Brent E. Martin v. State of Alabama

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rel: 03/05/2010 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-07-0276 B r e n t E. M a r t i n v. S t a t e o f Alabama A p p e a l from R u s s e l l C i r c u i t C o u r t (CC-06-364; CC-06-365; and CC-06-671) KELLUM, Judge. Brent murder. 1 E. M a r t i n was i n d i c t e d f o r t h r e e In case no. CC-06-364, Martin counts o f c a p i t a l was c h a r g e d w i t h t h e T h i s c a s e was o r i g i n a l l y a s s i g n e d t o a n o t h e r j u d g e o n t h i s Court. I t was r e a s s i g n e d t o J u d g e K e l l u m o n J a n u a r y 2 7 , 2009. 1 CR-07-0276 murder o f D a r r y l C a r r i l l o d u r i n g t h e course o f a k i d n a p p i n g i n the f i r s t Ala. the degree o r an a t t e m p t 13A-5-40(a)(1), C o d e 1 9 7 5 ; i n c a s e n o . C C - 0 6 - 3 6 5 , M a r t i n was c h a r g e d w i t h murder kidnapping of Johnnie Randolph I I I during i n the f i r s t degree o r an a t t e m p t 13A-5-40(a)(1), Martin was Darryl A l a . Code Carrillo pursuant charged t o one with and 1975; and Johnnie scheme or three charges sentenced the course Randolph of a t h e r e o f , see § i n case t h e m u r d e r o f two no. CC-06-671, o r more I I I , by conduct, persons, one act or course of see § 13A-5- A jury 4 0 ( a ) ( 1 0 ) , A l a . Code 1975. be t h e r e o f , see § found M a r t i n g u i l t y ofa l l and, b y a v o t e o f 10-2, recommended t h a t M a r t i n to death. The recommendation and sentenced trial court followed the jury's Martin to death. 2 Facts The In evidence adduced 2001, M a r t i n m a r r i e d at t r i a l Lakeisha indicated Randolph. the following. Randolph daughter, Nakayla, from a p r e v i o u s r e l a t i o n s h i p . During had a their M a r t i n was a l s o i n d i c t e d f o r t h r e e a d d i t i o n a l c h a r g e s o f k i d n a p p i n g i n t h e f i r s t degree, v i o l a t i o n s o f § 13A-6-43, A l a . Code 1975, w i t h r e s p e c t t o A l i c i a D i x o n , A m a r i D i x o n , a n d Nakayla Randolph. The j u r y a l s o f o u n d M a r t i n g u i l t y o f t h e s e three charges. However, M a r t i n d i d n o t f i l e a n o t i c e o f appeal with respect to these convictions; therefore, they are not b e f o r e us i n t h i s a p p e a l . 2 2 CR-07-0276 marriage, M a r t i n and deteriorated and Randolph R a n d o l p h and h e r two younger brother, mother's to had left Johnnie place son, B.J. M a r t i n i n the Randolph of III City. 2005, M a r t i n t e l e p h o n e d her a The marriage summer o f 2005. c h i l d r e n moved i n w i t h h e r m o t h e r and residence i n Phenix September went Randolph ("Johnnie"), During the Randolph employment. During at first several her her week i n times their and numerous c o n v e r s a t i o n s , M a r t i n demanded t h a t R a n d o l p h r e t u r n t o him a l l jewelry he had also accused her. purchased s h e was 2005, during their her of d a t i n g another Randolph that f o r her told man Martin that their going to hire Martin telephoned and day. see she Randolph and asked On Randolph was going a divorce lawyer tomorrow." said: (R. that who was from J o h n n i e "[B]itch, you over ending and September had informed mind t o see about was i f she changed her M a r t i n then Randolph, marriage not t h a t she Later call had k i l l a divorce lawyer. change of h e a r t about the m a r r i a g e ; that He threatened to and marriage. the the had 8, a Martin marriage following ain't going to l i v e to 1450.) same day, at friend's a a s k i n g her at approximately house, to bring 3 4:15 received a him $25 p.m., telephone b e c a u s e he had CR-07-0276 a flat tire that asked Randolph but then needed t o be r e p a i r e d . h e r two a d d i t i o n a l l o c a t i o n o f t h e meeting each time. with Dixon, old Nakayla times, As Randolph meet J o h n n i e , s h e saw h e r f r i e n d , spoke initially t o b r i n g t h e money t o t h e i r m o t h e r ' s r e s