KELLUM, Judge.
In March 2005, an Etowah County grand jury returned an indictment against the appellant, Michael Wayne Reynolds, charging him with five counts of capital murder in connection with the deaths of Charles James Martin III, Melinda Martin, and the Martins' eight-year-old daughter, Savannah Martin. The murders were made capital because: (1) two or more persons were killed by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975 (count I of the indictment); (2) the murder of Charles Martin III was committed during the course of a first-degree robbery, see § 13A-5-40(a)(2), Code of Alabama 1975 (count II of the indictment); (3) the murder of Melinda Martin was committed during the course of a first-degree robbery, see § 13A-5-40(a)(2), Code of Alabama 1975 (count III of the indictment); (4) Savannah Martin was less than 14 years of age when she was murdered, see § 13A-5-40(a)(15), Code of Alabama 1975 (count IV of the indictment); and (5) the murder of Savannah Martin was committed during the course of a first-degree robbery, see § 13A-5-40(a)(2), Code of Alabama 1975 (count V of the indictment).
Following a trial by jury, Reynolds was convicted of all five counts of capital murder, as charged in the indictment. The jury recommended, by a vote of 12-0, that Reynolds be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Reynolds to death for the five capital-murder convictions.
Reynolds filed a timely motion for new trial, which was denied by operation of law.
The State presented evidence that in the early morning hours of Sunday, May 25, 2003, Charles Martin III, his wife, Melinda, and their 8-year-old daughter, Savannah, were stabbed to death in their house. Their bodies were doused with gasoline and set on fire. The crimes were discovered later that morning by Melinda's father, Jerry Veal. Melinda Martin's purse and a cordless telephone were missing from the house.
Adrian Marcella "Marcie" West, who was Michael Reynolds's girlfriend at the time of the murders, testified at trial. She and Reynolds lived with Reynolds's father, Harold Reynolds, at the time of the crimes. West testified that on Saturday, May 24, 2003, Michael Reynolds installed a car stereo for Donald Harvey, who was also known as "Dino," in exchange for some cocaine. West and Reynolds used the cocaine; they also used crack cocaine several more times throughout that day and night.
West testified that later that night or early on Sunday morning, she drove Michael Reynolds to the Martins' house in a vehicle that was owned by Harold Reynolds's girlfriend, Sandra Roberts. West said that Michael Reynolds and Charles Martin were good friends. Reynolds told West that they were going to the Martins' house "to get some money," and she assumed he meant that he was going to rob Charles Martin.
When they arrived at the Martin residence, West parked the vehicle in the driveway, and Michael Reynolds got out. Reynolds told West to wait in the car. West said that Reynolds was not wearing any shoes, and that he was carrying a scabbard containing a dagger-style knife. She had seen the knife before at Harold Reynolds's residence. West testified that she was not alarmed that Reynolds had the knife with him because, she said, Reynolds sometimes traded various items for drugs or money.
Reynolds went to the carport door and knocked. Charles Martin opened the door and waved at West, and then Martin and Reynolds went into the house.
While West was waiting in the car, she heard Melinda Martin scream. West got out of the car and ran into the house. She saw Charles Martin lying on the kitchen floor and she heard Melinda Martin screaming in the back of the house. West went to the bedroom, where she saw Melinda Martin bent over next to the bed as Michael Reynolds stabbed her. Savannah Martin was on the bed.
West testified that she got between Reynolds and Melinda and tried to stop him from stabbing her. Reynolds accidentally stabbed West through the arm when she tried to intervene. West testified that Reynolds yelled at her and asked her what she was doing there. He told West to get the telephone and Melinda Martin's purse and to go wait in the car. Reynolds handed her two knives — the knife that he had taken into the house, and a steak knife that West had not seen before.
West grabbed the telephone and Melinda Martin's purse, and took the knives and left the bedroom. When she left the room, Melinda Martin was "slouched over" at the end of the bed, and Savannah Martin was standing on the bed. West testified that she felt faint, so she leaned up against the wall in the hallway. She again felt faint when she crossed over Charles Martin's body in the kitchen, so she leaned against the kitchen-counter. West left the house and went to the car.
West opened the front passenger door and placed the items in the floorboard and then crawled to the driver's side of the
West testified that Reynolds came to the car and told West not to leave, and then he grabbed the larger knife and went back into the house. Reynolds apparently returned to the car a second time and again told West not to leave. West testified that she was afraid, so she did not leave or call for help. At that time, West did not realize that she had been stabbed.
West testified that when Reynolds returned to the car for the third time, he got in the vehicle and told her that she had been stabbed and that he should drive. West said that she did not allow Reynolds to drive because she feared that he was going to take her somewhere and kill her. West could see the orange glow of a fire in the house.
She drove back to Harold Reynolds's residence. When they arrived at Reynolds's house, Michael Reynolds told West to give her clothes to him and to take a shower. West stated that she saw Reynolds looking through Melinda Martin's purse. While West was taking a shower, Reynolds took a cloth and cleaned Sandra Roberts's car. After West showered, Reynolds bandaged her arm, using a first-aid kit they had in their bedroom. Reynolds told West that there was no blood in the car.
Sandra Roberts testified that she was asleep in Harold Reynolds's bed when West and Michael Reynolds arrived back at the house. She testified that around 3:00 or 4:00 a.m., she was awakened when Reynolds placed her car keys on the night stand beside the bed. West and Reynolds then went to their bedroom. Roberts noticed that West was walking with her arms folded.
Roberts got out of the bed and went into the kitchen and sat down at the kitchen table. A short time later, Michael Reynolds entered the kitchen and gave Roberts some money and told her to go buy some drugs. Roberts left and purchased some crack cocaine. West said that while Roberts was gone, Michael Reynolds took a shower and that is when she noticed blood on Reynolds's legs.
When Roberts returned to the house, she and Michael Reynolds divided the crack cocaine. Roberts used her portion of the drugs while she was seated at the kitchen table, but Michael Reynolds took his and West's share of the crack to his bedroom.
Roberts testified that a short time later, Michael Reynolds reentered the kitchen and propositioned her for sex, but she refused. Roberts said that Michael Reynolds wanted more drugs but, according to him, he could not get West to give him more money. Reynolds asked Roberts to talk to West. Roberts agreed.
When Roberts entered the bedroom, West was in the bed with the covers pulled up to her neck, staring at the ceiling. Roberts testified that West was acting strangely and that she was unable to engage West in any conversation. Roberts decided to leave and go to her house. As she was driving, she noticed a cordless telephone without the base on the backseat of her car. Roberts had never seen that telephone before.
West and Michael Reynolds woke around 9:00 or 9:30 on that morning. West noticed that the eyeglasses Michael Reynolds had been wearing the night before were broken. When she pointed this out to Reynolds, he told her that the missing eyeglass piece would melt in the fire. West testified that Reynolds told her that the knives were under the truck and that their clothes and Melinda Martin's purse were in a white bag.
Veal drove back to the Martin residence and parked his vehicle in the driveway. He got out and went to the carport door and knocked. When no one came to the door, Veal opened the carport door and found the kitchen in disarray — furniture had been moved around, the window treatments were partially torn down, and there was blood everywhere. Veal saw his son-in-law lying on the kitchen floor in a pool of blood.
Veal returned to his car and told his wife, and she telephoned 911. While Jerry Veal was talking on the cell phone with the 911 dispatcher, he saw James Mulkey, a retired Gadsden police officer, drive by the house. Veal was acquainted with Mulkey, so he stopped Mulkey and told him what he had seen.
Mulkey instructed Veal to remain outside, and Mulkey went to the carport door. When Mulkey opened the carport door, he saw Charles Martin, who appeared to be dead, lying on the kitchen floor. Mulkey did not enter the residence at that time because he could detect the strong odor of gasoline and gunpowder.
When the paramedics arrived, Mulkey and the paramedics entered the residence; they determined that Charles Martin was dead. Mulkey and the paramedics proceeded down the hallway to determine if any one was in need of medical assistance. They discovered the bodies of Melinda Martin and Savannah Martin in a bedroom. The bedroom was in disarray and there was blood everywhere.
The smell of gasoline was overpowering, so Mulkey opened the back door to the residence, and then he and the paramedics left through the back door of the house, being careful not to disturb the scene.
Investigators arrived and processed the scene. During the investigation, a bloody partial footprint and a blood drop were discovered on the steps outside the carport door. Charles Martin was found lying on the floor in a pool of blood with a cigarette by his mouth. There were three bloody shoe prints on the kitchen floor. The kitchen chairs were knocked over, the kitchen blinds had been ripped or slashed, and there was blood spattered everywhere. A gasoline can was sitting on the floor beside Charles Martin's body, and exploded bottle rockets were scattered throughout the kitchen and into the living room.
A utensil drawer in the kitchen was open, and there were blood droplets under the drawer. There were two sandwiches on a Styrofoam plate on the kitchen counter by the stove, and one of the burners of the kitchen stove was lit. Investigators observed a spoon with gray material in it and a syringe located on the counter beside the stove. A basket of prescription drugs was also on the counter.
Blood droplets were found on the hallway wall opposite the door to the bedroom where the bodies of Melinda and Savannah were discovered.
Melinda Martin was found lying on the floor on the right side of the foot of the bed. She had slits in her clothing that were consistent with stab wounds. She was also wearing a back brace. A walking cane was found near her body. A telephone cord extended from the wall by the headboard of the bed to Melinda Martin's
Savannah Martin was lying on her back on the bed. She had been stabbed multiple times and had a prominent stab wound through her neck. A bloody hand print was discovered near Savannah's body on the fitted sheet; however, due to the soft surface, there was no ridge detail to the print.
An investigator collected the wet, bloody comforter and bed linens and put them in a large paper bag in order to transport the bedding to the forensic laboratory for further testing. When the bedding was unpackaged and put up to dry later that day, a television remote and a temple piece to a pair of eyeglasses fell out of the bedding. Law-enforcement personnel were informed about the eyeglass piece.
An autopsy of the victims confirmed that Melinda Martin died as a result of 24 stab wounds to her body. Charles Martin died as a result of 11 stab wounds to his body. Savannah Martin died as a result of 5 stab wounds to her body. All the victims had chemical burns to their bodies, and Chuck Martin also had thermal burns on his body. None of the stab wounds to the victims was immediately fatal.
West testified that as she and Reynolds were walking to a nearby convenience store later that same Sunday morning, Reynolds asked West if he had made the headlines, and he inquired whether West had seen Charles Martin's face. Later that day, the police arrested Michael Reynolds on an unrelated matter.
That same afternoon, West saw Donald Harvey drive into the alley behind the Reynolds's residence. West got into Harvey's car, and he asked her if Reynolds had anything to do with what happened to Charles Martin. West nodded in the affirmative. Although the evidence was conflicting regarding whose idea it was, West and Harvey agreed that they should get rid of the evidence from the crime scene.
Harvey and West went to a gasoline service station and purchased some gasoline and drove to an area near Tuscaloosa Avenue. West threw the telephone base into the woods, and then Harvey doused the bag containing their clothes and the purse with gasoline and set the items on fire. West and Harvey threw the knives into the Coosa River from a pier at a boat launch located at Gadsden State Junior College.
On the day the murders were discovered and in the days that followed, the police questioned several persons regarding their potential involvement in the murders and robbery, including Charles Martin's nephew, Chad Martin, and John Langley, who lived in the same neighborhood as the Martin family. The police ultimately ruled these individuals out as suspects.
A few days after the discovery of the crimes, West talked with her former employer, who was an attorney, and told him what had happened. The attorney contacted the district attorney's office, and as a result, West subsequently gave the police a statement regarding the crimes.
Based on the information provided by West, the Gadsden police located and photographed the burn pile where West said the clothes and purse had been burned, and the police also recovered the telephone base in the woods a short distance from the burn pile. The phone base, the cordless phone found in Roberts's car, and the telephone cord lying across the floor in the room where the bodies of Melinda and
Gadsden police conducted a search of Harold Reynolds's residence. In the bedroom shared by Michael Reynolds and West, the police discovered a pair of prescription tinted eyeglasses. The glasses were broken — the temple piece was missing, and one of the lenses was lying beside the glasses. The glasses were consistent with the prescription lenses and frames sold to Reynolds by a professional optician. The temple piece recovered from the bedding at the Martin house matched the temple piece still attached to the frame found at the Reynolds residence. A first-aid kit was also discovered in the bedroom.
A scuba diver with the Etowah County Rescue Squad recovered an oriental-style scabbard from the Coosa River in the area where the knives had been discarded by West and Harvey. Sandra Roberts testified that the scabbard appeared to be the same scabbard she had previously seen at the Reynolds's residence. West also testified that the scabbard was the one that she and Harvey had disposed of in the Coosa River.
Photographs of Michael Reynolds's hands taken by the Gadsden police after his arrest showed bruising and flaking skin. West testified the bruising and flaking was not present at the time of the murders.
A forensic examination of the interior of Roberts's car did not indicate the presence of any blood. Forensic testing of the DNA extracted from the swab of the blood drop from the outside steps and the hallway at the Martin residence matched the DNA obtained from Adrian West. There was a mixture of DNA on the blood swabbed from the handle of the gasoline can. The primary contributor of that DNA was determined to be Savannah Martin, but neither Michael Reynolds nor Melinda Martin could be excluded as a contributor of the DNA. There was also a mixture of DNA from a swab of blood obtained from the lens of Michael Reynolds's glasses — Melinda Martin's DNA was the primary component of that DNA mixture. The bloody footprint on the outside door-step matched a known ink print of Michael Reynolds's footprint.
The shoe prints in the kitchen did not match any of the known samples submitted for comparison purposes, and a blood swab from the outside door frame did not match any of the known DNA samples.
Michael Reynolds testified in his defense. He testified that he met Charles Martin in May 2002 and that he and Charles became good friends. Reynolds testified that Martin was one of the people authorized to take Reynolds's son home from school. Reynolds and his son even lived with Charles Martin for several months, at Martin's mother's residence.
Reynolds said that he saw Martin several times a week up until the time Reynolds was arrested for a different offense. Reynolds testified that he had seen Melinda Martin a couple of times, but that he had never seen Savannah Martin. He testified that the last time he saw Martin alive was two or three weeks before the Martins were killed.
Reynolds testified that at the time of the incident, he and Adrian West were living with his father at his father's residence. Reynolds said that on the morning of Saturday May 24, 2003, his "boss" came by the residence and paid his father and him for a painting job they had completed the day before. Later that morning, Donald Harvey came to the Reynolds residence and asked Michael Reynolds to install a car radio for him. Reynolds said that he installed the radio, and Harvey gave him a gram of cocaine in return.
Reynolds testified that Sandra Roberts left and went to buy more drugs. When she returned with the drugs, Reynolds, Roberts, and West used all of those drugs. Reynolds testified that some time later, Adrian West and Sandra Reynolds left together in Sandra's car to go get more drugs. Reynolds testified that he instructed West to go with Roberts because he thought Roberts had cheated them out of drugs on the previous transaction.
Reynolds testified that after Roberts and West had been gone for a couple of hours, he changed into a pair of shorts and a T-shirt, went to bed, and fell asleep. His father was passed out; he was intoxicated.
Reynolds said that some time later, Adrian West woke him and told him that she was hurt. Reynolds got out of bed to attend to West. When Reynolds asked her how she was hurt, she told him that she had been stabbed. Reynolds then asked West how she had been stabbed, and she responded that "Chuck was dead and she ... got stabbed trying to stop them from stabbing Chuck's wife." (Vol. XI, R. 1567.) Reynolds testified that West did not tell him who she was with at the time of the stabbings.
Reynolds stated that he was concerned about her arm, so he bandaged it using a first-aid kit he had in the bedroom. He said that the wound was not bleeding very much but that it looked bad. After bandaging her arm, Reynolds instructed West to accompany him outside the house so that he could talk to her without fear of his father overhearing.
Reynolds testified that when they got outside, he continued to question her about what happened, but West did not want to talk about it. Reynolds said that West was very worried, so he told her to get Sandra Roberts's car keys and she did.
Reynolds said that they left in Roberts's car, and that West drove because Reynolds's license had been revoked. Reynolds was still dressed in the clothes he had on when he went to sleep, and, although he put on his glasses, he did not put on any shoes.
They went to the Martin residence. He said that when they got to the residence, West slowed down in order to pull in the driveway; however, Reynolds said that because the lights were on in the house, he instructed her to keep driving. West drove to a nearby gas station, turned around, and then drove back to the Martin residence.
