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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
Jamie Ray Mills
State of Alabama
Appeal from Marion Circuit Court
BASCHAB, PRESIDING JUDGE
The appellant, Jamie Ray Mills, was convicted of three
counts of capital murder for the killings of Floyd Hill
("Floyd") and Vera Hill ("Vera").
Count I charged him with
the robbery-murder of Floyd, see §13A-5-40(a)(2), Ala. Code
1975; Count II charged him with the robbery-murder of Vera,
see §13A-5-40(a)(2), Ala. Code 1975; and Count III charged him
with murder made capital because he killed Floyd and Vera by
one act or pursuant to one scheme or course of conduct, see
§13A-5-40(a)(10), Ala. Code 1975. After a sentencing hearing,
by a vote of 11-1, the jury recommended that he be sentenced
The trial court accepted the jury's recommendation
and sentenced him to death.
The appellant filed a motion for
a new trial, which the trial court summarily denied.
The appellant does not challenge the sufficiency of the
reviewed the evidence, and we find that it is sufficient to
support the appellant's convictions. The following summary of
the relevant facts, as prepared by the trial court, may be
helpful to an understanding of this case:
"During the late afternoon of June 24, 2004, the
defendant, 30 year old Jamie Ray Mills, and his
common-law wife, JoAnn Mills, went to the home of
Floyd and Vera Hill on County Road 54 in Guin,
Marion County, Alabama, for the purpose of robbing
them.... Mrs. Hill, 72 years old, was diabetic and
in poor health and was cared for by her husband of
55 years, Floyd Hill, a spry gentleman 15 years her
At 87 years old, Mr. Hill cared for the
needs of his ailing wife, to include administering
her prescription drugs which he kept in a locked
tackle box on the kitchen table. To ensure that her
prescription drugs were administered properly and
timely, he set his alarm clock to alarm every four
hours. Although the Hills lived alone, their adult
grandchildren who resided in the area frequently
checked on their grandparents. Although both Hills
were retired, they frequently held yard sales, no
doubt more so to keep themselves occupied and
working than to augment their Social Security
income. Mr. Hill was known by the employees of the
local Amoco service station (where defendant Mills
was last employed prior to the murders) to carry
large sums of cash in his pocket, always paying for
his gas in cash.
"Though Mills denied knowing either of the
Hills, there was evidence from which the jury could
have concluded that Mills, out of work at the time,
certainly did know the Hills and preconceived a plot
to rid them of their cash ... and, then brutally
executed them with a machete, tire tool and ballpeen hammer.
A detailed factual account of this
horrendous, gutless and cowardly act follows.
"Shortly after dark on June 24, 2004, following
repeated failed attempts by Angela Jones to check on
her grandparents by phone, Jones went to the
residence of her grandparents, Floyd and Vera Hill.
It appeared as if the Hills were home; however, the
door was locked and knocks on the door resulted in
Angela summoned the Guin Police
Department for a welfare check. Officer Larry Webb
arrived at the residence in approximately three or
four minutes. Upon Webb's arrival, he was informed
by Angela Jones that her family had spoken to the
Hills shortly after 2:00 p.m., at which time they
were fine. Officer Webb and Mrs. Jones then knocked
on the doors and windows with no response from the
Webb called the Hills' home from his cell
phone. It was detected that the phone was ringing
on his cell phone, but there was no noticeable ring
coming from inside the Hills' home.
then shined his flashlight into the house from the
front porch, and Angela noticed that Vera Hill's bed
was empty and made, and her walker was in the living
room. Mr. Hill's alarm was sounding for Mrs. Hill's
medication, but no one stirred in the home.
Jones became fearful that something was terribly
Webb then moved to the pre-fabricated
building on the property (enclosed with x-type
lattice and polyethylene type plastic) where the
Hills had yard sale items stored. Because the door
was padlocked, Webb pulled a small bench to the door
and climbed up on the bench to look over the door.
"Officer Webb saw Floyd Hill lying on his back
at the rear of the building in a pool of blood with
a bloody towel thrown over his face.
walking cane was across his lower legs. Webb then
saw Vera Hill lying on her right side just inside
the door. She was in a pool of blood and her head
and face were bloody. Vera Hill moved her left arm.
"At approximately 8:42 p.m., Webb notified 911
to send an ambulance, and then called for additional
backup (Guin Police Chief Bryan McCraw and District
Attorney Jack Bostick). Webb cut the plastic wall
and tore away the lattice to gain entrance into the
building where he checked Vera Hill's condition.
She was still breathing. Webb moved to Floyd Hill
and found him to be cold to the touch with no pulse
Webb then noticed several long bloody gashes on Mrs.
When asked what happened, Vera Hill
repeatedly stated, 'Let me out of here.'
medical assistance had arrived, Vera Hill was
transported by ambulance to the Winfield hospital.
Floyd Hill was pronounced dead at the scene.
"The scene was secured and a joint investigation
was initiated by the Guin Police Department, the
Marion County District Attorney's Office, and the
Alabama Department of Forensic Science. The crime
scene was processed, photos were taken, blood
samples were collected, and Vera Hill's clothing and
fingernail clippings were obtained.
"During the processing of the victims' home and
belongings, it was discovered that Floyd Hill's
wallet, Vera Hill's purse, and a green padlocked
tackle box containing Vera Hill's medication had
been taken from the residence along with a police
scanner, and the Hills' phone which had been cut
from the phone line.
"... Upon completion of the autopsy of Floyd
Hill, the cause of death was determined to be blunt
and sharp force injury to the head and neck.
"Vera Hill later died on September 12, 2004 at
the home of her daughter, Brenda Barger, while under
the care of Hospice, two and a half months after
having been transferred from the Winfield hospital
to UAB Hospital in Birmingham, Alabama, where she
was treated for brain injuries, a depressed skull
fracture on the back of the head, fractures around
her left eye, fractures to the nasal cavity,
broken/fractured neck, and crushed hands. ... Upon
completion of the autopsy of Vera Hill, the cause of
death in her case was determined to be complications
of blunt head trauma.