i d e n c e telephoned and Johnnie Alicia asking Dixon changing the was d r i v i n g t o Dixon. to pick She s t o p p e d up t h e n six-year- f r o m h e r a f t e r - s c h o o l p r o g r a m -- t h e same p r o g r a m Dixon's f i v e - y e a r - o l d d a u g h t e r , A m a r i , a t t e n d e d -- a n d t o t a k e Nakayla t o Randolph's When Nakayla, no Dixon arrived assured Dixon that there, the house. Dixon and she and Nakayla that and blew house with the horn, but she then t e l e p h o n e d Randolph. Randolph he was t o take Nakayla found t h e side door t o t h e house As D i x o n called f o r Johnnie, e n t e r e d t h e house b e h i n d h e r and p o i n t e d a gun a t h e r that Dixon he a s k e d entered. said that Martin h e r where s h e d i d n o t know. outside mother's and she asked Dixon and N a k a y l a . and a t Randolph's agreed. i f J o h n n i e ' s a u t o m o b i l e was t h e r e , still Martin Dixon s h e saw J o h n n i e ' s a u t o m o b i l e o n e came o u t s i d e ; also mother's house. appeared Randolph was. inside unlocked, t o be on d r u g s Dixon responded Martin then ordered Dixon and Nakayla t o an a u t o m o b i l e p a r k e d nearby. 4 When t h e y g o t t o t h e CR-07-0276 a u t o m o b i l e , D i x o n saw J o h n n i e s i t t i n g i n t h e b a c k s e a t w i t h h i s hands bound; J o h n n i e ' s f r i e n d , the front passenger O g l e t r e e was seat, sitting Darryl Carrillo, also with was seated i n h i s hands bound. i n the d r i v e r ' s Joseph seat. As D i x o n and N a k a y l a were l e d o u t o f t h e house and t o t h e automobile, apparently Amari, saw who what was was still in happening Dixon's and attempted H o w e v e r , M a r t i n i n s t r u c t e d O g l e t r e e t o d r i v e up where Amari was running. not get her daughter i n s t r u c t e d Amari Martin told i n t h e c a r , he automobile, Dixon would i n t h e c a r , she r e c e i v e d a t e l e p h o n e c a l l her cellular telephone. By that time, i f she Amari. t o g e t i n t h e c a r and Amari d i d . was flee. the s t r e e t that k i l l to did Dixon After Dixon from Randolph Randolph had to on become s u s p i c i o u s t h a t s o m e t h i n g was w r o n g a n d h a d a l r e a d y t e l e p h o n e d the police. Randolph that M a r t i n t o o k D i x o n ' s t e l e p h o n e away f r o m h e r , that Martin residence, attempting he had hostages, was holding the police to the had t h e n hung up. hostages surrounded negotiate H o w e v e r , b e f o r e he and for left the release the house, 5 Believing at Randolph's the house of Martin the had told mother's and began hostages. programmed CR-07-0276 the telephone his cellular i n the to and Martin the p o l i c e the area Randolph to forward a l l incoming calls to telephone. Ogletree before house left the area a r r i v e d ; a short time and saw the police. they then came telephoned h o l d i n g everyone close D u r i n g t h e n e x t s e v e r a l h o u r s , O g l e t r e e and M a r t i n h e l d in the car was back them. captive t h a t he hostages hostage hostages her the to her the told later Martin a n d t o l d h e r a g a i n t h a t he was and with and going to k i l l drove back drove several Martin a hours, drank willing that to Tuskegee, he hostages M a r t i n and alcohol. participant go, pointing refused, against him i f he O g l e t r e e was incident. Ogletree both Testimony i n the d i d a s k M a r t i n on Martin 3 where M a r t i n grew up. out stating l e t them more t h a n that that they During that f o r the one forth these ingested cocaine indicated crimes and point, b e t w e e n P h e n i x C i t y a n d C o l u m b u s , G e o r g i a ; a t one also a l l of Ogletree most part, occasion to two of them the hostages were would and was but l e t the children. 