Evan Miller v. State of Alabama
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REL 06/25/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may be made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-06-0741 Evan Miller v. S t a t e o f Alabama Appeal WINDOM, appeals h i s c o n v i c t i o n o f m u r d e r made i t was c o m m i t t e d d u r i n g t h e c o u r s e 13A-5-40(a)(9), life Court Judge. Evan M i l l e r because f r o m Lawrence C i r c u i t (CC-06-68) o f an a r s o n , A l a . Code 1 9 7 5 , a n d h i s r e s u l t i n g i n prison without the p o s s i b i l i t y capital see § sentence of parole. of For the CR-06-0741 reasons and that follow, Court affirms Miller's conviction sentence. The 2003, evidence presented at t r i a l then 14-year-old codefendant, neighbor, that he Cole on Miller Cannon. not get fire. firefighters, Colby who Smith off were testified something he was later he that to t h e y had trailer. he could and S m i t h was eat. point Cannon's acquainted known e a c h with other crime. (R. spending the h i s f o o d and a s k i n g i f t h e y Cannon (R. appeared to have on h i s b r e a t h a n d 710, 980.) by fire. m i d n i g h t , C a n n o n came smelled alcohol "staggering." the discovered months b e f o r e the Around July Miller's set the became in 16-year-old Miller to e x t i n g u i s h or f i v e c o m p l a i n i n g t h a t he h a d b u r n e d that his savagely beat floor, that that t h e e v e n i n g o f J u l y 1 5 , 2 0 0 3 , S m i t h was at M i l l e r ' s drinking, and body called and b e a t i n g Cannon the d u r i n g h i g h s c h o o l and On night After 1 established Miller robbed Cannon's approximately four 979.) Evan Colby Smith, could trailer for this While over had been noticed Miller's M i l l e r ' s c a s e was t r a n s f e r r e d f r o m t h e J u v e n i l e C o u r t of Lawrence County to the Lawrence Circuit Court for p r o s e c u t i o n as an a d u l t . S e e E x p a r t e E . J . M . , 928 S o . 2d 1 0 8 1 , 1082 ( A l a . 2005). 1 2 CR-06-0741 mother Smith they was p r e p a r i n g some went were over spaghetti t o Cannon's unable to find trailer any. stole some o f Cannon's Smith then returned to Miller's Miller to and S m i t h Smith smoked until he passed unconscious, M i l l e r the a little Miller to put attempting drinking h i t Cannon and began on t h e h e a d . hitting with dropped, Miller with While Cannon and Cannon o v e r $300 w i t h S m i t h . the wallet Miller was then While back i n Cannon's around the throat. grabbed him i n the face with Cannon's p l e a s t o s t o p , M i l l e r had intending games couch. who w i t n e s s e d t h e a l t e r c a t i o n , and and h i s money. p o c k e t , Cannon j u m p e d up a n d g r a b b e d M i l l e r Smith, and Miller cards. found s t o l e Cannon's w a l l e t and t o o k i t i n t o t h e b a t h r o o m w h e r e he s p l i t was but he r e t u r n e d t o h i s t r a i l e r . and t o s t e a l on f o r drugs, t o Cannon's t r a i l e r and p l a y e d out and trailer. t h e n went b a c k a joint Miller two, however, trading eating, g e t Cannon i n t o x i c a t e d to look The baseball When C a n n o n f i n i s h e d f o r Cannon, a baseball bat c l i m b e d onto his fists. Cannon Despite p i c k e d up t h e b a t , w h i c h and c o n t i n u e d t o a t t a c k i t repeatedly. 3 Cannon by s t r i k i n g Smith him CR-06-0741 Afterwards, told Miller h i m , " I am G o d , After Miller Smith to M i l l e r ' s Miller and S m i t h time with trailer. several fires a lighter to start while Miller set another up t h e e v i d e n c e . " Cannon " [ j ] u s t placed a bleeding. and fire trailer i n the back couch As t h e y w e r e l e a v i n g , As they were "Why and and S m i t h Smith bedroom, "to cover Smith Approximately 10 i n an attempt trailer alone. coming out and He the water would leaving minutes could [Miller to the M i l l e r ' s saw F e e l i n g s o r r y f o r Cannon, S m i t h that are y ' a l l and later, Initially, on a d i f f e r e n t h i s head i t up, h o p i n g Cannon a s k i n g , returned crime. on a c o u c h (R. 990.) under minutes to stop S m i t h a l s o t u r n e d on t h e f a u c e t i n t h e k i t c h e n stopped fires. a fire laying there." towel the bat, M i l l e r few and (R. 986.) Afterwards, Miller t o c o v e r up t h e i r used A life." r e t u r n e d t o Cannon's a t t e m p t e d t o c l e a n up t h e b l o o d . set over Cannon's head I ' v e come t o t a k e y o u r h i t Cannon a f i n a l returned however, placed a sheet Cannon's doing this later, hear Smith Cannon was] coming trailer. 4 (R. the sink e x t i n g u i s h the trailer, Smith t o me?" (R. 9 9 0 - 9 1 . ) returned to coughing behind 992.) heard Cannon's b u t "smoke [him,]" so was he CR-06-0741 Firefighters, extinguish coffee who the f i r e table firefighters were and b l o o d spatters to the discovery conducted north The to the a t Cannon's t r a i l e r , l e a d i n g t o the back bedroom. who called the i n i t i a l on trailer park noticed blood the w a l l . This l e d the Sandlin of the i n v e s t i g a t i o n , concentrated later turned Sheriff's over Department 796, 798-802.) After talking on t h e occurred. to Investigator after Fire M o n t g o m e r y i n d i c a t e d t h a t t h e f i r e was " o b v i o u s l y (R. hallway Montgomery, b e d r o o m w h e r e m o s t o f t h e damage f r o m t h e f i r e i n v e s t i g a t i o n was on t h e of Cannon's body i n t h e F i r e Marshal Richard with suspicious." family members, I n v e s t i g a t o r S a n d l i n became aware t h a t c e r t a i n from the t r a i l e r . from underneath license baseball was Susan the couch missing. this trailer gave wallet Investigator discovery, were eventually items, missing recovered but h i s d r i v e r ' s Sandlin also removed a the couch. Investigator to speak w i t h Investigator was in his trailer, bat from underneath After Miller's Cannon's Tim Marshal Cannon's i n c l u d i n g C a n n o n ' s w a l l e t a n d some t r a d i n g c a r d s , to Miller Sandlin 5 Sandlin went to and h i s mother, S u s a n . a box of t r a d i n g cards, and CR-06-0741 Miller and h i s mother agreed office to give At basic to r i d e with him t o the s h e r i f f ' s statements. the s h e r i f f ' s information j u v e n i l e Miranda office, Investigator from M i l l e r b e f o r e M i l l e r began r e c o u n t i n g initially July going fire that o f J u l y 16. Investigator over Cannon not learn about department Investigator morning's came t o Cannon's Sandlin events over the f i r e asked that on Miller also he until However, and work backwards to the previous Sandlin officers then requested that everyone l e a v e t h e room. left the room, After Miller's Miller 6 he the when gave except evening, Investigator S a n d l i n " t o f o r g e t a l lt h a t , t h a t t h a t wasn't t r u e . " Miller he t o b e g i n by d e s c r i b i n g t h e M i l l e r became " f r u s t r a t e d a n d a g i t a t e d " and t o l d 07.) of denied claimed that trailer morning. Miller Although trailer, a t Cannon's Miller of J u l y the evening a movie. to their the next signed In h i s statement, watching trailer. arrived Sandlin and h i s mother b o t h the events of the night 1 5 , he was a t h i s t r a i l e r admitted did told obtained and r e a d him h i s r i g h t s from t h e form, which M i l l e r 15 a n d t h e e a r l y m o r n i n g Sandlin (R. 7 0 6 ¬ Investigator mother and j u v e n i l e Investigator Sandlin CR-06-0741 another and statement, which Sandlin t y p e d up f o r M i l l e r sign. In h i s second evening of J u l y statement, Miller 15, h i s f a m i l y explained that, was g e t t i n g ready b e d w h e n C a n n o n came o v e r t o u s e t h e t e l e p h o n e . was a t h i s t r a i l e r , Miller money." trailer (R. 7 1 0 . ) around Cannon's a.m., Miller beer. so eventually Miller the when he arm. had Cannon back where t h e y were to the worth Millers' to eat, Miller Around 2:00 went o r 3:00 to drink trouble standing and h i s n o s e a n d l i p on t h e t a b l e . tried to assist Cannon, Cannon pushed Cannon a b a t and h i t M i l l e r on t h e Miller said Smith t h e b a t f r o m C a n n o n a n d h i t C a n n o n on Afterwards, Smith k i c k e d i tunder he as Cannon g r a b b e d Smith then grabbed times that him by the throat. of him j u s t While as t h e e v e n i n g p r o g r e s s e d , Cannon down, h i t t i n g that t o go t o r e t u r n e d t o Cannon's t r a i l e r intoxicated fell came to get the cards. and Smith stated grabbed arm. Cannon According to Miller, became off When midnight t o g e t something trailer on t h e went o v e r t o Cannon's t r a i l e r h e f o u n d some t r a d i n g c a r d s t h a t " l o o k e d l i k e to to read t h e couch. threw Miller t h e b a t down t h e n punched Cannon i n t h e f a c e b e f o r e s e e i n g Cannon's w a l l e t 7 and Miller several on t h e f l o o r CR-06-0741 and taking hearing a b o u t $300 i n c a s h and Miller's that the back door. asking, m o t h e r k n o c k on p o l i c e w e r e on As "Why they d i d you B a s e d on a driver's license. the way, were do Miller's the Miller t o me?" tell Smith ran they (R. this could on the hear (R. 806.) As 2003, to conduct a full and fire Deputy Blaxton noticed wall, a a a table, Blaxton also including the identified a large hallway; completely a one one placed on which the Forensic and four i n the second consumed by fourth external pillow, one fire; before on points on (R. of on from a set bed, one on cushion on fires, had 8 body. down been c o u c h ; and that had a been fire. Adam C r a i g p e r f o r m e d t h e Cannon's the Deputy f o r the which the on 807-08.) the July During spatters origin the a third being p a t h o l o g i s t Dr. examination towel. law- s o u t h bedroom, which s p r e a d originated floor blood had result, other investigation. investigation, called a e n f o r c e m e n t a g e n t s a g r e e d t o meet a t Cannon's t r a i l e r 24, Cannon k n o w t h a t he Sandlin, Investigator the 711-12.) t o l e t him fire. them out statement, I n v e s t i g a t o r Sandlin "additional information" Blaxton, and leaving, Deputy F i r e Marshal Lyndon B l a x t o n Deputy f r o n t d o o r and After Because he initial claimed CR-06-0741 there a was n o i n d i c a t i o n t h a t C a n n o n ' s d e a t h h a d r e s u l t e d crime, Dr. initially the Craig d i d not perform a full r u l e d t h a t C a n n o n ' s d e a t h was inhalation of smoke and autopsy, however, I n v e s t i g a t o r Sandlin Cannon's be full exhumed performed. On autopsy discovered fire, and August 1, that 2003, several of the body. force .216. initial autopsy Craig injuries upon D r . C r a i g was finding "inhalation of "multiple blunt these that not caused to the l e f t occurred products force cause of Dr. of injuries i n the f i r e 9 by the side of the from Cannon died. level t o be reaffirmed Cannon's but death added intoxication" or t o escape from the burning 939-40.) full to determine c o n t r i b u t i n g f a c t o r s t h a t made i t m o r e d i f f i c u l t breath a both Craig and e t h a n o l be on before combustion," that could performed also able findings, the further requested a n a l y s i s showed Cannon's b l o o d - a l c o h o l Based by and s i x r i b f r a c t u r e s hemorrhaging that these i n j u r i e s Toxicology a Dr. including a two-inch contusion forehead caused by blunt sides so he After investigation, body and caused an a c c i d e n t soot. from his was that were f o r Cannon t o trailer. (R. CR-06-0741 Deputy Tim McWhorter Department testified 2003, transported he Detention Deputy murder that Miller stated Miller, Miller 31, 2003, from the f o r making asked that although Sheriff's and August Tennessee he 4, Valley evaluations. engaged i n "small he d i d n o t i n t e r r o g a t e h i m , t a l k a b o u t t h e investigation, benefit on J u l y County C e n t e r t o two d