Evan Miller v. State of Alabama

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rel: 08/27/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal 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 , Alabama 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 b e 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 f r o m Lawrence C i r c u i t (CC-06-68) Court On A p p l i c a t i o n f o r R e h e a r i n g WINDOM, This the Judge. Court's opinion following opinion o f June 25, 2010, i s withdrawn, and i s substituted therefore. CR-06-0741 E v a n M i l l e r a p p e a l s h i s c o n v i c t i o n o f m u r d e r made because i t was committed d u r i n g the course 13A-5-40(a)(9), A l a . Code 1975, life without in prison reasons and that follow, this his resulting possibility Court o f an a r s o n , s e e affirms of sentence parole. Miller's For § of the conviction sentence. The 2003, evidence then neighbor, that he Colby Cole could trailer on Miller not who Smith Evan Smith, Cannon. fire. firefighters, Colby presented at t r i a l 14-year-old codefendant, for the and capital get off testified night at M i l l e r ' s trailer. to floor, Miller set was later he became t h e y had months b e f o r e in July 16-year-old Cannon that five his savagely beat to e x t i n g u i s h that the evening of J u l y and body d u r i n g h i g h s c h o o l and On and that beating the called a p p r o x i m a t e l y f o u r or 979.) robbed Cannon's were Miller After 1 established Miller's the point Cannon's discovered the fire. acquainted known e a c h the 1 5 , 2 0 0 3 , S m i t h was by with other crime. (R. spending the A r o u n d m i d n i g h t , C a n n o n came over 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 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 something he drinking, that he mother Smith they could and S m i t h was was went were eat. Cannon smelled alcohol "staggering." to find stole some o f Cannon's Smith then returned to Miller's When C a n n o n f i n i s h e d Miller to and S m i t h g e t Cannon i n t o x i c a t e d Smith until smoked he a joint passed unconscious, M i l l e r the a little Miller to put attempting h i t Cannon and began on t h e h e a d . hitting f o r drugs, but found and Miller and t o Cannon's t r a i l e r h i s money. drinking intending Miller games with While couch. Cannon o v e r $300 w i t h S m i t h . the wallet 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 cards. p o c k e t , C a n n o n j u m p e d up a n d g r a b b e d M i l l e r Smith, Miller and Cannon was 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 Miller's 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 been trailer. and p l a y e d out While two, however, trading eating, t h e n went b a c k to look The baseball have f o r Cannon, trailer any. to on h i s b r e a t h a n d n o t i c e d spaghetti t o Cannon's unable appeared (R. 710, 980.) p r e p a r i n g some over h i s f o o d and a s k i n g i f t h e y had Miller him i n the face with 3 back i n Cannon's around the throat. grabbed then While a baseball bat c l i m b e d onto his fists. Cannon Despite CR-06-0741 Cannon's p l e a s t o s t o p , M i l l e r had dropped, with 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 told Miller h i m , " I am G o d , After Miller Smith p l a c e d a sheet striking him h i t Cannon a f i n a l Miller and S m i t h time w i t h trailer. 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 (R. 990.) under few minutes As they were trailer and and S m i t h Smith i n t h e back bedroom, couch As t h e y w e r e l e a v i n g , " t o cover Smith Approximately alone. 10 i n an attempt He the water would leaving minutes could Cannon's doing this later, hear 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 C a n n o n a s k i n g , "Why trailer the bat, M i l l e r crime. on a c o u c h 986.) to stop the 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. fire laying there." towel bleeding. a fire (R. 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 . several over Cannon's head and I ' v e come t o t a k e y o u r returned to M i l l e r ' s however, and by i trepeatedly. Afterwards, set Cannon Smith Smith Cannon 4 extinguish the trailer, t o me?" Smith heard (R. 990-91.) returned to coughing sink Cannon's b u t "smoke was CR-06-0741 coming out returned and [Miller to the M i l l e r ' s Firefighters, extinguish coffee was] who the f i r e table firefighters trailer. were north The (R. called and b l o o d spatters to the discovery conducted behind the i n i t i a l on [him,]" to the Sandlin of the noticed 796, This on t h e l e d the of Cannon's body i n t h e F i r e Marshal Richard hallway Montgomery, i n v e s t i g a t i o n , concentrated later turned Sheriff's 798-802.) to blood the w a l l . over Department 