Merrill v. StateMerrill v. State
The appellant, Robert David Merrill, was indicted for capital murder in the death of Darius Welch, see
The State‘s evidence at trial tended to show that, at approximately 11:00 p.m. on Friday, August 21, 1992, Darius Welch was walking toward his house in the 4000 block of 24th Street North in Birmingham. He was accompanied by his son Darrell, who was riding a bicycle. A black pickup truck with a camper on the bed came around the corner and Darrell said he heard someone in the truck yell, “Hey, nigger.” Two shots were fired, and Darrell then saw his father lying on the ground. The State medical examiner testified that Darius Welch died from a shotgun wound to his lower right chest.
The evidence relating to the attempted murder charge was admitted through the testimony of the court reporter. The court reporter, over objection, read into evidence the testimony given at the preliminary hearing by State‘s witness Demetrius Cotchery, who did not testify at the appellant‘s trial. Cotchery stated that, on August 23, 1992, at approximately 4:00 a.m., he was walking in the 2500 block of 16th Street North in Birmingham. A light-colored truck pulled up and stopped, and the driver yelled something. Cotchery said that the back window of the truck then opened and he saw a shotgun barrel emerge. Five shots were fired, two of which struck him. Three police officers testified that they were engaged in a vehicle stop in the vicinity when they heard shots. Two of the officers pursued a light or cream-colored truck down 16th Street and stopped the vehicle. The appellant was inside, in the passenger seat. The police found three spent shotgun shells on the floorboard and a shotgun belonging to the appellant behind the seat. It was subsequently
Police detective Steve Corvin took a statement from the appellant shortly after the shooting of Cotchery, at approximately 6:01 a.m. The appellant said that he and his friend Danny Wolfe had left a racetrack and were “just looking for—you know, maybe a good fight or something” when “the black guy ... shot us the bird.” He and the man “cussed each other a couple of times” and the appellant then fired his shotgun, which he said was loaded with birdshot, at the man. The appellant told Corvin that he did not like blacks and that “[i]t‘s niggers on drugs and s___ is bothering us.” A short time later, at approximately 6:58 a.m., Detective Corvin took a second statement from the appellant, in which the appellant said that he did not know anything about the Friday night shooting of Darius Welch. On the following day, August 24, the detective took a third statement from the appellant. This time, the appellant told Corvin that he, Jeff McKenna, and Kaye Edwards went to 41st Street in North Birmingham on the night of Friday, August 21, because they wanted to scare some blacks. He said that they saw two black people on bicycles, that he shot “right at” one and “high at” the other, and that he was surprised to learn that he had hit one of them. The defense called a single witness at trial, a police officer who testified that he had seen the appellant at a local racetrack at approximately 11:00 p.m. on the night Welch was killed and that the appellant appeared to be intoxicated at that time.
The appellant presents 16 issues. However, the record is not sufficient to provide a proper review on appeal, as will be discussed below.
I.
The appellant‘s first claim is that the trial court erred both procedurally and substantively in consolidating the capital murder case and the attempted murder case for trial and that he was prejudiced as a result of the consolidation. With regard to the alleged procedural error, he argues that the trial court consolidated his cases for trial without first providing him an opportunity to be heard. He further argues that he had no opportunity to file a motion to sever the offenses because there is nothing in the record with regard to when the order of consolidation was entered and he was tried immediately after he was arraigned.
In Blackmon v. State, 487 So.2d 1022, 1027 (Ala.Cr.App.1986), this Court considered whether the procedural requirements of Rule 15.4(b), Ala.R.Crim.P.(Temp.), the predecessor of the present
Because the record in the present case is deficient, this Court is unable to determine whether the appellant was given an opportunity to be heard before the trial court issued its order consolidating the offenses. Therefore, this cause must be remanded to the trial court for a finding of fact on that issue. See Robinson v. State, 686 So.2d 522 (Ala.Cr.App.1996).
II.
The appellant contends, and the State agrees, that the trial court erred in imposing the death penalty without a written sentencing order outlining the findings of facts as to the aggravating and mitigating circumstances. Section
“Based upon the evidence presented at trial, the evidence presented during the sentence hearing, and the presentence investigation report and any evidence submitted in connection with it, the trial court shall enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, each mitigating circumstance enumerated in Section 13A-5-51, and any additional mitigating circumstances offered pursuant to Section 13A-5-52. The trial court shall also enter written findings of facts summarizing the crime and the defendant‘s participation in it.”