i f f e r e n t m e n t a l - h e a l t h McWhorter t a l k " with o f t h e Lawrence a Deputy threaten him, McWhorter offer Miller During statement. or their first " i f he had any trip, previously told s o m e t h i n g t h a t w a s n ' t t r u e b u t now w a n t e d t o g o b a c k a n d t e l l the t r u t h , would Deputy McWhorter correctional been McWhorter that facility, involved Similarly, died, he g e t i n any t r o u b l e . " d e s e r v e d " t o do that i n the assault during that he their he Miller h e was "had been not innocent on Mr. C o l e August 4 some trip, really Cannon." Miller messed also told time in a a n d he h a d (R. 8 7 1 . ) told Deputy u p " when Cannon b e c a u s e he h a d t a k e n two K l o n o p i n t a b l e t s a n d h a d d r u n k most o f a f i f t h o f w h i s k e y . and S m i t h went t o Cannon's (R. 8 7 3 . ) trailer Miller a f t e r Cannon t o l d them h e h a d some " a c i d " , b u t w h e n t h e y g o t t h e r e , discuss anything but music. When 10 s t a t e d t h a t he they that Cannon r e f u s e d t o attempted t o leave, CR-06-0741 Cannon g r a b b e d M i l l e r by Cannon because he autopsy would Miller really knew hard" that the the b r u i s e s because " t h e y had said that he could thought about fire." (R. that 874.) Nancie Forensic for bat, for a towel, DNA from and human b l o o d , from t o use profile, Cannon of blood blood which during of Several on taken was the was the autopsy. bloodstains were also off." and Miller more started told he the Miller S m i t h as consistent 11 of cushion or of items aluminum tested positive to obtain usable DNA the towel. Jones was gold with cushion the sources from the Department i n c l u d i n g an Jones with section examined numerous unable consistent the trailer Mr. marks "the Smith Alabama items, from the and The but DNA the bat exclude both M i l l e r cushion. revealed t h i n k he the a p o r t i o n of a g o l d the the head Jones pissed up p r e t t y g o o d . " t e s t i f i e d t h a t she but "slammed fire. Laboratory t h e p r e s e n c e o f DNA. profiles able Sciences, have f o l l o w i n g morning, the Regional then "really i t made h i m i n the Jones, was roughed him more The died Miller remember e v e r y t h i n g , i t , the Cannon had Huntsville not neck. DNA to create sample a taken was also able to f o r the DNA found on in Cannon's the wall Cannon's DNA profile and CR-06-0741 inconsistent with Miller's and Smith's DNA profiles. a l s o found b l o o d s t a i n s c o n s i s t e n t with M i l l e r ' s an Old Navy Hanes brand second blood hit brand t-shirt t-shirt. source of and Jones blood on on the could the DNA Jones profile underarm portion of a exclude Cannon as a not Hanes t-shirt; however, s p a t t e r s on t h e s h i r t w e r e c o n s i s t e n t w i t h s o m e o n e with an object rather than being on shot with a of life the being gun. I. Miller without the first possibility murder d u r i n g the Eighth argues an arson Amendment Specifically, Miller with the years the o l d at are the Court 551 of of (2005), without parole sentence f o r the is disproportionate to the of the parole. the United to support the capital United and crime an to relies States i n Roper on possibility 12 of p a r o l e of violates not, consistent who the v. was sentenced 14 without holding Simmons, his proposition that p r o h i b i t e d from b e i n g offense in prison Miller prison Constitution. individual life in thus States a r g u e s t h a t t h e S t a t e may time categorically prison of his Amendment, s e n t e n c e possibility Supreme U.S. Eighth that of 543 14-year-olds to for capital life in murder. CR-06-0741 For the reasons that follow, this Court rejects Miller's argument. In Graham (2010), there challenges length S. Ct. determine a r e two of U.S. "The first term-of-years 2021. "whether Ct. 2011 States explained that classifications in a particular at , of the United to sentences. circumstances 130 Florida, t h e Supreme C o u r t generally the v. of Under involves challenges given Graham, this approach, f o r a term to define classification considering the , must i s grossly crime." Graham, a t _ _ _ , 130 S. C t . a t 2 0 2 2 . "The s e c o n d c l a s s i f i c a t i o n rules courts of years to a l l the U.S. a t d i s p r o p o r t i o n a t e f o r a p a r t i c u l a r defendant's _ _ _ U.S. S. proportionality sentences case." a sentence 130 Eighth in characteristics categorical challenge Amendment turn the nature of cases standards." consists of of the offense, of the to a has used two Id. "Th[is] subsets, the other offender." categorical Id. considering Under sentence: "[c]ourt[s] [must] first consider[] objective indicia of s o c i e t y ' s standards, as e x p r e s s e d in legislative enactments and state practice to determine whether there i s a n a t i o n a l consensus against the sentencing p r a c t i c e at issue. Next, g u i d e d by t h e s t a n d a r d s e l a b o r a t e d by c o n t r o l l i n g 13 one the CR-06-0741 p r e c e d e n t s and by t h e [ c ] o u r t ' s own understanding and i n t e r p r e t a t i o n o f t h e E i g h t h Amendment's t e x t , history, meaning, and purpose, [c]ourt[s] must d e t e r m i n e i n t h e e x e r c i s e o f [ t h e i r ] own independent judgment whether the punishment i n q u e s t i o n v i o l a t e s the C o n s t i t u t i o n . Id. (internal Here, citations Miller s e n t e n c e of l i f e and quotations raises only a categorical challenge i n prison without Specifically, Miller sentence i n prison without it [life argues omitted). the p o s s i b i l i t y that "a whether M i l l e r who met Accordingly, h i s burden have been c o n v i c t e d with the without F.3d 581, bears and Id. Eighth the Amendment, 1243 Cf. to United ( 1 1 t h C i r . 2006) this C o u r t must to States v. consistent life in prison Wright, the 93 appellant his sentence Johnson, 451 is cruel F.3d appellant bears Miller does not challenge his sentence disproportionate to the offense, i.e., classification for proportionality challenges. t h i s C o u r t does not reach t h a t i s s u e . 14 14-year-olds H a r r i s v. ( e x p l a i n i n g t h a t the 2 determine not, (recognizing that e s t a b l i s h that of is sentenced See type 2 as m u r d e r may parole. ( 9 t h C i r . 1996) a heavy burden unusual); of be parole. of p a r o l e ] e s t a b l i s h that of c a p i t a l possibility 583 to his [14-year-olds]," a p p l i e s t o an e n t i r e c l a s s o f o f f e n d e r s unconstitutional of particular the p o s s i b i l i t y to 1239, the as grossly the first Therefore, CR-06-0741 burden Cole to establish v. State, that 721 So. (recognizing that that a State statute Fire Dist., party the 625 mounting h i s sentence 2d 255, 260 the appellant has in ( A l a . Crim. the burden App. 8 1 1 , 812 ( A l a . C i v . App. overcoming Concord 1993) ("The to a statute bears presumption a c o n s t i t u t i o n a l challenge of 1998 ) to establish i s u n c o n s t i t u t i o n a l ) ; Holmes v. So. 2d burden disproportionate); of a constitutionality."). A As t h e C o u r t e x p l a i n e d a t 2 0 2 3 : "The Ct. i n Graham, begins national objective analysis consensus." evidence at , 130 S. with objective indicia of "clearest "'[T]he U.S. and of contemporary values most i s the reliable legislation e n a c t e d by t h e c o u n t r y ' s l e g i s l a t u r e s . " ' " I d . ( q u o t i n g v. Virginia, v. Lynaugh, 536 U.S. 4 92 3 0 4 , 312 U.S. legislation, courts practices." Id. Based that has met Miller national consensus 302, must (2002), 331 also (1989)). consider on t h e r e c o r d , his against quoting heavy 15 In this of Penry addition "[a]ctual burden sentencing i n turn Atkins Court to sentencing cannot say establishing 14-year-olds who a have CR-06-0741 been c o n v i c t e d possibility of c a p i t a l murder t o l i f e of parole. Regarding juvenile District of sentence of l i f e Columbia, offenders and homicide offenses. Ct. a t 2030. According 36 states or permit According attorney no states (C.R. and 2004, non-negligent of life 1,343 were by than Ms. five 14 y e a r s of parole, K i l e y also i n d i v i d u a l s were age 139.) Kiley, an (the o r g a n i z a t i o n sentenced dozen the of (C.R. K i l e y conducted 14-year-olds S. Miller, without 3 a parole , 130 Rebecca Initiative possibility 170.) who submitted Ms. of at i n prison the permit s u b m i t t e d by offense. Justice of more U.S. the on a p p e a l ) , the "identif[y] 1995 time states, government Graham, of 44 the p o s s i b i l i t y f o r offenders number without federal to the s t a t i s t i c s the Equal the " See affidavit Miller i n general, without sentence the an with representing prison at to regarding a of parole younger the in prison for possibility i n p r i s o n without the and ... states arrested to research life she in could in nineteen that between f o r murder or manslaughter. T h i s e x h i b i t i n d i c a t e s t h a t i n A l a b a m a , t h e minimum age a n i n d i v i d u a l may b e s e n t e n c e d t o l i f e i n p r i s o n w i t h o u t t h e p o s s i b i l i t y o f p a r o l e i s 16. As t h i s c a s e e s t a b l i s h e s , t h a t information i s inaccurate. 3 16 CR-06-0741 The evidence how many 14-year-olds convicted fails contained have murder. have possibility homicide, Kiley been Further, year-olds actually little serving State many convicted nothing to or nationwide of c a p i t a l as or a to l i f e result i n prison of a value. indicates that actually few i n prison without relating of l i f e convicted offenses, of the been 14-year-olds t h e number i n prison without offenses. i s of 14-year-olds thep o s s i b i l i t y t o t h e few numbers of homicide for a Although have the the p o s s i b i l i t y of parole, t o t h e number of homicide without 14-year-olds F o r i n s t a n c e , t h e s m a l l number o f a sentence aggravated conviction aggravated murder, or c a p i t a l murder. convicted o f age o r i n t h e r e c o r d i n d i c a t e s how many 1 4 - of parole information been the record 14 y e a r s murder establish have More i m p o r t a n t l y , o f p a r o l e c o u l d be a t t r i b u t a b l e olds fails individuals sentenced sentenced to l i f e no how been affidavit with i n this of homicide offenses. to establish younger i n the record of 14-year- 4 The K i l e y a f f i d a v i t s t a t e s t h a t , between 1995 and 2 0 0 4 , 1 , 3 4 3 i n d i v i d u a l s 14 y e a r s o l d o r y o u n g e r h a v e b e e n a r r e s t e d for homicide crimes. (C.R. 1 7 0 . ) W i t h o u t k n o w i n g how many o f those i n d i v i d u a l s were e v e n t u a l l y c o n v i c t e d , t h e s e numbers e s t a b l i s h very l i t t l e . F u r t h e r , b e c a u s e t h e age range i s b i r t h t o 14 y e a r s o l d , i t i s i m p o s s i b l e t o d e t e r m i n e how many o f t h o s e 1,343 i n d i v i d u a l s t h a t were a r r e s t e d were e l i g i b l e t o 4 17 CR-06-0741 With 44 s t a t e s , t h e D i s t r i c t of C o l u m b i a , and the government p e r m i t t i n g a sentence possibility offenses, 36 of see parole for Graham, of l i f e juveniles U.S. at states p e r m i t t i n g a sentence i n prison without convicted , 130 of l i f e the time record ___ of the offense relating U.S. at to "[a]ctual ___ , 130 c o n v i c t e d of c a p i t a l has met his Ct. at S. homicide 2034-35, i n prison without sentencing capital murder to S. of Ct. at and no evidence in prison 2023, for Court cannot establishing 14-year-olds life 139), who a without Graham, say that been the i n the 14-year-olds national have the or younger sentencing practices," murder, t h i s burden against (C.R. the of p o s s i b i l i t y o f p a r o l e f o r o f f e n d e r s 14 y e a r s o f a g e at federal Miller consensus convicted of possibility of parole. B. Although Miller consensus exists, analysis. As the failed his to failure Supreme C o u r t establish does not that end a this national Court's e x p l a i n e d i n Graham: "Community c o n s e n s u s , w h i l e ' e n t i t l e d t o g r e a t w e i g h t , ' i s not i t s e l f d e t e r m i n a t i v e of whether a p u n i s h m e n t i s c r u e l a n d u n u s u a l . K e n n e d y , 554 U.S., be tried as adults. 