When they got to the Martin residence, West asked Reynolds what he wanted her to do. He testified that he again instructed her to "just drive." (Vol. XI, R. 1571.) West began to drive back to the Reynolds's residence. Reynolds testified that as they were traveling, West told him that she was scared, and she asked him what they were going to do. Reynolds said that as they neared his father's residence, he "just knew [he] had to do something," so he instructed West to again drive to the Martin residence. (Vol. XI, R. 1571.)
Reynolds testified that when they arrived at the Martin residence that time, West drove the car into the driveway.
He testified that he did not telephone the police; instead, he went inside, stepped over Charles Martin's body, and went to the Martins' bedroom. He explained that he went to that bedroom because West told him she had been hurt "trying to stop them from stabbing Chuck's wife." (Vol. XI, R. 1573.) Reynolds said that although the television was on in the bedroom, the bedroom lights were not on, so he did not see Melinda Martin's body when he first went into the room. Reynolds said that he tripped over Melinda Martin, who was lying in the floor between the bed and the doorway. When he tripped, his glasses fell off onto the bed, and he caught himself on the bed. Reynolds testified that he grabbed his glasses from the bed and stood up and that is when he saw Melinda Martin, who appeared to be dead. Reynolds testified that he never saw Savannah Martin.
Reynolds said that he went back through the house and outside, stepping back over Charles Martin in the process. He gave West his glasses and told her to hold them. Reynolds then asked West to tell him everything that she had touched so that he could wipe it off, but West could not recall everything she had touched. Reynolds testified that he went back into the house, intent on wiping the surfaces off. Reynolds said that everything in the house was such a mess that he did not know where to start. He said that at that point, he looked and saw that one of the burners on the stove was lit, so he decided to burn the house down. Reynolds testified that he got the gasoline can that was located beside the porch steps, and doused the rooms with gasoline.
Reynolds said that when he got back to the kitchen, he got a napkin and lit it from the burner, and threw it on the gasoline trail. Reynolds then left the house and got in the car and told West to leave. As West drove back toward Harold Reynolds's residence, she asked Reynolds what was going to happen and he told her "[N]othing, I caught the place on fire." (Vol. XI, R. 1576.)
Reynolds testified that when they got back to Harold Reynolds's residence, they parked Sandra's car and went into the house. As they walked by his father's bedroom, Sandra Roberts asked them if they had "anything," meaning drugs. Reynolds told her they did not, and then he and West went to the bedroom they shared. Reynolds testified that at that point, he told West to give him some money and West gave him $20. He gave that money to Sandra Roberts and told her to go get some more drugs. He testified that he wanted to get Roberts out of the house. Reynolds said that he and West went into the bathroom, and he cleaned and rewrapped the injury on West's arm. In a few minutes, Roberts returned with more drugs.
When Roberts returned with the drugs, Reynolds went into the kitchen and he and Roberts took some of the drugs. Reynolds prepared a syringe of the drugs for West and took it into their bedroom; however, West refused the drugs, saying she just wanted to go to sleep. Reynolds offered the drugs to Roberts, and when she declined to take the drugs, Reynolds used them. He then went back to sleep.
Reynolds testified that later that morning while he and West were walking home from the convenience store, he again tried
Reynolds said that shortly after they arrived back at his father's residence, the police arrived and arrested him and that he had been incarcerated since that time.
After both sides had rested and the circuit court had instructed the jury on the law applicable to Reynolds's case, the jury returned a verdict finding Reynolds guilty of five counts of capital murder, as charged in the indictment.
During the penalty phase of Reynolds's trial, the State resubmitted all the evidence it had introduced during the guilt phase. Apparently, for strategic reasons, defense counsel stipulated to the presence of the aggravating factor that the capital offenses were especially heinous, atrocious, or cruel compared to other capital offenses. See § 13A-5-49(8), Ala.Code 1975. With regard to the statutory mitigating factors, the State agreed that Reynolds had no significant history of prior criminal activity.
Reynolds presented several witnesses who testified to the neglect and abuse Reynolds witnessed and endured from his father and mother during his developing years and who testified that Reynolds was introduced to drugs and crime at an early age. Reynolds also presented evidence indicating that he had overcome many of the hardships that he endured as a child and that he managed to create a fairly stable professional and social life until he began using the drug crystal methamphetamine.
After both sides had rested and the circuit court had instructed the jury on the law applicable to the penalty phase proceeding, the jury returned a verdict, by a vote of 12-0, sentencing Reynolds to death. The circuit court accepted the jury's recommendation and sentenced Reynolds to death for the five capital-murder convictions.
Standard of Review
In every case in which the death penalty is imposed, this Court must review the record for any plain error, i.e., for any defect in the proceedings, whether or not the defect was brought to the attention of the trial court. Rule 45A, Ala.R.App.P., provides:
As this Court stated in Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001):
Although Reynolds's failure to object at trial will not preclude this Court from reviewing an issue, it will, nevertheless, weigh against any claim of prejudice he makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993).
Guilt-Phase Issues
I.
Reynolds maintains that the circuit court "improperly ordered [him] to wear a stun belt throughout his trial." Specifically, Reynolds argues that the "trial court's decision improperly and needlessly deprived [him] of his rights to due process, a fair trial, and to participate in his own defense." (Reynolds's brief, Issue VII, at 69-71.)
Reynolds did not object to the use of the stun belt. Accordingly, we will review his claim for plain error only. Rule 45A, Ala. R.App.P.
The record does not indicate who ordered Reynolds to wear the stun belt — whether it was required by the Court or by the sheriff's department. However, there is no evidence indicating that the belt interfered with Reynolds's right to confer with his counsel or that the jury was even aware that Reynolds was wearing a stun belt. We have reviewed the record and, as we did in Belisle v. State, 11 So.3d 256 (Ala.Crim.App.2007), aff'd, 11 So.3d 323 (Ala.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2865, 174 L.Ed.2d 582 (2009), we find no plain error. Rule 45A, Ala.R.App.P.
II.
Reynolds argues that the circuit court committed a number of errors during the jury-selection process. (Reynolds's brief, Issue XX, at pp. 108-10.) These will be addressed individually below.
A.
Reynolds contends, in a one-sentence argument, that the circuit court "erroneously excused at least 150 of the summoned jurors outside the presence of the parties, in violation of [his] Sixth Amendment right to be present and to a fair trial by an impartial jury." (Reynolds's brief, at 108.)
The record indicates that when the venire was first assembled, during the circuit court's general instructions regarding the proceedings, the court stated:
(Vol. V, R. 327.) The court then continued with its general introduction to the proceedings.
Reynolds did not object to the circuit court's excusing the potential jurors outside his or his counsel's presence. Accordingly, we review this assertion for plain error only. Rule 45A, Ala.R.App.P.
Dorsey v. State, 881 So.2d 460, 482 (Ala. Crim.App.2001), aff'd in part, rev'd in part on unrelated ground, 881 So.2d 533 (Ala. 2003). Reynolds has not presented any specific instance in which the circuit court supposedly exceeded its discretion in excusing the potential jurors outside the presence of the parties, and we find no error, plain or otherwise.
B.
Reynolds alleges, in a one-paragraph argument, that the circuit court erred to reversal because, he claims, the Court "directed that all self-employed persons, individuals over the age of 80, and full-time students would be automatically removed from the jury venire." (Reynolds's brief, at 108.) (Emphasis added.)
Reynolds did not object on this ground at trial. In fact, defense counsel indicated that they were satisfied with the proceeding. (Vol. V, R. 401.) Accordingly, we review this contention for plain error only. Rule 45A, Ala.R.App.P.
Section 12-16-63, Ala.Code 1975, provides, in relevant part:
The record indicates that during the jury assembly, the court informed the prospective jurors that there were generally four reasons that the court would accept in order to excuse a prospective juror from service: (1) a verifiable medical condition that precluded the prospective juror from serving; (2) persons who were over the age of 80 years; (3) full-time students; and (4) self-employed persons. (Vol. V, R. 329-30.) After the general qualification of the prospective jurors, the circuit court interviewed the prospective jurors who sought to be excused. (Vol. V, R. 362-402.) Of the 48 jurors who were interviewed in this process, the circuit court granted 21 of the requests to be excused. (Vol. V. R. 362-402.) Those 21 jurors
The circuit court did not abuse its discretion, and we find no error, plain or otherwise, in this regard. See Turner v. State, 924 So.2d 737, 752-53 (Ala.Crim. App.2002); Boyd v. State, 715 So.2d 825, 843 (Ala.Crim.App.1997).
C.
In a one-sentence argument, Reynolds contends that the circuit court erred to reversal in removing 10 veniremembers based on the veniremembers' opposition to the death penalty.
First we note that Reynolds objected to the circuit court's granting of the State's challenges for cause for only 2 of the 10 prospective jurors, Z.B. (Vol. 6, 533) and F.G. (Vol. VI, R. 600.)
We have reviewed the voir dire conducted by the circuit court of each of the 10 prospective jurors:
Because of these jurors opposition to the death penalty, we find no error in the circuit court's granting of the challenges for cause with regard to the 10 prospective jurors. See Bryant v. State, 951 So.2d 732, 737-39 (Ala.Crim.App.2003), for a thorough discussion of the pertinent law regarding appellate review of a trial court's granting of a challenge for cause.
D.
In a related vein, Reynolds argues that the "pre-trial death qualification violated [his] constitutional right to an impartial guilty-phase jury." (Reynolds's brief, at 109.) As best we can determine, Reynolds did not object on this basis at trial, and we find no plain error. This Court has previously addressed and rejected this assertion. See Dotch v. State, 67 So.3d 936 (Ala.Crim.App.2010.)
E.
Reynolds asserts that the circuit court erred in refusing his request to sequester the jury. (Reynolds's brief, at 109.)
Vanpelt v. State, 74 So.3d 32 (Ala.Crim. App.2009.)
In support of his assertion, Reynolds alleges that "there is a substantial likelihood that [he] was prejudiced by the jury's exposure to highly prejudicial matters."
Broadnax v. State, 825 So.2d 134, 155-56 (Ala.Crim.App.2000).
F.
Finally, Reynolds argues, in effect, a violation of the cumulative-error rule. Specifically, he maintains that "[i]ndividually or collectively, the aforementioned errors of the trial court denied [him] his right to a fair trial by a fair and impartial jury...." (Reynolds's brief, at 110.) The Alabama Supreme Court has set forth the cumulative-error rule as follows: "[W]hile, under the facts of a particular case, no single error among multiple errors may be sufficiently prejudicial to require reversal under Rule 45, if the accumulated errors have `probably injuriously affected substantial rights of the parties,' then the cumulative effect of the errors may require reversal." Ex parte Woods, 789 So.2d 941, 942-43 n. 1 (Ala.2001) (quoting Rule 45, Ala.R.App.P.). As previously discussed, we found no error, plain or otherwise, with regard to Reynolds's allegations of error in Parts II-A through II-E. Likewise, after applying the cumulative-error standard set out in Ex parte Woods, supra, to Reynolds's allegation of cumulative error, we have scrupulously reviewed the record and find no evidence indicating that the cumulative effect of any of the aforementioned nonreversible errors in this case affected Reynolds's substantial rights at trial.
III.
Reynolds, who is Caucasian, asserts that because the State used its peremptory strikes to remove 9 of the 14 African-American jury veniremembers, the circuit court erred in concluding that there were no violations of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Because Reynolds did not make a Batson objection at trial, we review this claim under the plain-error standard. In the circuit court's written sentencing order, the court specifically found:
(Vol. II, C. 320, 327, 334, 341, 348.)
Reynolds now argues that "[g]iven the unquestionable evidence of discrimination in this case, the trial court's failure to find a prima facie case of discrimination and to require the prosecutor to state reasons for his strikes was erroneous." (Reynolds's brief, at 106-07.) Reynolds does not specify
With regard to Batson claims:
Ex parte Walker, 972 So.2d 737, 742 (Ala. 2007), cert. denied, 552 U.S. 1077, 128 S.Ct. 806, 169 L.Ed.2d 608 (2007).
The only ground Reynolds offers in support of his allegation is that the State used 9 of its 14 strikes to remove African-American veniremembers. "Alabama courts have repeatedly held that numbers alone are not sufficient to establish a prima face case of discrimination." Vanpelt v. State, 74 So.3d 32, 53 (Ala.Crim.App. 2009). We have thoroughly reviewed the record before this Court and find no inference of purposeful discrimination by the State.
IV.
Reynolds contends that the circuit court erred in denying his written motion to remove his lead counsel. Specifically, he maintains that he and his lead counsel had an "irreconcilable conflict that caused a breakdown in their communication and impaired [lead counsel's] preparation for [his] defense." (Reynolds's brief, Issue VIII, at 71-75.)
The record reflects that after the voir dire of the veniremembers, Reynolds presented the circuit court with a handwritten motion to remove his lead counsel. The motion was read into the record. (Vol. VII, R. 789-91.) In the motion, Reynolds asserted that he was entitled the removal of his lead counsel because, he claimed: (1) lead counsel did not believe that he was innocent; (2) lead counsel withheld information from him; (3) lead counsel did not file a motion that Reynolds had requested counsel to file; (4) lead counsel did not object to a motion that Reynolds had requested that his previous co-defense counsel not file; and, (5) lead counsel disclosed vital information about his case to the State. (Vol. VII, 790-91.) Reynolds concluded by asking the circuit court to remove his lead counsel and to replace lead counsel with another appointed attorney. Reynolds also requested that the trial be continued in order to give that newly appointed cocounsel adequate time to prepare. (Vol. VII, R. 771.)
When the circuit court gave lead defense counsel an opportunity to reply, counsel stated that the claims in Reynolds's motion were so vague that counsel could not adequately respond. (Vol. VII, R. 793.) Thereafter, the circuit court noted:
(Vol. VII, R. 793.)
However, before making a final ruling, the circuit court gave Reynolds an opportunity to argue his motion before the court. Reynolds argued:
(Vol. VII, R. 794-95.)
The court asked Reynolds whether he had an issue with proceeding with the trial while being represented by his two other appointed counsel. Reynolds indicated that he would not be satisfied with that option because, he argued, the other two counsel had not prepared to represent him on the entire case, those counsel had not had sufficient time to prepare to try the case without the assistance of lead counsel, and neither of the cocounsel had ever tried a capital case. (Vol. VII, R. 797-98.) The circuit court denied Reynolds's motion to remove lead counsel.
Gavin v. State, 891 So.2d 907, 941-43 (Ala. Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004); 543 U.S. 1123, 125 S.Ct. 1054, 160 L.Ed.2d 1073 (2005)(emphasis deleted).
Although Reynolds had many opportunities to move the court for substitution of lead counsel, he did not do so until after the trial began. Substitution of counsel at that late date would have "obstruct[ed] the orderly procedure in the court [and] ... interfered with the fair administration of justice." Gavin, 891 So.2d at 941. See also Robinson v. State, 581 So.2d 1197, 1200 (Ala.Crim.App.1990). Furthermore, Reynolds has not established that his lead "counsel had a conflict of interest or that there was a `total lack of communication' between his counsel and him that would have prevented the preparation of an adequate defense." Gavin, 891 So.2d at 942. Accordingly, we find no abuse of discretion in the circuit court's denial Reynolds's motion to remove his lead counsel.
V.
Reynolds argues that the circuit court erred by allowing the State to present the deposition testimony of the forensic pathologist who performed the autopsy. (Reynolds's brief, Issue IV, at 42-51; Reynolds's reply brief, Issue IV, at 35-40.)
The State introduced the results of the autopsies through the videotaped deposition of Dr. Adam Craig, the forensic pathologist who performed the autopsies. Reynolds claims that at the time of Dr. Craig's deposition, the State had not yet provided the defense with "crucial discovery information," namely, the possibility that two different knives may have been used to stab the victims. Reynolds maintains that because he did not have that information at the time of Dr. Craig's deposition, he was unable to question Dr. Craig about the possibility of two different knives being used in the murders. Thus, Reynolds argues, admission of the autopsy results through Dr. Craig's deposition testimony in lieu of Dr. Craig's actual appearance as a witness at trial violated his rights under the Confrontation Clause and the United States Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
The Confrontation Clause of the Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him" U.S. Const. Amend. VI. In Crawford v. Washington, 541 U.S. at 53-54, 124 S.Ct. 1354, the United States Supreme Court held that the Confrontation Clause prohibits the "admission of testimonial statements of a witness who [does] not appear at trial unless he [is] unavailable to testify, and the defendant [has] had a prior opportunity for cross-examination."