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. he park trailer 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 so 992.) a t Cannon's t r a i l e r , l e a d i n g t o t h e b a c k bedroom. who coming with Marshal suspicious." Cannon's 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 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 , from the t r a i l e r . from underneath license baseball was the couch missing. this trailer wallet was Investigator discovery, were eventually in his trailer, bat from underneath After Miller's Cannon's Tim items, missing recovered but h i s d r i v e r ' s Sandlin also removed a the couch. Investigator to speak with Miller 5 Sandlin went to and h i s mother, Susan. CR-06-0741 Susan gave Investigator Sandlin a box o f t r a d i n g cards, and Miller and h i s mother agreed t o r i d e w i t h him t o t h e s h e r i f f ' s office to give At basic statements. the s h e r i f f ' s information office, from M i l l e r Investigator 15 M i l l e r began r e c o u n t i n g and h i s mother b o t h the events of the night and t h e e a r l y m o r n i n g o f J u l y 16. initially July going fire Investigator Sandlin 1 5 , he was a t h i s t r a i l e r admitted did told that over Cannon t o Cannon's not learn about department Investigator morning's came arrived Sandlin events that on Miller also asked M i l l e r to begin and work backwards 07.) Sandlin officers left t h e room. to the previous the room, After Miller's Miller 6 gave he the when by d e s c r i b i n g t h e then requested that everyone except leave that until evening, Investigator " t o f o r g e t a l l t h a t , t h a t t h a t wasn't t r u e . " Miller of denied However, 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 " a n d t o l d Sandlin he claimed trailer morning. Miller A l t h o u g h he trailer, a t Cannon's the next of J u l y the evening a movie. to their trailer. signed In h i s statement, watching over the f i r e obtained and read him h i s r i g h t s from t h e j u v e n i l e Miranda form, which M i l l e r before 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 July statement, Miller explained that, 1 5 , h i s f a m i l y 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 , cards that money." When trailer (R. 7 1 0 . ) around Cannon's a.m., Miller beer. so eventually Miller arm. the when he arm. Afterwards, k i c k e d i tunder he 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 had 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 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 off Cannon According to Miller, became "looked l i k e midnight t o get something trailer on t h e M i l l e r 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 to to read said Smith t h e b a t f r o m Cannon a n d h i t Cannon on Smith t h e couch. threw Miller t h e b a t down t h e n p u n c h e d 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. m o t h e r k n o c k on p o l i c e w e r e on asking, 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?" (R. statement, Blaxton, on the could hear t o l e t him 2003, to conduct a full (R. 806.) and fire As Deputy Blaxton noticed wall, a a a table, Blaxton also including the identified a large hallway; completely pillow, a one one placed on which the four i n the second consumed by fourth and one fire; before examination on on (R. of a from a set bed, one on lawon on 8 body. the Deputy fires, had 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 on f o r the which cushion July During 807-08.) the had result, spatters origin the a third being F o r e n s i c p a t h o l o g i s t Dr. external points called s o u t h bedroom, w h i c h s p r e a d originated floor blood towel. Cannon other investigation. investigation, the k n o w t h a t he 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, out Sandlin Sandlin, Investigator them 711-12.) Investigator fire. tell Smith ran they Deputy F i r e Marshal Lyndon B l a x t o n Deputy and leaving, this "additional information" 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 o f 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 to 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. also 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 must crime convicted. See Graham, The Court 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-homicide 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 non-homicide 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 non-homicide 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 murder. the serve capital State has as offenders. a legitimate f o r j u v e n i l e s who Supreme C o u r t has an commit explained, "'[t]he heart 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 directly criminal 2028 r e l a t e d to offender.'" (quoting personal Graham, Tison Here, M i l l e r the U.S. Arizona, sentenced was v. to for committing one the Supreme Court at 481 the "a properly imposition of U.S. at , hold that sentence. Graham, Finally, this legitimate individual In Alabama, not the Court goal to incapacitate is willing sum, Miller capital eligible to take, committed murder, for State's cannot the and, and the has worst 25 punishment have, diminished 130 Ct. the juvenile taken, because penalty. 