"At approximately 11:15 p.m. on June 24, 2004,
Marion County District Attorney Investigators Tommy
Moore and Ken Mays interviewed the Hills' next door
neighbor, Jennifer Yaden, at which time they were
informed that Yaden had noticed a white late model
four-door sedan going by her house several times
earlier that day.
She also observed this same
Investigators Moore and Mays returned to the crime
scene and discussed with Guin Police Chief Bryan
McCraw and Officer Larry Webb the information they
had obtained from Yaden. Both McCraw and Webb
advised the investigators of a local man named Jamie
Mills who drove a white car matching that described
by Yaden. At this point, a patrol unit was sent to
the residence of Jamie and wife, JoAnn Mills, but it
appeared as if no one was home. Investigator Moore
asked Chief McCraw to send a car to the Mills'
residence on a regular basis to see if the Mills
were home for questioning.
"At 9:45 a.m. on June 25, 2004, Guin Police
Department Officers G.B. Blaylock and Stanley Webb
arrived at the Mills' residence to find Jamie and
JoAnn Mills attempting to leave their residence in
a small white 1990 two-door Nissan Infiniti M30.
The officers pulled crossways of the drive, blocking
the Mills' attempted exit.
Officer Blaylock then
asked Jamie Mills to back the car up in the drive so
that Blaylock could talk to him.
After doing so,
Jamie Mills was then transported to the Guin City
Hall for questioning about his whereabouts on June
At this time, Jamie Mills denied any
knowledge of the Hills and stated that he and JoAnn
were in Brilliant on June 24, 2004 looking at houses
prior to going to his father's home ... where he and
JoAnn spent the night.
"Marion County District Attorney Investigator
Ted Smith and District Attorney Jack Bostick arrived
at the Mills' residence to question JoAnn Mills, who
was on probation at the time, regarding her
whereabouts at the time the Hills' attack occurred.
While being questioned by Investigator Ted Smith,
JoAnn Mills gave consent for the search of the
Mills' home, white two-door sedan, and the trunk of
the vehicle. In plain view in the car trunk was a
green tackle box with a cut padlock matching the
description of the tackle box in which Vera Hill's
medication was kept. Also in plain view was a large
blue duffel bag that appeared to be splattered with
At this time, JoAnn Mills was read her
Miranda rights, but she waived her rights and gave
a statement Guin Police Chief Brian McCraw and
Officer Webb were then called to the residence and
a search warrant was obtained.
The search was
conducted by officers from the Marion County Drug
Department. During this time, Jamie Mills was
transported back to his residence where he was later
transported to the Marion County Jail.
"The search of the items contained in the
vehicle's trunk revealed that the green tackle box
contained numerous pill bottles with prescriptions
belonging to Vera Hill. The duffel bag contained an
assortment of items including one large concrete
block, one pair of size 12 tennis shoes with blood
stains on them, one blood-stained pair of work pants
with Jamie Mills' name on the inside tab, one black
t-shirt with blood stains, one pair of size 5½
tennis shoes with blood stains, one telephone with
cut cord attached, one man's wallet containing the
driver's license of James Floyd Hill, one ladies'
purse with papers identifying it as Vera Hill's, one
machete with blood and hair on it, one ball-peen
hammer with blood on it wrapped in paper, and one
lug nut tire tool. The items from inside the trunk
were itemized and photographed before the car,
toolbox, duffel bag and contents were handed over to
forensic science for examination.
"DNA analysis was later performed on the
machete, hammer, tire tool, black t-shirt and black
Test results revealed that the primary
source of blood found on the machete matched that of
Floyd Hill and the secondary source matched that of
Vera Hill. The blood found on the ball-peen hammer
matched that of Vera Hill. The blood found on the
tire tool was a mixture, with Vera Hill being the
major contributor and Floyd Hill being the minor
contributor. The blood on the black t-shirt matched
that of Vera Hill.
The blood on the pants
(containing the tab with Jamie Mill's name) matched
that of Floyd Hill.
"On August 22, 2007 during the trial of
defendant Jamie Mills, JoAnn Mills testified that on
June 23, 2004, she and her husband, Jamie Mills, had
stayed up all night smoking methamphetamine at their
residence. On Thursday, June 24, 2004, they stayed
at their residence until around 5:00 p.m before
going to Webster's Market grocery (7270 U.S. Highway
43 in Guin, Alabama) to buy cigarettes. After the
cigarettes had been purchased, she and Jamie left
Webster's and stopped in Fred's store parking lot to
talk to JoAnn's cousin, Brandy West. After leaving
Fred's parking lot, Jamie told JoAnn that he was
going to talk to a man about some money and for her
to just follow his lead. Upon reaching the Hills'
residence around 5:15 p.m., the Hills allowed the
Mills into their home where Jamie attempted to make
several phone calls from the Hills' phone as JoAnn
sat and talked with the Hills. According to JoAnn,
Mr. Hill obviously knew Jamie and referred to him by
After Jamie had used the phone and both
couples had talked for awhile, Vera Hill wanted to
show JoAnn Mills some of their yard sale items that
were stored in their shed.
Due to the rainy
weather, Floyd Hill unlocked the padlocked building
and opened the door while Vera Hill, Jamie Mills and
JoAnn waited on the porch. Floyd Hill then returned
and gave the women the umbrella so they could go on
to the building.
Floyd Hill went back into the
house to get a light fixture and then returned to
the building. After the Hills had shown the Mills
their sale items, Jamie Mills continued to talk to
Floyd Hill in the shed while the two women proceeded
to walk back to the porch.
"JoAnn Mills then testified that she heard a
loud noise and saw a silhouette through the
building's plastic siding of what appeared to be
Jamie Mills with something raised over his shoulder
'with both hands, as if he was swinging something.'
