Brandon Deshawn Webster v. State of Alabama
CR-2023-0721
Alabama Court of Criminal Appeals
March 28, 2025
OCTOBER TERM, 2024-2025; Appeal from Montgomery Circuit Court (CC-22-148)
COLE, Judge.
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.
Brandon Deshawn Webster appeals his convictions for capital murder for killing Tanisha Pughsley while a valid protective order was in place, a violation of
Facts and Procedural History
In 2019, Pughsley and Walker, both members of the Montgomery Police Department, met through a mutual friend, Michael Westbrook. They began “talking” between April and June 2020. On July 5, 2020, Pughsley and Walker went on a date to Birmingham before returning to Pughsley‘s residence in Montgomery at some point after 1:00 a.m. on July 6, 2020. During an interview with Walker, which was admitted into evidence as State‘s Exhibit 6, Walker stated that Pughsley had told him that Webster, her ex-husband, had been physically abusive and that she had put a restraining order on Webster. Thus, upon returning to Pughsley‘s residence, which she previously had shared with Webster, Pughsley told Walker to park away from her house in the nearby cul-de-sac because Webster might drive by the house.
Around 2:00 a.m. on July 6, 2020, Walker heard a gunshot and then the burglar alarm went off because a door was opened. Both Pughsley and Walker pushed the bedroom door to keep it closed, but Webster fired two shots through the door. Walker fell back onto the bed while Pughsley fell back “towards the sofa” in the bedroom. Once Webster entered the bedroom, he pointed his gun at Walker before Webster and Walker began to struggle over the gun. Eventually, Walker gained control over the gun and threw it “into the bathroom.” (R. 269.) Walker fled the house through the front door after Pughsley told him to run. Walker denied that Pughsley had been shot before he left the house, and he did not hear any gunshots after he left Pughsley‘s house. Once outside, Walker knocked on the doors of three to five neighboring houses, but no one answered. Walker, thereafter, fled on foot to Westbrook‘s house, which was almost three miles away.
Walker fled Pughsley‘s house in only his underwear, leaving his clothes, telephone, and keys behind. Pughsley had told Walker that Webster drove a gold-colored Cadillac sedan with rims, which Walker saw parked in front of his vehicle in the cul-de-sac when he fled Pughsley‘s house. While Walker had never formally met Webster,
An emergency 911 call was made at approximately 2:11 a.m. on July 6, 2020. The caller stated that someone had called him informing him that a shooting had occurred at Pughsley‘s residence. See State‘s Exhibit 15. The caller further explained that he was not there and did not know what had occurred but mentioned that his ex-wife may have been there. Finally, the caller identified himself as “Rodney” and indicated that he thought, but did not know, that someone had been shot. That call was the only 911 call received regarding the shooting; however, there was one alarm-company 911 call and “maybe two more” alarm-company calls. The cellular-telephone number of the 911 caller was recorded, and that same number was listed as Webster‘s telephone number with Saddleback Ridge apartments, which is where Webster lived. Law-enforcement officers arrived at Pughsley‘s house at 2:29 a.m. and found the back door open. They located Pughsley, shot in the chest and hip, in the bedroom at approximately 2:33 a.m.
Officer David Stewart, a patrol officer with the Montgomery Police Department, was one of the first officers to respond to the scene. Officer Stewart‘s body-camera footage was admitted into evidence, as State‘s Exhibit 16, over Webster‘s objection. Officer Stewart found Pughsley‘s back door ajar upon his arrival, and he was unable to hear Pughsley‘s burglar alarm until he entered the residence. Officer Stewart, along with another officer, located Pughsley in the master bedroom and performed medical assistance until medical personnel arrived.