18 CR-06-0741 at , 128 S . C t . , a t 2 658. In a c c o r d a n c e w i t h the c o n s t i t u t i o n a l d e s i g n , 'the t a s k of i n t e r p r e t i n g the E i g h t h Amendment r e m a i n s our r e s p o n s i b i l i t y . ' R o p e r , 543 U.S., at 575, 125 S.Ct. 1183. The judicial exercise of independent judgment requires consideration of the c u l p a b i l i t y of the o f f e n d e r s at i s s u e i n l i g h t o f t h e i r c r i m e s and characteristics, along with the severity of the punishment in question. Id., at 568, 125 S.Ct. 1183; Kennedy, supra, at , 128 S.Ct., at 2559-60 ; c f . Solem, 4 63 U.S., a t 292, 103 S.Ct. 3001. In t h i s inquiry the Court also c o n s i d e r s whether the challenged sentencing practice serves legitimate penological goals. Kennedy, supra, at , 128 S.Ct., at 2661-65; Roper, supra, at 572, 125 S.Ct. 1183; A t k i n s , s u p r a , a t 3 1 8 - 3 2 0 , 122 S . C t . 2242." Graham, U.S. at In e x e r c i s i n g consider the render that in , 130 individual or age 18 of and 18 are t h u s may at 2026. class characteristics less of punishment i s p r o h i b i t e d . (2005) ( h o l d i n g Ct. i n d e p e n d e n t j u d g m e n t , t h i s C o u r t must inherent a category S. that less not culpable and individuals 5 See than who the offender thus might place for R o p e r v. individuals culpable of first which a U.S. commit murder b e f o r e c o n s t i t u t i o n a l l y be over sentenced him particular S i m m o n s , 543 individuals that the to age 551 the of death); Because M i l l e r seeks a r u l e c a t e g o r i c a l l y b a r r i n g the imposition of a particular sentence for a class of i n d i v i d u a l s , t h i s Court i s concerned only with c h a r a c t e r i s t i c s common t o the class as a whole, s u c h as age or mental retardation. See R o p e r v. S i m m o n s , 543 U.S. 551 (2005); A t k i n s v . V i r g i n i a , 536 U.S. 304 (2002). 5 19 CR-06-0741 Atkins v. Virginia, individuals t h u s may who not are 536 U.S. mentally 304 retarded c o n s t i t u t i o n a l l y be present case, M i l l e r murder; therefore, was U.S. at 569) ("[B]ecause lessened culpability[,] most severe punishments."). 543 U.S. categorically less culpable e s t a b l i s h any other multiple Further, See Miller Roper individuals culpable v. has an Simmons, who than a commit be less instance, and the makes him Miller did places him conduct in was disorder, he defect. disease or average range. U.S. 551 before to 20 of although M i l l e r as at mental IQ i n t h e sentenced Ct. juveniles age that than personality disorder, severe murder such S. deserving his infirmity i n d i v i d u a l s over the constitutionally , 130 the capital culpable t h a n an a d u l t o f f e n d e r , disorders, 543 are Although For disorder, with they natural category. attention-deficit at less and In committed Graham, have diagnosed sentenced to death). See Roper, that culpable considered (citing not less m u s t be 2026 diagnosed with (holding he offenders. a less culpable are a j u v e n i l e when he adult not (2002) age (R. (2005) the of death). age 18 1186-87.) (holding of and 18 was are t h u s may Accordingly, that less not this CR-06-0741 Court holds culpable that Miller's c l a s s of Next, of Court the convicted. The Court must crime See Graham, that Supreme non-homicides category of undeserving 458 U.S. places consider for U.S. that States are of the ultimate (1982) has less penalty. (holding Coker v. G e o r g i a , the may was included and U.S. that crime and has been repeatedly not impose convicted 433 U.S. a i n any c a t e g o r y homicide and a thus Florida, not impose a o f an u n i n t e n t i o n a l (1977) of murder, of offenses a t _ _ _ , 130 S. C t . a t 2 0 2 7 intentional 584 may held within S e e Enmund v . sentence of c a p i t a l fall culpable the State thus undeserving of the u l t i m a t e between less , 130 S. C t . a t 2 0 2 7 . and u n i n t e n t i o n a l homicides homicide); Miller in a Miller s e n t e n c e o f d e a t h on a d e f e n d a n t c o n v i c t e d State him the which at of the United offenses 782 alone offenders. this circumstances age (holding death a crime that for that are less penalty. that rape). i s not culpable See Graham, (recognizing the d i s t i n c t i o n offenses and non-homicides offenses). Moreover, indicate that the circumstances h i s crime falls 21 of Miller's within a crime category do of not less CR-06-0741 culpable Cannon offenses. with rendering a and life." Cannon made h i m and life died eligible (holding accomplice unable to Miller God, I've trailer doing this smoke not § lessen U.S. , individuals who sentence nature Court in sentenced must light of of the crime. 2027 intend be next the See to to k i l l cannot has be his to me?" This Ala. See Code Cf. S. C t . 2 6 4 1 , have not taken a 2650 human a n d t h u s may not death). Graham, 22 fire. culpability. , 128 the individual's to on for Miller's 13A-5-49(8), severity of the culpability and the S. Ct. U.S. at o f f e n d e r who a twice diminished moral sentenced take of death i n Alabama, consider ( h o l d i n g t h a t "a j u v e n i l e over inhalation. crime c o u l d have, but 1975; After come t o are y ' a l l "Why Code up. beat p l a c e d a sheet I am get Cannon's from does that his are l e s s c u l p a b l e than c a p i t a l murderers This thus set and f o r a sentence Ala. certainly constitutionally at "Cole, asked, Kennedy v. L o u i s i a n a , (2008) was t o g e t up, horrendous 13A-5-40(a)(9), 1 975, he then alive, and Miller stated, eventually intentional § until Miller Cannon, s t i l l age, bat Cannon u n a b l e Cannon's head your Here, life in , 130 d i d not k i l l culpability" prison without or and the CR-06-0741 possibility second of harshest possibility within of the Although Here, punishment parole category "[l]ife punishment Ct. parole). -- of -- for the life the crime is buttressed of which M i l l e r There, the prison by without the Court committed a was Supreme considered the prison a is an Graham, at 2027, such a s e n t e n c e i s not to in the falls murder. especially at the harsh , 130 S. o v e r l y h a r s h when c o m p a r e d whether nonhomicide that capital convicted. of to without crime U.S. Court's possibility sentenced offenses, parole juvenile," was committing worst without for a Miller This conclusion decision in Graham. sentence of life in for a juvenile who a parole offense was unconstitutional. Id. Graham's s e n t e n c e , t h e C o u r t d e t e r m i n e d t h a t "when c o m p a r e d t o an adult intend thus murderer, to kill cannot has be penalty permitted Ct. 2028 at omitted). thus a In a n a l y z i n g the categorically juvenile offender a twice subjected by law." (emphasis diminished to the added and U n l i k e Graham, M i l l e r does not who moral "the Graham, constitutionality did not kill culpability" second U.S. at citations and most or and severe , 130 S. quotations committed c a p i t a l murder have " t w i c e d i m i n i s h e d m o r a l c u l p a b i l i t y . " 23 of and Id. CR-06-0741 Likewise, although offenses, he Cf. was U.S. restricting age sentence of and has goals: This incapacitation juveniles justify who a sentence parole. have been the that As "the possibility a l l to penalty. holds Considering that possibility Miller's of that parole at death of is itself S. murder Ct. goals and the crime. imprisonment severe at and for therefore possibility age, In he could overturning Supreme C o u r t a and retribution, without for his 24 , 130 for Miller's life Supreme penological penological capital but The incapacitation, deterrence, in prison above, legitimate legitimate legitimate life the sentence serves. f o r j u v e n i l e s , the parole worst (specifically crimes). consider U.S. committed punishment of must Graham, stated death penalty the harshest a t 2032 Court deterrence, of sentenced Ct. following Court holds have S. Alabama's categorically disproportionate. the See of second this that M i l l e r ' s are one nonhomicide Court retribution, 2028-29. the without i s not recognized rehabilitation. of to crime, this goals to , 130 in prison murder Finally, Court his life capital penological at i t s holding Miller's committed sentenced Graham, for Miller recognized without the sanction, in CR-06-0741 particular for a young person" and thus adequate d e t e r r e n t to p o t e n t i a l juvenile, Roper, 572. will 543 U.S. at Further, the penological goal to seek r e t r i b u t i o n capital As heart murder. directly criminal State has an offenders. a legitimate f o r j u v e n i l e s who Supreme C o u r t has r e l a t e d to offender.'" (quoting was v. commit explained, committing one the Supreme personal Court U.S. Arizona, sentenced for the Graham, Tison Here, M i l l e r "'[t]he 481 to the "a imposition of U.S. at , hold that sentence. Graham, Finally, this legitimate individual In Alabama, the Court goal to incapacitate is willing sum, Miller capital eligible to take, committed murder, for State's cannot the and, and the 25 Ct. at 137, S. 149 He has worst (1987)). punishment does not have, diminished retribution a solely harshest , 130 twice properly by the second harshest the served of U.S. of the worst crimes. described, culpability at culpability"; therefore, not capital as of the r e t r i b u t i o n r a t i o n a l e i s t h a t a c r i m i n a l sentence m u s t be 2028 the serve the 130 S. Ct. the taken, because penalty. 2028. lacks when a human crime his Based a that life. recognized of is harshest at State juvenile moral interest second as in age, was on the CR-06-0741 foregoing, prison this Court holds without harshest the that M i l l e r ' s possibility of sentence -- f o r c a p i t a l Eighth Amendment. Miller t o any Therefore, parole murder this sentence of l i f e i n -- the second does n o t v i o l a t e t h e issue does not entitle relief. II. Miller prison next argues that h i s mandatory sentence of l i f e i n without the constitutional possibility right to of parole violated individualized sentencing. S p e c i f i c a l l y , M i l l e r a r g u e s t h a t t h e E i g h t h Amendment individualized wishes minimum to consideration offer. sentence Miller o f any m i t i g a t i o n then for capital argues murder requires a defendant the that i s his mandatory unconstitutional b e c a u s e i t d o e s n o t a l l o w f o r t h e c o n s i d e r a t i o n on m i t i g a t i o n . This argument In i s without Harmelin merit. v. Michigan, t h e Supreme C o u r t rejected the argument t h a t m a n d a t o r y minimum s e n t e n c e s -- n o t i n v o l v i n g t h e d e a t h p e n a l t y - - v i o l a t e d t h e E i g h t h Amendment. 995-96 makes, (1991). the Court individualized I n r e j e c t i n g t h e same held that sentencing 5 0 1 U.S. 9 5 7 , argument Miller now t h e C o n s t i t u t i o n does n o t r e q u i r e or 26 consideration of mitigation CR-06-0741 except i n cases Rodriguez v. (holding that i n v o l v i n g a sentence Peters, life F.3d the Eighth sentencer to consider to 63 i n prison for I d . See f o r murder ( 7 t h C i r . 