JoAnn Mills then followed Vera Hill back into the
shed to see what had happened.
Upon entering the
shed, JoAnn saw Floyd Hill lying on the ground and
saw Jamie Mills hit Vera Hill in the back of her
head with a hammer. When Mrs. Hill attempted to get
up he struck her again with the hammer.
"JoAnn further stated that she stood with her
eyes closed in the corner of the building as she
listened to the sound of Jamie Mills repeatedly
striking Floyd and Vera Hill.
She could hear the
sound of Jamie's feet scuffling on the ground as he
went back and forth between the two victims. After
the sounds of Jamie striking the Hills stopped,
JoAnn Mills was then handed a hammer, a tire tool,
and a machete by Jamie Mills and witnessed Jamie
Mills place a white towel over Floyd Hill's head to
silence the gurgling sounds coming from Mr. Hill.
Jamie and JoAnn Mills then exited the shed. Jamie
padlocked the door shut and the two went back into
the Hills' home. Inside the Hills' home, Jamie and
JoAnn went through the house and took a padlocked
tackle box, Vera's purse, the phone, and the police
scanner before leaving the residence and returning
to their residence on County Road 83.
"Upon reaching the Mills' residence, Jamie
brought all the items from the Hills' residence into
the kitchen. JoAnn took a shower. Jamie and JoAnn
then went through the items taken from the Hills'
residence (wallet, purse, medication contained in
the green tackle box) and placed them along with the
hammer, tire tool and machete in a bag. The Mills
recovered about $140 cash from the Hills.
then took a shower and called Benji Howe, a known
drug abuser in the area.
Benji Howe came over to
the Mills' home and purchased some pain pills.
After Benji left the Mills' residence, Jamie and
JoAnn placed the bag containing the items from the
Hills' residence in the shed on their property
before going to Jamie's father's residence in
Hamilton, Alabama, to play dominos and spend the
"The next morning, June 25, 2004, Jamie and
JoAnn Mills returned to their residence to find that
dogs had torn into the bag containing the bloody
items from the Hills' residence. JoAnn retrieved a
large blue duffel bag and the Mills placed into the
bag the machete, hammer, tire tool, telephone,
wallet, purse, the clothes the Mills had worn at the
time of the attacks, and one heavy cement block.
The Mills then placed the duffel bag in the trunk of
their car along with the green tackle box. As the
two were leaving the residence to obviously dispose
of the duffel bag and tackle box, they were stopped
by Guin Police Officers G.B. Blaylock and Stanley
The appellant argues that the trial court should have
officers seized from the trunk of his vehicle pursuant to a
"All evidence obtained by a search that is
conducted in violation of the Constitution of the
United States is inadmissible in a state court. Mapp
v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d
1081 (1961); Loyd v. State, 279 Ala, 447, 186 So. 2d
Constitution of the United States bans all
unreasonable searches. Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
search is unreasonable depends upon the facts and
circumstances of the particular case. Sibron v. New
York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917
unreasonable unless they fall within a recognized
exception. Ex parte Hilley, 484 So. 2d 485 (Ala.
1985). Those exceptions include: objects in plain
view, consensual searches, a search incident to a
lawful arrest, hot pursuit or emergency situations,
probable cause coupled with exigent circumstances,
and a Terry 'stop and frisk' situation. Daniels v.
State, 290 Ala. 316, 276 So. 2d 441 (1973). Where
a search is executed without a warrant, the burden
falls upon the State to show that the search falls
within an exception. Kinard v. State, 335 So. 2d
924 (Ala. 1976)."
Ex parte Tucker, 667 So. 2d 1339, 1343 (Ala. 1995).
to search may be given by a third party who possesses common
authority over the premises or personal effects sought to be
searched. See United States v. Matlock, 415 U.S. 164, 171, 94
S. Ct. 988, 993, 39 L. Ed. 2d 242 (1974); James v. State, 681
So. 2d 269 (Ala. Crim. App. 1996); Smiley v. State, 606 So. 2d
213 (Ala. Crim. App. 1992).
In State v. Hill, 690 So. 2d 1201, 1203-04 (Ala. 1996),
standards of review to be applied when reviewing a trial
court's ruling on a motion to suppress:
"As a preliminary matter, we note that there has
been some debate regarding the applicable standard
of appellate review. In its unpublished memorandum,
the Court of Criminal Appeals showed great deference
to the trial court's decision to suppress the
evidence of the cocaine and marijuana. It stated:
"'[A] trial court's ruling on a motion to
suppress will not be disturbed unless it is
"palpably contrary to the weight of the
evidence." Patterson v. State, 659 So. 2d
1014 (Ala. Cr. App. 1995). The trial court
is in a far better [sic] than this court to
rule on the merits of a motion to suppress.
Sullivan v. State, 23 Ala. App. 464, 127
So. 256 (1930). The trial court's ruling
[on] the motion to suppress was not
"The State contends that the deference of the
Court of Criminal Appeals to the judgment of the
trial court was unwarranted. It claims that an
appellate court should review de novo the trial
court's finding that 'reasonable suspicion' was
lacking, because the facts in the case are not in
dispute. We agree.
"The trial judge made his ruling following a
hearing at which he heard oral testimony only from
Officer Bailey. We stated in Ex parte Agee, 669 So.
2d 102 (Ala. 1995):
"'Where evidence is presented to the trial
court ore tenus in a nonjury case, a
presumption of correctness exists as to the
court's conclusions on issues of fact; its
determination will not be disturbed unless
evidence, manifestly unjust, or against the
great weight of the evidence.
Hull, 658 So. 2d 442 (Ala. 1995). However,
when the trial court improperly applies the
law to the facts, no presumption of
correctness exists as to the court's
judgment. Ex parte
Board of Zoning
Adjustment of the City of Mobile, 636 So.
2d 415 (Ala. 1994).'