3 testify go. not c h a r g e d w i t h any c r i m e s r e l a t i n g t o 6 this CR-07-0276 T h r o u g h o u t t h e n i g h t , M a r t i n made s e v e r a l t e l e p h o n e to various going on to k i l l the was then several day. going find At that his hostages to give when D i x o n had two say him At one isolated the car. requests, Martin point, area, and Martin and not then Dixon and the car. Randolph again that Wanted" and that a l l of not should asked lives to k i l l several also asked them; however, her because not she a good Ogletree i f and to for had any their at that point, and an out Carrillo they begged drove of last lives. ordered H o w e v e r , s o m e t i m e b e t w e e n 11:00 7 kill her. them Carrillo family them i f t h e y Martin to k i l l would her threatened he not Tuskegee, asked he t o l d h i s hostages ordered Dixon agreed to spare t h e i r them back i n t o the k i l l he t o l d D i x o n t h a t t h a t was in Martin by deaths. to k i l l while be Most and a reason c h i l d r e n , he enough r e a s o n f o r him their that was would repeatedly to die, he and hostages, Martin before b r a g g e d t h a t he told then Martin indicated that small his and t h e y were g o i n g to Martin a l l of Specifically, anything night "America's her, had that point, addition, hostages. times one k i l l In people show to k i l l and members. his i n c l u d i n g R a n d o l p h ; he television following he people, calls p.m. CR-07-0276 and m i d n i g h t that night, Ogletree drove P h e n i x C i t y and Johnnie begged and stopped Carrillo Martin not side of the i f they to J o h n n i e and C a r r i l l o the car. kill their any them. last Martin, After Johnnie both instructing and Martin asked requests; however, t o g e t out o f t h e c a r and shot then At that point, had roadway. Martin to a secluded area i n both ordered to walk o f f the the two Carrillo in to the kneel, heads. M a r t i n g o t back i n the c a r , and O g l e t r e e drove the a r e a , headed toward Columbus, G e o r g i a . execution of Johnnie and Carrillo, able to get a telephone c a l l Martin told the negotiator that he was at discovered Avenue, and that that point i n the Martin they began police was had inside the the searching f o r him; they On t h e i r way Georgia, had decided and he ordered Dixon Dixon that to take some of he o f f a l l of her was also the killed. police house the b o d i e s o f J o h n n i e and C a r r i l l o . Martin told the at which p o i n t killed that of from negotiator many p e o p l e he h a d evening not away Shortly after through to Martin, h o s t a g e s ; M a r t i n d i d n o t s t a t e how It a back first on 20th located t o Columbus, to rape clothes. her, Dixon r e m o v e d h e r s h o e s and p a n t s , b u t when she i n f o r m e d M a r t i n t h a t 8 CR-07-0276 she was m e n s t r u a t i n g told Dixon a t the time, B r a n s c o m b ; he people, that told (R. 1 0 8 5 . ) Ogletree stopped and Branscomb leaving seized t h e two telephoned children told h e r t h a t he was g o i n g allow Nakayla t o speak w i t h Eventually, Macon Road Branscomb's bring i n Columbus, daughter, i f Martin point, that Martin When he h a d o n l y and f l e d Martin -¬ again she begged him n o t telephoned Randolph; Nakayla before was d r i v i n g he w o u l d agree and asked with her to up t h e h o s t a g e s . that Dixon t h e two c h i l d r e n 9 spoke t o b r i n g gas t o M a r t i n , to give McDonald r a n out of gas Martin McDonald, McDonald agreed informed call, to get out of the t o escape Georgia. Courtney would telephone Randolph. the car Ogletree h i m some g a s . only to kill two clad only i na shirt h i s c o u s i n i n Columbus, G e o r g i a , he and Dixon Martin also again cousin, he "was a l l o v e r t h e i n the c a r . his hostages. his he h a d k i l l e d that the opportunity kill that after ordered to but that and that Sometime and M a r t i n telephoned When M a r t i n t u r n e d h i s h e a d , D i x o n , underwear, on Martin he h a d h o s t a g e s , news." car. changed h i s mind and t h a t he w o u l d n o t r a p e h e r . Once i n Columbus, G e o r g i a , Carla Martin with At had escaped him. McDonald