Reynolds argues on appeal that although he may have consented to the deposition of Dr. Craig and the use of that deposition testimony at trial, he did not waive his right to confront Dr. Craig about discovery information that he received after the deposition. Reynolds argues that the use of the deposition testimony to introduce the autopsy results violates Crawford because the State did not establish that Dr. Craig was unavailable for trial and because he
The State contends that if error did occur in the use of the deposition testimony, it was invited by Reynolds. Under the facts of this case, we agree.
Ex parte Sharp, [Ms. 1080959, December 4, 2009] ___ So.3d ___, ___ (Ala.2009).
Before trial, the parties agreed to depose Dr. Craig regarding the autopsy results and to use that deposition testimony at trial to introduce the autopsy results instead of presenting Dr. Craig as a witness
Nevertheless, at a pretrial hearing when Reynolds informed the court that he had not been able to examine Dr. Craig regarding discovery material he purportedly did not have at the time of Dr. Craig's deposition, the court offered, at the State's expense, to allow Reynolds to supplement the deposition and/or to subpoena Dr. Craig for trial in order to address the discovery material. (Vol. 1, C. 139; Vol. IV, R. 57-68.) See § 12-21-283, Ala.Code 1975, "Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceeding." Despite many subsequent opportunities, Reynolds did not pursue either option offered by the court. (Vol. IV, R. 104; 110-112; Vol. V, R. 441).
When the State sought to introduce the autopsy results through Dr. Craig's deposition testimony, Reynolds's only objection was that the State had not demonstrated that Dr. Craig was unavailable for trial. (Vol. IX, R. 1212-1218.)
Assuming, without deciding, that the circuit court erred by allowing into evidence the autopsy results through Dr. Craig's deposition testimony, any error was the natural consequence of Reynolds's actions. Moreover, even if allowing the deposition testimony into evidence was error, it does not rise to the level of plain error. "[V]iolations of the Confrontation Clause are subject to harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)." Smith v. State, 898 So.2d 907, 917 (Ala.Crim.App.2004).
Reynolds argues that he was prejudiced by the circuit court's allowing the autopsy results in through the deposition of Dr. Craig. In support of this claim, Reynolds alleges that had he been allowed to confront Dr. Craig at trial, he could have challenged Dr. Craig's conclusion that all the victims were stabbed with the same or a similar weapon and at around the same time, and that this would have enabled him to undermine the State's theory that there was only one assailant.
However, we believe that it is equally possible if Reynolds had confronted Dr. Craig and Dr. Craig had agreed that two different knives were used to stab the victims, that that testimony could have strengthened the State's case. As discussed in the facts portion of this opinion, Adrian West testified that Reynolds handed her two different knives after she found him stabbing Melinda Martin. She also testified that she subsequently disposed of the two knives.
Accordingly, if any error occurred, it did not probably injuriously affect Reynolds's substantial rights. Rule 45A, Ala.R.App.P.
VI.
Reynolds argues that the prosecutor impermissibly presented evidence of offenses not charged in the indictment. (Reynolds's Brief, Issue XV, at 101-02.) Specifically, Reynolds contends that the State improperly introduced "evidence of sexual assault and rape during the deposition testimony of the medical examiner, Dr. Adam Craig," even though neither offense was charged in the indictment. Despite Reynolds's insinuation otherwise,
We recognize that "[u]nder the general exclusionary rule, evidence of an offense other than the offense charged in the indictment is not admissible at trial on a specific charged offense." Krumm v. City of Robertsdale, 648 So.2d 651, 652 (Ala.Crim.App.1994.) However, in the portion of Dr. Craig's deposition testimony cited by Reynolds, Dr. Craig was testifying to the standard tests that are performed in an autopsy. Neither the prosecutor, the State's witness, nor any of the physical evidence suggested that the victims were raped or sexually assaulted. Accordingly, there is simply no merit to this assertion.
VII.
On May 25, 2003, during the hours following the discovery of the crimes, the police interviewed several people of interest — including Charles Martin's 25-year-old nephew, Chad Martin, and Chad Martin's friend, John Langley. As addressed below, Chad Martin and John Langley were ultimately ruled out as a suspects. Chad Martin testified for the State at trial and denied any participation in the crimes. John Langley also testified as a witness for the State, and his testimony corroborated Chad Martin's alibi. Reynolds raises a number of issues related to their testimony. These will be addressed separately below.
A.
Reynolds argues that the circuit court "erred in refusing to allow [him] to present evidence that Chad Martin confessed to the crime[s]." (Reynolds's brief, Issue II, at 17.)
The inference from the record is that during the May 25, 2003, police questioning, Chad Martin told the investigators two conflicting versions of his whereabouts at the time of the murders. In the first account Chad Martin denied any involvement in the crimes; in the second account Martin purportedly confessed to the crimes. After an investigation, the police excluded Chad Martin as a suspect. Several days later, Chad Martin recanted his confession in a third oral narrative to the police. By that time, Reynolds had already become the target of the investigation.
Chad Martin's first narrative account to the police, in which he denied any involvement in the crimes, was reduced to a written statement and was signed by Martin. Martin's confession — the second of the two oral accounts that he gave on the May 25 — was not reduced to an official statement, but was subsequently documented in two police reports. The first police report purportedly documenting Chad Martin's confession was prepared and signed by Sgt. Dale Fincher, and dated May 25, 2003. Sgt. Fincher's May 25 police report was not introduced into evidence at trial because Fincher had moved out of state and did not testify at the trial.
The State filed a written pretrial motion in limine to prevent the defense from mentioning any "alleged statements" made by Chad Martin regarding the events surrounding the deaths of the victims. (Vol. 1, C. 188.) In support of its motion, the State argued that such "statements" were hearsay and were unreliable. (Vol. 1, C. 188.)
At the beginning of the trial, the circuit court considered arguments regarding the State's motion in limine. During the hearing, one of Reynolds's defense counsel stated:
(Vol. V, R. 434-45.)
The circuit court ruled that until Chad Martin testified at trial, neither party could refer to Martin's previous oral or written statements. However, the circuit court indicated that at the appropriate time, it would be willing to consider arguments from counsel regarding the admissibility of the statements for impeachment purposes. (Vol. V, R. 433-36.) Both parties indicated that they were satisfied with the circuit court's ruling. (Vol. V, R. 436.)
Chad Martin testified for the State. During direct examination, Martin testified that he was very close to his uncle, Charles Martin, and that he considered him to be like a brother. (Vol. IX, R. 1139-40.) Chad Martin said that he also had a good relationship with Martin's wife and daughter. (Vol. IX, R. 1139-40.) Martin testified that he had nothing to do with the murders and robbery of the Martin family. (Vol. IX, R. 1140-41.)
Chad Martin testified that he spent Saturday afternoon through the following Sunday morning of the murders doing construction work at John Langley's house, which was located in the same neighborhood as the Martin house.
Martin testified that the only time that he was out of Langley's sight was when he went to Langley's garage to work on Langley's lawnmower. (Vol. IX, R. 1143-44.) According to Martin, the back door to
Langley drove Chad Martin home sometime early Sunday morning because Martin thought he had to go to work later that morning. (Vol. IX, R. 1144-45.) Martin testified that his employer telephoned him around 6:00 a.m. and told him that he did not have to work that day because it was going to rain. (Vol. IX, R. 1144.) Martin took a shower, went to a friend's house, and then returned to John Langley's house. (Vol. IX, R. 1145.)
Martin testified that as he was on the way to Langley's house, he saw a fire truck and police vehicles at the Martin's residence. (Vol. IX, R. 1145-46.) When Chad Martin got to Langley's house, he told Langley what he had seen at the Martin residence and expressed his concern about Charles Martin. (Vol. IX, R. 1145-46.) Chad Martin testified that Charles Martin had been depressed and that he was concerned that Martin might have committed suicide. (Vol. IX, R. 1145.)
Chad Martin drove back to the Martin's residence and parked the car he was driving behind the fence in the Martin's backyard. (Vol. IX, R. 1146.) Martin testified that a police officer approached him and told him that he could not be there and that he could not be with the family. (Vol. IX, R. 1146.) Martin recognized Sgt. James Mulkey standing nearby and engaged him in a conversation. (Vol. IX, R. 1147)
Martin testified that Sgt. Mulkey told him that Charles Martin was dead and that Mulkey also told him where Charles Martin's body was found. (Vol. IX, R. 1148-49.) Sgt. Mulkey then asked Chad Martin for the names of Martin's wife and daughter. (Vol. IX, R. 1148.) Chad Martin testified that when Sgt. Mulkey asked him for Chad's niece's name, he became so upset that he collapsed. (Vol. IX, R. 1148)
Although not clear from his testimony, it appears that Chad Martin left the scene for a short time, and during that time he ingested substantial amounts of crystal methamphetamine, Prozac, and cocaine. (Vol. IX, R. 1150-51.) Martin claimed that he was actually trying to kill himself because he was so distraught over the Martins' deaths. (Vol. IX, R. 1151.)
Chad Martin testified that when he returned to the scene, some of the other family members where there and that is when he heard police officers talking about the details of the crimes. (R. 1148-49.) Martin instigated a conversation with Lt. Faye Gary while he was on the scene. (Vol. IX, R. 1149.) Chad Martin testified that although he did not recall the details of his conversation with Lt. Gary, he did not tell Lt. Gary that he had overheard the other police officers discussing the details of the crimes. (Vol. IX, R. 1149-50.) Chad Martin was taken to the police station for questioning. (Vol. IX, R. 1149.)
Martin testified that while he was at the police station, he was under the influence of the drugs and that he was also suffering from sleep deprivation because of his drug abuse. (Vol. IX, R. 1151.) Martin was questioned for many hours by the police. (Vol. IX, R. 1151-52.) Around 8:40 p.m., Chad Martin signed a written statement that had been prepared by one of the officers in which Martin apparently denied any participation in the crimes.
Martin testified that the police nevertheless continued to interrogate him, and after
Although Martin purportedly confessed to the crimes, after further investigation, the police ultimately excluded Chad Martin as a suspect.
After the prosecutor completed his direct examination of Chad Martin, the prosecutor intimated that he might later offer Chad Martin's exculpatory statements into evidence. Defense counsel responded that counsel had no objection to the admission of Chad Martin's exculpatory statement, provided the court also admit Martin's inculpatory version of events that he told to the investigators during the questioning. The circuit court indicated that the discussion was premature at that point in the trial. (Vol. IX, R. 1162.)
During cross-examination, defense counsel asked Chad Martin about whether he had made a statement to Lt. Faye Gary. Martin responded that he had but that he did not recall what he had said. Defense counsel then questioned Martin about specific incriminating statements that Chad Martin supposedly made to Lt. Gary by asking a series of questions like, "Did you tell Ms. Gary that `You knew this sounded crazy but it was like you were seeing this through Chuck's eyes?' and "Did you tell Ms. Gary that ... `I could see Savannah's eyes and I could hear her screaming for help?'" (Vol. IX, R. 1185-87.) For the most part, Martin could not recall what he told Gary because, he said, he was under the influence of drugs at the time he made the incriminating statement. (Vol. IX, R. 1185.) Martin clarified that the only reason he remembered what he said in his first statement — the exculpatory statement that he signed — was because he had read the statement before trial. (Vol. IX, R. 1185-86.)
Defense counsel then asked Martin whether he remembered making a statement to Capt. Roy Harbin. (Vol. IX, R. 1187.) Martin responded that, although he recalled making a statement, he could not recall to whom he made the statement. At that point, the prosecutor requested a sidebar conference. (Vol. IX, R. 1187.)
Outside the hearing of the jury, the prosecutor asserted that defense counsel should not be allowed to "back-door" the contents of the May 29 report signed by Capt. Harbin by asking Martin line-by-line questions from the report like counsel had done when questioning Martin about his statements to Lt. Gary. (Vol. IX, R. 1187-89.) Defense counsel responded that because the confession was an oral statement made by Martin to the investigators, counsel needed to introduce the contents of statement through Martin's testimony. (Vol. IX, R. 1189.) The prosecutor replied: "[I]f Chad testifies he doesn't remember giving the statement to Roy Harbin and doesn't remember anything in it, the proper method is for him to call Roy Harbin and say `Did he do it and what did he say?'
When defense counsel resumed cross-examination, Martin reiterated that he did not remember to whom he had made the inculpatory oral statement, so defense counsel ended its cross-examination of Martin. (Vol. IX, R. 1191-93.)
Later in the trial, after the State rested and before the defense's presentation of its case, the prosecutor informed the Court that he had learned that defense counsel intended to introduce the May 29 police report that was signed by Capt. Roy Harbin, which supposedly documented Martin's confession. The State moved the Court for an order in limine prohibiting the introduction or mention of the May 29 police report. (Vol. XI, R. 1474.) A hearing was conducted outside the presence of the jury. (Vol. XI, R. 1474-1503.)
During the hearing, the State elicited testimony from Capt. Roy Harbin that in May 2003, he was the head of the detective division and that he supervised several investigators who were involved in the investigation of the Martin murders and robbery. (Vol. XI, R. 1475-76.) When the prosecutor showed Harbin the May 29, 2003, police report, which was labeled Defendant's Exhibit 10, Capt. Harbin admitted that although he had signed the report, he did not prepare or type the report — that was done by Sgt. Fincher — and he had not even read a completed version of the report until a few days before trial. (Vol. XI, R. 1476-79.) Capt. Harbin testified that he was not present during the entire interview with Chad Martin because he was also monitoring interviews with other suspects. Capt. Harbin stated that the May 29 police report did not contain an accurate version of what he had heard during the interview with Chad Martin.
Defense counsel cross-examined Capt. Harbin at length regarding why he would sign a report purporting to be his rendition of Martin's confession when he had not read the report, when he was not present for the entire interview with Chad Martin, and when he could not recall what Martin had said during the interview. (Vol. XI, R. 1481-92.) In response to questions propounded by defense counsel, Capt. Harbin conceded, "Detective Fincher put the paper on my desk ... [and] I signed it." (Vol. XI, R. 1490.)
During the State's redirect examination, Capt. Harbin confirmed that at the time he signed the May 29 report, Reynolds was the primary suspect in the crimes and was already in custody. (Vol. XI, R. 1493-95.) After the State's redirect, the following colloquy occurred:
(Vol. XI. R. 1498-99.) (Emphasis added.)
The court was careful to clarify its ruling, stating:
(Vol. XI, R. 1502-03.)
Toward the end of the defense's case, the court indicated that it was under the impression that the defense was going to call Capt. Roy Harbin as a witness. The following then occurred:
(Vol. XI, R. 1540-41.)
1. Impeachment Evidence
As stated above, Reynolds now argues that the circuit court's ruling regarding the inadmissibility of the May 29 report precluded him from impeaching Chad Martin's trial testimony with extrinsic evidence of Martin's prior inconsistent statement.
Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence § 157.01(1)(b) (6th ed. 2009) (footnotes omitted).
Reynolds maintains that the circuit court's "restriction on the cross-examination... prevented [him] from confronting [Chad Martin] with his prior statement, and also denied [Chad Martin] the opportunity to admit or deny the statement." (Reynolds's brief, Issue II(A)(1), at 20-22.)
It is clear from our review of the record that Chad Martin understood which of his prior statements defense counsel was referring to when counsel asked him if he had made a statement to Capt. Harbin. Under the facts of this case, Martin was "confronted with the circumstances of the statement with sufficient particularity to enable the [him] to identify the statement." Furthermore, Martin's failure to recall what he said during the conversation with the investigators was tantamount to a denial that he made the statement for purposes of introducing the prior conflicting statement through an impeaching witness. See Walker v. State, 581 So.2d 570 (Ala. Crim.App.1991). Accordingly, contrary to Reynolds's contention, the circuit court did not prevent Reynolds from establishing the proper predicate to impeach Chad Martin's trial testimony with extrinsic evidence of a prior inconsistent statement.
Reynolds argues that he should have been allowed to introduce the May 29 police report through the testimony of Capt. Harbin. (Reynolds's brief, Issue II(A)(2), at 22-27.) He argues that because Capt. Harbin admitted that he signed the report, the report was sufficiently authenticated. We disagree.
Advisory Committee Notes to Rule 613, Ala. R. Evid.
Furthermore,
Advisory Committee Notes to Rule 901, Ala.R.Evid.