"669 So. 2d at 104. 'Where the evidence before the
trial court was undisputed the ore tenus rule is
inapplicable, and the Supreme Court will sit in
judgment on the evidence de novo, indulging no
application of the law to those facts.' Stiles v.
Brown, 380 So. 2d 792, 794 (Ala. 1980) (citations
omitted). The trial judge's ruling in this case was
'reasonable suspicion' as applied to an undisputed
set of facts; the proper interpretation is a
question of law.
"Hill counters with the argument that some facts
are disputed, and he argues that the judge's
assessment of credibility was a key factor in his
decision to suppress. It is true that, absent clear
error, the trial court's credibility choices on
issues of fact at suppression hearings are binding
on this Court.
Powell v. State, 624 So. 2d 220
(Ala. Cr. App. 1993).
However, Hill has not
indicated what facts are in dispute. He presented
no evidence at the hearing, and there was no
evidence that conflicts with or tends to undermine
the testimony given by Bailey. Hill also adopted
the statement of facts as set out in the State's
brief, under Rule 39(k), Ala. R. App. P, adding only
that the car was actually owned by Hill's brother
and that when it appeared that Heard might attempt
to flee Bailey told Heard that he had a police dog
in his vehicle, although Bailey had no such dog.
But these two facts are not relevant to the question
whether the officer had a 'reasonable suspicion' at
the time he stopped the car.
Thus, we review de
novo the trial court's ruling on the issue and the
judgment of the Court of Criminal Appeals. Ex parte
"'In reviewing a trial court's ruling on a motion to
suppress, this Court may consider the evidence
adduced both at the suppression hearing and at the
trial.' Henry v. State, 468 So. 2d 896, 899 (Ala.
Crim. App. 1984), cert. denied, 468 So. 2d 902 (Ala.
Smith v. State, 797 So. 2d 503, 526 (Ala. Crim. App. 2000).
During the investigation on the night of the murders, a
neighbor told law enforcement officers she had seen a white
vehicle parked in the Hills' driveway that afternoon. Officer
Larry Webb of the Guin Police Department testified that
officers tried to generate possible suspects based on that
vehicle description; that he came up with the appellant and
Benjie Howe; that he knew the appellant had either lost or
quit his job in the weeks before the murders; that he knew the
appellant was staying at home through the day; that Howe, who
was a known drug user and drug dealer, had been frequenting
the appellant's home during the weeks before the murders; that
JoAnn's mother and stepfather lived about two houses around
the corner from the victims; that JoAnn had lived at her
mother's house at some point; and that he had seen the
appellant there several times.
On the night of the murders, law enforcement officers
went by the appellant's house several times, but no one was
The next morning, officers received information that
the appellant was at home.
The State presented evidence that
Ted Smith, an investigator and trial coordinator in the
district attorney's office, District Attorney Jack Bostick,
and Chief Bryan McCraw of the Guin Police Department had been
talking, and Smith wanted to talk to the appellant's commonlaw wife, JoAnn Mills, alone; that McCraw asked Assistant
Chief G.B. Blaylock to go to the appellant's house, pick him
up, and bring him in for questioning; that Blaylock and
Stanley Webb went to the appellant's house; that, when they
arrived, the appellant and JoAnn were about to leave in a
white vehicle; that Blaylock pulled into the driveway and
asked the appellant to back up so he could talk to him; that
he asked the appellant if he could come with him, and the
appellant said, "'Okay. Sure'"; and that the appellant got in
his vehicle and rode with him and Webb to city hall.
The State also presented evidence that, after Blaylock
and Webb left with the appellant, Smith and Bostick went to
the appellant's house; that, when they arrived, JoAnn had
gotten out of her vehicle and was going back inside; that
Smith got out and talked to JoAnn; that Smith asked JoAnn to
give him an account of where she and the appellant had been
since noon the previous day, and JoAnn gave him a time line;
that, at that time, JoAnn stated that she had already been in
trouble one time for receiving stolen property and that she
did not want to get into trouble again; that JoAnn invited
Smith to come inside and go through the house with her; that,
at that point, Smith had not asked to search the house; that
JoAnn showed Smith three items in the house; that JoAnn was
not sure if the items were stolen and said that Howe had
brought them there about one week earlier; that, at that
point, JoAnn told Smith they could look at anything they
wanted to in the house; and that they walked through the
Smith testified that they subsequently went outside; that
he asked JoAnn if he could look in the vehicle, and she said
"'[S]ure'"; that JoAnn went to the vehicle and assisted him in
looking through the passenger compartment; that there was a
duffel bag full of clothes in the passenger's compartment; and
that JoAnn went through the clothing, asked if he wanted to
look in the bag, and took the clothes out of the bag.
He also testified that he asked JoAnn if he could look in
the trunk of the vehicle, and she said, "'[Y]ou haven't even
told me what you're looking for yet'"; that he asked her if
there were drugs in the trunk, and she said she did not know
what was in the trunk; that JoAnn asked if she could talk to
the appellant about getting permission to look in the trunk;
that JoAnn said, "'Why don't we call [the appellant] and ask
him?'"; and that he told JoAnn that, because she was the
permission to look in the trunk.
(R. 123, 124, 129.)
testified that he had been talking to JoAnn; that he asked
Bostick to contact Wayne Maddux, who was JoAnn's probation
officer; that he had previously been a probation and parole
officer and knew that probation officers have more authority
to search than regular law enforcement officers; that JoAnn's
probation was conditioned on allowing a search; and that the
requirements for a probation officer to search were not as
stringent as for a regular law enforcement officer.
further testified that, at that point in time, he did not have
probable cause to believe that there was any evidence in the
trunk linking the appellant and JoAnn to the Hill case, but he
did have a reasonable suspicion that there might be contraband
in the trunk; that that was why he asked Maddux to come to the
scene; that Maddux was actually contacted; that, before Maddux
arrived, JoAnn said, "'Go ahead and look'"; that there were
not any threats or promises made to JoAnn before that; that
JoAnn was not told that she better consent to the search or
that her probation would be revoked if she did not consent to
the search; and that JoAnn decided to consent on her own.