Marvia Scott, one of Pughsley‘s neighbors, provided video-camera footage from her house showing Walker fleeing the neighborhood. Scott called the police after seeing Walker fleeing through her yard, but she denied hearing anyone knock on her door or gunshots. Video-camera footage from both Chance Webster (“Chance“) and Fred Judkins, which showed the traffic flowing through Pughsley‘s neighborhood around the time of the shooting, was admitted into evidence. Chance‘s video-camera footage showed a gold-colored Cadillac sedan driving into Pughsley‘s neighborhood at approximately 2:03 a.m. and leaving the neighborhood at approximately 2:06 a.m. Additionally, Chance‘s video-camera footage showed the gold-colored Cadillac sedan come back into the neighborhood
Terrence Bowens, an officer with the Montgomery Police Department, heard that Pughsley had been shot while he was with his dating partner, Detective Usen,2 who was also with the Montgomery Police Department. After hearing about Pughsley, Officer Bowens proceeded to Pughsley‘s residence even though he was not on duty, but he was not able to get on scene. Thereafter, Officer Bowens proceeded to Westbrook‘s house.3 When Officer Bowens arrived, he told Westbrook that Pughsley “had possibly been hurt or shot.” (R. 439.) Westbrook
On July 6, 2020, Westbrook, then an officer with the Montgomery Police Department, was not on duty. Westbrook testified that Officer Bowens came to his house on July 6, 2020, and told him about Pughsley being shot. Thereafter, Westbrook left his house to go to Pughsley‘s residence to see what he could do to assist. Halfway to Pughsley‘s residence, Westbrook turned around because he got a camera notification on his cellular telephone that showed Walker “naked, sweating, drenched in sweat” at his house trying to get his attention through the camera. (R. 452-53.) Westbrook attempted to calm Walker and got Walker some clothes to wear. Finally, Westbrook called Officer Bowens to find out who was the supervisor on duty, and then “a few units came and took [Westbrook] and [Walker] down to the detectives division.” (R. 455.)
Detective S. Agosto, with the Montgomery Police Department, testified that she, along with Detective R.B. Dabney, were the crime-scene investigators for the shooting at Pughsley‘s residence. Only one
Dr. Edward Reedy, the chief medical examiner with the Alabama Department of Forensic Sciences (“the ADFS“), testified as an expert in the field of forensic pathology. Dr. Reedy did not perform Pughsley‘s autopsy,4 but he “conducted a second peer review” of Pughsley‘s autopsy and came to his own opinions. (R. 672-74.) Dr. Reedy‘s independent opinion reached the same conclusions as those found in the original autopsy report. Based upon the stippling seen on Pughsley‘s arms and chest, Dr. Reedy opined that when Pughsley was shot “the muzzle of the weapon was around two feet away from” her. Moreover, Dr. Reedy opined
Detective Brian Goza, with Montgomery Police Department at the time of the offense, testified to examining Pughsley‘s cellular telephone. Several text messages and email exchanges between Pughsley and Webster were introduced, showing Webster‘s aggressive behavior toward Pughsley. Sergeant Greg Schnupp, also with the Montgomery Police Department, testified to searching Webster‘s apartment at Saddleback Ridge apartments. In Webster‘s bedroom, “an AR magazine” was located “on top of the dresser.” (R. 801.) In the top left drawer of the dresser, Sergeant Schnupp located a copy of the protective order. Sergeant Schnupp also searched Webster‘s vehicle. In the trunk of Webster‘s vehicle, Sergeant Schnupp located “an[other] AR magazine.” Also located in Webster‘s vehicle was “a badge belonging to ... Pughsley.” (R. 811.) No ammunition was located either at Webster‘s apartment or in his vehicle. However, Michael Dugan, a firearm and tool-marks specialist with the ADFS, testified that the spent .223 shell casing found at
Webster did not testify in his own defense and presented only one witness, Reginald K. Dabney, a homicide detective who had worked for the Montgomery Police Department in 2020. Detective Dabney interviewed Walker after the shooting. Through Detective Dabney, Webster attempted to show that Walker was unreliable.
Thereafter, the jury convicted Webster of two counts of capital murder and one count of attempted first-degree assault of Walker, a lesser-included offense of attempted murder. The trial court sentenced Webster to concurrent sentences of life imprisonment without the possibility of parole for each capital-murder conviction and to 10 years’ imprisonment for the attempted-first-degree-assault conviction. This appeal followed.
Discussion
On appeal, Webster raises six arguments: (1) whether the trial court erred in finding that sufficient evidence existed to convict and whether the weight of the evidence was sufficient; (2) whether his right to confront his accusers was violated when the autopsy doctor was not
I. Sufficiency and Weight of the Evidence
Webster argues on appeal that the sufficiency and weight of the evidence do not support his convictions for capital murder and for attempted first-degree assault. Specifically, Webster argues that “no physical evidence ... support[ed] Walker‘s claim that Pughsley was shot after he left the home,” which, he says, showed that his version of events (that Pughsley was shot accidentally during the struggle for the gun) was more credible. (Webster‘s brief, pp. 8-9.) This fact alone, Webster says, “negates [his] guilt on all three convictions” because there was doubt as to his intent. (Webster‘s brief, p. 9.)