1 995) does and d i d n o t r e c e i v e because requirement the death penalty). not require the Eighth the applies Here, M i l l e r a sentence Amendment only i n cases was n o t e l i g i b l e of death. Therefore, the requirement of the Eighth Amendment i n a p p l i c a b l e , H a r m e l i n , 501 U.S. a t 9 9 5 - 9 6 , a n d t h i s does n o t e n t i t l e also mitigation before sentencing a juvenile individualized-sentencing is 546, 567-68 Amendment individualized-sentencing involving of death. Miller t o any issue relief. III. Miller contained and that the next argues h i s capital-murder the c i r c u i t jury returned capital-murder to any To contained the c i r c u i t court's verdict form erroneous i n s t r u c t i o n s that l i k e l y confused the j u r y coerced Miller that the court's conviction. supplemental inconsistent conviction. jury verdicts These He also argues instruction after improperly arguments do coerced a not entitle relief. extent erroneous Miller argues instructions, 27 that this the verdict argument is form not CR-06-0741 preserved f o r review. the verdict form the form were and At trial, d i d not erroneous. Miller argue failed that Because M i l l e r " ' d i d not object i s s u e was for State, (Ala. Crim. 132, 134 State, this review.'" App. Doan 2001) ( A l a . Crim. v. (quoting App. 639 S o . 2 d 5 7 7 , 581 v. citing does not e n t i t l e Miller Miller next argues that is coerced the verdict guilty arson the form. The charged of form of the c a p i t a l as the i n count So.2d Cotton v. Therefore, relief. supplemental inconsistent verdicts conviction. this trial, the This issue Court. indicated that offense 659 82 6 The returned the j u r y found of murder I I . jury committed form also the Miller during an indicated that j u r y found M i l l e r g u i l t y of the l e s s e r - i n c l u d e d offense felony murder instructed both conclusion before 823, 1993)). the c i r c u i t court's a capital-murder l i k e w i s e not p r o p e r l y At i n turn to any j u r y i n s t r u c t i o n a f t e r the j u r y returned improperly So.2d State, ( A l a . C r i m . App. issue relating the j u r y capital murder to count that i t could and f e l o n y 28 to ... n o t p r e s e r v e d 834 Howell 1994 ) , to t h e i n s t r u c t i o n s on the v e r d i c t form at t r i a l . . . , t h i s appellate to object I. The circuit not f i n d murder. Miller According court then guilty to of of Miller, CR-06-0741 during into i t s instruction, f i n d i n g him the guilty of circuit court coerced c a p i t a l m u r d e r as the in charged jury count II. After the instruction, the ground objected circuit Miller that to the court moved t h e the circuit court's i n s t r u c t i o n "went b e y o n d and d e l i b e r a t e f u r t h e r but the ground bounds." that the instead, he further. It is well appellate review, a t i m e l y and to settled s p e c i f i c motion support thereof.'" 5, 2010] ___ So. Merchant v. State, 3d supplemental for a mistrial inconsistent. admonition 1390.) that ... So. Miller He to go the "'to jury State, to the the [Ms. (Ala. Crim. 65 to preserve s e t t i n g out 2d d i d not (Ala. charge on coercive; deliberate an issue trial court 2010) App. for by grounds CR-08-0369, Crim. that back specific App. on also object impermissibly presented S m i t h v. ___ , ___ 724 court the i n s t r u c t i o n on t h e g r o u n d allowing i t m u s t be in an were i n s t r u c t i o n was objected jury went beyond the p e r m i s s i b l e (R. 6 the circuit verdicts the or p e r m i s s i b l e gave Feb. (quoting 1998 ) ) . The S t a t e argues t h a t t h i s C o u r t s h o u l d remand the cause with i n s t r u c t i o n s f o r the circuit c o u r t t o r e i n s t a t e the j u r y ' s o r i g i n a l v e r d i c t . The S t a t e , h o w e v e r , d i d n o t f i l e d a p e t i t i o n f o r a w r i t o f mandamus d i r e c t e d t o t h e c i r c u i t c o u r t or f i l e a n o t i c e of appeal. T h e r e f o r e , t h i s argument i s not properly before this Court. 6 29 CR-06-0741 "'"The s t a t e m e n t grounds error not of s p e c i f i c specified on g r o u n d s and ( q u o t i n g May 1997), quoting i n turn App. coercion this the of o b j e c t i o n trial court w i l l not a s s i g n e d at t r i a l . " ' " at Crim. grounds v. S t a t e , 1991). 710 So. J a c k s o n v. Because i n h i s motion Miller for a d i d not or argument i s not p r e s e r v e d f o r t h i s Doan, 834 entitle So. 2d Miller at 82 6. t o any put in So. 3d (Ala. Crim. 593 mistrial n o t be Smith, 2 d 1362 State, waives a l l So. 2d 167 include in his App. (Ala. improper objection, Court's review. Therefore, this issue C.f. does not relief. IV. M i l l e r next argues that h i s statements to officers raises the s h o u l d have the f o l l o w i n g circuit hearing on Investigator State and court his been suppressed. motion Sandlin by to failing suppress; s h o u l d have been f a i l e d t o meet i t s b u r d e n the Miranda 7 predicate; 3) Miranda v. A r i z o n a , 384 30 to 2) conduct his a pretrial statement suppressed because h i s statements U.S. Miller t o h i s s t a t e m e n t s : 1) of e s t a b l i s h i n g McWhorter were t a k e n i n v i o l a t i o n 7 Specifically, arguments r e l a t i n g erred law-enforcement (1966). the voluntariness to Deputy o f h i s S i x t h Amendment 436 to Tim right CR-06-0741 to counsel; suppressed before and 4) one because the trial. unpreserved As of his State statements failed should to d i s c l o s e the d i s c u s s e d below, each of these or w i t h o u t have been statement arguments i s merit. A. Miller first argues failing to trial. Within failure to Ala. Crim. P.; the hearing State R. allowed opening hold hold 2) Goff's considered report violated was use without Miller's not first a hearing given by no and to the counsel by into Dr. 31 Jerry evidence, confront 15.4, before trial Dr. during its admissibility of and lack of of Dr. the testimony refused to circuit the notice p r e s e n t i n g the 5) 1) Rule statements an by before that: violated being erred suppress asserts court improperly admitted right hold was a report prepared not to court to trial requested 4) t h e c i r c u i t testimony; Miller there in Miller motion Miller's Miller as circuit his before failing to 3) the argument, hearing hearing resulted John G o f f ; Dr. a statement suppression on this determination; notice a that court consider improperly Gragg because was Gragg. the hearsay, that and CR-06-0741 None review. three Before statements grounds that Miller's his of these arguments trial, Miller he g a v e suppression motion the impaneled, filed jury defense for this a motion to law-enforcement t h e y were o b t a i n e d i l l e g a l l y constitutional After are preserved rights. Miller to suppress the officers been counsel struck, reminded on t h e and i n v i o l a t i o n also requested be h e a r d b e f o r e t r i a l . had Court's (Supp. but R. before the c i r c u i t of that 33.) i t was court that M i l l e r h a d an o u t s t a n d i n g m o t i o n t o s u p p r e s s h i s s t a t e m e n t s t o law-enforcement circuit the officers. The State suggested, and c o u r t a g r e e d , t h a t t h e m o t i o n w o u l d b e t a k e n up d u r i n g trial but before the admission of the statements. c o u n s e l agreed t o t h i s p r o c e d u r e and r e q u e s t e d "advance ... because witnesses." the State [they] Defense and t h a t statement "might matter might want to put on a to use the statements in the use of the statement notice couple be a p r o b l e m i f i t ' slater after the jury 32 was that opening suppressed." impaneled. of i t s opening i n the The c i r c u i t c o u r t e x p l a i n e d t h a t t h e y w o u l d further Defense c o u n s e l t h e n e x p r e s s e d some c o n c e r n intended statement 515.) the (R. discuss the The circuit CR-06-0741 court impaneled the j u r y , gave the jurors i n s t r u c t i o n s , and a l l o w e d t h e j u r o r s After State's At the jurors use o f M i l l e r ' s that allowing point, he defense might admissibility the statements counsel be waiving o f the statements preliminary t o go home f o r t h e d a y . the c i r c u i t court took i n i t s opening expressed the S t a t e t o use M i l l e r ' s statement, sought left, some his right later. statement. concern statements up t h e that during by opening to challenge the Defense counsel then and r e c e i v e d a c o n t i n u i n g o b j e c t i o n t o t h e a d m i s s i o n o f statements i n order to avoid any argument that he had waived h i s r i g h t to object to the admission o f the statements. (R. 529.) Defense counsel agreed that because they had a continuing objection to the admission of the statements, they would the S t a t e ' s opening not i n t e r r u p t when t h e s t a t e m e n t s During admission hearing were Investigator of M i l l e r ' s on Miller's referenced. Sandlin's statement, motion to I n v e s t i g a t o r S a n d l i n and M i l l e r the c i r c u i t court determined voluntarily given. (R. 6 9 3 . ) statement to object (R. 5 3 1 . ) testimony and b e f o r e t h e the c i r c u i t court suppress, during testified. that M i l l e r ' s held which After the h e a r i n g , statement had been Defense counsel requested 33 a that CR-06-0741 the circuit court conditionally specifically, suppress after testified. defense circuit Goff's its that i t allow Dr. The Goff, circuit counsels' Miller who The c i r c u i t o r , more h i s motion at the some to hearing, concern over Specifically, the can present taking the statement of admissibility G o f f , who testified, statements testimony counsel given that understand by that will presented renewed deal he c o u l d n o t h a v e Specifically, formed he r e p o r t e d l y (R. 1 2 1 6 . ) The the c i r c u i t (R. 6 9 1 - 9 2 . ) o f Dr. After Miller to exclude of Dr. the Goff's the a b i l i t y , d i dnot waived circuit 34 light the i n h i s opinion rights. in of the with [ i t s ] the testimony the "motion Miller counsel surrounding appropriate." h i s Miranda Evan the rights knowingly." matters among o t h e r t h i n g s , t h a t d i d not understand defense as t o [ t h e w e i g h t other o r n o t where t h a t ' s h i s defense, Miller of the statement, not court then i n s t r u c t e d give a proper i n s t r u c t i o n you motion. expressed procedure. statement;] rested, not t e s t i m o n y w o u l d go t o t h e w e i g h t that, " I ' l l Miller t o renew was court proposed the statement c o u r t s t a t e d t h a t i t b e l i e v e d t h a t t h e m a j o r i t y o f Dr. admissibility. In admit intelligently court court denied stated and Miller's that the CR-06-0741 m o t i o n was "denied f o r the reasons stated previous[ly] [ i . e . , b a s e d on t h e t o t a l i t y o f t h e c i r c u m s t a n c e s , t h e s t a t e m e n t voluntarily given (R. 693), appropriately ... a d m i t t e d . " that, f o r the j u r y the "[i]t's weight they will before 2) t h e f a i l u r e trial a determination statements; suppression hearing resulted prepared raise these never to hold 1 5 . 4 , A l a . R. C r i m . by that statement P.; advance counsel court of notice or agreed suppression of holding to the Miller procedure 35 violated of the failed circuit moved a to court's the circuit agreed to the during Rule o f Dr. considered either h e a r i n g , he the hearing those and t h e l a c k o f improperly Dr. J e r r y G r a g g ; M i l l e r such without not p r e s e n t i n g the testimony the c i r c u i t arguments procedure opening by For i n s t a n c e , although argued t o do w i t h i t , as t o t h e a d m i s s i b i l i t y as r e q u e s t e d for a pretrial proposed what (R. 1 2 1 6 . ) d i d not r e c e i v e in Miller G o f f ; a n d 4) report court Rule during their 3) M i l l e r procedure. to determine to hold a p r e t r i a l hearing allowed the State to there John [was] The c i r c u i t c o u r t f u r t h e r s t a t e d violated statements notice confession a s s e r t s t h a t : 1) t h e f a i l u r e use M i l l e r ' s being the attach to i t . " To t h e e x t e n t M i l l e r a hearing and] was trial, 15.4, A l a . and R. CR-06-0741 C r i m . P. Further, Miller statement during his right later o p e n i n g argument so l o n g to challenge i n the t r i a l . notice Miller Miller witnesses raised consideration Because circuit appellate and f a i l e d Crim. See 2006) grounds f o r the objection State, first for (Ala. must of notice. the lacked court's at t r i a l v. S t a t e , (holding that should be s t a t e d , by t h e t r i a l used by t h e the arguments these an a d v e r s e appellate Crim. review); ruling Jordan v. S t a t e , App. 1 9 9 0 ) ( c l a i m r e v i e w where d e f e n d a n t i n order 953 S o . 