Here, although Capt. Harbin admitted that he signed the report, Capt. Harbin testified that he did not prepare the report and that the report did not accurately reflect his recollection of the conversation. Furthermore, the defense did not secure the presence of Sgt. Fincher, the author of the report, to testify at trial in order to authenticate the report. See, § 12-21-283, Ala.Code 1975, "Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceeding." The evidence simply did not support the conclusion that the report was what it was claimed to be: Capt. Harbin's written rendition of what he heard Chad Martin say during the police interrogation. Accordingly, we find no abuse of discretion in the circuit court's ruling.
Reynolds also contends that the May 29 report should have been admitted as substantive evidence of the guilt of a third party. (Reynolds's brief, Issue 11(c), at 27-30.) Reynolds did not move to admit the report on this basis at trial; accordingly, we will review his assertion for plain error only. Rule 45A, Ala.R.App.P.
In the capital murder case of Dorsey v. State, 881 So.2d 460 (Ala.Crim.App.2001), aff'd in part, rev'd in part on other grounds, 881 So.2d 533 (Ala.2003), Dorsey sought to present evidence that a third party had confessed to the murders that Dorsey was charged with committing. Specifically, Dorsey sought to call a prison inmate, Gary Wayne Henderson, as a defense witness to testify that another inmate, Johnny Likely, had told Henderson that Likely and "two white boys" had committed the murders that Dorsey was accused of committing. 881 So.2d at 491.
During a discussion at trial about presenting Henderson's testimony, Dorsey's defense counsel informed the court that Likely had not responded to the defense's subpoena and was unavailable for trial. Defense counsel argued that Henderson should be allowed to testify at trial regarding what Likely had told him because, counsel maintained, Likely's statement to Henderson was admissible as an excited-utterance exception to the hearsay rule and as a statement against penal interest. 881 So.2d at 491.
The court immediately issued an attachment for Likely, and, sometime later, Likely was brought to the courthouse to testify. After some investigation, Dorsey's defense counsel determined that if Likely testified, Likely was going to deny any involvement in the murders, and Likely was going to deny telling Henderson that he committed the crimes. The court ruled that if Likely denied the statements, then Henderson's "testimony as to what Likely told him would be admissible for impeachment purposes and not as substantive evidence of another person's guilt." 881 So.2d at 492-93. After the court made its ruling, defense counsel declined to call either Henderson or Likely as witnesses.
On appeal, Dorsey argued, in essence, that the trial court's ruling prevented him from presenting evidence in his defense. We disagreed:
881 So.2d at 493-96.
With the above law in mind, we turn to Reynolds's assertion. The evidence that Reynolds claims should have been admitted as substantive evidence of a third party's guilt was a police report supposedly documenting Chad Martin's confession — a confession subsequently determined to be unreliable — prepared by an officer who did not testify and signed by the officer's supervisor, who neither heard the confession nor would attest to the accuracy of the statements in the report. Under these unusual facts, the May 29
In any event, the circuit court's ruling regarding the inadmissibility of the May 29 police report did not prevent Reynolds from effectively presenting his defense. The circuit court emphasized that Reynolds could question Capt. Harbin regarding inconsistencies between Chad Martin's trial testimony and what he heard Martin say during the interrogation, but Reynolds declined to call Capt. Harbin as a witness. Furthermore, Reynolds did call Lt. Gary to testify to the inculpatory statements that Martin made to her.
Lt. Gary testified that she first spoke with Chad Martin on May 25, 2003, at the scene of the crimes. She said that Chad approached her and began to talk about where the Martin's bodies were found in the house. (Vol. XI, R. 1506-07.) He also told her that he had lost a pair of his sunglasses. (Vol. XI, R. 1507.) Lt. Gary testified that Martin was very upset. (Vol. XI, R. 1508.) Lt. Gary stated that Martin's statements made her suspicious, so she told Sgt. Fincher what Martin had told her. (Vol. XI, R. 1508.)
She testified that she later spoke with Chad Martin again when the detectives brought Martin to her office during a break in their interview. (Vol. XI, R. 1510.) Lt. Gary testified that Martin was visibly upset at that time and that he was sobbing. (Vol. XI, R. 1512.) Lt. Gary testified:
(Vol. XI, R. 1512-14.)
Under these circumstances, we can find no plain error in the exclusion of the May 29 police report as substantive evidence of a third-party's guilt.
B.
Reynolds argues that his convictions are due to be reversed because, he claims, the prosecutor improperly bolstered the credibility of its witnesses Chad Martin and John Langley by presenting evidence of their prior consistent statements, and by introducing evidence that they either had taken a polygraph test or had offered to
1. Reynolds's Bolstering Claim
First, as to Reynolds's claim regarding Chad Martin, we note that contrary to Reynolds's assertion, the State did not introduce into evidence any of the content of Chad Martin's oral or written statements — inculpatory or exculpatory. (See our discussion in part A of this issue.) Thus, Reynolds's assertion that the State introduced into evidence Chad Martin's prior consistent statement in order to bolster his trial testimony is without merit.
John Langley, Chad Martin's friend and a neighbor of the Martins, testified during the State's case-in-chief. He testified, in essence, that Chad Martin spent Saturday through Sunday morning of the crimes at Langley's house doing construction work and taking drugs. Langley's testimony tended to corroborate Chad Martin's trial testimony.
During direct examination, Langley testified that Chad Martin left Langley's house and returned on Sunday morning around 8:00 or 8:30, and that Martin was very upset. (Vol. IX, R. 1116-17.) As discussed in the facts portion of this opinion, the crimes were not discovered until approximately 10:00 on that Sunday morning. Defense counsel seized upon this time discrepancy and cross-examined Langley regarding the discrepancy. Langley again testified that Chad Martin came to his house around 8:00 or 8:30 that Sunday morning. He testified that at that time Martin told him that he had seen police and fire officials at the Martin residence and that Martin was upset and concerned that Charles Martin might have killed himself and his wife. (Vol. IX, R. 1122-23.)
During the State's redirect examination of Langley, the State sought to introduce Langley's statement that he made to the police during his interrogation, which was marked State's Exhibit 62. In Langley's statement he told the police that Chad Martin returned to his house on Sunday morning around 10:30 and that Martin was very upset because had seen fire trucks and police vehicles at the Martins' house. (IV, R. 1127-28.)
The defense objected to the admission of the statement on the grounds that it was being offered to improperly bolster the witness's testimony. (Vol. IX, R. 1128-29.) A discussion ensued outside the presence of the jury, during which the following occurred:
(Vol. IX, R. 1132-33.) (Emphasis added.)
State's Exhibit 62 was offered and admitted into evidence without further objection. (Vol. IX, R. 1133-35.) During the State's redirect examination, Langley confirmed that State's Exhibit 62 was his statement to the police. Upon the request of the prosecutor, Langley then read the portion of his statement where he wrote that Martin returned to his house at 10:30
Although Reynolds did initially object to the introduction of Langley's statement on the grounds that it was offered to bolster his trial testimony, Reynolds, in essence, withdrew that objection. Thus, we will review Reynolds's contention that the statement was offered for the purpose of bolstering the testimony for plain error only. Rule 45A, Ala.R.App.P.
Further,
McElroy's Alabama Evidence § 165.01(6)(a) (footnotes omitted; emphasis added). Even before the implementation of Rule 607, Ala.R.Evid., a party could correct or contradict the testimony of one's own witness. See Fortenberry v. State, 545 So.2d 129, 137-38 (Ala.Crim.App.1988), aff'd, 545 So.2d 145 (Ala.1989); Bell v. State, 466 So.2d 167, 173 (Ala.Crim.App. 1985).
The inference from the record is that the prosecutor introduced Langley's statement to the police in order to correct Langley's statement at trial that Chad returned to his house at 8:30 a.m. on the Sunday morning the crimes were discovered. We are not persuaded that the prosecutor introduced this statement in order to improperly bolster Langley's trial testimony. Thus, we find no plain error in the admission into evidence of State's Exhibit 62, Langley's statement to the police.
Likewise, we find no plain error in the prosecutor's soliciting from John Langley and Chad Martin testimony that they were initially considered to be suspects in the crimes, that they were questioned by the police at length, and that they were then excluded as suspects. (Reynolds's brief, at 37-38.) At no point during this line of questioning did Reynolds object to the questions on the grounds that the prosecutor was attempting to elicit that testimony in order to bolster the witnesses' trial testimony.
McElroy's Alabama Evidence § 149.01(15) (footnotes omitted).
Furthermore:
McElroy's Alabama Evidence § 116.01(2).
It is apparent from the record that the defense intended to elicit testimony that Chad Martin and John Langley were originally suspects in the crimes and that Chad Martin purportedly confessed to the crimes. By eliciting the fact that both men had been questioned at length by the police and subsequently excluded as suspects, the State was attempting to anticipate and diffuse the matter on direct. Under the facts of this case, we do not agree that the prosecutor was attempting to improperly bolster the credibility of the witnesses by the line of questions referenced by Reynolds. Accordingly, we do not find that the prosecutor's questions in this regard amounted to plain error. Rule 45A, Ala.R.App.P.
2. Polygraph Evidence
Reynolds also contends that the prosecutor committed reversible error when the prosecutor elicited from John Langley testimony that he took a polygraph test and that Chad Martin offered to take a polygraph test. (Reynolds's brief, III(B), at 38-42.) Reynolds did not object to the questions that elicited these responses, nor did he move to exclude the witnesses' answers. (Vol. IX. R. 1117-18; 1160.) Therefore we review this allegation for plain error only.
Assuming, without deciding, that it was error for the prosecutor to elicit the statements regarding the polygraph test, see A.G. v. State, 989 So.2d 1167, 1177 (Ala. Crim.App.2007), under the facts of this case we do not believe such error would amount to plain error. Rule 45A, Ala. R.App. P. The witnesses each testified without objection that they had told the truth. Each witness was also thoroughly cross-examined by defense counsel regarding his possible bias. It is unlikely that the passing reference to the polygraph tests by each witness in light of their remaining testimony "probably adversely affected" Reynolds's "substantial rights." See Daniels v. State, 650 So.2d 544, 556-57 (Ala.Crim.App.1994), cert. denied, 514 U.S. 1024, 115 S.Ct. 1375, 131 L.Ed.2d 230 (1995); Logue v. State, 529 So.2d 1064, 1067 (Ala.Crim.App.1988).
C.
Reynolds contends that the prosecutor "encouraged the jury to rely on improper evidence in considering Chad Martin's testimony." (Reynolds's brief, Issue XIII(A), at 92-93.) We disagree.
Toward the end of the State's direct examination of Chad Martin, the following occurred:
(Vol. IX, R. 1161-62.)
Reynolds did not object to the prosecutor's question on the grounds now asserted on appeal. Thus, his allegation of prosecutorial misconduct with regard to this incident will be reviewed for plain error only. Rule 45A, Ala.R.App.P.
Reynolds argues that "the prosecutor improperly bolstered the credibility of Chad Martin by asking the jury to rely on Chad Martin's assurances to his mother as a basis for crediting Chad Martin's statements." (Reynolds's brief at p. 92.)
Although perhaps this distinction is subtle, the prosecutor did not specifically ask Chad Martin to profess his innocence to his mother; rather, it appears that the prosecutor was essentially asking a rhetorical question. At most, the question called for a "yes" or "no" answer, not for Martin to make a direct statement to his mother. We are not convinced that the prosecutor was improperly attempting to encourage the jury to base its verdict on matters not in evidence. Nevertheless, although we do not condone the question, viewing the allegedly improper question in the context of the entire trial, as we are bound to do, see Robitaille v. State, 971 So.2d 43, 61-63 (Ala.Crim.App.2005), cert. denied, 552 U.S. 990, 128 S.Ct. 490, 169 L.Ed.2d 339 (2007),
Accordingly, we find no plain error in this assertion of prosecutorial misconduct.
VIII.
Reynolds argues that the circuit court erroneously allowed the State to elicit hearsay testimony from witnesses Adrian West and Chad Martin. (Reynolds's brief, Issue XVIII, at 104-06.) First, Reynolds alleges that the State, in an effort to bolster West's testimony and "excuse her involvement in the crime," was improperly allowed to elicit the following testimony from West:
(Vol. VIII, R. 944.)
(Vol. VIII, R. 944.)
Reynolds did not object to the first alleged instance of improper hearsay. When Reynolds objected to the second purportedly improper statement, the State responded that the testimony was not being offered for the truth of the matter asserted but was instead being offered to establish West's subsequent conduct. (Vol. VIII, R. 945.) The circuit court did not rule on his objection, but simply told the prosecutor to "Go ahead." (Vol. VIII, R. 945.) Accordingly, we will review these claims under the plain-error standard.
Reynolds contends that "[i]n an effort to exonerate Chad Martin's confession, the State directly solicited hearsay testimony from the witness [Martin] about what one of the investigating officers told him at the
The State responded that the testimony was not elicited for the truth of the matter asserted but rather to explain Chad Martin's subsequent actions. (Vol. IX, R. 1147.) The defense then argued that "[i]f they allege Sgt. Mulkey told him something, the State should have asked Sgt. Mulkey himself." (Vol. IX, R. 1147-48.) The court stated "Fine," and then the court instructed the State to ask its next question. (Vol. IX, R. 1148.) The State again asked Chad Martin what Sgt. Mulkey had told him and Chad testified, without objection, that Sgt. Mulkey told him that Charles Martin was dead and that when Sgt. Mulkey asked him for names of Charles Martin's wife and daughter, he collapsed. (Vol. IX, R. 1148.)
As discussed, Reynolds did not object to the first allegedly improper comment by West and, although he did object to the other supposed hearsay testimony, he did not obtain an adverse ruling. "`In the absence of a ruling, a request for a ruling or an objection to the court's failure to rule, there is nothing preserved for appellate review.'" Johnson v. State, 542 So.2d 341, 345 (Ala.Crim.App.1989) (citations omitted). Nevertheless, we find no error, plain or otherwise, in the admission of the testimony.
Robitaille v. State, 971 So.2d 43, 57 (Ala. Crim.App.2005), cert. denied, 552 U.S. 990, 128 S.Ct. 490, 169 L.Ed.2d 339 (2007).
Neither statement was offered to prove the truth of the matter asserted; rather, each statement was elicited to explain the declarant's subsequent conduct. Accordingly, no error occurred.
IX.
Reynolds alleges that the circuit court erroneously prohibited him from impeaching the testimony of two State's witnesses. (Reynolds's brief, Issue XI, at 83-87.) First, Reynolds contends that he should have been allowed to question Chad Martin regarding whether Martin had a motive to kill the victims. (Reynolds's brief, Issue XI (A), at 84-85.) Second, Reynolds asserts that he was incorrectly prohibited from questioning Adrian West regarding her possible bias against Reynolds. (Reynolds's brief, Issue XI(B), at 85-87.) These allegations will be addressed separately below.
A.
At trial, Reynolds's counsel cross-examined Chad Martin regarding alleged conflicts Martin had with Charles Martin. During that line of questioning, defense counsel asked whether Chad Martin had ever left a note on Charles Martin's door threatening to stab him. Defense counsel then stated, "If there were a report somewhere that somebody had done that and
In support of its objection, the State argued that the defense was attempting to improperly suggest that Chad Martin had a motive to kill Charles Martin without having any evidence to substantiate the suggestion. Defense counsel conceded that it did not have a "report" naming Chad Martin as a suspect in leaving Martin a threatening note, but defense counsel maintained that its supposition regarding Chad Martin's leaving the threatening note was based upon discovery material provided by the State, in particular, a statement by one of the Martins' relatives to a detective. (Vol. IX, R. 1181-82.)
The circuit court instructed the parties to "move along"; thus, by implication, the court sustained the State's objection to Reynolds's further questions regarding the note. (Vol. IX, R. 1182.)
Reynolds did not make any offer of proof as to how the extrinsic evidence would have established Chad Martin's motive for murder. Accordingly, we will review his assertion for plain error only. Rule 45A, Ala.R.App.P; Rule 103(a)(2), Ala.R.Evid.; and Jennings v. State, 513 So.2d 91 (Ala.Crim.App.1987).
We have stated:
Reynolds was allowed wide latitude in cross examining Chad Martin regarding his prior conflicts with victim Charles Martin. The circuit court did not abuse its discretion in refusing to allow further questioning about a threatening note Chad Martin denied leaving on Charles Martin's door. Other than a vague reference to a hearsay statement contained within an unspecified report, Reynolds offered no proof that Chad Martin had in fact left such a threatening note. Furthermore, assuming that Reynolds proved that such a report existed, he still did not establish that it would have met the three-pronged requirements set forth in Griffin as addressed in Gobble and Snyder, supra.