In Murry v. State, 562 So.2d 1348 (Ala. Cr.App.1988), this Court held that, due to the absence of the specific written findings required by
Therefore, this cause is due to be, and it is hereby, remanded to the trial court. On remand, the court should determine whether the appellant and his counsel had an opportunity to be heard on the issue of consolidation before the entry of the court‘s order. The court‘s written findings of fact and conclusions of law should be forwarded to this court, along with the record of any proceedings held as to this matter. In addition, the court should enter a sentencing order in compliance with
REMANDED WITH INSTRUCTIONS.
All judges concur.
On Return to Remand
McMILLAN, Judge.
This cause was remanded to the trial court with instructions to enter a sentencing order in compliance with
The trial court has now filed its return, a summary of which is set out in Parts I and II of the opinion. The remainder of the 16 issues presented in the appellant‘s original brief are set out in Parts III through IX.
I.
Section
Section
Section
II.
In issues 1 and 16 of his original brief, the appellant challenged the trial court‘s consolidation of the offenses. He first argued that the trial court had violated his right to a fair trial both procedurally and substantively by consolidating the capital murder case and the attempted murder case. In addition, he argued that cumulative errors the court committed in the consolidation deprived him of a fair trial.
The appellant‘s procedural claim was that he had no opportunity to be heard before the cases were consolidated and no opportunity to file a motion to sever following consolidation.2 The trial court‘s return on this issue reflects that,
“I recall us specifically having a consolidation hearing with the defendant present. It was right after I had filed in open court my motion for consolidation which I served on the defense attorney....”
“... [T]here was a two- or three-week delay from the time I filed it until we had the hearing in court. And I recall the hearing before the judge with [the appellant] present, [the appellant‘s counsel] present and I [was] present and [the counsel‘s] objecting to the consolidation as not being sufficient plan, scheme, modus operandi....”
The appellant‘s trial counsel then testified that he believed that he first found out that the cases had been consolidated on the morning of trial and “raised Cain in front of the Court” because of it. Trial counsel‘s recollection was not supported by the record on appeal, which reflected only the following comment from the appellant‘s counsel on the day of trial:3
“It all goes back to the fact you are trying a capital murder and attempted murder case together. We‘re talking about now and objecting to the fact that you don‘t even have the victim present.”
The trial judge noted that the motion for consolidation had been filed by the prosecutor in open court on March 8, 1993. At the second hearing, the judge concluded that the cases had in fact been properly joined. He stated that he did not believe the parties had come into court unaware of the consolidation and that he believed that the absence of information on the summary action sheet about the consolidation was a “purely clerical” error.
The trial court‘s finding is supported by the record on appeal. The appellant had an opportunity to be heard on consolidation between the filing of the State‘s motion on March 8 and the hearing two or three weeks later at which the court issued its ruling. He then had an opportunity to move for severance between the order of consolidation and the commencement of his trial on May 24, 1993. Because he failed to raise at any time the issue of his alleged lack of opportunity to challenge consolidation, this Court cannot consider that argument on appeal. This Court‘s review is limited to the evidence presented to, and the arguments considered by, the trial court. Eastland v. State, 677 So.2d 1275 (Ala.Cr.App.1996).
The appellant‘s substantive claim was that the two offenses were not sufficiently similar to be joined (
In addition, the appellant‘s sole ground for objecting to consolidation at trial apparently was that the offenses were not part of a plan, scheme, or modus operandi. See
In his discussion of issues 6 and 10 of his original brief to this court, the appellant contended that the trial court‘s failure to give limiting instructions with regard to certain evidence introduced at trial constitutes “plain error.” He made no objection at trial to the failure to give these instructions.
IV.
The appellant contended in his discussion in issue 2 of his appellate brief that
The appellant‘s argument is inapplicable to the facts of this case. The State‘s evidence established that the victim, Darius Welch, was walking on 24th Street North when he was struck by shots fired by the appellant, who was inside a passing pickup truck. As applied to the appellant,
The appellant presented in his discussion of issue 3 of his brief two additional claims that
However, the language of
V.
The appellant contended in issue 4 of his appellate brief that the trial court denied him the right to a fair and impartial jury by refusing to allow him to individually voir dire the members as to potential racial prejudice. He also argued that the trial court erred by “limiting and interfering with” his voir dire examination.