We first note that, as the State asserts, Webster failed to preserve for appellate review his argument regarding the weight of the evidence. A defendant can preserve an argument about the weight of the evidence
Regarding Webster‘s sufficiency argument, both at the conclusion of the State‘s case-in-chief and at the close of the evidence, Webster moved for a judgment of acquittal based on the State‘s failure to present a prima facie case as to each count charged in the indictment. Those motions were denied. Webster‘s motion for judgment of acquittal as to the charges of capital murder while a valid protective order was in place and capital murder during a first-degree burglary preserved his arguments on appeal. However, as the State asserts, because Webster challenged the sufficiency of the evidence only as it related to his charge of attempted murder, his motion for judgment of acquittal failed to preserve for appellate review his argument as to the lesser-included offense of attempted first-degree assault. See Jones v. State, 895 So. 2d 376, 379 (Ala. Crim. App. 2004) (finding motion for judgment of acquittal attacking indicted offense, but not the lesser-included offense, failed to preserve the sufficiency-of-the-evidence challenge as to the lesser-included offense). Thus, Webster failed to preserve for appellate review the sufficiency-of-the-evidence argument as to his attempted-first-degree-assault conviction.
Thus, we turn to the merits of whether the State presented sufficient evidence to support Webster‘s convictions for capital murder while a valid protective order was in place and capital murder during a first-degree burglary.
“‘In determining the sufficiency of the evidence to sustain [a] conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So. 2d 485, 489 (Ala. Crim. App. 1984), affirmed, Ex parte Faircloth, [471] So. 2d 493 (Ala. 1985).”
”White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989).”
Tate v. State, 305 So. 3d 254, 257 (Ala. Crim. App. 2019).
A. Capital Murder While a Valid Protective Order Was In Place
To convict Webster of capital murder while a valid protective order was in place, the State had to prove that: (1) Pughsley was dead; (2)
Both the State and Webster stipulated, before the trial, that on June 19, 2020, Pughsley had applied for and been granted a protective order that restrained Webster from “having physical or violent contact” with Pughsley, her residence, or her place of employment. (R. 219-21.) That protective order was in place until December 19, 2020. Thus, the State, through the stipulation, provided sufficient proof that a valid protective order had been issued against Webster and was still in place at the time of Pughsley‘s death. The State also presented sufficient proof that Pughsley was deceased and that Webster caused her death.
Regarding the issue of intent,
“This Court has repeatedly observed that intent is a state of mind that is rarely, if ever, established by direct evidence and must be inferred from the facts. E.g., Chambers v. State, 181 So. 3d 429, 434 (Ala. Crim. App. 2015); Morton v. State, 154 So. 3d 1065, 1080 (Ala. Crim. App. 2013); Brown v. State, 11 So. 3d 866, 914 (Ala. Crim. App. 2007).
“‘Intent may be inferred from the use of a deadly weapon. See Long v. State, 668 So. 2d 56, 60 (Ala. Crim. App. 1995); Buskey v. State, 650 So. 2d 605, 609 (Ala. Crim. App. 1994). Additionally, “[t]he question of a defendant‘s intent at the time of the commission of the crime is usually an issue for the jury to resolve.” Rowell v. State, 570 So. 2d [848,] 850 [(Ala. Crim. App. 1990)], citing Crowe v. State, 435 So. 2d 1371, 1379 (Ala. Crim. App. 1983). Intent may be “‘inferred from the character of the assault, the use of deadly weapon and other attendant circumstances.‘” Jones v. State, 591 So. 2d 569, 574 (Ala. Crim. App. 1991), quoting Johnson v. State, 390 So. 2d 1160, 1167 (Ala. Crim. App. 1980).’
”Waldrop v. State, 859 So. 2d 1138, 1162 (Ala. Crim. App. 2000), aff‘d, 859 So. 2d 1181 (Ala. 2002).”
Henderson v. State, 248 So. 3d 992, 1007-08 (Ala. Crim. App. 2017).