Based upon the information provided to the circuit court, "`[T]he tendency of this evidence to mislead the jury substantially outweighed its probative value in the case.'" Snyder, 893 So.2d at 537. Accordingly, we find no plain error in the circuit court's ruling.
B.
Reynolds also argues that the circuit court erred in ruling that he could not impeach the testimony of Adrian West with evidence of bias. (Reynolds's brief, Issue XI(B), at 85-87.) We disagree.
Before trial, a hearing was conducted to determine whether West was Reynolds's common-law wife and whether the use of information she provided to investigators and her testimony at trial would violate the marital-communication privilege. (Vol. 1, C. 147-48; R. Vol. IV, R. 209 — Vol. V, R. 256.) During that hearing, Reynolds's counsel sought to establish that West was Reynolds's common-law wife by eliciting testimony from West that she had signed a 2002 tax return and an advance loan application against the tax return as Reynolds's spouse. However, because the documents had been electronically filed by a commercial tax preparer, there was no signature line, and, at the time of the hearing, West had not yet signed an authorization form permitting the tax preparer to release the paperwork purportedly bearing her signature.
During questioning by defense counsel at the pretrial hearing, West admitted that she had given written authorization for the tax preparer to electronically file the tax return; however, she testified that she did not recall signing either the tax form or the advance loan application as Reynolds's spouse. For a variety of reasons, the circuit court ultimately ruled that West was not Reynolds's common-law wife. (Vol. I, C. 165-66.)
During the trial, defense counsel filed a motion in limine seeking the court's permission to introduce the transcript from the pretrial hearing and the 2002 tax documents, which defense counsel had obtained after the hearing that purportedly bore West's signature in the capacity as Reynolds's spouse. (Vol. II, C. 216-17; Second Supplement, Vol. Ill, C. 410-13.) The circuit court addressed Reynolds's motion in limine before West testified. (Vol. VIII, R. 902-10.) In support of the motion, Reynolds's counsel argued that the purpose of introducing the transcript from the hearing and the tax documents was to establish that West lied during the hearing when she testified that she had not signed an application for an advance loan as Reynolds's spouse. Defense counsel alleged that West lied in the hearing because she was biased against Reynolds and because she wanted to ensure that her
After further discussion, the circuit court denied Reynolds's motion because, it found, West did not specifically deny that she had signed the papers as Reynolds's spouse; rather, West testified at the hearing that she could not recall how she signed the paperwork.
Rule 616, Ala.R.Evid, provides:
In this regard:
McElroy's Alabama Evidence § 149.01 (2)(a) (footnotes omitted).
The proffered documents do not establish bias. As noted, West testified at the pretrial hearing that she could not recall in what capacity she had signed the proffered documents. Furthermore, documents bearing her signature in the capacity of Reynolds's spouse do not establish that she lied in order to be able testify against him at trial. Reynolds has not established that the circuit court abused its discretion by its ruling.
X.
Reynolds contends that his convictions are due to be reversed because, he claims, the State failed to provide the defense with "critical evidence" in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Alabama caselaw. (Reynolds's brief, Issue V, at 51-59.)
A.
Reynolds argues that the State improperly failed to provide the defense with notes made by investigators during their interviews with State's witnesses Adrian West and John Langley and defense witness Donald Harvey. Reynolds maintains that he was entitled to the interview notes because the notes allegedly contain impeachment evidence. (Reynolds's brief, at 57-59.)
Although Reynolds interchanges the terms "statements" and "interview notes" in various points in his argument, we note that for discovery purposes these terms are different:
Maness v. State, 57 Ala.App. 431, 435, 329 So.2d 120, 123-124 (Ala.Crim.App.1976).
Reynolds does not actually claim that the State failed to provide statements from the three witnesses; rather, Reynolds argues that the State should have also produced the investigators' interview notes with West, Langley, and Harvey because, he asserts, those notes purportedly contain impeachment evidence. We disagree.
As discussed in Maness, supra, the investigators' notes from the interviews are considered privileged work product and are not necessarily discoverable by Reynolds. See Rule 16.1(c)(1)-(3) and 16.1(e), Ala.R.Crim.P. See also Rogers v. State, 417 So.2d 241, 247 (Ala.Crim.App.1982.) ("[O]riginal notes [of investigator] are considered work product and as such a defendant has no right to their production.").
However, Rule 16.1(f), Ala. R.Crim.P., provides that "[n]othing in this Rule 16.1 shall be construed to limit the discovery of exculpatory material or other material to which a defendant is entitled under constitutional provisions or other provisions of law."
Giles v. State, 906 So.2d 963, 973-974 (Ala. Crim.App.2004), overruled on other grounds, Ex parte Jenkins, 972 So.2d 159 (Ala.2005).
Reynolds claims that,
(Reynolds's brief, at 58.) Reynolds does not specify how the notes in question were exculpatory or what portion of the notes were inconsistent with the witnesses' trial testimony.
The record on appeal has been supplemented with the portion of the State's file that was placed under seal at trial for purposes of appellate review. (First Supplemental Record, C. 87-182.) This supplemental record includes the notes from the interviews conducted with West, Langley, and Harvey. (First Supplemental Record, C. 156-64, 167-71, 172-73, 178.) This Court has reviewed the notes from the investigators' interviews with the three witnesses.
Despite Reynolds's contention to the contrary, it is not clear how these additional notes could have been used to impeach the three witnesses' trial testimony. Although these notes may contain more or less detail than the witnesses' trial statements, the notes do not appear to contain either any conflicting information that could have been useful for impeachment purposes or any exculpatory information as that term is contemplated by Brady and its progeny. Accordingly, Reynolds is due no relief on this claim.
B.
Likewise, Reynolds is due no relief on his assertion that the State withheld field
Defense counsel requested a sidebar conference and informed the court that although the defense had re quested certified copies of the Department of Forensic Science's reports, the defense did not receive a copy of Hopwood's report regarding the testing of the vehicle. The defense maintained that it was not previously aware of the test performed by Hopwood on the interior of the vehicle. (Vol. X, R. 1331-32.) A discussion ensued during which the State indicated that it did not have any such report, but that if possible it would obtain a copy and provide it the defense to determine if further action was necessary. (Vol. X., R. 1333.)
Later, during the defense counsel's re-cross-examination of Hopwood, the following occurred:
(Vol. X., R. 1346-47.)
As evidenced from the above excerpt, Hopwood apparently did not reduce his field notes regarding the testing of the vehicle to an official report, and, as discussed previously, Reynolds was not necessarily entitled to Hopwood's field/investigative notes. In this case, Reynolds has not overcome the privilege against disclosure of the State's work product.
Reynolds has not shown that the State suppressed the evidence. The State apparently did not have the notes, and the notes are not part of the record placed under seal for appellate review. See Vanpelt v. State, 74 So.3d 32, 56 (Ala.Crim. App.2009) ("Although Rule 16.1 and the circuit court's order required the State to disclose reports of tests made, there is no indication that [the investigator] made a report of his comparison. Nothing in the circuit court's discovery order or in Rule 16.1, Ala. R.Crim. P., required the State to create a report of comparisons made during an investigation.").
Furthermore, even assuming, for the sake of argument, that Reynolds was entitled to Hopwood's field notes regarding the test on the interior of the vehicle, Reynolds has not demonstrated that had he been provided the notes "there is a reasonable probability that ... the result of the proceeding would have been different." Giles, 906 So.2d at 973.
As we have stated:
Taylor v. State, 666 So.2d 36, 54 (Ala.Crim. App.1994). See also Smith v. State, 79 So.3d 671 (Ala.Crim.App.2010.)
Adrian West had already testified to this same fact when Hopwood testified that no blood was detected in the vehicle, and defense counsel was able to argue to Reynolds's advantage in its closing statement to the jury the fact that no blood was detected in the vehicle. (Vol. XI, R. 1644, 1650.) Accordingly, Reynolds has not established the requisite prejudice to justify a reversal of his convictions.
XI.
Reynolds argues that his convictions are due to be reversed because, he alleges, the State was improperly allowed to introduce DNA test results and the results of a footprint analysis without establishing a proper chain of custody. (Reynolds's brief, Issue VI, at 59-69.) Specifically, Reynolds contends that the State's DNA expert witness should not have been allowed to testify regarding the results of DNA tests because, he alleges, the State did not establish a sufficient chain of custody for either the known samples that were used for comparison purposes or for the swabs of blood obtained from the scene of the crime that were compared to the known samples. (Reynolds's brief, at 59-65.) Reynolds also argues that the State was improperly allowed to introduce the results of a footprint analysis because, he claims, the State did not establish a sufficient chain of custody for the known samples. (Reynolds's brief, at 65-69.)
An understanding of what transpired at trial is helpful to the resolution of this issue.
Mark Hopwood, a forensic scientist with the Alabama Department of Forensic Sciences, helped investigate and process the crime scene. Hopwood photographed a blood drop located on the top step outside the carport door as well as a bloody, partial footprint on the steps. (Vol. IX, R. 1246-50; Vol. X, R. 1280-81.) Hopwood subsequently swabbed the blood drop (State's Exhibit 26) and footprint. (Vol. X, R. 1278-1280.) Hopwood also swabbed the blood on the handle of the gasoline can found beside Charles Martin's body (State's Exhibit 27) and blood droplets on the wall opposite the entrance to the bedroom where the bodies of Melinda and Savannah Martin were discovered. (State's Exhibit 24.) (Vol. X, R. 1285, 1287-88.)
State's Exhibit 24 (the swab of the blood droplets on the hallway wall), State's Exhibit 26 (a swab of the blood drop on the doorstep), and State's Exhibits 27 (the blood swab from the handle of the gasoline can) were all admitted into evidence without objection. (Vol. X, R. 1301-03.)
Hopwood identified State's Exhibit 185 as the known inked footprints of seven original suspects: Chad Martin, John Langley, Michael Reynolds, Donald Harvey, Adrian West, and two other suspects. (Vol. X, R. 1304-06.) He testified that he received these known prints from the Gadsden Police Department. (Vol. X, R. 1304-06.) Hopwood also identified State's Exhibits 186, 187, and 188 as the known inked footprints of the three victims that he received from the forensic pathologist who performed the autopsy. (Vol. X, R. 1304-05.) State's Exhibits 185-188 were admitted into evidence without objection. (Vol. X, R. 1305-06.)
Hopwood retained the photographs of the unknown bloody footprint, as well as the known inked footprints depicted in State's Exhibits 185-188, until he was requested to send them to Shannon Fitzgerald, the latent print examiner with the Alabama Bureau of Investigation. (Vol. X, R. 1282, 1304-05.)
Chris Crow, a crime-scene technician with the Gadsden Police Department, testified that during the course of his investigation, he and his "unit" were required to collect various biological samples from persons of interest for comparison purposes. (Vol. X, R. 1363.) Specifically, he testified that he or someone in his unit collected the following samples:
(Vol. 10, R. 1364-65.)
Crow testified in some detail about the procedures used to collect and secure the various samples. (Vol. X, R. 1366-67.) Crow stated that each of the exhibits bore his or the collecting officer's initials and that the exhibits appeared to have been secured and packaged in the customary manner for transportation to the Department of Forensic Sciences for comparison to items obtained from the scene of the crimes. (Vol. X, R. 1365-66.) He testified that the samples were sent to the State laboratory for testing and returned to the Gadsden Police Department after testing and that packaging on the various exhibits documented the chain of custody. (Vol. X, R. 1367-71.) All eight exhibits were admitted into evidence without objection. (Vol. X, R. 1367-71.)
Crow testified that he also collected two oral swabs from Reynolds (State's Exhibit 189) and some hairs from Reynolds's head
Forensic biologist, Carl Mauterer, of the Alabama Department of Forensic Sciences, testified as the State's DNA expert.
Mauterer testified that the DNA profile extracted from the blood swabs from the doorstep and hallway matched the DNA profile from the known sample obtained from Adrian West. (Vol. X, R. 1420-21.) Mauterer testified that the swab obtained from the gasoline can handle tested positive for the presence of blood and that it contained a mixture of DNA traits. (Vol. X, R. 1421-22.) He testified that the primary contributor to the DNA on the handle was victim Savannah Martin but that Michael Reynolds and Melinda Martin could not be excluded as contributors of the DNA. (Vol. X, R. 1421-22, 1430.) However, Charles Martin, Chad Martin, Adrian West, John Langley, and Donald Harvey were excluded as contributors to the DNA extracted from the swab of the handle of the gasoline can. (Vol. 10, R. 1443-44.) Mauterer also testified regarding the results of the DNA population-frequency statics with regard to the above matches. (Vol. X, R. 1420-1424.)
Shannon Fitzgerald, a latent print examiner with the Alabama Bureau of Investigation, identified State's Exhibit 191 as two photographs of the same bloody footprint. (Vol. X, R. 1452.) State's Exhibit 191 was admitted into evidence without objection. (Vol. X, R. 1453.) Fitzgerald testified that he received State's Exhibit 191 — the inked footprints from the three victims, and the inked footprints from the seven original suspects — packaged in a sealed envelope, from Mark Hopwood on
Reynolds now challenges the admissibility of the testimony regarding the DNA test results and footprint analysis on the ground that various samples used to perform the tests were not properly authenticated based on the State's failure to establish an adequate chain of custody as to the test samples. We have stated:
Martin v. State, 931 So.2d 736, 748-49 (Ala.Crim.App.2003); aff'd in part, rev'd in part on unrelated ground,931 So.2d 759 (Ala.2004.)
"Additionally,
Broadnax v. State, 825 So.2d 134, 170 (Ala. Crim.App.2000).
With these principles in mind, we turn to Reynolds's specific allegations.
Reynolds cites Brooks v. State, 33 So.3d 1262 (Ala.Crim.App.2007), and Ex parte Phillips, 962 So.2d 159 (Ala.2006), which is addressed in Brooks, in support of his allegation that the circuit court erroneously allowed into evidence testimony regarding the DNA and footprint analysis.
In Brooks, the defendant was convicted of two counts of first-degree sodomy and one count of first-degree sexual abuse involving his eight-year-old stepdaughter, H.F. On appeal to this Court, Brooks argued that the circuit court abused its discretion in allowing the State to introduce, over his objection, test results that indicated that H.F. had Type 1 herpes — the same type herpes Brooks had. On appeal, Brooks argued that the State failed to establish a sufficient chain of custody regarding the vaginal swabs and blood drawn from H.F. and the blood drawn from him.
We agreed that the chain of custody with regard to the samples was insufficient. We found:
33 So.3d at 1272.
We then determined that the error in the admission of the testimony regarding the test results on the samples was not harmless under the facts of the case. We reasoned:
33 So.3d at 1276-77.
Unlike the defendant in Brooks, Reynolds did not object to the admission of the testimony regarding the DNA test results or the footprint analysis.
XII.
Reynolds argues that the evidence was insufficient to sustain his convictions for robbery-murderer under counts II, III, and V, because, he contends, Adrian West was an accomplice to the robbery and her testimony implicating him in the robbery was not sufficiently corroborated as required by § 12-21-222, Ala.Code 1975. (Reynolds's brief, Issue X, at 79-83.) Specifically, Reynolds maintains that "without Ms. West's testimony, there was no connection between [him] and the items alleged to have been stolen." (Reynolds's brief, at 80.) In a related vein, Reynolds also alleges that the circuit court erred in refusing to give his requested jury charge addressing the necessity of corroborating an accomplice's testimony. (Reynolds's brief, at pp. 82-83.)
Although Reynolds did object to the circuit court's refusal to give his requested jury charge on accomplice corroboration, he did not move for a judgment of acquittal on the ground that the accomplice's testimony had not been sufficiently corroborated.
Section 12-21-222, Ala.Code 1975, provides:
Gordon v. State, 611 So.2d 453, 455 (Ala. Crim.App.1992). (Emphasis added.)
The State maintains that Adrian West was not an accomplice and that, therefore, there was no requirement that her testimony be corroborated.
Even assuming, without deciding, that West she tried accomplice, we find no plain error in the circuit court's denial of Reynolds's motion for a judgment of acquittal because West's testimony regarding Reynolds's commission of the robbery was sufficiently corroborated. See Green v. State, 61 So.3d 386, 395 (Ala.Crim.App. 2010), for a thorough discussion of the applicable law regarding the sufficiency of corroborating evidence.