The conduct of the voir dire examination of the jury venire is a matter within the discretion of the trial court, even in a capital case. Bell v. State, 475 So.2d 601 (Ala.Cr.App.1984), aff‘d, 475 So.2d 609 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985). Here, the trial court did not deny individual
With regard to the second argument, the trial court instructed the appellant to address a question concerning outrage over racially motivated crime to all the potential jurors, rather than only to the black jurors. The judge noted that the assumption should be that all jurors would evaluate the case independently of race, rather than that either blacks or whites would judge the case based on race. The appellant rephrased his question and asked if anyone had been inflamed by the racial overtones of the case. The transcript reflects no response to his question. Based on the record, there is no evidence that the procedures followed by the trial court were an abuse of discretion.
VI.
The appellant contended in his discussion of issue 5 of his brief to this court that the trial court erred in allowing into evidence three statements he made to Detective Steve Corvin that were not, he said, knowing, intelligent, or voluntary. He argued that intoxication, lack of sleep, and a mental abnormality affected his ability to understand his Miranda rights and negated his making a knowing and intelligent voluntary waiver.
However, Detective Corvin testified that, in his opinion, although the appellant had been drinking, he was not intoxicated. Moreover, unless the accused is intoxicated to the extent of mania, intoxication affects the weight and credibility of a statement rather than its admissibility. Callahan v. State, 557 So.2d 1292 (Ala.Cr. App.), aff‘d, 557 So.2d 1311 (Ala.1989). Detective Corvin testified that all three of the appellant‘s statements were completed within an hour and within a few hours after his arrest. The only evidence of a mental abnormality was the testimony of the appellant‘s sister that the appellant exhibited a low level of reading comprehension. Corvin testified that all relevant information, including the advice concerning his Miranda rights and waiver, had been read to the appellant. Based on the record, there is no evidence that the appellant was so incapacitated as to render his statements inadmissible.
VII.
The appellant contended in issue 7 of his brief to this court that the trial court erred in admitting into evidence a statement that Demetrius Cotchery, the victim of the attempted murder, made to Officer Roger Kimbrough. The appellant argued that the statement was inadmissible hearsay because Cotchery made the statement in response to a question, which gave him time to reflect upon his answer, several minutes after the shooting occurred. The appellant also argued that the statement was in “direct conflict” with Cotchery‘s preliminary hearing testimony and that its admission violated his right to confrontation and to cross-examination.
An out-of-court statement can be admitted as an exception to the hearsay rule if the proponent is able to show safeguards that indicate its reliability and trustworthiness. McElroy‘s Alabama Evidence § 242.01 (4th ed.1991). One such exception is a statement concerning a startling occurrence that is made soon after the occurrence, while the speaker is under the stress of a nervous excitement created by the event. Id. § 265.01(1).
In the present case, Officer Kimbrough testified that, just after he heard five shotgun blasts, the victim came out of some bushes and collapsed, bleeding, in front of him. The officer called the paramedics and then got down next to the victim. He said that, in an effort to keep
When a statement is given in response to a question, the issue is not whether it is a response but whether the answer is within the res gestae of the offense and whether the answer required reflection. Guntharp v. State, 54 Ala.App. 363, 308 So.2d 722 (1974), cert. denied, 293 Ala. 756, 308 So.2d 728 (1975). Here, the officer testified that the victim made the statement in the course of the officer‘s attempts to keep him conscious after he was shot. There is no evidence that reflection was required for the victim to answer. Based on the record, the trial court was within its discretion in admitting the victim‘s statement into evidence.
Moreover, there was no conflict between the victim‘s statement to Officer Kimbrough and his testimony at the preliminary hearing. Cotchery told the officer that he was shot by “two white males in a white truck.” He testified at the preliminary hearing that he knew that there were “at least” two people in the truck when the shots were fired because the driver had stuck “his” head out and was still visible when the gun barrel came out of the back window. Cotchery said he saw only the hand of the second person. In light of the similarity of the two statements, the appellant‘s opportunity to question the victim at the preliminary hearing, and evidence that Cotchery‘s statement to Officer Kimbrough was reliable, the appellant was not prejudiced by his inability to further cross-examine and confront the victim concerning his statement to the officer.
VIII.
In his discussion at issue 8 of his original brief to this court, the appellant contended that the trial court erred in denying his motion for a mistrial because the prosecutor‘s closing argument referred to “possible future criminal activity” by the appellant. He argued that an implication that the appellant “would commit acts of violence every night for the rest of his life” was improper and prejudicial.