Here, Webster entered Pughsley‘s house around 2:00 a.m. armed with a loaded gun. Webster proceeded to fire two shots through the master-bedroom door that both Pughsley and Walker were pushing
B. Capital Murder During a First-Degree Burglary
To convict Webster of capital murder during a first-degree burglary, the State had to prove that: (1) Pughsley was dead; (2) Webster killed Pughsley and acted with intent; (3) Webster knowingly and unlawfully
Because Webster does not challenge the other elements of capital murder during a first-degree burglary, this Court will address only the element of “intent” that Webster contests. As discussed in Part I.A. above,
II. Confrontation
Webster also argues that his right to confront his accusers was violated. Specifically, Webster argues that his right of confrontation, as guaranteed by the Sixth Amendment to the United States Constitution, was denied because Dr. Reedy testified to Pughsley‘s autopsy results, but the autopsy and the autopsy report were conducted and written by Dr. Christopher Geffre. See note 4, supra. Webster concedes in his brief that this issue was not objected to at trial, but he requests this Court to find plain error on this issue.
This issue was not preserved for appellate review, and the plain-error doctrine does not apply. This Court has repeatedly held that “[p]lain error review does not apply to convictions in which the death penalty has not been imposed.” Hicks v. State, 378 So. 3d 1071, 1130 (Ala. Crim. App. 2019); see Keaton v. State, 375 So. 3d 44, 71 (Ala. Crim. App. 2021). The death penalty was not imposed in this case, and Webster did not object or otherwise present his confrontation claim to the trial court. Thus, Webster failed to preserve this issue for appellate review.
Even if Webster had preserved this issue, which he did not, he would still not be entitled to relief. This Court has previously held that “‘it [is] not a violation of the Confrontation Clause to admit an autopsy report without the medical examiner‘s testimony’ because ‘autopsy reports are nontestimonial in nature.‘” Henderson v. State, [Ms. CR-21-0044, May 3, 2024] __ So. 3d __ (Ala. Crim. App. 2024). Moreover, violations of the Confrontation Clause are subject to a harmless-error analysis. Id.
Here, Dr. Reedy testified that he did not personally conduct Pughsley‘s autopsy. (R. 672.) But Dr. Reedy did “conduct[] a second peer review” of the original autopsy, which required “a review of the investigative information and the autopsy photographs.” (R. 674.) After conducting the peer review, Dr. Reedy “generate[d] [his] own opinions as to where the bullet entered, where the bullet exited, the wound path, and injuries that may have occurred between the entrance and exit” wounds. (R. 674.) When Dr. Reedy compared his own opinions to the original
III. Competency
Webster next argues that the trial court erred when it failed to order that he undergo a mental evaluation to determine whether he was competent to stand trial. Specifically, relying on
“Whenever it shall be made known to the presiding judge of a court by which an indictment has been returned against a defendant for a capital offense, that there is reasonable grounds to believe that such defendant may presently lack the capacity to proceed or continue to trial, as defined in
Section 22-52-30[, Ala. Code 1975] , or whenever said judge receives notice that the defense of said defendant may proceed on the basis of mental disease or defect as a defense to criminal responsibility; it shall be the duty of the presiding judge to forthwith order that such defendant be committed to the Department of Mental Health and Mental Retardation for examination by one or more mental health professionals appointed by the Commissioner of the Department of Mental Health and Mental Retardation ....”
The Alabama Supreme Court has found that, “[w]hen read together,
“[a] defendant‘s ‘“competency to stand trial refers to a defendant‘s current mental state and functional capacities as they relate to a pending trial process.“’ Committee Comments on
Rule 11.1 , quoting T. Grisso, Evaluating Competencies.“‘”
Ala. Code 1975, § 15-16-21 , provides in pertinent part:“‘“‘If any person charged with any felony is held in confinement under indictment and the trial court shall have reasonable grounds to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity....’
“““This section authorizes the trial court to make a preliminary determination (without the aid of a jury) as to whether there are reasonable grounds to doubt the defendant‘s competency to stand trial. Ex parte LaFlore, 445 So. 2d 932, 934 (Ala. 1983); Richardson v. State, 354 So. 2d 1193, 1196 (Ala. Crim. App. 1978). The trial court is, thus, the
‘screening agent’ for mental examination requests. Livingston v. State, 419 So. 2d 270, 274 (Ala. Crim. App. 1982).” “’Reese v. State, 549 So. 2d 148, 150 (Ala. Crim. App. 1989), overruled on other grounds, Huntley v. State, 627 So. 2d 1013 (Ala. 1992). “It is left to the discretion of the trial court as to whether there is a reasonable doubt or bona fide doubt as to sanity and, thus, whether a further examination is required.” Waldrop v. State, 459 So. 2d 953, 955 (Ala. Crim. App. 1983), aff‘d, 459 So. 2d 959 (Ala. 1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2050, 85 L. Ed. 2d 323 (1985). The standard of review is whether the trial court abused its discretion by not requiring an evaluation of [a defendant]‘s competency to stand trial. See Baker v. State, 599 So. 2d 60, 62 (Ala. Crim. App. 1991).