2 d 1 2 7 5 , to preserve ... , 36 an specific and a r u l i n g court"); to preserve Harris an on v. must issue 574 S o . 2 d 1 0 2 4 , 1 0 2 5 was n o t p r e s e r v e d d i d not f i r s t he issues f o r 5 6 3 S o . 2 d 9, 11 ( A l a . C r i m . A p p . 19 8 9 ) ( d e f e n d a n t obtain of Finally, circuit o b j e c t i o n m u s t b e made b e made he he was i n c a p a b l e to preserve Shouldis App. that the procedure he f a i l e d error, "a timely objection to to raise alleged the to statement report. agreed on a p p e a l , (Ala. of a lack o f Dr. Gragg's review. or that objection Miller court now r a i s e s because no of the d i d not assert hearing use o f h i s a s he d i d n o t w a i v e the a d m i s s i b i l i t y of the suppression producing 1284 acquiesced i n the State's present f o r appellate h i s argument t o CR-06-0741 the trial Miller court). to To any the Therefore, these issues do not entitle relief. extent Miller argues that the circuit court v i o l a t e d h i s c o n s t i t u t i o n a l r i g h t s by r e f u s i n g t o c o n s i d e r Dr. Goff's his testimony statement, by the this record. motion to At that ruling argument the suppress testimony [and] in on the i s both unpreserved c l o s e of M i l l e r ' s his statement [Miller] could not circuit did not court object consider Dr. denied to Goff's the 534, 542 (Ala. Crim. an alleged due-process must violation). circuit be Because App. at Miller Court's testified, this the did issue review. 37 At for that Dr. ability point, v. refusal State, to appellate of Miller 705 the Goff's testimony preserved an alleged to not So. review, the to preserve object Dr. is his Goff's the alleged time not c o u r t ' s a l l e g e d r e f u s a l to c o n s i d e r Goff of (holding that violation raised renewed formed Foster 1997) unsupported r e p o r t e d l y waived court's See of he light have motion. testimony. 2d objection the and case, "in d i d n o t u n d e r s t a n d t h e r i g h t s he The Dr. admissibility circuit for after this CR-06-0741 Moreover, this Court, circuit testimony however, i f Miller's i t i s not above, the Goff's even he with the supported court informed by the properly record. i n i t i a l l y expressed w o u l d go matters surrounding a r g u m e n t was As that "you the t a k i n g of the detailed concern that o n l y to the weight of the counsel before can Dr. statement; present other statement that w i l l deal [ i t s ] a d m i s s i b i l i t y or not where t h a t ' s a p p r o p r i a t e . " conclusion motion to [Miller] of M i l l e r ' s suppress could understand not the The Specifically, the [was] for the at refused Harris, of Dr. the circuit court court stated ... denied stated 268 and to c o n s i d e r Ala. 540, Dr. 544, to [and] that did not intelligently and Miller's motion. the motion previous[ly], the confession (R. So. court considered that testimony. 2d is 1216.) establish Goff's 108 the that admitted." fails renewed testimony ability reportedly waived reasons best counsel Goff's r e c o r d r e g a r d i n g what the c i r c u i t ambiguous court he defense formed circuit appropriately The light have rights knowingly." "denied "in case, At 425, 8 428 the See is circuit Klein (Ala. v. 1958) Had M i l l e r objected to the circuit court's alleged r e f u s a l t o c o n s i d e r D r . G o f f ' s t e s t i m o n y w h e n he r e n e w e d h i s motion to suppress, the r e c o r d might d i s c l o s e whether Dr. G o f f ' s t e s t i m o n y was i n f a c t considered. 8 38 CR-06-0741 (holding that ambiguous, does not Dr. appellate to support establish Goff's Miller's as statement, t h i s record, Because the circuit the the judgment."). the that testimony courts "construe refused court i t related to the i s s u e does not to when record consider admissibility entitle Miller to of any relief. B. Miller Sandlin next argues should presented have "It facie has long been involuntary confession may be statement suppressed argument (citing App. State, the and law that a inadmissible, admitted Jackson 1990)). 859 v. "The So. into 2d State, trial the State be 562 1155 So. court's need This brief. argument i s p r e s e n t e d and by that the is burden a Miranda 1373, a 1380 predicate." (Ala. preponderance IV(C) a i s upon 2000) Crim. that a statement i n Section the prima before ( A l a . C r i m . App. finding supported 39 2d and merit. confession evidence, 1138, voluntary 9 only Investigator because i s without the S t a t e t o e s t a b l i s h v o l u n t a r i n e s s and W a l d r o p v. to e v i d e n c e t o show v o l u n t a r i n e s s This 9 his been insufficient Miranda predicate. that of of was the Miller's CR-06-0741 evidence." (citing Dixon "'Whether depends of Ex p a r t e a v. State, waiver each case, of State, 588 So. facts including the circumstances.'" 836 S o . 2 d 9 7 9 , 982 ( A l a . 2 0 0 2 ) i s voluntary, on t h e p a r t i c u l a r conduct v. Jackson, 903 knowing, (Ala. and and u n d e r l y i n g the background, accused--i.e., Waldrop, 2d the intelligent circumstances experience, totality of (Ala. Crim. At obtained Investigator information mother invited handed him Investigator box Sandlin rode w i t h Once informed at Miller (holding At that containing office trailer, point, Cannon's by of juvenile had that and M i l l e r ' s mother trading cards. mother and M i l l e r t o They to the sheriff's office, 40 he Miller's t o give a statement. sheriff's his that h a d some t r a d i n g c a r d s Investigator Sandlin the testified then asked M i l l e r ' s come t o t h e s h e r i f f ' s and Sandlin He w e n t t o M i l l e r ' s him i n s i d e . a see circumstances). that M i l l e r b e l o n g e d t o Cannon. Click the voluntariness of a confession the t o t a l i t y of the trial, the App. 1996)); a l s o E x p a r t e M a t t h e w s , 601 S o . 2 d 5 2 , 54 ( A l a . 1 9 9 2 ) examining and 859 So. 2 d a t 1156 ( q u o t i n g 6 9 5 S o . 2 d 2 0 9 , 218 t h a t a c o u r t must a n a l y z e 1991)). Investigator Miranda agreed office. Sandlin rights. CR-06-0741 Specifically, Miranda rights Investigator Sandlin form, which read Miller the juvenile stated: " B e f o r e I a s k any q u e s t i o n s you must u n d e r s t a n d your r i g h t s . You have a r i g h t t o remain silent. A n y t h i n g you s a y c a n be u s e d a g a i n s t you i n a c o u r t of l a w . You have a r i g h t t o speak w i t h a l a w y e r f o r a d v i c e b e f o r e I a s k y o u any q u e s t i o n , have them w i t h you d u r i n g q u e s t i o n i n g i f you w i s h . I f you c a n n o t afford a lawyer, one w i l l be a p p o i n t e d f o r you w i t h o u t charge b e f o r e any q u e s t i o n i n g i f you w i s h . I f your lawyer, parents or guardian i s not present you have t h e r i g h t t o communicate w i t h them and i f n e c e s s a r y r e a s o n a b l e means w i l l be p r o v i d e d f o r y o u t o do s o . I f you d e c i d e t o answer q u e s t i o n s now w i t h o u t a lawyer p r e s e n t , you s t i l l have t h e r i g h t to stop answering a t any t i m e . You a l s o have t h e right t o stop answering any time u n t i l you have spoke[n] t o a lawyer." (R. and 6 3 7 , C.R. 8.) h i s mother Investigator rights, and 1 0 Miller signed Sandlin, Miller signed i t as Miller orally a stated Investigator Sandlin Miller was n o t o f f e r e d a n y r e w a r d rights to form acknowledging [ h i m ] and [ h a d ] had witness. appeared rights. for making a statement. t h e w a i v e r - o f - r i g h t s form, also understand his he understood his informed the court that that Further, Miller of reward or had [ h a d ] read to [him], Miller, h i s mother, and two p r o b a t i o n p r e s e n t w h e n M i l l e r was r e a d h i s r i g h t s . 41 i n return signed the waiver-of- t h a t he h a d " r e a d 1 0 to to o r hope explained According the [juvenile officers were CR-06-0741 Miranda are. rights] and [he] f u l l y [He] u n d e r s t [ o o ] d promises or t h r e a t s coercion o f any k i n d Finally, Miller's regarding his u n d e r s t [ o o ] d what and kn[e]w [were] [he w a s ] doing. made t o [ h i m ] a n d no p r e s s u r e [was] u s e d waiver what [his] rights of h i s understanding against No or [him]." (C.R. and assertion his rights of h i s rights his were witnessed 8.) by mother. According rights, to Miller trading Investigator Sandlin, gave a s t a t e m e n t cards, stealing i n which money, after waiving h i s he a d m i t t e d stealing assaulting Cannon. and I n v e s t i g a t o r S a n d l i n t h e n w r o t e down w h a t M i l l e r h a d t o l d h i m . Miller then signed During the written statement. the suppression hearing, M i l l e r did not understand h i s j u v e n i l e Miranda Miller stated that remain silent understand he the He also right to admitted classes and examination, silent do he when a s k e d you not could what testified an t h a t he h a d c o m p l e t e d that rights. d i d not understand meant. what testified the seventh read "[w]hat the right to he d i d not meant. Miller grade write. i n regular On cross- p a r t o f h a v i n g t h e r i g h t t o be understand," 42 and Specifically, that attorney t h a t he Miller responded that he CR-06-0741 "[j]ust didn't a similar Dr. John to M i l l e r ability Goff, Goff that was to understand Miller's testified designed h i s Miranda h i s right attorney. On c r o s s - e x a m i n a t i o n , his to he a d m i n i s t e r e d rights Miranda remain admissible. and 2006) abuses that he attorney. administered determine a indicated t o Dr. t h a t he d i d n o t or h i s right Dr. Goff testified whether a person's According Miller at a court's suppression i s n o t t o be his discretion statement ruling to an that the understood juvenile a on this abuse of (Ala. Crim. "'"A judge when h i s d e c i s i o n i s b a s e d on a n conclusion o f l a w o r where evidence on he rationally 43 omitted). and conflicting clear 946 S o . 2 d 9 0 3 , 919 erroneous which voluntary i s binding absent and q u o t a t i o n s only was the c i r c u i t b a s e d upon hearing reversed Jones v. S t a t e , (citations evidence presented, Miller's "[A] t r i a l given discretion." App. t o an gave form. determined Court, Miller d i d n o t encompass t h e language used i n t h e rights evidence to silent to determine B a s e d on t h e c o n f l i c t i n g court that rights. r e s p o n s e s on t h e t e s t understand test (R. 6 8 0 . ) r e s p o n s e when a s k e d a b o u t h i s r i g h t Later, test pay a t t e n t i o n to i t . " the record could have contains based no his CR-06-0741 decision."'" C r i m . App. Hodges 2005) v. State, (quoting 1996), quoting Co., 11, Service Cir. So. 2d Corp. 1975)). read the his rights, and Therefore, (Ala. Sperry Here, s u p p o r t e d by was v. 12 So. v. State ( A l a . C r i m . App. 372 926 Jude, 1060, 686 1979), quoting circuit Co., 1072 So. i n t u r n Dowdy v . & Hutchinson, the 2d 2d that that he he in turn 511 F.2d he was to that understood his v. So. (Ala. Crim. that "based on p r e s e n t e d i n the did not the appellant's Therefore, conflicting record, abuse 60 we discretion statements were this issue evidence find that her App. the (holding j u v e n i l e court in determining and entitle D.M.M. voluntariness voluntary does not court's See 1994) of Miller his rights. circuit abuse of d i s c r e t i o n . 57, Miller understand c o n s t i t u t e d an 2d Premium (9th determination 647 Eng'g 225 t h i s Court cannot conclude t h a t the State, 530 determination court's appeared stated 528, Gilbert t e s t i m o n y of I n v e s t i g a t o r S a n d l i n rights, (Ala. judge that the admissible"). to any relief. C. Miller allowed the next State argues to that admit the into 44 circuit evidence court two erroneously statements he CR-06-0741 made to Deputy McWhorter because those statements obtained i n v i o l a t i o n o f h i s S i x t h Amendment r i g h t Specifically, argues right to counsel inculpatory him school, statements McWhorter Deputy brief, a During statements statements Deputy likely to right i n v o l u n t a r y because h i s Miranda arguments regarding the suppression of to a therapist. 