2028. lacks when a human crime his Based a that life. recognized of is harshest at State as moral interest second S. at (1987)). does not the the Ct. 149 retribution a solely harshest He twice the by 137, of S. second harshest culpability"; therefore, served , 130 U.S. of the worst crimes. described, culpability 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 to 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 Ex p a r t e Dixon "'Whether a Jackson, v. State, waiver each case, conduct of State, So. facts including the circumstances.'" v. 588 i s voluntary, d e p e n d s on t h e p a r t i c u l a r of 836 S o . 2 d 9 7 9 , 982 ( A l a . 2 0 0 2 ) 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 y o u d e c i d e t o a n s w e r 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 an 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 [count I] renders reversed. this 'Only t h e c o u n t upon Snell State, App. 1992), i s s u e moot. guilty 677 DeFries i s subject So. 2d v. S t a t e , quoting 78 6, 7 91 i n turn See a l s o 2d 261, App. relating jury ( A l a . Crim. challenge to a charge had a c q u i t t e d challenge him of that entitle To the Miller this Court. Crim. 354 S o . 2 d 2 8 0 , of the 585 S o . that an indictment was m o o t b e c a u s e t h e Because count, Accordingly, t o c o u n t I was this this Miller's issue issue i snot does n o t t o any r e l i e f . the extent Miller argues that the prosecutor j u r y on t h e e l e m e n t o f i n t e n t r e g a r d i n g with during t h e c o u r s e o f an a r s o n , appellate (Ala. (holding charge). on t h a t which C r . App. 1995) argument r e l a t i n g Miller for 1991) on t h e review.'" Inmon v . S t a t e , i n the indictment to the prosecutor's before (Ala. to the sufficiency made m o o t b y h i s a c q u i t t a l properly to appellate Hammond v . S t a t e , ( A l a . C r i m . App. 1 9 7 7 ) ) . appellant's "acquittal 597 S o . 2 d 7 4 2 , 744 284 264 acquitted Miller's was f o u n d (quoting the jury murder/robbery. appellant v. However, murder made capital this because I I charging i t was committed argument i s n o t p r e s e r v e d r e v i e w and i s w i t h o u t m e r i t . 59 count misled I t i swell settled CR-06-0741 that "[w]hen no o b j e c t i o n i s made allegedly improper argument of counsel May v. S t a t e , (citing See challenge the course App. v. (R. 1 2 7 1 . ) App. 1989)). (Ala. he properly i t was counsel Because M i l l e r Crim. failed to committed d i dnot raise f a i l e d to preserve before this Court for D i c k e y v . S t a t e , 901 S o . 2 d 7 5 0 , 755 ( A l a . i s s u e was p r e s e r v e d not e n t i t l e Miller closing to any argument, '"'so i n f e c t e d resulting State, A p p . 1 997 ) 2004). prosecutor's the because o f an a r s o n , M i l l e r ' s i t " i s not Even i f t h i s argument review." A f t e r t h e p r o s e c u t o r gave h i s " s y n o p s i s " o f appellate review." would (Ala. Crim. comment b e c a u s e o f m u r d e r made c a p i t a l issue, Crim. f o r appellate 891 S o . 2 d 4 2 3 , 434 to the prosecutor's objections. this improper (holding that the appellant f a i l e d to preserve h i s elements any i s not preserved v. S t a t e , object at t r i a l ) . during prosecutor's r e m a r k , a c l a i m o f e r r o r b a s e d on 710 S o . 2 d 1 3 6 2 , 1 3 7 3 Buford 2004) the a L e e v . S t a t e , 562 S o . 2 d 657 ( A l a . C r i m . also App. following conviction relief. the standard the t r i a l a denial 1 S o . 3 d 1 0 4 , 138 for appellate review, i t a i s whether the w i t h u n f a i r n e s s a s t o make o f due p r o c e s s . ' " ' " (Ala. Crim. 60 "In judging App. Sneed 2007)(quoting CR-06-0741 Darden turn v. Donnelly Before prove the to circuit [it] at Wainwright, v. 477 168, 181 416 U.S. DeChristoforo, prosecutor's establish court U.S. "synopsis" murder d u r i n g informed the of the jury (1986), what conclusion Later, of argument by arguments, the the the o f an course jury on each arson. of (R. the an court arson, court elements correctly of murder circuit State prove a reasonable or this offense elements of arson then you capital offense." 2d 604 577, follow the Hutcherson App. (R. State, find App. the See 1999) given 727 one intentional 1347.) instructions 1997), c i t i n g Crim. cannot (Ala. Crim. v. of any by So. 2d i n t u r n T a y l o r v. 1994)). 