“‘A trial of an accused who is incompetent violates due process. Wagner v. State, 489 So. 2d 623, 628 (Ala. Crim. App. 1985); Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835 (1956).
Rule 11.1, Ala. R. Crim. P. , states:“‘“A defendant is mentally incompetent to stand trial or to be sentenced for an offense if that defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant.”
“‘The trial court makes the ultimate determination of a defendant‘s competency pursuant to the following standard:
“‘“The test for determining competency to stand trial is whether the defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him.’ Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960); Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975).”
“’Anderson v. State, 510 So. 2d 578, 579 (Ala. Crim. App. 1987). “This determination [of competency to stand trial] should be left to the discretion of the trial court.” Baker v. City of Huntsville, 516 So. 2d 927, 931 (Ala. Crim. App. 1987).’
”Russell v. State, 715 So. 2d 866, 868-69 (Ala. Crim. App. 1997). (Emphasis added.)”
Frazier v. State, 758 So. 2d 577, 585-86 (Ala. Crim. App. 1999) (footnote omitted).
Here, an order entered by the trial court indicates that Webster pleaded not guilty and not guilty by reason of mental disease or defect at his arraignment, but a transcript of the arraignment is not included in the record on appeal. After his plea, Webster never moved for any mental
IV. Body-Camera Footage
Webster next argues that the trial court erred when it denied his motion to exclude the audio of the body-camera footage depicting Pughsley‘s death. Specifically, Webster argues that the audio of the body-camera footage, which was admitted into evidence as State‘s Exhibit 16, “served no purpose other than to inflame the jury and was particularly gruesome” such that it should have been excluded. (Webster‘s brief, p. 16.)
Prior to the trial, Webster filed a motion in limine seeking to redact the body-camera footage he believed the State intended to introduce at the trial. Specifically, Webster argued that the body-camera footage contained “hearsay and other inadmissible statements” made by law-
During the trial, Webster argued that the body-camera footage showed Pughsley being found alive, that Pughsley made no statements, and that she only moaned. Specifically, Webster argued that the prejudice substantially outweighed any probative value of the footage because Pughsley does not say who shot her. Webster argued that the State could prove where Pughsley was found with photographs from the body-camera footage but that Webster‘s “problem [with the footage] is with the audio portion.” (R. 371.) The State argued that it had “the burden of proving that [Pughsley] was alive and that [Pughsley] died” and that the footage depicting her death was “an essential element” of the proof needed to convict Webster. (R. 372-73.) The State also argued that the body-camera footage, including its audio, was relevant for other purposes as well. Specifically, the State argued that the purpose of the footage was to counter Webster‘s theory that the shooting was an
This Court has repeatedly said:
“‘Generally, photographs are admissible into evidence in a criminal prosecution “if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge.“’ Bankhead v. State, 585 So. 2d 97, 109 (Ala. Crim. App. 1989), remanded on other grounds, 585 So. 2d 112 (Ala. 1991), aff‘d on return to remand, 625 So. 2d 1141 (Ala. Crim. App. 1992), rev‘d, 625 So. 2d 1146 (Ala. 1993), quoting Magwood v. State, 494 So. 2d 124, 141 (Ala. Crim. App. 1985), aff‘d, 494 So. 2d 154 (Ala. 1986). ‘Photographic exhibits are admissible even though they may be cumulative, demonstrative of undisputed facts, or gruesome.’ Williams v. State, 506 So. 2d 368, 371 (Ala. Crim. App. 1986) (citations omitted). In addition, ‘photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors.’ Ex parte Siebert, 555 So. 2d 780, 784 (Ala. 1989). ‘This court has held that autopsy photographs, although gruesome, are admissible to show the extent of a victim‘s injuries.’ Ferguson v. State, 814 So. 2d 925, 944 (Ala. Crim. App. 2000), aff‘d, 814 So. 2d 970 (Ala. 2001). ‘“[A]utopsy