45 counsel in This review. to Miller's argued of M i l l e r ' s that alleged (reasserting the of the statement Counsel having counsel. Court's rights. Investigator Sandlin). made McWhorter." statement, relating defense to understand Miller's intentionally a to for this inability any s t a t e m e n t s State produce hearing McWhorter, at a s s e r t s t h a t by the Amendment transport to M i l l e r , rapport with then him, suppression were McWhorter officer Miller Amendment h i m t o make According transport t o Deputy induced evaluations. i s not preserved the h i s Sixth the State "had a p a r t i c u l a r of h i s Sixth however, to counsel. school-resource a situation violation after by h a v i n g at 44). McWhorter created issue, was and M i l l e r (Miller's that, had a t t a c h e d , t o two m e n t a l - h e a l t h Deputy the Miller were made t o also objected to the admission Miller, however, d i d CR-06-0741 not argue violated As that the statements h i s Sixth this Amendment he made right t o Deputy McWhorter to counsel. Court has r e p e a t e d l y h e l d , " ' t o p r e s e r v e an i s s u e for appellate r e v i e w , i t must be p r e s e n t e d t o t h e t r i a l by a and timely grounds specific i n support thereof.'" 0 3 6 9 , F e b . 5, 2 0 1 0 ] (quoting Merchant 1998)). waives be "'"The State, , 724 of on g r o u n d s 3d a t (Ala. Crim. his violation Miller 65 [Ms. C R - 0 8 - grounds of h i s Sixth Because court w i l l not 710 S o . 2 d 1 3 6 2 t o any Miller Deputy right does McWhorter Amendment App. objection not assigned at t r i a l . " ' " App. 1 9 9 1 ) ) . to specific (Ala. Crim. and t h e t r i a l argument i s not p r e s e r v e d f o r t h i s entitle State, q u o t i n g i n t u r n J a c k s o n v. S t a t e , statements of So. 2d ( q u o t i n g May v . S t a t e , Crim. App. 1997), v. out the ( A l a . C r i m . App. 2010) specific a l l grounds not s p e c i f i e d So. that v. setting Smith So. 3d statement put i n error 167 motion court were to Smith, (Ala. 593 S o . 2 d not argue taken counsel, in this C o u r t ' s r e v i e w and does n o t relief. D. Miller denying next h i s motion argues that to suppress 46 the circuit an o r a l court statement erred in he made t o CR-06-0741 Investigator Sandlin r e l a t i n g to h i spossession cards. (C.R. 1 0 , S t a t e ' s E x h i b . Miller of informed Cannon's oral Investigator Sandlin trading statement cards should away. P., In t h i s oral that statement, some contends Miller he h a d t h r o w n this that h a v e b e e n s u p p r e s s e d b e c a u s e i t was n o t d i s c l o s e d to defense counsel, Crim. 10.) of the trading and i n v i o l a t i o n inviolation o f R u l e 1 6 , A l a . R. of the c i r c u i t court's discovery order. At trial, Investigator Miller's trailer t o g e t Cannon's mother. Investigator Sandlin made statement any relating defense counsel objected, defense counsel had not seen Sandlin prosecutor the statement created and a list that further t r a d i n g cards was then asked to the cards. arguing, among a copy t h e r e f o r e , the State had v i o l a t e d The described going from to Miller's whether Miller At point, other that things, of the o r a l that statement; the court's discovery order. responded that the State d i d , i n f a c t , d i s c l o s e to defense counsel. of items the oral asserted asserted that i t t h a t had been d i s c l o s e d t o t h e d e f e n s e statement that The S t a t e was the l i s t on that was s i g n e d 47 list. by d e f e n s e The State counsel. CR-06-0741 A f t e r weighing the c o n f l i c t i n g circuit court statements, abused denied M i l l e r ' s this Court i t s discretion D.M.M. v . State, (holding that 2d at to any record, we did not abuse her was even repeatedly held i s merely Miller [Ms. Crim. 900 i f an e r r o r , doubt. 8 97 , App. 1994 ) evidence find issue of that the discretion in s t a t e m e n t s were v o l u n t a r y Therefore, this reasonable (Ala. conflicting Cf. does not entitle and Miller relief. statement State, court motion. (Ala. Crim. the the conflicting circuit Miller's in judge Moreover, that 60 the the determining that the a p p e l l a n t ' s admissible"). that on presented court say Faced w i t h overruling So. "based voluntariness juvenile 647 motion. cannot in statements of c o u n s e l , that Rule that 2010) (Ala. Crim. informed 45, cumulative A l a . R. is Feb. (quoting App. P. didn't In So. beyond that throw oral the Gobble has v. , 675 So. 2d statement, trading away." a evidence 3d State, his oral This Court error.'" Dawson v. Sandlin 48 harmless 2010] 1995)). [Miller] be Miller's admission of harmless 5, of App. erroneous Investigator "were t h e c a r d s t h a t admission e r r o r would "'[t]he CR-05-0225, App. the (C.R. cards 10.) CR-06-0741 This statement, cards. at most, h e l p e d t o l i n k However, Miller's Miller connection to the to the cards stolen was also e s t a b l i s h e d by h i s f o r m a l s t a t e m e n t t o I n v e s t i g a t o r S a n d l i n i n which he admitted statement was harmless. does not stealing cumulative, Gobble, entitle So. Miller the any 3d cards. error at t o any Because in . the oral i t s admission Therefore, this was issue relief. V. Miller eliciting Miller from n e x t a r g u e s t h a t he was testimony regarding h i s mental state. asserts that questioning night of the was trial, The testify thinking." prosecutor's Smith He (R. court erred about also Dr. argues John that Goff from Miller counsel was Specifically, i n p r e v e n t i n g him h i s mental capable of forming defense opinion, murder. cannot Colby prevented whether M i l l e r Smith's the c i r c u i t the murder. erroneously At e r r o n e o u s l y prevented from the state circuit to 1033.) objection. as to intent. asked Colby Smith clearly" "thinking whether or The circuit the not At that p o i n t , 49 the court testifying p r o s e c u t o r o b j e c t e d on t h e g r o u n d "as on what court i f , in night that of Smith [Miller] was sustained the defense counsel asked CR-06-0741 his next q u e s t i o n w i t h o u t making any o f f e r what Smith's of proof regarding answer would have been had t h e o b j e c t i o n n o t been sustained. Later, question: The defense "[D]oes counsel [Miller] offer Rule not of proof, Goff the a b i l i t y the following t o form intent?" 103(a), A l a . R. a substantial substance offer were asked." "[w]hen that Ensor a ruling right from court answer v. W i l s o n , that "[e]rror ... e x c l u d e s was made Supreme may evidence a n d ... known t o t h e c o u r t b y the context w i t h i n which Court questions has e x p l a i n e d that s u s t a i n s an o b j e c t i o n t o a q u e s t i o n show of proof to which making (R. 1 2 0 0 . ) of the party i s affected, n o t on i t s f a c e m u s t make a n o f f e r expected Evid., provides The A l a b a m a the t r i a l does the question. of the evidence o r was a p p a r e n t court Defense counsel then, without withdrew be p r e d i c a t e d upon unless the have Dr. p r o s e c u t o r o b j e c t e d t o t h e q u e s t i o n , and t h e c i r c u i t sustained the objection. any asked the expected answer, a party and e x p l a i n t h e r e l e v a n c y o f t h e preserve error for appellate 5 1 9 S o . 2 d 1 2 4 4 , 1262 review." ( A l a . 1987) (citing Bessemer E x e c u t i v e A v i a t i o n , I n c . v . B a r n e t t , 469 So. 2d 1283 (Ala. absence 1985)). " [ I ] nthe 50 of an offer of proof CR-06-0741 [regarding cannot a witness's review expected answer], [the e x c l u s i o n of [appellate courts] t e s t i m o n y ] . To attempt so w o u l d n e c e s s i t a t e i m p e r m i s s i b l e s p e c u l a t i o n by t h i s B u r k e t t v . A m e r i c a n Gen. 1 992) (citing McElroy's Here, Smith and objection Ensor, the cannot a defense Dr. had not Goff. determine for failed have testimony o r was Crim. See (Ala. failed] t o make an o f f e r this 138, and to proffer given i f In 140 Gamble, what this App. failed Perry 1990) v. answers prosecutor's he withdrew c o u n s e l d i d not would have to (Ala. 1991)). the fact, been, this Court affected 103(a), preserve this So. Ala. issue 2d 873, [the appellant o f p r o o f as t o t h e e x p e c t e d testimony issue ("[B]ecause 568 the proffer Rule State, do Court." C. (4th ed. prejudicial. Accordingly, Miller Therefore, 2d t h a t the e x c l u s i o n of the testimony right" witness, So. 1262, Because defense appellate review. the at sustained. 874-75 of 2d § 425.01(4) would been witnesses' Evid. So. counsel Goff "substantial R. 519 Alabama Evidence q u e s t i o n t o Dr. what F i n . , I n c . , 607 to i s not i s s u e does not 51 preserved entitle Miller for to review."). any relief. CR-06-0741 VI. Miller allowed next "an concerning at p. argues physical He evidence Jones, the Huntsville Regional Sciences, f r o n t of M i l l e r ' s struck with an failed spatter to s h i r t was erroneously testimony case." (Miller's circuit head testify court o f f e r important the Laboratory object to to that Nancie circuit i n the argues permitting State the unqualified witness 55.) Forensic that court of of the the that DNA erred section Alabama the brief, blood of a bat. e s t a b l i s h that spatter analysis; therefore, According Jones on a expert in should have that State of the been to M i l l e r , testimony this is the Department c o n s i s t e n t w i t h Cannon h a v i n g s u c h as in the blood- failed been excluded. Assuming, present expert sufficient deciding, evidence in blood-spatter testimony regarding on M i l l e r ' s Rule without 45, what s h i r t was Ala. "'[t]estimony establish analysis, could any have that error caused in the Jones to is an allowing blood her spatter harmless beyond a reasonable doubt. R. that to the App. may r e n d e r e d i n n o c u o u s by P. be It is apparently subsequent or p r i o r 52 well settled inadmissible See that may lawful testimony be to CR-06-0741 the same effect inferred.'" So. State, is, or from which Gobble v. S t a t e , 3d , cumulative (quoting same ( A l a . C r i m . App. 2010) erroneous ( A l a .Crim. admission i s harmless App. 1993)). So. 675 S o . 2 d 8 9 7 , 900 be Yeomans v . that Gobble, can F e b . 5, 2 0 1 0 ] (quoting of evidence error.'" Dawson v . S t a t e , facts [Ms. C R - 0 5 - 0 2 2 5 , 641 S o . 