Finally, he testified that JoAnn never refused to
give him permission to look in the trunk.
Wayne Maddux testified that he was a probation and parole
officer for the appellant and JoAnn; that both were actively
on probation on June 24-25, 2004; that, on June 25, 2004,
Bostick contacted him and told him they needed to search a
vehicle that belonged to the appellant and JoAnn because it
might contain drugs or stolen merchandise that was involved in
a murder; that one condition of the appellant's and JoAnn's
probation was that they agree to searches of their persons,
property, and vehicles by the probation office; and that the
submit to those
He also testified that, by the time he arrived,
JoAnn had already given consent to look in the trunk and that
the trunk was open when he got there.
Initially, the appellant contends that the search was not
requirement. Citing Georgia v. Randolph, 547 U.S. 103, 126 S.
Ct. 1515, 164 L. Ed. 2d 208 (2006), he asserts that JoAnn's
consent was not valid to authorize a search of the trunk
because law enforcement officers purposely removed him from
his house to prevent him from objecting to the search.
In Randolph, law enforcement officers responded to a call
at the home of Randolph and his wife.
Randolph's wife told
officers that Randolph had taken their son after a domestic
dispute; that he used cocaine, and his cocaine habit had
caused financial troubles; that she and Randolph had had
marital problems; and that she and their son had recently
returned home after staying with her parents for several
Subsequently, Randolph returned home and explained
that he had taken the child to a neighbor's house because he
was concerned that his wife might take the child out of the
He also denied that he used cocaine and said
that his wife abused drugs and alcohol.
After an officer and
Randolph's wife went and got the child, Randolph's wife told
the officer that there were "'"items of drug evidence"'" in
Randolph, 547 U.S. at 107, 126 S. Ct. at 1519.
The officer asked Randolph for permission to search the house,
and Randolph refused.
The officer then obtained Randolph's
wife's consent to search the house.
Randolph argued that his wife's consent to the search of
his house was not valid because he had expressly refused to
consent to the search.
In addressing this issue, the United
States Supreme Court stated:
"[I]f a potential defendant with self-interest in
objecting is in fact at the door and objects, the
co-tenant's permission does not suffice for a
reasonable search, whereas the potential objector,
nearby but not invited to take part in the threshold
colloquy, loses out.
"This is the line we draw, and we think the
formalism is justified.
So long as there is no
potentially objecting tenant from the entrance for
the sake of avoiding a possible objection, there is
complementary rules, one recognizing the co-tenant's
permission when there is no fellow occupant on hand,
the other according dispositive weight to the fellow
occupant's contrary indication when he expresses it.
For the very reason that [Illinois v.] Rodriguez[,
497 U.S. 177, 110 S. Ct. 2793, 111 L. Ed. 2d 148
(1990),] held it would be unjustifiably impractical
to require the police to take affirmative steps to
confirm the actual authority of a consenting
individual whose authority was apparent, we think it
would needlessly limit the capacity of the police to
respond to ostensibly legitimate opportunities in
the field if we were to hold that reasonableness
required the police to take affirmative steps to
find a potentially objecting co-tenant before acting
on the permission they had already received. There
is no ready reason to believe that efforts to invite
a refusal would make a difference in many cases,
whereas every co-tenant consent case would turn into
a test about the adequacy of the police's efforts to
consult with a potential objector. Better to accept
the formalism of distinguishing [United States v.]
Matlock[, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d
242 (1974),] from this case than to impose a
requirement, time-consuming in the field and in the
courtroom, with no apparent systemic justification.
The pragmatic decision to accept the simplicity of
this line is, moreover, supported by the substantial
number of instances in which suspects who are asked
for permission to search actually consent, albeit
imprudently, a fact that undercuts any argument that
the police should try to locate a suspected
inhabitant because his denial of consent would be a
Randolph, 547 U.S. at 121-22, 126 S. Ct. at 1527-28 (emphasis
added; footnote omitted).
appellant asserts that, if law enforcement officers remove an
individual from the residence for the purposes of preventing
him from objecting to the search, the individual's co-tenant's
consent to search would not be valid.
However, the language
in Randolph regarding law enforcement officers removing a
potentially objecting tenant for the sake of avoiding a
possible objection is mere dicta.
Therefore, the language
about the removal of a potentially objecting tenant is not
controlling precedent in this case.
Moreover, even if the language in Randolph applied in
this case, the appellant is not entitled to relief as to this
Smith testified that he had known JoAnn for several
years; that he believed he had a rapport with JoAnn and might
be able to talk to her; that he knew the appellant, but not as
well as he knew JoAnn; that he asked officers with the Guin
Police Department to pick up the appellant so he could talk to
JoAnn without the appellant being present; and that he and
Bostick went to the appellant's house. He also testified that
he did not go to the appellant's house specifically to search;
that he went to the appellant's house to gain information; and
that he instigated the search only after he gained information
from JoAnn. Further, the defense did not present any evidence
that law enforcement officers removed the appellant from his
house to prevent him from objecting to a search of the
Based on this evidence, the trial court could have
reasonably concluded that law enforcement officers did not
remove the appellant from the house for the sole purpose of
preventing him from objecting to the search of the vehicle.
Accordingly, it properly denied the appellant's motion to
suppress on this ground.
The appellant also appears to contend that JoAnn did not
voluntarily consent to the search of the trunk of the vehicle.
Specifically, he asserts that, when officers asked about
searching the trunk of the vehicle, JoAnn said she would have
to check with him first; that the officers told her it was not
possible to talk to him; that the officers then threatened to
contact her probation officer; and that, at that time, she
consented to the search of the trunk.
"One of the exceptions to the rule that a
warrantless search is per se unreasonable is a
search conducted with the consent of the owner.