The first comments to which the appellant objected were the following:
“There are a few things I would like to say in response to that. He shot and killed Mr. Welch but he‘d been drinking and didn‘t mean to, so excuse me, ladies and gentlemen.
“What does he do the next night? He goes out and does it again. But that‘s all right, he‘d been drinking, so excuse me. I didn‘t mean to.
“Then the next night, and the next night, and every night and every night for the rest of his life he goes out and does it—”
The appellant made the following objection:
“He is going into—there‘s no evidence that he did it at any other time other than the two times before this Court. He‘s talking about the next night and the next night and the next night. And we object to that and move for a mistrial. It is inflammatory and he‘s trying to inflame this jury.”
The trial judge overruled the appellant‘s motion and cautioned the jury that “what these lawyers say is not evidence. Decide this case based on what you heard.” The prosecutor, apparently construing the appellant‘s objection to address an incorrect statement as to the evidence, then offered the following explanation:
“There is no evidence that [the appellant] did it after the third night and that wasn‘t what I was saying. I think all of you are smart enough to figure that out.”
He then continued his argument as follows:
“What I‘m saying to you is that he has said to you `Excuse me, I was drunk.’ So if he wants to do it every night for
the rest of his life and get up here and says `Excuse me, I didn‘t mean to, I was drunk,’ that‘s the same as he is asking you here. “Tell Mr. Welch [the murder victim] that. Tell Mr. Welch it‘s all right. He‘d been drinking and he didn‘t mean to, Mr. Welch. The fact that you are dead doesn‘t mean a hill of beans.”
The appellant again objected and moved for a mistrial, on the ground that “[h]e‘s saying you tell Mr. Welch that.” The trial court overruled the appellant‘s motion.
A defendant must state grounds of objection and all grounds not specified are waived on appeal. Reeves v. State, 456 So.2d 1156 (Ala.Cr.App.1984). Here, the appellant‘s first objection was unclear, and any prejudice caused by the prosecutor‘s remarks was cured by the trial court‘s instructions. Ivery v. State, 686 So.2d 495, 510 (Ala.Cr.App.1996). The appellant‘s second objection failed to raise this ground at all. Appellate review is limited to rulings invoked at the trial level. Cross v. State, 536 So.2d 155 (Ala.Cr.App. 1988).
IX.
The appellant contended in issue 9 of his brief to this court that the trial court violated his right to confrontation by allowing into evidence the preliminary hearing testimony of Demetrius Cotchery, the victim in the attempted murder case. He argued that the State failed to prove that Cotchery was unavailable for trial and failed to conduct a diligent search for him. He also argued that his cross-examination of Cotchery at the hearing was hampered because the burden of proof differed from the burden of proof at trial and hearsay was admissible at the hearing; he further argues that Cotchery did not identify his assailants, and the defense was unaware of Cotchery‘s criminal history at the time of the hearing and so was unable to impeach his testimony.
An exception to the confrontation requirement is when a witness is unavailable for trial and he has given testimony at a previous judicial proceeding against the same defendant, at which proceeding he was subject to cross-examination by that defendant. Rouse v. State, 548 So.2d 643, 645 (Ala.Cr.App.1989), citing Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). A witness is not unavailable for the purposes of this exception unless prosecutorial authorities have made a good-faith effort to obtain the witness‘s presence at trial. Rouse v. State, supra.
In the present case, Detective Steve Corvin testified that he had been unable to locate Cotchery even though a subpoena, a warrant, and a writ had been issued for the witness. Cotchery‘s mother testified that he had not lived with her for about a month and that she did not know where he was. An investigator testified that he had checked with Cotchery‘s family, the police, local utilities, and local post offices and had not been able to learn the witness‘s whereabouts.
With regard to cross-examination, the transcript of the preliminary hearing revealed that Cotchery had been subjected to thorough questioning by the appellant‘s counsel. Based on the record, the trial court did not abuse its discretion by admitting into evidence the preliminary hearing testimony of Demetrius Cotchery.
For the foregoing reasons, the appellant‘s conviction of capital murder hereby is affirmed. Pursuant to
AFFIRMED AS TO CONVICTION; SENTENCE OF DEATH VACATED;
LONG, P.J., and COBB, BROWN, and BASCHAB, JJ., concur.