As discussed, West said that Reynolds ordered her to take Melinda Martin's purse and the Martins' cordless telephone, and then to "get out." Fearing for her life, West complied. She put the telephone and the purse in Sandra Roberts's automobile, which she and Reynolds had borrowed earlier that night. Neither the telephone nor the purse were found in the Martins' house during the investigation. West told the police that when they arrived back at Reynolds's father's house, Reynolds got money out of Melinda Martins's purse to purchase drugs. Sandra Roberts confirmed that after Reynolds and West returned to the Reynolds's residence, Reynolds gave her money to purchase drugs. Sandra Roberts also testified that she later discovered the cordless telephone in her automobile.
West testified that she and Donald Harvey disposed of the base for the telephone in a wooded area near where they burned the clothes and Martin's purse. The investigators found the burn pile and recovered the telephone base in the area described by West. Both the telephone base and the cordless receiver were the same brand as the telephone cord found lying across the bedroom floor where the bodies of Melinda and Savannah Martin were discovered.
Accordingly, we find that there was sufficient corroborating evidence to connect Reynolds to the stolen items and to corroborate West's testimony that Reynolds murdered the victims during a robbery. Accordingly, we find no plain error in the circuit court's denial of the motion for a judgment of acquittal on the ground that the purported accomplice's testimony regarding the robbery was not sufficiently corroborated. Furthermore, because West's testimony was sufficiently corroborated, any error that occurred in
XIII.
Reynolds asserts that the circuit court failed to conduct a reasonable inquiry into two instances of possible juror misconduct. (Reynolds's brief, Issue IX, at 75-79.) The first alleged instance of juror misconduct involved purported improper contact between one or more jurors and members of the victims' family during the trial. The second alleged instance of improper contact occurred when defense witness Lt. Faye Gary supposedly winked at a juror as Lt. Gary was leaving the witness stand.
Before addressing each allegation separately below, we will set forth the applicable law.
Gamble v. State, 791 So.2d 409, 432-33 (Ala.Crim.App.2000). See also, Taylor v. State, 808 So.2d 1148, 1173-74 (Ala.Crim. App.2000), aff'd, 808 So.2d 1215 (Ala.2001), cert. denied, Taylor v. Alabama, 534 U.S. 1086, 122 S.Ct. 824, 151 L.Ed.2d 705 (2002).
A.
On October 25, 2007, three days after the penalty phase of the jury trial concluded, defense counsel filed a written motion with the circuit court requesting the court to conduct a "reasonable inquiry" into allegations that one or more of the jurors might have had improper contact with the victims' family members on the first and the last day of the trial. (Vol. I-II, C. 198-213.) Defense counsel attached affidavits from three of Reynolds's family members, who stated that they had witnessed the improper contact, as well as affidavits from two of his defense counsel who had spoken with his relatives regarding the improper contact.
On October 31, 2007, the circuit court conducted a hearing to investigate the allegations in Reynolds's motion. (Vol. XIII, R. 2009-47.) The 2 jurors who were the subject of Reynolds's motion were present at the hearing, as well as the other 10 jurors — the court had requested the remaining jurors to attend the hearing out of an abundance of caution.
During the hearing, the circuit court individually questioned the two jurors who allegedly had contact with the victims' family. Defense counsel also questioned
After the 2 jurors were examined, the court individually questioned each of the remaining 10 jurors to ensure that the jurors had in fact followed the court's instructions and that there had been no inappropriate contact between the jurors and victims' family members. (Vol. XIII, R. 2026-2047.) All 10 jurors indicated that they had followed the court's instructions and that they did not engage in any improper contact with the victims' family members. The court did not allow Reynolds's counsel to question the 10 jurors because those jurors were not the subject of Reynolds's motion.
At the conclusion of the hearing, the following occurred:
(Vol. XIII, R. 2047.)
As evidenced from the above, Reynolds agreed that the circuit court had conducted a reasonable investigation and that there was no evidence of juror misconduct. Thus, his allegation of error is subject to plain-error review only. Rule 45A, Ala. R.App.P. We have reviewed the record in light of the principles addressed in Gamble, supra, and we find no error, plain or otherwise, in the extent of the court's inquiry into the alleged juror misconduct or in the court's conclusion that the evidence did not support a finding of juror misconduct. Thus, Reynolds is due no relief on this allegation.
B.
During the defense's case at the guilt-phase of the trial, one of Reynolds's defense counsel informed the circuit court that an attorney, who practiced before the court and who was in the audience, had told defense counsel that he had observed Lt. Faye Gary wink at a juror as Lt. Gary left the witness stand following her testimony in the defense's case.
During the hearing, the attorney testified that as Lt. Gary left the witness stand, Gary "winked over in the direction of the last juror, and the juror — she gave her the heads up like she saw her and said `Hey.'" (Vol. XI, R. 1546.) In response to questions propounded by the State, the attorney admitted that it was possible that Lt. Gary was gesturing to her co-worker Detective Roger Dale who, from the inference
The Court then conducted an examination of the juror Lt. Gary supposedly winked at. (Vol. XI, R. 1548-1449.) The juror testified that she did not know Lt. Faye Gary and that Lt. Gary did not wink at her. (Vol. XI, R. 1548-49.) The juror stated that she thought Lt. Gary might have winked at "somebody over there behind" her. (Vol. XI, R. 1548-49.)
After the examinations of the attorney and pertinent juror, the court found no evidence of inappropriate conduct between Gary and the juror. (Vol. XI, R. 1549.) Reynolds did not object to the manner of the court's inquiry into the matter, nor did he object to the court's findings.
Applying the principles discussed in Gamble, supra, to the facts pertaining to this issue, we find no error, plain or otherwise, in the extent of the court's inquiry into the alleged juror misconduct or in the court's conclusion that the evidence did not support a finding of juror misconduct. Reynolds is due no relief on this allegation.
XIV.
Reynolds contends that his capital-murder convictions must be reversed because, he claims, the prosecutor improperly impeached his trial testimony with his post-Miranda
The prosecutor's questions and comments cannot be considered in the abstract but must be considered in the context in which they occurred. Brown v. State, 11 So.3d 866, 909 (Ala.Crim.App. 2007), aff'd, 11 So.3d 933 (Ala.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2864, 174 L.Ed.2d 582 (2009). Accordingly, before addressing Reynolds's contention, we will address the context in which the questions/comments occurred.
During the State's case, Gadsden Police Investigator Scott Lumpkin testified regarding his involvement in the investigation. During defense counsel's cross-examination of Lumpkin, the following occurred:
(Vol. IX, R. 1230.)
There was no other testimony in the State's case regarding the circumstances of Reynolds's arrest.
As addressed in detail in the facts portion of this opinion, Reynolds claimed on direct examination that he had nothing to do with the robbery and murders of the victims. Although Reynolds did not deny being at the Martin residence after the crimes, he testified that he went there only to cover up any evidence indicating that his girlfriend was present when the crimes took place.
On direct examination, defense counsel asked Reynolds whether he contacted the police after he found his friend Charles Martin lying in a pool of blood on the floor. (Vol. XI, R. 1572.) Reynolds admitted that he did not call the police; instead, he
During the State's cross-examination of Reynolds, the prosecutor probed Reynolds's version of what happened in the hours before the murder. Specifically, the prosecutor questioned Reynolds about his claim that Adrian West and Sandra Roberts had left the Reynolds's house together to go get more drugs. During this line of questioning, the following exchange occurred:
(Vol. XI, 1589-92.)(Emphasis added.)
The cross-examination continued, and the following occurred:
(R. Vol. XI, R. 1595-97.)(Emphasis added.)
The prosecutor continued to cross-examine Reynolds as to how his version of what happened dovetailed with the State's evidence, during which the following transpired:
(Vol. XI, R. 1597-98.)(Emphasis added.)
A short time later in the cross-examination, the prosecutor showed Reynolds a picture of Charles Martin's body and the following exchange took place:
(Vol. XI, R. 1603.)
The following colloquy occurred toward the end of the cross-examination:
(Vol. XI, 1605-09.)(Emphasis added.)
Defense counsel argued during a portion of the closing argument that the jury's decision turned solely on a credibility question as between Adrian West and Reynolds. Specifically, defense counsel argued:
(Vol. XII, R. 1665-66.)
During the State's rebuttal, the prosecutor argued:
(Vol. XII, R. 1674.) (Emphasis added.)
After closing arguments, the circuit court charged the jury on the applicable law and submitted the case to the jury for deliberation. During deliberations, the jury submitted a written question to the court, and the following discussion occurred:
(Vol. 12, R. 1806-07.) The discussion continued, and the court and the respective parties ultimately decided to answer the jurors' question as follows: "No written statement made by the defendant was offered into evidence; you have to remember the testimony." (Vol. 12, R. 1807-12.) This answer was provided to the jury.
The "statement" to which the parties referred was actually a set of hand-written interview notes made by the investigators during their questioning of Reynolds. The first notes are dated May 26, 2003, and indicate that Reynolds was advised of his rights. (First Supplemental Record, C. 174-76.) During that interview Reynolds apparently told investigators that he was not at the Martins' residence on the night of the crimes and that he did not kill the Martins or know who did. Reynolds said that he did not know where the Uniden brand telephone found in Sandra Roberts's car came from. He also said that Chad Martin stole drugs from Charles Martin on previous occasions and that Charles Martin knew about it. Reynolds told the investigators that when Charles Martin used drugs, he was slow and could be "taken." In this same conversation, Reynolds described the black bag where Charles Martin kept his prescription drugs, and Reynolds described in some detail how Charles Martin "cooked" his drugs on the stove. In other interview notes, Reynolds admitted that he had used drugs with Charles Martin, and he again denied committing the crimes or being at the Martin residence on the night of the crimes. (First
Reynolds argues on appeal that "on twenty-one different occasions during cross-examination and closing arguments, the prosecutor ... commented on [his] post-Miranda silence by drawing attention to the fact that [he] did not disclose his subsequent exculpatory [trial] explanation to the State before trial," in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and its progeny. (Reynolds's reply brief, at 2.) The State contends that there was no Doyle violation because, it argues, the prosecutor permissibly impeached Reynolds's trial testimony with his prior existing inconsistent statements.
First, we note that despite Reynolds's claims that the prosecutor improperly commented 21 times on Reynolds's post-Miranda silence, defense counsel objected only once on this particular ground during the purportedly improper line of questioning. Although Reynolds's failure to object at trial will not preclude this Court from reviewing the issue, it will, nevertheless, weigh against any claim of prejudice he makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993).
In Doyle, the United States Supreme Court granted certiorari to address the question:
426 U.S at 611, 96 S.Ct. 2240 (footnote omitted; emphasis added). The Court held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." Doyle, 426 U.S. at 619-20, 96 S.Ct. 2240 (footnote omitted; emphasis added).
Although the Supreme Court found that the prosecutor's use of the defendant's post-Miranda silence for impeachment purposes violated due process, the Court acknowledged the importance of impeachment cross-examination to the prosecution:
426 U.S. at 619, 620, n. 7 and n. 11.
In the post-Doyle case of Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), Anderson was arrested while driving a stolen car that belonged to a murder victim. Anderson was apprised of his Miranda rights and was interviewed
The Court found that no Doyle violation occurred. The Court reasoned:
447 U.S. at 408-09 (emphasis added).
With the above principles in mind, we turn to the present case. It is clear from the our review of the record that when the prosecutor questioned Reynolds regarding what Reynolds told the police after his arrest, the prosecutor's intent was to impeach the credibility of Reynolds's
We disagree. This case is factually distinguishable from both Doyle and Edwards. In Doyle, one defendant remained silent after arrest and the other defendant, Doyle, responded to a question by saying, "What's this all about?" and when told why he was arrested, he responded, "[Y]ou got to be crazy" or "I don't know what you are talking about." 426 U.S. at 623-24, 96 S.Ct. 2240. That response was construed to be silence for the purposes of analysis, presumably because it did not actually contradict Doyle's trial testimony. See Anderson, 447 U.S. at 408 n. 2, 100 S.Ct. 2180.
In Edwards, after evidence was introduced that Edwards had invoked his right to silence following his arrest and Miranda warnings, the prosecutor cross-examined Edwards regarding a statement Edwards had purportedly made to the authorities. Edwards denied making such a statement. On appeal, Edwards argued that the trial court erred in allowing the State to question him regarding the invocation of his right to remain silent. This Court held that the prosecutor' comments constituted reversible error. We reasoned:
Edwards, 502 So.2d at 851-52.
In this case, although the statements themselves were not admitted into evidence, there was direct evidence from Reynolds that he made two statements and that those statements were inconsistent with Reynolds's trial testimony, unlike the fact situation in Edwards and Doyle. Further, although the written statements were not admitted into evidence, we fail to see how this harmed Reynolds. The Alabama Rules of Evidence do not require the admission into evidence of written prior inconsistent statements:
McElroy's Alabama Evidence § 157.01(a) (footnotes omitted).
Here, the defense did not request to be shown the statements. Furthermore, the prosecutor did elicit, without objection, testimony that Reynolds was arrested the day the murders were discovered, that upon his arrest he answered questions propounded by the investigators, and that those answers were inconsistent with his exculpatory trial testimony. Moreover, defense counsel did not assert that this evidentiary foundation was insufficient.
Perhaps most significantly, the introduction into evidence of the actual statements to the investigators in which Reynolds denied any knowledge of the crimes would have only solidified for the jury the disparity between Reynolds's trial testimony and his previous statements. Accordingly, we find no error, plain or otherwise, in the prosecutor's use of Reynolds's prior inconsistent statements to impeach his exculpatory trial testimony. The prosecution's questions do not constitute a Doyle violation because "[s]uch questioning makes no unfair use of silence because a defendant who voluntarily specks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." Anderson, 447 U.S. 404, 408, 100 S.Ct. 2180. See also Gobble v. State, 104 So.2d 920, 945 (Ala.Crim.App. 2010).
Likewise, we find no error in the prosecutor's line of questions regarding why Reynolds did not come forward with his exculpatory story at any time before trial. In Doyle, supra, although the Court did find that a prosecutor's use of post-Miranda silence to impeach a defendant's trial testimony violated the defendant's due process rights, the Court specifically declined to address the constitutionality of the prosecutor's inquiry as to why neither defendant had told his exculpatory story at any time before trial. See, 426 U.S. at 616 n. 6, 96 S.Ct. 2240.
In the post-Doyle case of Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the United States Supreme Court held that a prosecutor's use of defendant's pre arrest silence to impeach the defendant's trial testimony did not violate the Fifth or Fourteenth Amendment to the Constitution. The Supreme Court's reasoning in reaching that result is particularly relevant to the facts of this case:
447 U.S. at 233-38.
In a footnote in Jenkins, the Court noted:
447 U.S. at 237 n. 3, 100 S.Ct. 2124.
In Jenkins, the Supreme Court concluded by noting:
447 U.S. at 240-41, 100 S.Ct. 2124.
In Alabama, Rule 611(b), Ala.R.Evid., provides:
McElroy's Alabama Evidence § 136.01(1) (footnotes omitted).
Furthermore,
Gobble, 104 So.3d at 953.
As discussed above, Reynolds testified during direct examination that he was not present when the crimes occurred and that he had nothing to do with the crimes. He testified that he went to the scene only to protect his girlfriend who, he claimed, although present, did not participate in the crimes. Reynolds further testified on direct that rather than calling the police after discovering that the Martins had been murdered, he tried to burn the bodies and the house in order to cover
On cross-examination, Reynolds admitted that after his arrest he told the police that he had no knowledge of the crimes but that he wished that he had told the truth when he first talked to the police. He expressed confusion as to why he was being prosecuted for the crimes instead of the people who supposedly committed the crimes. Reynolds intimated that he even knew who committed the robbery and murders, but he declined to reveal their identity when asked to do so by the prosecutor during cross-examination. Finally, Reynolds testified that he had been incarcerated for over four years before trial and that during that time he regretted not telling his version of what had happened.
Given the particular facts of this case, together with Reynolds's admission that he regretted not coming forward much earlier with his exculpatory version of the facts, we find no basis for reversal in either the prosecutor's cross-examination questions or his comments during closing argument.
XV.
Reynolds argues that alleged prosecutorial misconduct undermined the reliability of jury's verdicts finding him guilty of capital murder and the resulting death sentence. (Reynolds's brief, Issue XIII, at 92-98).
Before addressing his individual claims, we set forth the applicable law regarding appellate review of prosecutorial comments.