Rokitski v. State, 715 So. 2d 859 (Ala. Crim. App.
1997); Chevere v. State, 607 So. 2d 361 (Ala. Crim.
App. 1992). The burden lies with the State to show
that the search falls within an exception to the
warrant requirement. Rokitski v. State, 715 So. 2d
at 861. Whether the defendant's consent to search
was voluntary is a question of fact for the trial
court to determine, based upon the totality of the
See also Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed.
2d 854 (1973).
However, '[n]o particular factor
should be given undue weight in determining the
issue of voluntariness.' Rokitski v. State, 715 So.
2d at 861."
Foldi v. State, 861 So. 2d 414, 422 (Ala. Crim. App. 2002).
The State presented evidence that, on June 25, 2004,
JoAnn was on probation.
Smith testified that, after he asked
her about searching the trunk, JoAnn asked about telephoning
the appellant; that he told her that that would not be
possible and that she had the authority to consent to the
search because she was the appellant's wife; that, at some
point, he asked Bostick to contact Maddux because a probation
officer has greater authority to search; that he did not
threaten JoAnn or make any promises to her; that JoAnn was not
told that her probation would be revoked if she did not
consent to the search; and that JoAnn decided to consent on
her own. The State also presented evidence that Maddux was on
his way to the appellant's house when JoAnn consented to the
search and that one condition of JoAnn's probation was that
she agreed to searches of her person, property, and vehicles.
At trial, JoAnn testified that, after the appellant left
with law enforcement officers on the morning of June 25, 2004,
she got out of their vehicle and was going into the house when
Bostick and Smith arrived; that Smith came and talked to her;
that Smith asked her to account for where she had been the day
before; that she told him she and the appellant had been
looking at houses; that she asked Smith if he would like to
come in; that she showed him around the house; that they went
back outside; that Smith asked about looking in the vehicle,
and she showed him a bag of clothes from where they spent the
previous night at the appellant's father's house; that, at
some point, Smith asked to look in the trunk of the vehicle;
that she asked him if he would contact the appellant at city
hall; that Smith asked her if she had anything to hide; and
that she said she did not, that it was the appellant's
vehicle, and that she would rather him ask the appellant. She
also testified that she was on probation on June 25, 2004;
that, at some point, her probation officer was contacted and
was on his way to the house; that, at that time, she gave
threatened or coerced; that she was not promised anything in
exchange for consenting, but she was told that, if there were
drugs in the vehicle, she would get a "free pass" on the
drugs; and that, at that point, she said, "[G]o ahead."
Based on this testimony, the trial court could have
reasonably concluded that JoAnn voluntarily consented to the
search of the trunk of the vehicle and that law enforcement
officers did not coerce her.
Therefore, the trial court
properly denied the appellant's motion to suppress on this
Department of Forensic Sciences ("DFS") to testify about the
causes of the victims' deaths and also erroneously allowed the
Specifically, he contends that the trial court should have
excluded Snell's testimony and the autopsy report because they
were both based on the notes and findings of Dr. Johnny Glenn,
who allegedly "was so mentally incapacitated at the time of
the autopsies that he was unable to do much of his work and
was forced to retire shortly thereafter because of advanced
(Appellant's brief at p. 11.)
Glenn performed the autopsy on Floyd on June 25, 2004,
and performed the autopsy on Vera on September 14, 2004.
Sometime after he had performed the autopsies, Glenn left DFS
Subsequently, James Lauridson prepared autopsy reports.
trial, Snell testified regarding the causes of the victims'
Initially, we note that the autopsy reports were not
admitted into evidence during the appellant's trial.
the defense admitted the reports as exhibits only for the
hearing on the admissibility of Snell's testimony. Therefore,
the appellant's argument regarding the autopsy reports is
With regard to Snell's testimony, during an off-therecord discussion, the defense stated that it expected the
State to call a witness to testify as to the causes of death
based on Glenn's autopsy notes and based on the autopsy
photographs; that Glenn was apparently incompetent at the time
of the autopsies; and that it would object to the State
witness drawing conclusions based on the notes of someone who
was incompetent at the time he took the notes.
examination out of the presence of the jury to determine what
information the witness intended to use to form his opinion.
After the State qualified Snell as an expert, the defense
conducted a voir dire examination of Snell.
appellant did not argue that the trial court should exclude
Also, the appellant did not object when
Snell testified before the jury as to the causes of death.
Therefore, we question whether he properly preserved this
argument for our review.
"[i]t is well settled that any challenge to the
facts upon which an expert bases his opinion goes to
the weight, rather than the admissibility, of the
evidence. Dyer v. Traeger, 357 So. 2d 328, 330 (Ala.
Baker v. Edgar, 472 So. 2d 968, 970 (Ala. 1985).
discussion about Snell's testimony, the district attorney
informed the trial court that Glenn was no longer with DFS
because he had developed Alzheimer's disease; that he did not
think that Alzheimer's disease was an issue during Floyd's
autopsy; and that Alzheimer's disease was possibly manifesting
itself during Vera's autopsy.
Defense counsel asserted that
he had read in the newspaper that Glenn had resigned in early
Fall 2004 and that Glenn's work was left in disarray.
Mathis Dyer testified that he had worked with DFS as a
death investigator; that he was present during the autopsies
photographs, but sometimes the medical examiner took some as
well; and that he was present when the photographs from
Floyd's and Vera's autopsies were made.
Gerald Howard testified that he was a forensic pathology
technician at DFS; that he assisted the pathologist in all
evisceration, the clean up, and maintaining the facilities
used to do the autopsy.
He also testified that he was present
during the autopsies of Floyd and Vera; that he was involved
evidence that was collected during the autopsies; that Glenn
supervised, dictated, and took notes; that, if there was
something Glenn needed to look at closer, he would come in,
look, and make sure it was noted and photographed; and that
Glenn made sure they noted anything significant that happened
during the autopsy.
