fraudulent use, and receiving. Number -- who‘s next?
“[DEFENSE COUNSEL]: Which one was that?
“THE COURT: 21.
“[THE STATE]: No. that was No. 9 that I just said. 21, negotiating worthless instrument. 24, DUI. 27, more multiple DUIs and BUIs. 29, criminal trespass. 33 a litany of DVs including DV first.
“THE COURT: 33 is already gone.
“[DEFENSE COUNSEL]: Yeah.
“[THE STATE]: Yeah. 34 MIB and DUI.
“THE COURT: All right. I‘m going to grant all of those. So that removes 9, 24, 27, 29, 21, 34, and 2.
“[THE STATE]: Yes, Judge.
“[DEFENSE COUNSEL]: I‘m going to have to get back.
“....
“[DEFENSE COUNSEL]: I‘m sorry, Judge. In a case of this magnitude where my client is facing -- if convicted, life or life without --
“THE COURT: Right.
“[DEFENSE COUNSEL]: I mean, I think we‘re getting very close to --
“THE COURT: I think we‘re well within the limits with 26. I think we‘re good.
“[DEFENSE COUNSEL]: Yes, ma‘am.
“THE COURT: Okay.
“[DEFENSE COUNSEL]: If you‘ll just note my objection.
“THE COURT: So noted. ...”
(R. 184-88.) Based on this exchange, Orr made two objections to the State‘s motions to strike for cause certain veniremembers: (1) Orr objected to not being able to have access to data provided by the National Crime Information Center (“NCIC”2) and (2) he indicated that the
Orr, on appeal, argues that the trial court erred in striking the veniremembers without a legal basis to do so. However, as this Court has stated:
“‘Review on appeal is restricted to questions and issues properly and timely raised at trial.’ Newsome v. State, 570 So. 2d 703, 717 (Ala. Crim. App. 1989). ‘An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.’ Pate v. State, 601 So. 2d 210, 213 (Ala. Crim. App. 1992). ‘“[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.’ McKinney v. State, 654 So. 2d 95, 99 (Ala. Crim. App. 1995) (citation omitted). ‘The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ Ex parte Frith, 526 So. 2d 880, 882 (Ala. 1987). ‘The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.’ Ex parte Works, 640 So. 2d 1056, 1058 (Ala. 1994).”
II. Improper Argument
Orr also argues on appeal that “the State made an argument in its rebuttal closing argument that infected Mr. Orr‘s trial with unfairness to the point where he was denied a fair trial, consistent with due process, and the trial court did nothing to cure the improper argument.” (Orr‘s brief, p. 22.) Specifically, Orr argues that the trial court abused its discretion by denying Orr‘s motion for a mistrial.3 The State argues that Orr failed to preserve this issue for appellate review.
Orr, although claiming self-defense at trial, never mentioned self-defense to law-enforcement officers during his interview. Orr explained the inconsistencies in his story by alleging, among other things, that he
“Members of the jury, these officers gave him chance after chance after chance. Come on, Anthony. We know there was some reason for this. Come on, Anthony. Did he do something to provoke you? Come on, Anthony. Over and over again. Gave him a chance tell the truth. But he wants you to think that he was so drunk that he couldn‘t come up with the correct story. Instead, he lied.
“Members of the jury, I spent a lot of time around drunk people, and the one thing that I know is that the more they drink, the[] looser their lips get but not tighter.
“If you want to think for one second that this man was drunk as a skunk and that that gave him the instinct to lie about each and every single detail of this case?
“Members of the jury, I know you weren‘t born yesterday, and I know that doesn‘t make a lick of sense. Instead what makes sense is that he met with his lawyer and said, okay. I know I said in the interview that I was drunk. Do you think that‘s a good reason for me to say I didn‘t do all those things?”
(R. 843-44.) Orr objected to the State‘s argument insinuating that defense counsel “came up with a story” for Orr to tell the jury. (R. 844.) The trial court “[o]verruled” Orr‘s objection and told the State to “[m]ove on.” (R. 844.) After the State finished its rebuttal closing argument, Orr moved for a mistrial arguing that the State had made improper arguments in its closing argument insinuating that defense counsel
Subsequently, on October 10, 2023, Orr timely moved for a new trial, alleging that the State made an improper argument insinuating that Orr‘s “counsel ‘concocted’ the [trial] testimony of” Orr, which, he said, was a “personal attack[]” on Orr‘s counsel “without any supporting admissible evidence presented at trial.” (C. 148-50.) Orr argued in his motion for a new trial that, given the State‘s improper argument, he was due a new trial. The trial court held a timely hearing on Orr‘s motion for a new trial and denied the motion.
Orr failed to preserve this issue for appellate review.