photographs depicting the character and location of wounds on a victim‘s body are admissible even if they are gruesome, cumulative, or relate to an undisputed matter.“’ Jackson v. State, 791 So. 2d 979, 1016 (Ala. Crim. App. 2000), quoting Perkins v. State, 808 So. 2d 1041, 1108 (Ala. Crim. App. 1999), aff‘d, 808 So. 2d 1143 (Ala. 2001), judgment vacated on other grounds, 536 U.S. 953, 122 S. Ct. 2653, 153 L. Ed. 2d 830 (2002), on remand to, 851 So. 2d 453 (Ala. 2002). ‘The same rule applies for videotapes as for photographs: “The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury.“’ Siebert v. State, 562 So. 2d 586, 599 (Ala. Crim. App. 1989), aff‘d, 562 So. 2d 600 (Ala. 1990), quoting Walker v. State, 416 So. 2d 1083, 1090 (Ala. Crim. App. 1982). See also Ward v. State, 814 So. 2d 899 (Ala. Crim. App. 2000). Generally, ‘[a] properly authenticated video tape recording of the scene of the crime constitutes competent evidence’ and ‘is admissible over the defendant‘s objections that the tape was inflammatory, prejudicial, and cumulative.’ Kuenzel v. State, 577 So. 2d 474, 512-13 (Ala. Crim. App. 1990), aff‘d, 577 So. 2d 531 (Ala. 1991). ‘Provided that a proper foundation is laid, the admissibility of videotape evidence in a criminal trial is a matter within the sound discretion of the trial judge.’ Donahoo v. State, 505 So. 2d 1067, 1071 (Ala. Crim. App. 1986).”
Brooks v. State, 973 So. 2d 380, 393 (Ala. Crim. App. 2007). Thus, this Court has upheld video evidence, that included audio, depicting the scene of a crime that “show[ed] [a] massive amount of blood present” on a victim who had been cut in the neck and depicting the finding of another victim (a 12-year-old child) that had been shot multiple times in the head. Id. at 386-87, 393-94. The evidence in Brooks was admissible because it
In Luong v. State, 199 So. 3d 173, 183 (Ala. Crim. App. 2015), Luong “was convicted of five counts of murder made capital because he killed his four children, all under the age of 14 years, by one act or pursuant to one scheme or course of conduct.” Luong confessed to killing his children by throwing them off a bridge, and the children died due to “blunt-force trauma and asphyxia due to drowning.” Id. Regardless, this Court found that the State had the burden of proving that its victims were deceased, and photographs or video evidence were direct proof on that point. Id. at 211.
In Riley v. State, 166 So. 3d 705 (Ala. Crim. App. 2013), Riley was convicted of capital murder during a first-degree robbery and sentenced to death. At issue were “three surveillance videos” that “clearly depict[ed] Riley robbing” a store and leading a victim into a back room. Id. at 754. The actual murder was not captured on the videos, but “the audio portion of the videos recorded the sound of each gunshot, as well as the ‘clearly audible, drawn out, agonizing “scream” of the victim....‘” Id.
Finally, in State v. Abu-Fakher, 274 Kan. 584, 594, 56 P.3d 166, 175 (2002), the Kansas Supreme Court considered whether it was error to admit, over Abu-Fakher‘s objection, an audiotape recording that contained “the dying sounds” of the victim, which Abu-Fakher argued could have been easily redacted and only served to inflame the passions of the jury. In finding the admission of the recording appropriate, the Kansas Supreme Court found it offered “proof of the elements of the crime charged, including the fact and manner of [the victim]‘s death.” Id. at 176-77. More specifically, the Kansas Supreme Court found the recording “captured the demeanor of the parties involved,” corroborated other evidence, and was the “most probative and comprehensive evidence of the actual commission of the crime, the sequence in which events
It is well established that
“‘“Alabama recognizes a liberal test of relevancy,“’ Gavin v. State, 891 So. 2d 907, 963 (Ala. Crim. App. 2003) (quoting Hayes v. State, 717 So. 2d 30, 36 (Ala. Crim. App. 1997)), which provides that evidence is relevant if it has ‘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. Under that liberal standard, evidence is ‘“admissible against a relevancy challenge if it has any probative value, however[] slight, upon a matter in the case.“’ Gavin, 891 So. 2d at 964 (quoting Knotts v. State, 686 So. 2d 431, 468 (Ala. Crim. App. 1995) (emphasis added)).”