61 defendant Frazier ("The the 846, State, v. jury trial 854 666 of guilty of State, [an] 758 this So. i s presumed (Ala. 2d to (quoting Crim. 36, to the during court.") So. then "failed more murder during court j u r y t h a t i f i t found t h a t the doubt "give 1270-71.) i n s t r u c t e d the beyond the (R. circuit The to offenses,... sides." 1344-47.) had would capital in (1974)). State the both instructed the of that closing after 643 course a l l of the elements of the o f f e n s e s , the 637, quoting 70 App. (Ala. CR-06-0741 Because gave a the jury synopsis because was o f what the c i r c u i t the jury offenses, and because instruct the jury statement the 1 not a l l of a l l of Donnelly, entitle the jury cannot court say that of that the capital properly the w i t h u n f a i r n e s s a s t o make t o any Sneed, 477 U.S. a t 1 8 1 , q u o t i n g i n 4 1 6 U.S. a t 6 4 3 ) . Miller capital prosecutor's c o n v i c t i o n a d e n i a l o f due p r o c e s s . ' " ' " (quoting Darden, prove, i t would the of merely to d i d i n fact the elements '"'so i n f e c t e d t h e t r i a l resulting required the elements the c i r c u i t on the prosecutor was informed Court this S o . 3 d a t 138 turn on that the State court instruct offenses, aware Therefore, this issue does relief. B. Miller's Miller's thereby lack-of-intent shifting not preserved to object equated that argument t h a t t h e p r o s e c u t o r to intent "[w]hen allegedly argument the burden with to Miller f o r appellate review. t h e comment with no an i n s a n i t y objection improper that he an equated insanity defense, to disprove At t r i a l , now defense. i s made improperly intent, i s Miller asserts improperly I t i s well following a settled prosecutor's r e m a r k , a c l a i m o f e r r o r b a s e d on 62 failed improper CR-06-0741 argument May v. of counsel State, 710 Lee v. State, Buford v. (citing See App. also 2004) i s not So. to object at issue, i t " i s not 2d Because properly v. Therefore, (Ala. App. 2d 423, Miller 434 this 2d i s not (Ala. because failed So. 1989)). Crim. f a i l e d to preserve comment 901 1 997 ) ( A l a . C r i m . App. appellant Miller Crim. review." 657 before State, appellate So. 891 the for 1373 prosecutor's Dickey 2004). So. State, trial). review." the 1362, 562 (holding that challenge App. 2d preserved to he failed preserve Court 750 , his for 755 entitled to this appellate (Ala. t o any Crim. relief. IX. Miller repeatedly next argues informing the that the he contends instructions were "highly considerations guilt-innocence Miller, circuit court. decision." however, did C r i m . App. not Therefore, appellate review. See court j u r y about h i s p o s s i b l e Specifically, [irrelevant] circuit that the in punishments. circuit court's prejudicial" and "inject[ed] of into the punishment (Miller's first he erred present d i d not H a r r i s v. this at 563 p. 66, argument preserve State, 1 9 8 9 ) ( d e f e n d a n t must f i r s t 63 brief, jury's So. this 2d 9, 68.) to the issue for 11 o b t a i n an a d v e r s e (Ala. ruling CR-06-0741 i n order to preserve State, not 574 So. preserved 2d 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 1024, for 1025 (Ala. Crim. appellate review where f i r s t p r e s e n t h i s argument to the t r i a l this i s s u e does not entitle Miller App. 1990)(claim defendant court). did v. was not Consequently, t o any relief. circuit court X. Miller denied jury the next argues h i s motion impeachment "Alabama App. "However, proceedings showing those a during of the the grand- hearing bare of the g r a n d - j u r y proceedings has long protected Blackmon the proceedings." on assertions might 7 secrecy So. 12-16-214, be allowed to meets the defendant need' Blackmon, explained the State, § may 'particularized has v. (citing defendant i f Supreme C o u r t and o f f e r e d n o t h i n g more t h a n 2005) a transcripts erroneously contain testimony. proceedings." Crim. In h i s motion, Miller that a transcript the f o r d i s c o v e r y of proceedings. motion, that 3d 3d at grand-jury 397 , Ala. 409 Code inspect the 409. (Ala. 1975). grand-jury threshold for breaching 7 So. of test 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 64 of CR-06-0741 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) that the matters contained i n the witness' grand j u r y t e s t i m o n y were r e l e v a n t t o t h e s u b j e c t m a t t e r of 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 a n 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 S o . 2 d 3 6 7 , 370 quotations grand-jury omitted). testimony, inconsistencies testimony 2d at ... 