Vanpelt v. State, 74 So.3d 32, 81 (Ala.Crim. App.2009).
With the aforementioned principles in mind, we turn to Reynolds's specific allegations.
A.
Reynolds contends that the "prosecutor encouraged the jury to rely on improper evidence in considering Chad Martin's testimony." (Reynolds's brief, at 92-93.) This assertion was addressed in Part VII of this Court's opinion and found to lack merit.
B.
Reynolds claims that the prosecutor improperly vouched for the strength of the State's case in the prosecutor's closing argument during the guilt-phase of the trial. (Reynolds's brief, at 93-94.) In a footnote to his argument, Reynolds quotes three allegedly improper comments from the record.
1.
First, Reynolds argues that the prosecutor improperly vouched for the strength of the State's case during the State's rebuttal closing argument when the prosecutor stated: "We feel very strongly, and we feel that you all — we also conclude beyond a reasonable doubt that based on clear, undisputed — reasonably undisputed evidence in this case — this is clearly a case of capital murder and nothing else." (Vol. 12, R. 1670.)
Reynolds did not object to this purportedly improper comment, and we find no plain error in the comment. Rule 45A, Ala.R.App.P.
2.
Second, Reynolds argues that the prosecutor improperly vouched for the strength of the State's case when the prosecutor argued in his rebuttal argument, "because anybody with any kind of sense would know that you're not going to buy that cock and bull story the guy got on the witness stand and tried to sell to you.'" (Vol. XII, R. 1670-71.)
Reynolds did not object to this comment, and we find no plain error. Rule 45A, Ala.R.App.P.
Reeves v. State, 807 So.2d 18, 45-46 (Ala. Crim.App.2000), cert. denied, 534 U.S. 1026, 122 S.Ct. 558, 151 L.Ed.2d 433 (2001).
We have carefully reviewed the comment in the context in which it occurred. Contrary to Reynolds's allegation, we do not believe that the prosecutor was vouching for the strength of the State's case by the comment. Rather, it appears that the prosecutor was merely replying to defense counsel's closing argument that the evidence established only that Reynolds was at the scene of the crimes to help cover up his girlfriend's presence at the scene of the triple-murder/robbery.
3.
Likewise, we find no plain error in the prosecutor's comment: "The only appropriate verdict is guilty of capital murder. Not anything less. If you are not going to convict him of capital murder, just let him go." (Vol. XII, R. 1685.)
Morris v. State, 60 So.3d 326, 368 (Ala. Crim.App.2010) quoting Minor v. State, 914 So.2d 372, 420 (Ala.Crim.App.2004).
4.
In a fourth allegation of improper vouching, Reynolds refers this Court to three pages of the prosecutor's opening argument. (Reynolds's brief at 94, citing Vol. VII, R. 841-43.) We have reviewed the alleged improper comments in the context of the opening argument, and we find no plain error. Rule 45A, Ala. R.App. P. Contrary to Reynolds's interpretation, the prosecutor was not improperly vouching for the credibility of State's witness, Adrian West. Instead, the prosecutor was simply outlining what he expected the evidence to prove. See Baker v. State, 906 So.2d 210, 266-67 (Ala.Crim.App.2001), rev'd on other grounds, Ex parte Baker, 906 So.2d 277 (Ala.2004).
C.
Reynolds cites several portions of the prosecutor's opening and closing arguments at the guilt phase of the trial as support for his allegation that "throughout the trial the prosecutor sought to inflame the jury's passions." (Reynolds's brief, at 94-95.)
Floyd v. State, [Ms. CR-05-0935, September 28, 2007] ___ So.3d ___, ___ (Ala. Crim.App.2007). Based upon the rationale in Floyd, we find no plain error in the prosecutor's comments.
D.
Reynolds contends that the prosecutor improperly belittled him during cross-examination of him at the guilt phase of the trial. (Reynolds's brief, at 95.) The prosecutor's cross-examination of Reynolds was addressed in part XIV of this opinion and found to lack merit.
E.
Reynolds argues that the prosecutor misstated the law at various points in the trial. (Reynolds's brief, at 95-97.)
1.
First, Reynolds alleges that the prosecutor incorrectly defined reasonable doubt to the prospective jurors during voir dire of the venire panels when the prosecutor defined reasonable doubt, in part, as follows: "`[A] doubt to which you have a reason, is a fair doubt, a substantial doubt'" (Reynolds's brief, at 95-96, citing R. 495, 496, 564, 656, and 747.)
Reynolds did not object on this basis at trial, and we find no plain error. The use of the terms "substantial doubt," "fair doubt," and "doubt for which you have a reason," to explain the concept of reasonable doubt is not improper. See Greenhill v. State, 746 So.2d 1064, 1069-71 (Ala. Crim.App.1999); Lee v. State, 898 So.2d 790, 841-42 (Ala.Crim.App.2003), cert. denied,
Broadnax v. State, 825 So.2d at 180.
2.
Second, Reynolds maintains that the prosecutor "improperly directed the jury that in order to vote for life [imprisonment], the mitigating factors would have to outweigh the aggravating factors." (Reynolds's brief, at 96.) In support of this allegation, Reynolds cites two statements made by the prosecutor during the voir dire of the individual venire panels at the guilt phase of the trial and a comment made during the prosecutor's closing argument at the penalty phase of the trial. (Vol. VI, R. 490, VII, R. 742; Vol. XIII, R. 1969.)
Reynolds did not object to these allegedly improper comments; thus, we review them for plain error only. Rule 45A, Ala.R.App.P. Whatever misstatements the prosecutor made regarding the weighing of aggravating and mitigating circumstances did not "`so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.'" Vanpelt, 74 So.3d at 90. The circuit court charged the jury at the penalty phase that what the attorneys said was not evidence. (Vol. XIII, R. 1984-85, 88-92.) Further, the circuit court correctly charged the jury on the weighing of the aggravating circumstances and the mitigating circumstances. (Vol. XIII, R. 1998-99.) Jurors are presumed to follow the trial court's instructions. See Irvin v. State, 940 So.2d 331, 352 (Ala.Crim.App.2005) (citing Taylor v. State, 666 So.2d 36, 70 (Ala.Crim.App.), on return to remand, 666 So.2d 71 (Ala.Crim. App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996)). No plain error occurred, and no basis for reversal exists regarding this claim.
3.
Reynolds avers that during the prosecutor's rebuttal closing argument at the guilt phase of the trial, the prosecutor misstated the law on the concept of "voluntary intoxication" when the prosecutor stated that, "`voluntary intoxication is never a defense.'" (Reynolds's brief, at 96, citing Vol. XII, citing R. 1672.) Reynolds did not object to this comment; thus, we review the comment for plain error only. Rule 45A, Ala.R.App.P.
As stated above, the circuit court charged the jury that what the attorneys stated was not evidence. Furthermore, the circuit court correctly charged the jury that "[w]hile voluntary intoxication is never a defense to a criminal charge, it may negate the specific intent that is essential to an intentional killing and reduce it to other charges." (Vol. XII, R. 1716.) See § 13A-3-2, Ala.Code 1975. See also Flowers v. State, 922 So.2d 938, 953-54 (Ala. Crim.App.2005.), cert. denied, 546 U.S. 1177, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006). Again, jurors are presumed to follow the trial court's instructions.
After reviewing the prosecutor's comment in the context of the entire trial, we are not persuaded that the comment "`so infected the trial with unfairness as to
4.
Reynolds alleges that during the cross-examination of a defense witness in the penalty phase of the trial, the "prosecutor incorrectly and improperly insinuated that [Reynolds's] upbringing was not mitigating because it did not directly cause him to commit the crime." (Reynolds's brief, at p. 96, citing Vol. XIII, R. 1862.)
During the prosecutor's cross-examination of Michael Reynolds's father, Harold Reynolds, at the penalty phase of the trial, the following exchange occurred:
(Vol. XIII, R. 1862-63.)
As evidenced by the above excerpt, defense counsel objected before the question was answered, and the circuit court sustained defense counsel's objection. Even so, as addressed above, the circuit court correctly charged the jury on the concept of aggravating and mitigating circumstances. In the context of the entire argument, we do not believe that the prosecutor's question "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Vanpelt, 74 So.3d at 47.
F.
In a one-paragraph argument, Reynolds suggests that his convictions are due to be reversed because the "prosecutor imposed leading questions throughout the trial." (Reynolds's brief, at 97.) He then refers this Court to 21 places in the record where this "egregious" conduct supposedly occurred.
Reynolds objected to only 3 of the 21 cited instances of the prosecutor's purportedly leading questions. On two of those three instances, the circuit court instructed the prosecutor not to lead the witness. (R. 915, 951.) Defense counsel did not move to strike the answers. On the third instance, the Court did not rule on the defense counsel's objection; thus, there was no adverse ruling from the Court to appeal. (R. 1078.)
As to the remaining 18 allegedly improper questions, as we said in Broadnax, "[b]ecause of the way this issue is presented in his brief to this Court, we seriously question [Reynolds's] sincerity in making this argument." 825 So.2d at 170. His string citation to numerous pages from the record does not meet the requirements of Rule 28(a)(10), Ala.R.App.P. Likewise, Reynolds does not specify which questions were allegedly improper, or how he was prejudiced by the improper questions. We will not create Reynolds's argument for him. Egbuonu v. State, 993 So.2d 35, 38-39 (Ala.Crim.App.2007). Nevertheless, our plain-error review necessarily encompassed the pages referenced by Reynolds,
G.
Reynolds alleges that "the prosecutor implied to the jury that [he] was guilty of capital murder by telling it that the trial would require two phases." (Reynolds's brief, at 97, citing Vol. VI, R. 570-71, Vol. VII, R. 662.)
There is no merit to this contention. In the portion of the record cited by Reynolds, the prosecutor was simply explaining the bifurcated nature of Alabama capital-murder proceedings as codified in § 13A-5-43, Ala.Code 1975. Reynolds did not object to the prosecutor's comments, and we find no plain error. Rule 45A, Ala. R.App.P. The prosecutor's "explanation was relevant to the ... questions regarding the veniremember's beliefs about the death penalty and whether or not they could follow the law as it was explained to them in determining whether to impose the death penalty" and the comments "did not destroy [Reynolds's] presumption of innocence." Lee, 898 So.2d at 834.
XVI.
Reynolds argues that the State improperly introduced victim-impact evidence to the jury during the guilt phase of the trial. (Reynolds's brief, Issue XIV, at 98-101.)
In Ex parte Rieber, 663 So.2d 999 (Ala. 1995), cert. denied, 516 U.S. 995, 116 S.Ct. 531, 133 L.Ed.2d 437 (1995), the Alabama Supreme Court addressed a claim that the prosecution had improperly injected victim-impact evidence during the guilt phase of the trial. In rejecting this claim, the Supreme Court reasoned:
663 So.2d at 1005-06.
Mindful of the above and the previously discussed law applicable to allegedly improper prosecutorial comments discussed in issue XV, we turn to Reynolds's specific allegations.
A.
In a two-sentence argument, Reynolds asserts that the "prosecution falsely indicated to the jury that the victims' families were parties to this case and that the prosecution was representing them against [him]. (Reynolds's brief, at 98.) In support of his argument, he refers this Court to 10 instances in the record where this supposedly occurred.
We have reviewed the portions of the record cited by Reynolds. One statement occurred during opening argument; the remaining comments occurred during the prosecutor's voir dire of the individual jury panels. Reynolds did not object to any of the allegedly improper comments, and we find no plain error. Rule 45A, Ala. R.App.P. In the cited portions of the record, the prosecutor was explaining to the veniremembers the importance of the trial proceedings to Reynolds, the victims' family, and the State. See Henderson v. State, 583 So.2d 276, 287 (Ala.Crim.App.1990), aff'd, Ex parte Henderson, 583 So.2d 305 (Ala.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992)(finding no plain error in the prosecutor's mentioning at the guilt phase "the importance of the case to the victim's family, the suffering of the family, [and] that he represented the family....").
B.
Likewise, we find no plain error in Reynolds's allegation that during voir dire, opening statement, and a question propounded to a State's witness "the prosecutor errantly focused the jury's attention in the guilt phase on how the crime affected the victims' families." (Reynolds's brief, at 99, citing Vol. VI, R. 647; Vol. VII, 830; Vol. IX, R. 901, respectively.)
Reynolds did not object to any of the allegedly improper comments. We have reviewed the comments in the context in
C.
Reynolds argues that the prosecutor's references in voir dire and closing argument regarding how old the victim Savannah Martin would have been at the time of the trial were improper. (Reynolds's brief at 99, citing Vol. VII, R. 732; XI, R. 1619; Vol. XII, R. 1669, respectively.) Reynolds did not object to these alleged references on this basis at trial, and we find no plain error. The fact that Savannah would have been a teenager at the time of trial was an obvious fact to the jury. "We cannot reasonably conclude that the prosecutor's comments in this particular case, when considered in the context of the entire trial, were so prejudicial as to call into question the correctness of the verdict." Ex parte Rieber, 663 So.2d at 1014.
D.
In a one-paragraph argument, Reynolds contends that portions of the prosecutor's closing argument were improper because the argument solicited a guilty verdict based upon sympathy, not the evidence. (Reynolds's brief, at 99, citing Vol. XI, R. 1615, 1616, 1619, 1625.) As he has done with so many other issues, Reynolds merely refers this Court to various portions of the closing argument. He does not even specify which comments were egregious. We have reviewed the comments in the context of the entire closing argument and do not find that the argument was "improperly designed to inflame the passions of the jury." Floyd v. State, ___ So.3d at ___.
E.
Reynolds also argues that the prosecutor improperly introduced autopsy photographs of the victims, a video of the crime scene, and a fitted sheet from the victims' bed that contained dried blood. (Reynolds's brief, at 100-01.) He maintains that the evidence was inadmissible because it was cumulative and be cause it constituted improper victim-impact evidence.
We find no abuse of discretion in the circuit court's admission of the evidence. Contrary to Reynolds's claim, the aforementioned evidence did not constitute victim-impact evidence, as that term is normally interpreted. Further, the evidence was "relevant to depict the nature and extent of the injuries the victims suffered and the crime scene[]" and was "neither unduly prejudicial nor inflammatory." Billups v. State, 86 So.3d 1032 (Ala.Crim. App.2009). See also Stallworth v. State, 868 So.2d 1128, 1151-1152 (Ala.Crim.App. 2001.)
XVII.
Reynolds contends that the circuit court committed several errors in its jury instructions in the guilt phase of the trial.
Vanpelt, 74 So.3d at 92.
With these principles in mind, we turn to Reynolds's specific allegations of error.
A.
Reynolds contends that the circuit court erred to reversal when it charged the jury during the guilt phase of the trial that the jury "`did not have to go through each and every element' for each count because the results would be the same for counts two, three and five." (Reynolds's brief, Issue XII(A), at 87-88.) Reynolds argues that these instructions improperly reduced the State's burden of proof with regard to the elements of the robbery/murder charges.
Contrary to Reynolds's contention, when the instructions are reviewed in the context of the entire charge, it is clear that the circuit court's instructions did not relieve the State of its burden of proving each element of the capital offenses charged in counts II, III, and V of the indictment. Those counts charged Reynolds with the capital offense of murder committed during the course of a robbery. See § 13A-5-40(a)(2), Ala.Code 1975. During the portion of the charge cited by Reynolds, the circuit court was simply explaining that the robbery component of the charge was the same for each count; the difference between the three counts was the victim of the murder. The Court was not instructing the jury that the State did not have to prove the robbery component of the robbery/homicide charged in counts II, III, and V of the indictment.
B.
Reynolds maintains that the circuit court "improperly told the jury that a reasonable doubt that would entitle the defendant to an acquittal is a `doubt to which you can assign a reason." (Reynolds's brief, Issue XII(B), at 88-89.) Reynolds asserts that this instruction improperly permitted a conviction based upon insufficient proof. As we held in Lee v. State, 898 So.2d 790, 842 (Ala.Crim.App. 2001), cert. denied, 898 So.2d 874 (Ala.), cert. denied, 543 U.S. 924, 125 S.Ct. 309, 160 L.Ed.2d 222 (2004):
C.
Reynolds argues that the circuit court's instructions during the guilt phase "unduly emphasized the defendant's interest in the outcome of the case ... and as such improperly invaded the province of
The circuit court appropriately charged the jury, in pertinent part:
(Vol. XII, R. 1793-94.) (Emphasis added.) The circuit court's instructions did not mandate that the jury consider Reynolds's interest in the outcome of the case; thus, the Court's instructions did not invade the province of the jury. Phillips v. State, 606 So.2d 170, 170-71 (Ala.Crim.App.1991).