Harrison v. State, 398 So.3d 955, 969 (Ala. Crim. App. 2023). Moreover,
“‘“[p]hotographs [or videos] that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence.“’ Lindsay v. State, 326 So. 3d 1, 34 (Ala. Crim. App. 2019) (quoting Ex parte Siebert, 555 So. 2d 780, 783 (Ala. 1989) (emphasis added)).”
Harrison, 398 So. 3d at 970 (Ala. Crim. App. 2023).
Here, the body-camera footage, along with its audio, was relevant and probative for several reasons. The body-camera footage and its audio depicted how the crime scene appeared upon law enforcement‘s arrival
“[t]he question under
Rule 403[, Ala. R. Evid.,] is not simply whether [Webster] was prejudiced by the admission of [the] video; indeed ‘all evidence against a defendant ... [is] prejudicial.’ Wilson v. State, 142 So. 3d 732, 812 (Ala. Crim. App. 2010). Rather, the question is whether there was a danger that unfair prejudice could result from the admission of the video and whether that danger was substantially outweighed by the video‘s probative value. See Ex parte Vincent, 770 So. 2d 92, 95 (Ala. 1999) (‘Mere prejudice is not a basis for exclusion underRule 403[, Ala. R. Evid.] , because evidence can be harmful, yet not unfairly prejudicial.‘) As to what constitutes unfair prejudice, the Alabama Supreme Court has explained:“‘“Unfair prejudice” under
Rule 403 has been defined as something more than simple damage to an opponent‘s case. Dealto v. State, 677 So. 2d 1236 (Ala. Crim. App. 1995). A litigant‘s case is always damaged by evidence that is contrary to his or her contention, but damage caused in that manner does not rise to the level of “unfair prejudice” and cannot alone be cause for exclusion. Jackson v. State, 674 So. 2d 1318 (Ala. Crim. App. 1993), reversed in part on other grounds, 674 So. 2d 1365 (Ala. 1994). “Prejudice is ‘unfair’ if [it] has ‘an undue tendency to suggest decision on an improper basis.‘” Gipson v. Younes, 724 So. 2d 530, 532 (Ala. Civ. App. 1998), quotingFed. R. Evid. 403 (Advisory Committee Notes 1972). See, also,Rule 403, Ala. R. Evid. ’
Harrison v. State, 398 So.3d at 970-71.
Here, the body-camera footage‘s probative value is not outweighed by any prejudice. The body-camera footage depicted both Pughsley being found alive suffering from a gunshot wound and her death from that same wound. Although the footage and its accompanying audio was certainly prejudicial, as is the nature of such violent crimes, that alone does not make the evidence inadmissible. While Pughsley‘s gasps for breath would certainly arouse some passion, it does not rise to the level of suggesting the jury would make its decision on an improper basis. Additionally, the body-camera footage also refuted Webster‘s insinuation throughout the trial that law-enforcement officers were attempting to protect their own members and friends during this investigation. Given these circumstances, the trial court did not err in admitting the body-camera footage into evidence, and Webster is due no relief.
V. Webster‘s Prior Statements
Webster next argues that the trial court erred when it admitted his “alleged statements ... that he would shoot Pughsley in the face if he saw her” because, he says, the probative value of this evidence was
Before the trial, the State provided notice that it intended to offer evidence at Webster‘s trial, pursuant to
Hartley, in July 2020, was a patrol officer with the Montgomery Police Department; however, at the time of Webster‘s trial, she was no
This issue was not preserved for appellate review. Regarding preservation of an issue raised in a motion in limine, this Court has stated:
“‘“The general rule is that an adverse ruling on a motion in limine does not preserve the issue for
appellate review unless an objection is made at the time the evidence is introduced.” Moody v. State, 888 So. 2d 532, 582 (Ala. Crim. App. 2003). “[U]nless the trial court‘s ruling on the motion in limine is absolute or unconditional, the ruling does not preserve the issue for appeal.” Perry v. Brakefield, 534 So. 2d 602, 606 (Ala. 1988).’ ”Saunders v. State, 10 So. 3d 53, 87 (Ala. Crim. App. 2007). See also Parks v. State, 587 So. 2d 1012, 1015 (Ala. 1991) (holding where a party seeking the exclusion of the evidence suffers an adverse ruling on its motion in limine, that party can preserve the ruling for appellate review ‘only by objecting to the introduction of the proffered evidence and assigning specific grounds at the time of trial, unless he or she obtains the express acquiescence of the trial judge that a subsequent objection and assignment of grounds are not necessary‘).”