2 d 1 2 6 9 , 1 2 7 2 "'[t]he the That i s merely 3d at ( A l a . C r i m . App. 1995)). At trial, attempted to struggled the State presented testimony that a f t e r steal with one a n o t h e r . Cannon m u l t i p l e the head w i t h Cannon's times with a bat. the bat. The that the s h i r t Miller had blood indicated Finally, from that State spatter the that also Miller presented on i t . was on DNA had b l o o d s t a i n s with a bat while he was evidence the night recovered on indicating of Cannon's with spatter Cannon's. an a l u m i n u m b a t on i t . C a n n o n was h i t on t h e struggling 53 Miller h i t t e s t i n g of the From t h e e v i d e n c e e s t a b l i s h i n g t h a t head Cannon a l s o h i t Cannon consistent officers and and S m i t h h i t Cannon time, wearing blood Miller the struggle, his fist, was law-enforcement the scene During During this with murder wallet, Miller with Miller, i ti s CR-06-0741 reasonable to i n f e r that the blood was t h e r e s u l t o f Cannon b e i n g bat or M i l l e r ' s blood an fists. spatter h i t with Therefore, on M i l l e r ' s an o b j e c t , i . e . , the Jones's testimony that the s p a t t e r on t h e s h i r t was c a u s e d b y C a n n o n b e i n g object was (quoting cumulative. Yeomans, "'[t]estimony 641 that may See So. be shirt Gobble, 2d at apparently So. 1272) h i t with 3d at (holding inadmissible that may be r e n d e r e d innocuous by subsequent o r p r i o r l a w f u l t e s t i m o n y t o the same effect inferred'"). or from which Consequently, any J o n e s ' s t e s t i m o n y was h a r m l e s s any relief. Rule the error same facts i n the can be admission of and does n o t e n t i t l e 4 5 , A l a . R. A p p . Miller to erred in P. VII. Miller next failing to give asserts that the jury the circuit regarding argues two j u r y the c i r c u i t that court offenses. court Specifically, erroneously erroneously a witness's circuit instructions. on l e s s e r - i n c l u d e d court the He failed also to i n s t r u c t contends that i n s t r u c t the jury refused possible A. 54 Miller to motives for testifying. CR-06-0741 Miller refusing first to give lesser-included indifference offenses brief, requested jury that the h i s requested murder, (Miller's not argues of and circuit jury manslaughter murder, the extreme provocation." Miller Although court on in with submitted h i s i n s t r u c t i o n s i n w r i t i n g before o b j e c t when t h e c i r c u i t erred instructions "intentional a t p. 5 8 - 5 9 ) . court trial, f a i l e d to give the he d i d requested instructions. "No p a r t y may a s s i g n a s e r r o r t h e c o u r t ' s ... failing to give [an] i n s t r u c t i o n ... u n l e s s t h e party objects thereto before the jury r e t i r e s to c o n s i d e r i t s v e r d i c t , s t a t i n g t h e m a t t e r t o w h i c h he or she o b j e c t s and t h e grounds o f t h e o b j e c t i o n . " Rule 2 1 . 3 , A l a . R. when t h e c i r c u i t included court offenses, appellate review. Crim. P. Because failed he Miller to instruct d i d not preserve d i d not t h e j u r y on this object lesser- argument f o r S e e R u l e 2 1 . 3 , A l a . R. C r i m . P.; B u l l o c k v . State, 697 S o . 2 d 66 ( A l a . C r i m . A p p . 1 9 9 7 ) ; s e e a l s o G o i n s v . State, 521 S o . 2 d 9 7 , 98 this issue (Ala. Crim. does n o t e n t i t l e App. 1987). him t o any Therefore, relief. B. Miller refused to next argues instruct that the the c i r c u i t jury 55 that court i t could erroneously consider a CR-06-0741 witness's that motivation witness's court's the anyone's by testimony. jury instructions, "charge circuit f o rgain i n evaluating the c r e d i b i l i t y of jury motive on At the conclusion Miller the f o r gain asked court ruled that the requested the i n s t r u c t i o n "A t r i a l he g a v e the c i r c u i t consideration to t e s t i f y . " of the they court to give can to (R. 1 3 8 2 - 8 3 . ) i n s t r u c t i o n was on w i t n e s s e s ' circuit possible The covered biases. c o u r t h a s b r o a d d i s c r e t i o n when f o r m u l a t i n g i t s jury instructions...." W i l l i a m s v . S t a t e , 7 9 5 S o . 2 d 7 5 3 , 780 (Ala. C r i m . App. 1999) (citing 1276, 1305 court's ( A l a . C r i m . App. 1996)). jury instructions] reasonable State, Williams instructions, as a whole, j u r o r would [this 820 S o . 2 d 8 4 2 , 874 710 S o . 2 d "When r e v i e w i n g Court] not i n b i t s have v. S t a t e , and p i e c e s , i n t e r p r e t e d them." ( A l a . C r i m . App. trial view must a [the and as a Johnson 2000). "Although ... [ a ] d e f e n d a n t i s e n t i t l e d t o h a v e t h e trial court i n s t r u c t t h e j u r y on h i s t h e o r y of d e f e n s e , i t i s ... w e l l e s t a b l i s h e d t h a t [ t ] h e t r i a l j u d g e may r e f u s e t o g i v e a r e q u e s t e d j u r y charge when t h e c h a r g e i s e i t h e r f a i r l y a n d s u b s t a n t i a l l y covered by the t r i a l judge's o r a l charge or i s confusing, misleading, ungrammatical, not predicated on a c o n s i d e r a t i o n o f t h e e v i d e n c e , argumentative, abstract, or a misstatement of thelaw." 56 v. CR-06-0741 Reeves v. State, (citations and 875 352, So. trial 2d 2d 358 18, 41 (Ala. omitted). ( A l a . C r i m . App. App. 2000) a l s o R i l e y v. See State, 2003) Crim. (holding that weighing covered the the witness's circuit possible instruction the Dictionary, things, 171 an was judge's "[A] 820 So. 2d ed. a t 874, "inclination"). substantially consider circuit for testifying. 2004) that, j u r o r would the by the instruction, the c i r c u i t court d i d not refusing i t . Therefore, t h i s i s s u e does not any have Black's as, Because M i l l e r ' s in court's See (defining bias covered was charge"). jury i t could reasonable motivation (8th oral i n s t r u c t e d the of w i t n e s s e s , bias. cover trial court Johnson, to instruction by credibility interpreted," any "the judge p r o p e r l y r e f u s e d the charge because the charge Here, other So. quotations substantially Law 807 among requested circuit court's abuse i t s d i s c r e t i o n entitle Miller by to relief. VIII. Miller next argues prosecutor misled the related count I of to murder d u r i n g that, during jury regarding the a robbery. indictment, He closing the the law of argument, i n t e n t as i t capital offense f u r t h e r argues t h a t , during 57 the of his CR-06-0741 rebuttal c l o s i n g argument, Miller's l a c k - o f - i n t e n t argument thereby shifting arguments are the prosecutor with the burden to M i l l e r without improperly an equated insanity to disprove defense, intent. The merit. A. To the the j u r y on Miller the the with during extent portion misstates Miller element murder course of the the of made of a argues of the prosecutor intent regarding capital robbery, prosecutor's law that because this as i t argument argument i n t e n t was count that was I misled charging committed i s moot. Miller The argues follows: "The c h a r g e w h i c h I r e a d t o y o u b a c k when we s t a r t e d t h i s case, f i r s t charge b e i n g c a p i t a l murder d u r i n g the course of a robbery. T h a t ' s what the S t a t e i s r e q u i r e d t o p r o v e t o you f o r [ y o u ] t o f i n d t h e v e r d i c t o f g u i l t y as t o t h a t c h a r g e . One is t h a t the d e f e n d a n t caused the d e a t h of Cole Cannon. A n d t h e s e c o n d e l e m e n t w o u l d be t h a t i t was during t h e c o u r s e o f a t h e f t o f p r o p e r t y a n d t h a t f o r c e was u s e d d u r i n g t h a t t h e f t , t h a t makes i t a r o b b e r y . You have a murder d u r i n g the course of a robbery while t h e d e f e n d a n t was armed w i t h a d e a d l y weapon, i n t h i s case a b a s e b a l l bat. The f o r c e u s e d c a n a l s o be t h e h i t t i n g o f t h e b a t a n d a l s o be u s e d i n t h e e s c a p i n g w i t h the p r o p e r t y , not j u s t i n the t a k i n g of the p r o p e r t y . " (R. 1269-1270; emphasis added.) the prosecutor failed to According mention 58 intent to M i l l e r , as an because element, his CR-06-0741 conviction Miller must be of c a p i t a l reversed. However, murder/robbery. [count I] c h a r g e r e n d e r s t h i s which appellant review.'" 1 995) Snell (quoting C r i m . App. 280, 585 was 284 v. found State, DeFries (Ala. Crim. So. 2d 261, challenge relating a jury had acquitted challenge entitle him his before 597 So. 2d the the of Miller to any Court. See App. sufficiency indictment that ( A l a . Cr. was charge). the that Accordingly, So. that moot b e c a u s e this this 2d an indictment Because count, (Ala. State, (holding argument r e l a t i n g on 354 Inmon v . of App. 744 State, 1991) the appellate 742 , also on count upon to 791 i n t u r n Hammond v . acquittal this subject State, to in 'Only the 786, 1977)). acquitted "acquittal 2d to the p r o s e c u t o r ' s made m o o t b y properly charge is jury So. (Ala. Crim. appellant's to i s s u e moot. 677 App. 264 Miller's guilty v. 1992), quoting the Miller's to count I issue issue the was is not does not relief. B. Miller's Miller's thereby not argument t h a t lack-of-intent shifting preserved the the prosecutor argument with burden for appellate to Miller review. 59 an to At improperly insanity disprove trial, equated defense, intent, Miller is failed CR-06-0741 to object equated that to "[w]hen argument v. no that he objection of counsel 710 i s made Buford App. 2004) v. 562 S o . 2 d 657 State, that object at trial). issue, i t " i s not properly App. 2 0 0 4 ) . Because State, Therefore, a prosecutor's ( A l a . Crim. before App. failed this 1989)). to preserve h i s because failed 1 997 ) ( A l a . Crim. he failed to preserve Court i s not e n t i t l e d to this for appellate 901 S o . 2 d 750 , 755 Miller review." ( A l a . C r i m . App. comment Miller settled for appellate the appellant to the prosecutor's v. I t i s well 891 S o . 2 d 4 2 3 , 434 challenge Dickey improperly o f e r r o r b a s e d on i m p r o p e r So. 2d 1 3 6 2 , 1373 (holding review." asserts following i s not preserved Lee v. S t a t e , also now an i n s a n i t y d e f e n s e . improper remark, a c l a i m State, (citing See comment intent with allegedly May the ( A l a . Crim. t o any relief. IX. Miller repeatedly next argues informing Specifically, instructions [irrelevant] he were that circuit court t h e j u r y about h i s p o s s i b l e contends "highly considerations guilt-innocence the decision." that the punishment (Miller's 60 brief, in punishments. circuit prejudicial" of erred court's and "inject[ed] into the a t p. jury's 6 6 , 68.) CR-06-0741 Miller, however, circuit court. appellate d i d not first Therefore, review. order to preserve State, not 574 argument he d i d n o t p r e s e r v e this must f i r s t issue for o b t a i n an a d v e r s e 1025 ( A l a . Crim. f o r appellate review App. ruling where 1990)(claim defendant f i r s t p r e s e n t h i s argument t o t h e t r i a l c o u r t ) . this to the an i s s u e f o r a p p e l l a t e r e v i e w ) ; J o r d a n So. 2d 1024, preserved this See H a r r i s v . S t a t e , 563 S o . 2 d 9, 11 ( A l a . C r i m . App. 1 9 8 9 ) ( d e f e n d a n t in present i s s u e does not e n t i t l e Miller t o any v. was d i d not Consequently, relief. X. Miller denied jury the next argues h i s motion impeachment "Alabama proceedings." Crim. App. "However, proceedings In h i s motion, Miller that a transcript circuit court and during o f f e r e d n o t h i n g more t h a n erroneously of the grand- the hearing bare of the grand-jury proceedings on assertions might c o n t a i n testimony. has long protected Blackmon 2005) a the f o r discovery of t r a n s c r i p t s proceedings. motion, that (citing defendant i f the v. may the State, § be 7 secrecy So. 12-16-214, allowed defendant meets 61 to the 3d of grand-jury 397 , 409 ( A l a . Ala. Code inspect 1975). grand-jury threshold test of CR-06-0741 showing those a 'particularized proceedings." Supreme C o u r t has need' Blackmon, explained for breaching 7 So. 3d at the 409. secrecy The of Alabama that: "Before a defendant i s allowed to i n s p e c t a t r a n s c r i p t o f a S t a t e ' s w i t n e s s who t e s t i f i e d b e f o r e t h e g r a n d j u r y [ , ] ... t h e d e f e n d a n t s h o u l d a t l e a s t a n d a t a v e r y m i n i m u m make some o f f e r o f p r o o f (1) t h a t the matters c o n t a i n e d i n the w i t n e s s ' grand j u r y t e s t i m o n y were r e l e v a n t to the s u b j e c t m a t t e r o f t h e p r o s e c u t i o n ; (2) a n d t h a t t h e r e e x i s t s an i n c o n s i s t e n c y between g r a n d j u r y t e s t i m o n y and t r i a l testimony." McKissack and v. S t a t e , 926 quotations grand-jury testimony, 2d at ... 372. 2d 3 6 7 , omitted). inconsistencies testimony So. Before he must between the their trial and This burden 370 a [State's met be the testimony omitted). might Bare disclose establish Id. a proceedings. 375 assertions that impeachment "particularized Billups v. need" State, 62 for [Ms. is 926 defendant testimony and grand-jury of grand-jury that there (citations evidence inspect likelihood the concern the may McKissack, grand-jury at (citations witness's] until a genuine trial [a] testimony. i s not between defendant "show[] " e s t a b l i s h e d t h a t t h e r e was inconsistencies ( A l a . 