Snell testified that, in determining the cause of Floyd's
death, he relied on the autopsy report prepared by Lauridson
and the autopsy photographs.
In determining the cause of
Vera's death, he relied on her discharge summary from the
University of Alabama Birmingham Hospital, which discussed her
course of treatment while she was in the hospital; an autopsy
report that had been prepared by Lauridson and that was based
on Glenn's notes; the autopsy photographs; and a diagram Glenn
generated at the time of the autopsy.
With regard to the
autopsy reports, Snell testified that he relied strictly on
the factual portions of the reports to form his opinions; that
he did not initially read the opinion portions of the reports;
that he made his determination as to the causes and manner of
the victims' deaths; and that he then compared his findings
with Lauridson's findings in the autopsy reports.
testified that he reviewed a cause of death letter Glenn had
written to the coroner regarding Floyd; that he did not
actually rely on the letter to formulate his opinion as to the
cause of death; that he simply reviewed the letter; and that,
in his opinion, it was accurate.
Finally, he testified that
his opinion as to the causes of the victims' deaths was in
agreement with the opinions of Lauridson and Glenn; that the
factual portions of the autopsy report comported with Glenn's
diagram of Vera; that the autopsy photographs and the autopsy
reports were in agreement; and that, if he had had any
disagreements with the opinions of Glenn and Lauridson, he
would have had difficulty saying that he believed the reports
to be true.
The State presented evidence that Dyer and Howard were
present during the autopsy, that Howard assisted in all
portions of the autopsy, and that the autopsy diagram and
autopsy reports were consistent with the photographs.
irregularities in the autopsies or that the photographs from
the autopsies were inaccurate.
Therefore, Snell properly
based his opinions on the photographs and autopsy reports.
Furthermore, even if Glenn was incompetent at the time of
either autopsy, any challenge to the facts that formed the
basis for Snell's opinion went to the weight the jury assigned
to his testimony.
Therefore, there was not any error, much
less plain error, in the admission of Snell's testimony
regarding the causes of death.
See Rule 45A, Ala. R. App. P.
The appellant further argues that the trial court erred
when it did not allow him to elicit testimony regarding
JoAnn's mental illness.
Specifically, he contends that the
jury would have been able to use that evidence to weigh her
"The credibility of a witness may be attacked by
showing mental incapacity, but only if the
incapacity exists at the time the witness testifies,
or existed at the time of his observation of the
incident about which he testifies.
State, 398 So. 2d 369 (Ala. Crim. App. 1981), cert.
denied, 398 So. 2d 376 (Ala. 1981)."
Ex parte Tucker, 474 So. 2d 134, 136 (Ala. 1985).
During the defense's cross-examination of JoAnn, the
"[DEFENSE COUNSEL:] Do you remember going down
to Taylor Hardin Secure Medical Facility?
"[PROSECUTOR]: Judge, I'm going to
examination without the expert -"THE COURT:
gentlemen, we're going to go ahead and take
a lunch break.
"(The jury exited the courtroom,
at which time the following took
"THE COURT: ...
Do y'all have something you
want to put on the record, something about -- you
made an objection about Taylor Hardin?
Her Taylor Hardin
report, of course, obviously, you know, the front
page of that report is that it is confidential, and
that is to go in her case file. It's for the Court,
her attorney and myself, and I didn't think it was
appropriate to go into in Jamie Mills' trial.
"THE COURT: I haven't seen it. It's not in
this file. I presume it's in her file.
"THE COURT: I've not seen it. What areas were
you going to cross-examine her on with regard to
"[DEFENSE COUNSEL]: I was just going to -- that
she's been evaluated, that somebody thought it was
significant enough or her mental state was in such
a condition that she needed to be evaluated to see
if she was competent.
What does the report say?
say that. It's just -"THE COURT:
No, they don't either.
"[DEFENSE COUNSEL]: Well, competent to stand
trial and, you know, competent to assist in her own
attorney it is
be an issue in
Your Honor, as her
my general practice to always have a
client evaluated to see if that could
And that was your request then?
That was subject to your request?
"[COUNSEL FOR JOANN]:
Yes, Your Honor.
And did the report say she was
competent to stand trial?
"[COUNSEL FOR JOANN]:
Yes, Your Honor, it did.
"THE COURT: All right. Then we're not going
into it unless you can show me some specific reason
why you want to go into it other than just so that
it will show somebody at Taylor Hardin questioned
her, and I think they've already heard that.
Yeah, I think --
"THE COURT: Let's don't revisit it unless you
revisit with me and tell me where you're going.
In this case, the appellant did not attempt to offer any
evidence that JoAnn was actually mentally incapacitated or
mentally ill at the time of the murders or at the time of
Rather, he simply wanted to introduce the fact that
she had been evaluated at Taylor Hardin.
Because there was
incapacitated or suffering from a mental illness, the trial
court properly sustained the State's objection.
Finally, the appellant argues that the State did not
disclose the fact that it had a plea agreement with JoAnn.
"In Giglio v. United States, 405 U.S. 150, 92 S.
Ct. 763, 31 L. Ed. 2d 104 (1972), the Supreme Court
held that a jury was entitled to know of deals or
consideration given in exchange for testimony. The
Court held that jury knowledge of a deal between the
State and a witness is relevant to an issue of the
witnesses's credibility. Id."
Ex parte Bankhead, 585 So. 2d 112, 121 (Ala. 1991), rev'd on
other grounds, 625 So. 2d 1146 (Ala. 1993).
In this case, JoAnn testified that she had not made any
deals in exchange for her testimony.
Also, the appellant
thoroughly cross-examined her regarding whether she had made
prosecutor stated that the State had not made any promises to
JoAnn; that the State had not suggested that a promise might
be made after she testified truthfully; and that there was not
any inducement whatsoever for JoAnn's testimony.