Lucas v. State, 204 So. 3d 929, 941-42 (Ala. Crim. App. 2016). Here, Webster argued to the trial court, before opening statements, that Hartley‘s alleged
Even if Webster had preserved the issue, Webster would not be entitled to relief. During the State‘s questioning of Hartley, Hartley adamantly denied that she ever wrote that Webster had threatened to shoot Pughsley in the face. While the State insinuated that Hartley‘s statement contained this claim, Hartley denied writing it, and the State did not put Hartley‘s statement into evidence. Thus, there was no evidence introduced at Webster‘s trial that Webster had previously said that he wanted to shoot Pughsley in the face. See Bates v. State, 669 So. 2d 232, 235 (Ala. Crim. App. 1995) (holding that statements of attorneys in a trial are not evidence); see also Armstrong v. State, 516 So. 2d 806, 809 (Ala. Crim. App. 1986) (“The prosecutor‘s statements are not evidence.“). The fact that the evidence at issue was not introduced into evidence at Webster‘s trial makes this issue moot. See Irwin v. Jefferson Cnty. Pers. Bd., 263 So. 3d 698, 703 (Ala. 2018) (finding that a moot question is one as to which no real controversy exists, such as a question that seeks to answer an abstract question based on nonexistent facts or rights). Webster is, thus, due no relief.
Webster finally argues that the trial court erred when it improperly instructed the jury that it could “presume” intent. (Webster‘s brief, p. 20-22.) Relying in part upon Sandstrom v. Montana, 442 U.S. 510 (1979), Webster argues that the trial court‘s instruction on intent improperly shifted the burden to him. Webster concedes in his brief that no objection was made to this instruction in the trial court, but he again requests plain-error review.
This issue was not preserved for appellate review, and, as already noted, the plain-error doctrine does not apply because the death penalty was not imposed. This Court has repeatedly held that “[p]lain error review does not apply to convictions in which the death penalty has not been imposed.” Hicks, 378 So. 3d at 1130. Moreover,
“‘“[r]eview on appeal is restricted to questions and issues properly and timely raised at trial.“’ Ex parte Coulliette, 857 So. 2d 793, 794 (Ala. 2003) (citing Newsome v. State, 570 So. 2d 703, 717 (Ala. Crim. App. 1989)). ‘[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).
”
Rule 21.3, Ala. R. Crim. P. , provides, in pertinent part:
“‘No party may assign as error the court‘s giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.‘”
Jones v. State, 217 So. 3d 947, 960-61 (Ala. Crim. App. 2016).
Here, as Webster concedes, he did not object to the trial court‘s jury instruction on the ground he advances on appeal. Because Webster failed to object to the trial court‘s instruction, this issue is not preserved for appellate review. Webster is, thus, due no relief.
VII. Illegal Sentence
Webster‘s three convictions and his sentences for capital murder while a valid protective order was in place and capital murder during a first-degree burglary are proper. However, even though neither Webster nor the State challenges Webster‘s 10-year “straight” sentence for attempted first-degree assault, we must take notice that Webster‘s 10-year sentence is illegal. “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).
First-degree assault,
“‘“[a] defendant‘s sentence is determined by the law in effect at the time of the commission of the offense.“” Moore [v. State], 40 So. 3d [750,] 753 [(Ala. Crim. App. 2009)] (quoting Davis v. State, 571 So. 2d 1287, 1289 (Ala. Crim. App. 1990)). See also Minnifield v. State, 941 So. 2d 1000, 1001 (Ala. Crim. App. 2005) (‘It is well settled that the law in effect at the time of the commission of the offense controls the prosecution.‘).”
Towns, 293 So. 3d at 986. At the time of Webster‘s offenses, on July 6, 2020,
“[W]hen a defendant is convicted of an offense that constitutes a Class C or D felony offense and receives a sentence of not more than 15 years, the judge presiding over the case shall order that the convicted defendant be confined in a prison, jail-type institution, treatment institution, or community corrections program for a Class C felony offense ... for a period not exceeding two years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for a period not exceeding three years and upon such terms as the court deems best.”
Conclusion
For these reasons, Webster‘s convictions for capital murder while a protective order was in place and for capital murder during a first-degree burglary and the resulting concurrent sentences of life imprisonment
AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Minor and Anderson, JJ., concur. Kellum, J., concurs in the result.