D.
Reynolds alleges that the circuit court incorrectly failed to charge the jury on the offense of manslaughter as a lesser-included offense. (Reynolds's brief, Issue XII(D), at 89-90.) Reynolds argues that "although the trial court gave the jury an intoxication instruction, it failed to instruct the jury on the corresponding lesser-included offense of manslaughter." (Reynolds's brief, at 89.)
Pilley v. State, 930 So.2d 550, 562 (Ala. Crim.App.2005).
Reynolds's defense was that he was not present during the murders or the robbery and that he only went to the scene of the crimes to attempt to help hide any evidence indicating that his girlfriend may have been involved in the crimes. There was simply no evidence indicating that Reynolds recklessly caused the death of the victims or that he killed the victims while acting in a "sudden heat of passion caused by provocation recognized by law and, before a reasonable time for the passion to cool and for reason to reassert itself." § 13A-6-3(a)(1) and (2), Ala.Code 1975. Thus, we find no plain error in the circuit court's not charging the jury on the offense of manslaughter as a lesser-included offense.
Penalty-Phase Issues
XVIII.
Reynolds contends that the circuit court improperly instructed the jury during the penalty phase of the trial. Because Reynolds did not object to any of the alleged improper instructions, we review his allegations for plain error only. Rule 45A, Ala.R.App.P. Mindful of the applicable law set forth in Vanpelt, 74 So.3d 64 at, in Part XVII, we will now review each of Reynolds's purported instances of error.
A.
Reynolds alleges that the circuit court improperly instructed the jury during the penalty phase that it did not have to determine whether the aggravating circumstances existed because the court had already made that determination. (Reynolds's Brief, Issue XII(A), at p. 88.)
The record indicates that at the beginning of the penalty phase of the trial, the parties agreed that by virtue of the jury's guilty verdicts, the following two aggravating factors had been proven beyond a
The State introduced into evidence at the penalty phase of the trial all the evidence presented during the guilt phase of the trial. The circuit court adopted the jury's five guilty verdicts for purposes of the penalty phase. (Vol. XII, R. 1841-44.)
During its charge, the circuit court instructed the jury that the aggravating circumstance that the murder was committed during a robbery and that two or more persons were murdered by one act or pursuant to one scheme or course of conduct had been proven beyond a reasonable doubt by the jury's guilty verdicts for those offenses during the guilt phase of the trial. Section § 13A-5-45(e), Ala.Code 1975, provides: "[A]ny 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 circuit court's instructions in this regard were a correct statement of law. See Calhoun v. State, 932 So.2d 923, 973-74 (Ala.Crim.App.2005).
As previously noted, for strategic reasons, the defense also stipulated to the existence of the statutory aggravating factor that the offense was especially heinous, atrocious or cruel when compared to other capital offenses. Pursuant to defense counsel's suggestion, the circuit court did not specifically inform the jury that the defense had "stipulated" to the existence of this aggravating circumstance; rather, the Court instructed the jury that by virtue of "the verdict, the testimony and the evidence that in this case an evidentiary and factual basis exists for that aggravating circumstance." (Vol. XIII, R. 1960-61; 1989-91.) The court's instruction was consistent with the parties' agreement. The practice of instructing the jury on a stipulation by the parties as to the existence of an aggravating circumstance has been approved by this Court. See Stewart v. State, 730 So.2d 1203, 1227-29 (Ala. Crim.App.1996).
Accordingly, in light of these facts, we find no plain error. Rule 45A, Ala. R.App.P.
B.
Reynolds contends that the circuit court's use of the words "you" and "your" during its jury charge in the penalty phase of the trial implied to the jury that the jury's findings as to the existence of any mitigating evidence had to be unanimous before the mitigating evidence could be considered. (Reynolds's brief, Issue XII(E), at 90-91.) This Court addressed and rejected an identical argument in Hall v. State, 979 So.2d 125, 165-67 (Ala.Crim. App.2007). Further we have reviewed the Court's entire charge in light of the principles addressed Hall and find "`"nothing in the instructions that would have suggested to the jurors, or given them the
C.
Last, Reynolds argues that the circuit court's charge to the jury in the penalty phase was incorrect because, he asserts, the charge "allowed the jury to believe that it could not consider mercy." (Reynolds's brief, Issue XII(F), at 91.) The Court charged the jury, in relevant part:
(Vol. XIII, R. 2000-01.)
In Brown v. State, 11 So.3d 866, 921 (Ala.Crim.App.2007), aff'd, 11 So.3d 933 (Ala.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2864, 174 L.Ed.2d 582 (2009), the appellant also argued that "the circuit court's instruction allowed the jury to believe that it could not consider mercy in determining its penalty-phase verdict." We held:
11 So.3d at 921. See also, Vanpelt, 74 So.3d at 93.
XIX.
Reynolds argues that the circuit court and the prosecutor improperly diminished the jurors' "sense of responsibility for their sentencing determination" by stating that the jury's verdict in the penalty phase was an advisory verdict. (Reynolds's brief, Issue XVII, at 104.) Reynolds did not object to these allegedly improper comments at trial. Thus, we review his argument for plain error only. Rule 45A, Ala.R.App.P.
Doster v. State, 72 So.3d 50, 104 (Ala.Crim. App.2010). Reynolds is due no relief on this claim.
XX.
Reynolds argues that because of the evidence of his drug use on the day of the murders, the circuit court erroneously refused, without any explanation, to consider and find the following statutory mitigating circumstances: that "[t]he capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance"; and that "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired." See § 13A-5-51(2) and (6), Ala.Code 1975, respectively. (Reynolds's brief, Issue XVI(B), at 102-04).
The circuit court's sentencing order provided, in relevant part:
(Vol. II, C. 324, 331, 338, 345, 352.)
Pursuant to § 13A-5-47(d), the circuit court considered all the mitigating evidence
Furthermore, as we wrote in Beckworth v. State, 946 So.2d 490 (Ala.Crim.App. 2005), cert. denied, 549 U.S. 1120, 127 S.Ct. 936, 166 L.Ed.2d 717 (2007):
946 So.2d at 529.
We find no abuse of discretion in the circuit court's finding that neither of the mitigating circumstances set forth in § 13A-5-51(2) and (6), Ala.Code 1975, existed.
XXI.
Reynolds argues that the circuit court improperly weighed the aggravating circumstances and the mitigating circumstances; therefore, he contends, his sentence of death should be reversed. (Reynolds's brief, Issue XVI(A) at 102.) In support of his assertion, he cites the portion of the circuit court's sentencing order in which the court wrote: "It is the opinion of this Court that the mitigating circumstances heretofore enumerated are insufficient to outweigh the aggravating circumstances." (Vol. II, C. 325, 333, 340, 347, 354.)
Section 13A-5-47(e), Ala.Code 1975, provides, in relevant part:
(Emphasis added.)
In Melson v. State, 775 So.2d 857 (Ala. Crim.App.1999), aff'd, 775 So.2d 904 (Ala. 2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 141 (2001), this Court addressed and rejected a claim that the circuit court committed reversible error when it used similar language in its sentencing order. We wrote:
775 So.2d at 901-02.
We have carefully reviewed the sentencing proceedings, and, based upon the rationale in Melson, we reject Reynolds's claim that the circuit court improperly weighed the aggravating and mitigating circumstances in determining that the appropriate sentence was death.
XXII.
Reynolds also argues that his "death sentence must be vacated in light of Ring v. Arizona [536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).]" (Reynolds's brief, Issue XXI, at 110-12.) In Ring, the United States Supreme Court held that its earlier decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), applied to death-penalty cases; thus, any fact that could increase the maximum penalty to death must be presented to a jury and must be found by the jury to exist beyond a reasonable doubt.
First, Reynolds maintains that his death sentence cannot be imposed because the jury did not make the specific finding that it unanimously found the existence of the aggravating circumstances beyond a reasonable doubt, nor did the jury make finding that the aggravating circumstances outweighed the mitigating circumstances. Second, in a related vein, Reynolds contends that because Alabama law does not require juries to make findings regarding the existence of aggravating and mitigating circumstances, there is no way to verify whether the jury actually unanimously found the existence of an aggravating circumstance beyond a reasonable doubt. Third, Reynolds alleges that his death sentence cannot be imposed because the jury was informed that its sentence was a recommendation. (Reynolds's brief, Issue XXI, at 110-12.)
Initially, we note that two of the three aggravating circumstances — i.e., that the murders were committed during a first-degree robbery, and that two or more people were killed pursuant to a common scheme or plan — were found to exist beyond a reasonable doubt based on the jury's unanimous verdicts in the guilt-phase finding Reynolds guilty of five counts of capital murder. The third aggravating circumstance — that the murders were especially heinous, atrocious, or cruel when compared to other capital offenses — was stipulated to by the parties. Moreover, Reynolds did not object to the imposition of his sentence on these grounds. Accordingly, we review his allegations for plain error only. These same arguments have been addressed and decided adversely to Reynolds. See Doster v. State, 72 So.3d 50 (Ala.Crim.App.2010); Sharifi v. State, 993 So.2d 907, 940-41 (Ala.Crim. App.2008), cert. denied, 555 U.S. 1010, 129 S.Ct. 491, 172 L.Ed.2d 386 (2008); Lewis v. State, 24 So.3d 480, 533-36 (Ala.Crim. App.2006), aff'd, 24 So.3d 540 (Ala.2009),
XXIII.
Reynolds argues that the circuit court "erred in double-counting aggravating circumstances in the penalty phase" of the trial. (Reynolds's brief, Issue XXII, at 112-13.) Specifically, he argues:
(Reynolds's brief, Issue XXII, at 112-13.)
Reynolds did not object the proceeding on this basis at trial, and we find no plain error. Rule 45A, Ala.R.App.P. These same assertions have been previously considered and rejected by this Court. See Morris v. State, 60 So.3d 326 (Ala.Crim. App.2010).
XXIV.
In a one-paragraph argument, Reynolds maintains that "evolving standards of decency have rendered lethal injection unconstitutional" as cruel and unusual punishment. (Reynolds's Brief, Issue XXIII, at 113-14.)
In Vanpelt v. State, 74 So.3d at 89, we wrote:
For the reasons set forth above, Reynolds is due no relief on this allegation.
XXV.
Reynolds contends that the cumulative effect of the errors affected his substantial rights and warrants a new trial. (Reynolds's brief, Issue XIII, at 97-98; Issue XXIV, at 114.)
Sharifi v. State, 993 So.2d 907, 946-47 (Ala.Crim.App.2008). We find that the cumulative effect of the individually nonreversible errors did not affect Reynolds's substantial rights.
XXVI.
As required by § 13A-5-53, Ala.Code 1975, we will now address the propriety of Reynolds's death sentence.
Reynolds was convicted of five counts of capital murder: (1) the murder of two or more persons by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975; (2) the murder of Charles Martin III, during the course of a first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975; (3) the murder of Melinda Martin during the course of a first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975; (4) the murder of Savannah Martin, who was less than 14 years old when she was murdered, see § 13A-5-40(a)(15), Ala.Code 1975; and (5) the murder of Savannah Martin during the course of a first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975. The jury, by a vote of 12-0, recommended that Reynolds be sentenced to death.
Pursuant to § 13A-5-53(a), Ala.Code 1975, we have reviewed the sentencing proceedings, and we find no error adversely affecting Reynolds's substantial rights occurred during the sentencing proceedings. In its sentencing orders, the circuit court found the existence of three aggravating circumstances: (1) that the capital offense was committed while Reynolds was engaged in a robbery in the first degree, see § 13A-5-49(4), Ala.Code 1975; (2) that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offense, see § 13A-5-49(8), Ala. Code 1975;
We note that § 13A-5-47(d), Ala.Code 1975, provides, in pertinent part, that "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."
We have carefully reviewed the circuit court's sentencing order. The court's order does not contain specific written findings concerning the existence or nonexistence of each aggravating circumstance and each mitigating circumstance. Instead, the court's order sets out only the three aggravating circumstances it found to apply to Reynolds's case: the two aggravating circumstances established by the jury's guilt-phase verdicts and the aggravating circumstance stipulated to by the parties. Further, although the circuit court made specific findings regarding the nonexistence of the statutory mitigating circumstances set forth in § 13A-5-51(2),(3),(5), and (6), Ala.Code 1975, the circuit court neglected to address the existence or nonexistence of the statutory mitigating factors set forth in § 13A-5-51(4) and (7),
Although the circuit court's findings with regard to the aggravating circumstances and the mitigating circumstances are technically deficient, remand is not necessary in this case. Indeed, in several cases where the circuit court's sentencing order made specific written findings only as to the aggravating circumstance it found to exist, we held that the court's failure to make specific findings as to the aggravating circumstance enumerated in § 13A-5-49, Ala.Code 1975, it did not find to exist constituted harmless error. See, e.g., Pilley v. State, 930 So.2d 550, 568 (Ala.Crim.App.2005); Gavin v. State, 891 So.2d 907, 995 (Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004); Stewart v. State, 730 So.2d 1203, 1219 (Ala.Crim. App.1996), aff'd, 730 So.2d 1246 (Ala.1999); Fortenberry v. State, 545 So.2d 129 (Ala. Crim.App.1988), aff'd, 545 So.2d 145 (Ala. 1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990).
Nothing in the record indicates that the circuit court refused or failed to consider any aggravating circumstances. Indeed, as noted above, the aggravating circumstances found to apply in this case were the two aggravating circumstances established by the jury's verdicts in the guilt phase of Reynolds's trial and the heinous, atrocious, or cruel aggravating circumstance to which the parties stipulated. Because the circuit court's findings regarding the aggravating circumstances it found to exist in this case are sufficient for this
Likewise, a remand is not warranted based on the technical deficiency with regard to the trial court's lack of specific findings as to the existence or nonexistence of two statutory mitigating circumstances. As we stated in Beckworth v. State, 946 So.2d 490 (Ala.Crim.App.2005), cert. denied, 549 U.S. 1120, 127 S.Ct. 936, 166 L.Ed.2d 717 (2007):
946 So.2d at 534.
Here, the circuit court stated that it had considered all the mitigating evidence presented at the various stages of the proceedings. Furthermore, Reynolds did not assert the existence of the two mitigating circumstances, and the evidence in the record does not support a finding of the existence of either of the two omitted mitigating circumstances. Accordingly, the circuit court's omission of these two mitigating circumstances from its order does not rise to the level of plain error. Rule 45A, Ala.R.App.P.
The circuit court found the following regarding the existence of nonstatutory mitigating circumstances:
(Vol. II, R. 324-25.)
Pursuant to § 13A-5-53(a), this Court has reviewed the record, and we determine that the circuit court's findings regarding the aggravating and mitigating circumstances are supported by the evidence.
Because we find no error adversely affecting Reynolds's rights was made in the sentence proceedings and that the circuit court's findings concerning the aggravating circumstances and the mitigating circumstances are supported by the evidence, we shall now proceed to review the propriety of the decision that death was the proper sentence.
In determining whether death is the appropriate sentence, this Court will specifically address each of the factors enumerated in § 13A-5-53(b), Ala.Code 1975:
The record reflects that Reynolds'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.
After an independent weighing of the aggravating and mitigating circumstances, we agree that death is the proper sentence. See § 13A-5-53(b)(2), Ala.Code 1975.
Considering the crime committed and Reynolds, we find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases. "`"In fact, two-thirds of the death sentences imposed in Alabama involve cases of robbery/murder."'" Stallworth v. State, 868 So.2d 1128, 1188 (Ala.Crim. App.2001); Fortenberry v. State, 545 So.2d at 145 (murder of two or more persons); Minor v. State, 914 So.2d 372, 446 (Ala. Crim.App.2004), cert. denied, 548 U.S. 925, 126 S.Ct. 2977, 165 L.Ed.2d 987 (2006)(murder of a child less than 14 years of age).
Finally, as required by Rule 45A, Ala. R.App., we have thoroughly examined the record for any error that may have adversely affected Reynolds's substantial rights with respect to Reynolds's capital-murder convictions and his sentence of death, whether or not brought to our attention or to the attention of the circuit court. We find no plain error or defect in the proceedings.
Based upon the foregoing, Reynolds's capital-murder convictions and his sentence of death are affirmed.
AFFIRMED.
WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.
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