In an unverified motion for a new trial, defense counsel
"The co-defendant Jo Ann Mills whose self serving
testimony constituted the sole direct evidence
against the defendant perjured herself by declaring
that her testimony was given neither in an attempt
to procure leniency for herself, nor pursuant to an
expressed or implied plea bargain agreement or
arrangement, nor as a result of an expresses or
implied offer of leniency.
Charged with three
counts of capital murder she in fact pleaded guilty
to murder and was sentenced to life in prison thirty
days after the verdict in this case."
The motion for a new trial did not include any
evidence to indicate that JoAnn had in fact made a deal with
the State at the time of trial.
Rather, the motion was based
on counsel's bare assertions that JoAnn had committed perjury
and that she had subsequently pled guilty to a lesser included
"There is no error in a trial court's denial of
a motion for new trial where no evidence is offered
in support of that motion. Tucker v. State, 454 So.
2d 541, 547-48 (Ala. Cr. App. 1983), reversed on
other grounds, 454 So. 2d 552 (Ala. 1984); McKinnis
v. State, 392 So. 2d 1266, 1269 (Ala. Cr. App.
1980), cert. denied, 392 So. 2d 1270 (Ala. 1981).
The motion itself was unverified and was not
Consequently, the assertions of counsel contained
therein 'are bare allegations and cannot be
considered as evidence or proof of the facts
alleged.' Thompson v. State, 444 So. 2d 899, 902
(Ala. Cr. App. 1984) (quoting Daniels v. State, 416
So. 2d 760, 762 (Ala. Cr. App. 1982));
State, 364 So. 2d 1, 14 (Ala. Cr. App. 1978).
Similarly, statements made by counsel during a
hearing on a motion for new trial cannot be
considered evidence in support of the motion. Vance
v. City of Hoover, 565 So. 2d 1251, 1254 (Ala. Cr.
Arnold v. State, 601 So. 2d 145, 154-55 (Ala. Crim. App.
See also Blount v. State, 557 So. 2d 1333 (Ala. Crim.
Because the appellant did not present any evidence that
the State actually had an agreement with JoAnn at the time of
trial, the trial court properly denied his motion for a new
trial on this ground.
The State argues that we should remand this case for the
trial court to correct its sentencing order regarding the
existence or nonexistence of aggravating circumstances.
improperly found the existence of the aggravating circumstance
that the appellant had previously been convicted of another
capital offense or felony involving the use or threat of
violence to the person pursuant to §13A-5-49(2), Ala. Code
Section 13A-5-49(2), Ala. Code 1975, provides that the
following is an aggravating circumstance:
"The defendant was previously convicted of another
capital offense or a felony involving the use or
threat of violence to the person."
In its sentencing order, the circuit court
found as follows:
"The jury found the defendant guilty beyond a
reasonable doubt of murder, pursuant to one scheme
or course of conduct, of two persons as alleged in
Count Three of the Indictment. Although the proof
of this double murder does not neatly fit within the
contemporaneous capital murders should be each
aggravating circumstance as to the other. Each, in
essence, is a conviction of another capital offense,
a felony invoking the use of violence in committing
the murder of the other victim.
Unlike the Habitual Felony Offender Act, the aggravating
circumstance set forth in §13A-5-49(2), Ala. Code 1975, does
not require that the other offense occur before the capital
offense for which the defendant is currently being prosecuted.
See §13A-5-39(6), Ala. R. Crim. P.; Ex parte Coulter, 438 So.
2d 352 (Ala. 1983); Riley v. State, 892 So. 2d 471 (Ala. Crim.
However, strictly construing the language of
§13A-5-49(2), Ala. Code 1975, it is reasonable to conclude
circumstance to apply only to an offense that is separate from
the one for which the defendant is currently being prosecuted.
Because the offenses in this case were part of one course of
conduct and were being prosecuted at the same time, we agree
that the trial court erroneously found the existence of this
The State also contends that the trial court erred when
it did not find the existence of the aggravating circumstance
set forth in §13A-5-49(9), Ala. Code 1975.
appellant committed the murders by one act or pursuant to one
scheme or course of conduct.
By virtue of that verdict, the
jury found the existence of the aggravating circumstance set
forth in §13A-5-49(2), Ala. Code 1975.
penalty phase instructions,
In fact, during its
the trial court specifically
instructed the jury that, by virtue of its verdict finding the
appellant guilty of committing the murders by one act or
pursuant to one scheme or course of conduct, this aggravating
circumstance was automatic. Therefore, the trial court should
have found the existence of the aggravating circumstance set
forth in §13A-5-49(2), Ala. Code 1975.
Finally, the State argues that a remand is necessary
because the trial court did not make specific written findings
concerning the existence or nonexistence of the aggravating
circumstance set forth in §13A-5-49(10), Ala. Code 1975.
"Based upon the evidence presented at trial, the
evidence presented during the sentence hearing, and
the pre-sentence investigation report and any
evidence submitted in connection with it, the trial
concerning the existence or nonexistence of each
aggravating circumstance enumerated in Section 13A5-49, each mitigating circumstance enumerated in
Section 13A-5-51, and any additional mitigating
circumstances offered pursuant to Section 13A-5-52.
The trial court shall also enter written findings of
facts summarizing the crime and the defendant's
participation in it."
§13A-5-47(d), Ala. Code 1975. Because the trial court did not
make findings concerning the existence or nonexistence of the
aggravating circumstance set forth in §13A-5-49(10), Ala. Code
1975, we agree.
For these reasons, we remand this case with instructions
that the trial court amend its sentencing order to comply with
the requirements of §13A-5-47(d), Ala. Code 1975, and to
correct the above-referenced errors.
If necessary, the trial
mitigating circumstances and resentence the appellant.
remand, the trial court shall take all necessary action to see
that the circuit clerk makes due return to this court at the
earliest possible time and within 42 days after the release of
REMANDED WITH INSTRUCTIONS.
McMillan and Welch, JJ., concur; Shaw, J., concurs in the