“To be timely, a motion for a mistrial must be made ‘immediately after the question or questions are asked that are the grounds made the basis of the motion for the mistrial.’ Ex parte Marek, 556 So. 2d 375, 379 (Ala. 1989). The motion is untimely if it is not made until the conclusion of the witness‘s testimony or counsel‘s argument. Menefee v. State, 592 So. 2d 642, 647 (Ala. Crim. App. 1991); Robinson v. State, 584 So. 2d 533, 538-39 (Ala. Crim. App.), cert. quashed, 584 So. 2d 542 (Ala. 1991).”
Wilson v. State, 651 So. 2d 1119, 1122 (Ala. Crim. App. 1994); see also Jones v. State, 895 So. 2d 376, 379 (Ala. Crim. App. 2004) (finding a motion for a mistrial untimely, even though the defendant objected to the
“‘“Although courts have sometimes departed from this rule, generally, in analogy to the rule limiting the scope of review on appeal to questions raised below, a new trial will not be granted for matters pertaining to rulings, evidence, or occurrences at a trial, including erroneous conduct on the part of the court, counsel, or jury, unless timely and sufficient objections, requests, motions or exceptions have been made and taken. Any grounds which might have been afforded by such matters are presumed to have been waived, except where such matters were unknown to applicant until after verdict and could not have been discovered by the exercise of reasonable diligence, and except in instances of fundamental errors which of themselves invalidate the trial. [Citations omitted].“’
”Woodward v. State, 480 So. 2d 69, 73 (Ala. Crim. App. 1985) (quoting Leverett v. State, 462 So. 2d 972, 979 (Ala. Crim. App. 1984)). Furthermore, ‘[t]he grounds urged on a motion
for a new trial must ordinarily be preserved at trial by timely and specific objections.’ Trawick v. State, 431 So. 2d 574, 578-79 (Ala. Crim. App. 1983).”
Craft v. State, 90 So. 3d 197, 218-19 (Ala. Crim. App. 2011). To the extent that Orr‘s motion for a new trial sought to support his motion for a mistrial, Orr‘s argument is not preserved. However, Orr did timely object and receive an adverse ruling to the State‘s alleged improper argument in its rebuttal closing argument.
This Court has recognized that, “[i]n order for a prosecutor‘s comments made during argument before the jury to require a new trial, the entire trial must have been so infected with unfairness as a result of these comments that the [defendant] was denied due process.” Hart v. State, 612 So. 2d 520, 527 (Ala. Crim. App. 1992) (citing Darden v. Wainwright, 477 U.S. 168, 181 (1986)); Shanklin v. State, 187 So. 3d 734, 787 (Ala. Crim. App. 2014) (same). After review of the complained-of argument, along with the entire closing arguments and the trial itself, we do not find that Orr was “denied due process” from the prosecutor‘s comment. While the comment may have been ill-advised, it was not so detrimental in this case as to find that Orr‘s “entire trial” was “infected
In Crook v. State, 276 Ala. 268, 270, 160 So. 2d 896, 897 (1962), the Alabama Supreme Court found that “[o]ne of the most prevalent arguments to a jury is that the position and argument of the adversary is unwarranted, silly, fanciful or illogical.” See also Minor v. State, 914 So. 2d 372, 423-24 (Ala. Crim. App. 2004) (same). The State was arguing that Orr‘s trial testimony was unbelievable because Orr had blamed his continual lies to law-enforcement officers on his being drunk. That testimony, according to the State, was simply “unwarranted, silly, fanciful or illogical.” In speculating that Orr must have suggested to his defense counsel that his drunkenness was a good reason for his initial lies, the State was only pointing out the absurdity of Orr‘s claim -- that being drunk was a valid excuse for Orr‘s lies to law-enforcement officers on the day of the shooting. It does not appear that the State was alleging that Orr‘s counsel was lying or instructed Orr to lie but that Orr‘s excuse for lying was simply not believable. Given that the State‘s complained-of argument was limited to that instance and was not repeated, we do not find that Orr was denied due process. See Breland v. Ford, 693 So. 2d 393, 398 (Ala. 1996)
III. Illegal Sentence
Orr‘s convictions and his resulting sentences for intentional murder, attempted murder, and attempted first-degree assault are proper. Orr‘s conviction for discharging a firearm into an occupied
“It is well settled that ‘[m]atters concerning unauthorized sentences are jurisdictional.’ Hunt v. State, 659 So. 2d 998, 999 (Ala. Crim. App. 1994). Therefore, this Court may take notice of an illegal sentence ‘at any time and may do so even ex mero motu.’ Moore v. State, 40 So. 3d 750, 753 (Ala. Crim. App. 2009).”
Towns v. State, 293 So. 3d 975, 985 (Ala. Crim. App. 2019).
Discharging a firearm into an occupied vehicle is a Class B felony offense.
Conclusion
For these reasons, Orr‘s convictions for intentional murder, attempted murder, and attempted first-degree assault and the resulting
AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Minor and Anderson, JJ., concur. Kellum, J., concurs in the result.