372. he between must the and t h e i r This Before trial burden a inconsistencies [State's trial testimony omitted). might disclose establish a assertions that impeachment proceedings. Billups 2009] 3d defense will counsel v. , i s merely State, on and has could and CR-05-1767, a fishing the quotation insufficient App. So. transcripts for discovery [Ms. 926 testimony is of grand-jury that there grand-jury ( A l a . Crim. going likelihood (citations need" inspect the defendant concern the may McKissack, until evidence "particularized So. 375 (citations witness's] the grand-jury Id. at Bare [a] testimony. i s n o t met between defendant "show[] " e s t a b l i s h e d t h a t t h e r e was a g e n u i n e be ( A l a . 2005) 2009). of to these Nov. 13, "Unless e x p e d i t i o n , he h a v e some i n f o r m a t i o n a s t o t h e p a r t i c u l a r i n c o n s i s t e n c y 65 CR-06-0741 in the 370 defendant's ( A l a . 2005) Here, (citations Miller assertion that impeachment testimony...." has the and nothing grand-jury He 926 So. 2d more than a t o meet h i s b u r d e n for transcript a circuit court discovery of d i d not might attempt establish did to e s t a b l i s h the not grand-jury abuse 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 at quotations omitted). presented evidence. McKissack, 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 of the crime these exhibits prejudicial; to be were trial court erred crime-scene photographs, Specifically, cumulative, t h e r e f o r e , the t r i a l Miller and contends inflammatory, and in a that unduly court erred in allowing them admitted. Alabama depicting 1151 courts the r e l e v a n t and 1128, scene. the have long crime scene and admissible. See ( A l a . C r i m . App. recognized t h e wounds of S t a l l w o r t h v. 2001) 66 ("The that the State, photographs victims 868 c o u r t s of t h i s are So. 2d state CR-06-0741 have the repeatedly crime scene admissible cumulative." held despite this the fact that accurately of the victim's that (quoting Land v. S t a t e , C r i m . App. 2000) So. photographs and t h e nature Crim. App. 1 9 9 5 ) ) ) ; applies that Ward v. S t a t e , they may be wounds a r e gruesome 814 S o . 2 d 8 9 9 , 906 (quoting 2d 586, 599 ( A l a . C r i m . App. 1 9 8 9 ) ) ) . Court explained (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 to 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 o f 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 t h e y may b e cumulative, demonstrative of undisputed facts, o r gruesome.' 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 thas 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 . ' Ex p a r t e S i e b e r t , 555 So. 2 d 780, 784 ( A l a . 1 9 8 9 ) . 'This c o u r t has h e l d that autopsy photographs, although gruesome, are admissible t o show the extent of a victim's 67 or 678 S o . 2 d 2 0 1 , 207 ( A l a . ("'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....'" depict CR-06-0741 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 wounds on a v i c t i m ' s b o d y are admissible even i f they are gruesome, cumulative, or relate 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 So. 2 d 1143 ( 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 although unpleasant, the photographs Therefore, allowing the circuit court the photographs t o be and h o l d s the scene injuries. commit admitted at that of the Further, were n o t u n d u l y d i d not the gruesome. any error in erred in trial. XII. Miller failing next argues to protect Specifically, he him that from contends the circuit prejudicial that court pretrial publicity. the c i r c u i t court should have sequestered the j u r y or taken other necessary steps to prevent the jury shackles from viewing prejudicial a n d h a n d c u f f s on t e l e v i s i o n . 68 images of him wearing (Miller's brief, a t p. CR-06-0741 74-75). Miller, appellate The however, did 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 i s s u e w o u l d be raise an adverse ruling instructed coverage of counsel requested regarding the the 695). Miller's the court of up for defense i n an e f f o r t the to court the j u r y , but stated Defense object when not in counsel he was did never not the jury 69 the trial instruction day to however, before agreed to but advised remind [him]". failed to recess, remind and the given. to was the want object h i s motion court "may court Miller's circuit of not television its end counsel, agreement trial, any did did circuit repeat The the The to watch the court at that trial Miller on motion. jury the again their rule the to circuit later. coverage. instruction Because not Miller's sequestered sequester Later counsel (R. requested the that instruction trial on trial. television Miller's failure issues 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 give trial, Initially, i n d i c a t e d that i t would obtain these review. counsel not preserve to the sequester not circuit the court's jury sequestered, he and did never CR-06-0741 received an a d v e r s e ruling. Likewise, 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 the jury trial. not 2d to avoid watching Consequently, properly before court any Court. d i d not coverage ruling review); Birge App. 2007) appellate court, i n order v. See H a r r i s v . S t a t e , to preserve State, (holding an 973 S o . 