2005) So. has could and the quotation transcripts insufficient discovery CR-05-1767, of Nov. to these 13, CR-06-0741 2009] So. defense will in 370 3d counsel , (Ala. Crim. i s merely h a v e some i n f o r m a t i o n the defendant's ( A l a . 2005) Here, assertion that impeachment on a has the evidence. and fishing "Unless expedition, inconsistency McKissack, nothing grand-jury 926 So. 2d more than a t o meet h i s b u r d e n for transcript a circuit court discovery did of not the d i d not might attempt establish to e s t a b l i s h grand-jury abuse at bare testimony to contain i m p e a c h m e n t e v i d e n c e w o u l d be d i s c o v e r e d . A c c o r d i n g l y , failed he quotations omitted). presented He 2009). as t o t h e p a r t i c u l a r testimony...." (citations Miller going App. what Miller a particularized proceedings, i t s discretion need the denying by and his motion. XI. Miller next argues that admitting autopsy photographs, video these of the crime exhibits prejudicial; to be scene. were the trial court erred crime-scene photographs, Specifically, cumulative, t h e r e f o r e , the t r i a l admitted. 63 Miller and contends inflammatory, and in a that unduly court erred in allowing them CR-06-0741 Alabama relevant 1128, have the have long the crime depicting courts scene a n d t h e wounds o f t h e v i c t i m s a r e and a d m i s s i b l e . 1151 scene admissible cumulative." held despite this the fact that Ward v. S t a t e , that they 868 S o . 2 d of this accurately may be depict gruesome 814 S o . 2 d 8 9 9 , 906 (quoting (Ala. [that S i e b e r t v. S t a t e , 562 I n Brooks v. S t a t e , that: "'Generally, photographs are admissible into evidence i n a c r i m i n a l prosecution " i f they tend t o p r o v e o r d i s p r o v e some d i s p u t e d o r m a t e r i a l i s s u e , t o i l l u s t r a t e o r e l u c i d a t e some o t h e r r e l e v a n t f a c t or evidence, or t o corroborate or disprove some o t h e r e v i d e n c e o f f e r e d o r t o be o f f e r e d , a n d t h e i r admission i s w i t h i n t h e sound d i s c r e t i o n of t h e t r i a l j u d g e . " ' B a n k h e a d v . S t a t e , 585 So. 2 d 97, 109 ( A l a . C r i m . A p p . 1 9 8 9 ) , r e m a n d e d on o t h e r g r o u n d s , 585 S o . 2 d 112 ( A l a . 1 9 9 1 ) , a f f ' d o n r e t u r n t o r e m a n d , 625 S o . 2 d 1 1 4 1 ( A l a . C r i m . A p p . 1 9 9 2 ) , r e v ' d , 6 2 5 S o . 2 d 1 1 4 6 ( A l a . 1 9 9 3 ) , q u o t i n g M a g w o o d v . S t a t e , 494 So. 2 d 1 2 4 , 1 4 1 ( A l a . C r i m . A p p . 1 9 8 5 ) , a f f ' d , 494 S o . 2d 154 ( A l a . 1986). 'Photographic exhibits are admissible even though they may b e cumulative, demonstrative of undisputed facts, o r gruesome.' 64 or 678 S o . 2 d 2 0 1 , 207 ( A l a . 2d 586, 599 ( A l a . C r i m . App. 1 9 8 9 ) ) ) . explained state wounds a r e ("'The same r u l e a p p l i e s t o v i d e o t a p e s to] photographs....'" Court photographs of the victim's (quoting Land v. S t a t e , C r i m . App. 2000) So. ("The c o u r t s photographs and the nature Crim. App. 1 9 9 5 ) ) ) ; applies that that See S t a l l w o r t h v. S t a t e , ( A l a . C r i m . App. 2001) repeatedly crime recognized CR-06-0741 Williams v. State, 506 So. 2d 368, 371 (Ala.Crim.App. 1986) (citations omitted). In addition, 'photographic evidence, i f relevant, i s a d m i s s i b l e even i f i t has a tendency t o i n f l a m e t h e m i n d s o f t h e j u r o r s . ' E x p a r t e S i e b e r t , 555 S o . 2 d 7 8 0 , 784 ( A l a . 1989). 'This c o u r t has h e l d that autopsy photographs, although gruesome, are admissible to show the extent of a victim's i n j u r i e s . ' F e r g u s o n v . S t a t e , 814 S o . 2 d 9 2 5 , 944 ( A l a . C r i m . A p p . 2 0 0 0 ) , a f f ' d , 814 S o . 2 d 970 ( A l a . 2001). '"[A]utopsy photographs depicting the c h a r a c t e r a n d l o c a t i o n o f w o u n d s on a v i c t i m ' s b o d y are admissible even i f they are gruesome, c u m u l a t i v e , o r r e l a t e t o an u n d i s p u t e d m a t t e r . " ' Jackson v. State, 791 So. 2d 979, 1016 ( A l a . C r i m . A p p . 2 0 0 0 ) , q u o t i n g P e r k i n s v . S t a t e , 808 So. 2d 1 0 4 1 , 1108 ( A l a . C r i m . A p p . 1 9 9 9 ) , a f f ' d , 808 S o . 2 d 1 1 4 3 ( A l a . 2 0 0 1 ) , j u d g m e n t v a c a t e d on o t h e r g r o u n d s , 536 U.S. 953 ( 2 0 0 2 ) , o n r e m a n d t o , 851 S o . 2d 453 ( A l a . 2 0 0 2 ) . " 973 So. 2d 380, 393 ( A l a . C r i m . App. 2007). T h i s C o u r t has r e v i e w e d t h e c r i m e - s c e n e photographs, crime-scene v i d e o , and t h e autopsy photographs they were crime relevant and the and extent a d m i s s i b l e t o show of the victim's and h o l d s the scene injuries. the that of the Further, a l t h o u g h u n p l e a s a n t , t h e photographs were n o t u n d u l y gruesome. Therefore, error in erred in allowing the circuit the photographs court t o be d i d not commit admitted at any trial. XII. Miller failing next to protect argues him that from the circuit prejudicial 65 court pretrial publicity. CR-06-0741 Specifically, sequestered the jury he contends the j u r y or taken from viewing shackles and 74-75). Miller, appellate The that handcuffs the other necessary prejudicial on however, d i d not record indicates that before requested control pretrial t h a t t h e j u r y be publicity. likely that taken the raise an i s s u e w o u l d be adverse ruling instructed coverage of counsel requested give the Miller's (R. 695). wearing him brief, at issues Miller's p. for sequestered sequester up defense i n an e f f o r t the circuit later. Defense the the trial. television instruction trial on motion. jury Later that the not in again at stated counsel that trial he counsel, 66 Miller's its court of want the day to however, not court television circuit end "may trial, any did did circuit repeat The the The to watch the court coverage. counsel Miller's the to court the j u r y , but t h e i s s u e o f s e q u e s t e r i n g t h e j u r y a g a i n and subsequently regarding of these trial, Initially, i n d i c a t e d that i t would obtain prevent (Miller's preserve have steps to images television. should review. counsel not c i r c u i t court trial instruction agreed to but advised remind [him]". failed to remind CR-06-0741 the court of requested not Miller to rule object received agreement instruction Because failure their was n e v e r d i d not the an a d v e r s e jury to not jury trial. not 2d to avoid Likewise, watching Consequently, properly before any Court. ruling review); Birge App. 2007) appellate court, i n order v. State, (holding that and d i d he never obtain f a i l e d to re-instruct coverage of the were n o t p r e s e r v e d and a r e See H a r r i s v . S t a t e , 9, 11 ( A l a . C r i m . A p p . 1 9 8 9 ) ( d e f e n d a n t m u s t f i r s t adverse court's d i d not Miller television these issues this and t h e the jury sequestered, an a d v e r s e r u l i n g when t h e c i r c u i t c o u r t the recess, the c i r c u i t to sequester was ruling. the given. object on h i s m o t i o n when before to preserve an 973 S o . 2 d " i n order issue 563 S o . obtain an for appellate 1085, 1105 to preserve ( A l a . Crim. an i s s u e f o r r e v i e w , a t i m e l y o b j e c t i o n m u s t b e made i n t h e t r i a l and Therefore, the Miller court must enter i s not e n t i t l e d an t o any adverse ruling"). relief. XIII. Miller failing next to declare argues that the circuit court erred in a m i s t r i a l o r t o i m p a n e l a new j u r y b e c a u s e 67 CR-06-0741 some members of Cannon's family were wearing d i s p l a y i n g Cannon's p i c t u r e d u r i n g t h e f i r s t After Miller's asked noticing several trial that counsel the court from ordered that the buttons in both order hearing defense trial new and t h e S t a t e , impanel a review. App. new Consequently, erred jury See H a r r i s 1989)(defendant order State, to preserve the The c i r c u i t of their court court then to c a r r y out i t s discussion, in failing venire Miller's to grant first an i s s u e for appellate 68 that the or to for appellate 11 ( A l a . Crim. an a d v e r s e f o r appellate review request him a m i s t r i a l 563 S o . 2 d 9, obtain or argument i s not preserved v. S t a t e , must fora mistrial Miller's 574 S o . 2 d 1 0 2 4 , 1 0 2 5 ( A l a . preserved After i n d i c a t e d t h a t he was s a t i s f i e d w i t h t h e c o u r t ' s venire. court be r e m o v e d . i t up t o t h e S t a t e a n d a t no t i m e d i d he move circuit buttons, o f h i s concerns and the pins counsel At the conclusion counsel decision not that the dire. be r e m o v e d w h i l e t h e i n d i v i d u a l s were s t a t e d that i t would leave a the court the presence of the venire or j u r y . directives. day o f v o i r i n d i v i d u a l s wearing informed buttons review); ruling i n Jordan C r i m . App. 1 9 9 0 ) ( c l a i m where defendant v. was d i d not CR-06-0741 first present Miller his i s not argument entitled to to the any trial court). Therefore, relief. XIV. Miller prevented finally the defense Specifically, his voir from exposure veniremembers' of argues t h a t the to Miller motions for d i r e prevented veniremembers had When t h e jury him and that court information coverage the erroneously of circuit questionnaire the crime. court's and for from d i s c o v e r i n g the about denial individual extent to been exposed to media coverage of the circuit questionnaire obtaining media asserts a circuit court for denied Miller's individualized motion voir dire, which crime. for a the jury circuit court e x p l a i n e d t h a t i t would b r i n g the veniremembers i n t o the courtroom the panels and allow Thereafter, panels. in the both circuit sides court to question brought panels of 18 veniremembers i n t o the courtroom f o r v o i r d i r e examination and provided the both sides an opportunity to question veniremembers. It is examination trial well settled i s w i t h i n the court's refusal that "'the discretion to allow 69 method of the the use of voir trial court of [a] dire and a juror CR-06-0741 questionnaire State, i s n o t an abuse o f t h a t d i s c r e t i o n . ' " 856 S o . 2 d 8 7 5 , parte Land, 678 So. 913 2d 224, "'there i s no question each prospective requirement examination.'" App. 2007) 1992)). discretionary The its a with Coral, 628 So. 628 in be i n panels questioned opportunity failed to point denied a fair prevented exposure dire ( A l a . Crim. 968 ( A l a . individual court.'" Sneed, voir and dire i s 1 So. 3d a t 135 2d a t 9 6 8 ) . circuit court of 18, to question t o any to a p p l i e s to c a p i t a l cases, i t s method The allowed 135 Ex Likewise, So. 2d 954, record i n d i c a t e s that the c i r c u i t examination. was d e f e n d a n t be 1 So. 3d 104, for the t r i a l (quoting individually during voir rule request 2001) ( A l a . 1996). a juror "'This of discretion ample that Sneed v. S t a t e , granting (quoting 242 ( q u o t i n g C o r a l v. S t a t e , C r i m . App. the ( A l a . C r i m . App. Hodges v. of conducting allowed and c o u r t d i d not abuse dire the veniremembers both sides the veniremembers. indication voir i n the record were to allowed Miller that he has was o p p o r t u n i t y t o q u e s t i o n v e n i r e m e m b e r s o r t h a t he from d i s c o v e r i n g information through questioning. 70 Accordingly, relating Miller t o media has not CR-06-0741 established the manner For court that the c i r c u i t court abused i n which i t conducted v o i r the foregoing i t sdiscretion in dire. r e a s o n s , t h e judgment of the circuit i s affirmed. AFFIRMED. Wise, P . J . , and K e l l u m and Main, J J . , c o n c u r . concurs i n the result. 71 Welch, J . ,
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