2 d that of the were n o t p r e s e r v e d and a r 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 obtain f a i l e d to r e - i n s t r u c t television these issues this Miller " 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 some next argues to declare members of that a mistrial Cannon's the Miller's asked trial that hearing noticing several counsel the court family from both were defense erred wearing the f i r s t in that the pins counsel 70 buttons day o f v o i r i n d i v i d u a l s wearing informed the court order court o r t o i m p a n e l a new j u r y b e c a u s e 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 After circuit the dire. buttons, o f h i s concerns and be r e m o v e d . and t h e S t a t e , the After court CR-06-0741 o r d e r e d t h a t t h e b u t t o n s be r e m o v e d w h i l e in the presence of the v e n i r e stated that i t would leave directives. trial a new impanel court a jury Harris to preserve State, not erred new See Consequently, 1989)(defendant order 574 present Miller to c a r r y out i t s discussion, s a t i s f i e d with Miller's i n f a i l i n g to grant venire v. must an i s not State, 1025 h i s argument Miller's the court's or request argument that him a m i s t r i a l preserved for or to appellate 2d 9, obtain an adverse ruling in review); Jordan v. ( A l a . C r i m . App. review where to the t r i a l 11 the So. for appellate for appellate i s not e n t i t l e d 563 first issue So. 2d 1024, preserved first then a n d a t no t i m e d i d he move f o r a m i s t r i a l review. App. The c i r c u i t c o u r t of t h e i r i n d i c a t e d t h a t he was venire. circuit were i t up t o t h e S t a t e At the conclusion counsel decision or j u r y . the i n d i v i d u a l s ( A l a . Crim. 1990)(claim defendant was d i d not court). Therefore, the c i r c u i t court erroneously t o any r e l i e f . XIV. Miller prevented f i n a l l y argues that the veniremembers' Specifically, defense from exposure to Miller asserts obtaining media that 71 information coverage of about the crime. the c i r c u i t court's denial CR-06-0741 of his voir motions dire for prevented a jury him questionnaire and for from d i s c o v e r i n g the individual extent to veniremembers had been exposed t o media c o v e r a g e of the When t h e circuit questionnaire and court denied for M i l l e r ' s motion individualized 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 both the 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 well examination trial questionnaire parte 856 i s not So. Land, 2d 678 no to 913 2d is question each p r o s p e c t i v e examination.'" 2007) method of the allow the of trial use voir court of an a b u s e o f t h a t d i s c r e t i o n . ' " 875, So. "'the discretion refusal "'there App. that i s w i t h i n the court's State, settled ( A l a . C r i m . App. 224, requirement Sneed v. 242 that juror State, ( q u o t i n g C o r a l v. a 1996). defendant be 1 So. 3d 628 104, So. 2d 135 954, and a juror Hodges v. (quoting Ex Likewise, allowed individually during voir State, 72 (Ala. 2001) [a] dire to dire (Ala. Crim. 968 (Ala. CR-06-0741 C r i m . App. the 1992)). granting "'This of a discretionary with (quoting The its Coral, request the 628 applies to c a p i t a l for individual trial court.'" 2d its examination. The be i n panels questioned circuit opportunity at method court of 18, question of and the the both dire veniremembers sides were the For court from d i s c o v e r i n g i n f o r m a t i o n through manner that is questioning. the i n which the circuit Miller court abused reasons, the that relating Accordingly, i t conducted v o i r foregoing Miller he to has was he media has i t s discretion not in dire. judgment of the circuit affirmed. O P I N I O N OF JUNE 2 5 , AFFIRMED; APPLICATION Wise, record to allowed a f a i r o p p o r t u n i t y to question veniremembers or t h a t established i n the 135 abuse voir veniremembers. indication at court d i d not conducting allowed 3d denied exposure any is to prevented to dire voir failed was point to and 968). So. in cases, S n e e d , 1 So. r e c o r d i n d i c a t e s t h a t the c i r c u i t discretion ample rule P.J., and 2010, WITHDRAWN; O P I N I O N S U B S T I T U T E D ; FOR REHEARING Welch, Kellum, 73 IS OVERRULED. and Main, J J . , concur.

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