CR-07-0276 agreed in to b r i n g Martin return; Martin Branscomb's son, Martin. the what else when said, to direction, do, she they got normally at a of When t h e y night, drugs and children ("George") t h e n l e f t Branscomb's (R. began of t o meet with 1092.) Not Per the two knowing Martin's Martin Branscomb then drove to her house. he so them that that station and giving car driving. gasoline George both t e s t i f i e d that influence into the Branscomb, arrived, instead Branscomb stopped her McDonald, " [ L ] e t ' s go." could purchase c i g a r e t t e s . M c D o n a l d and would give agreed. children, Martin and i f he George McDonald However, children gas t h a t M a r t i n was appeared to not be acting under the and/or a l c o h o l . a r r i v e d a t the house, Branscomb asked M a r t i n to give her the c h i l d r e n ; M a r t i n w i l l i n g l y surrendered Amari, but refused to sent inside the l e t Nakayla house w i t h McDonald. with Nakayla, him to George Martin go. e v e n t u a l l y gave with Branscomb stood outside Amari on the front porch w h i l e Branscomb and George a t t e m p t e d t o p e r s u a d e l e t Nakayla speaking go. McDonald Martin up, refused, went i n s i d e the about a way Martin. 10 to get so Branscomb house, Nakayla and away and began from CR-07-0276 By this Branscomb's surrounded porch officers The used to Martin's removed and fled. front As As tracked Georgia, four officers s o o n as door, tried had grabbed the M a r t i n was to police fired s h o t s were Nakayla, and k i l l from from Carrillo was fired the time was too whether i t had been f i r e d near caliber the of the that gun M a r t i n was of wearing at George her into additional badly damaged Johnnie w h e n he was 11 bullet was The to Carrillo determine apprehended. but t h e same a s a footprint matched in bullet f r o m M a r t i n ' s gun, In addition, and the that his arrest. specifically o f M a r t i n ' s gun. bodies shots fired, t e s t i m o n y i n d i c a t e d t h a t t h e c a l i b e r o f b u l l e t was the front flee. indicating possession at the two apprehended by to officers brought State presented evidence Johnnie Martin approached standing, Martin for safety. a s he police Columbus, M a r t i n was then house the the house. opened the the house, where them and time, the found shoes CR-07-0276 Standard of On appeal, Martin r a i s e s two Review issues, neither of which properly preserved for appellate review. Therefore, b o t h i s s u e s u n d e r t h e p l a i n - e r r o r r u l e , R u l e 45A, P., which we are review A l a . R. App. provides: " I n a l l cases i n which the death p e n a l t y has been imposed, the C o u r t of C r i m i n a l A p p e a l s shall n o t i c e any p l a i n e r r o r or d e f e c t i n the p r o c e e d i n g s under review, whether or not brought to the a t t e n t i o n o f t h e t r i a l c o u r t , and t a k e appropriate a p p e l l a t e a c t i o n by r e a s o n t h e r e o f , whenever such e r r o r has o r p r o b a b l y has adversely affected the s u b s t a n t i a l r i g h t of the appellant." As this Crim. Court App. stated 1999), i n H a l l v. a f f ' d , 820 So. State, 2d 152 820 So. (Ala. 2d 113 2001): "The standard of r e v i e w i n r e v i e w i n g a c l a i m under the plain-error doctrine is stricter than the standard used in reviewing an issue that was p r o p e r l y r a i s e d i n t h e t r i a l c o u r t o r on a p p e a l . As the U n i t e d States Supreme C o u r t s t a t e d i n United S t a t e s v . Y o u n g , 470 U.S. 1, 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985), the p l a i n - e r r o r d o c t r i n e applies o n l y i f t h e e r r o r i s ' p a r t i c u l a r l y e g r e g i o u s ' and i f i t ' s e r i o u s l y a f f e c t [ s ] the f a i r n e s s , i n t e g r i t y or p u b l i c r e p u t a t i o n of j u d i c i a l p r o c e e d i n g s . ' See Ex parte P r i c e , 725 So. 2d 1063 ( A l a . 1998 ) , c e r t . d e n i e d , 526 U.S. 1133, 119 S . C t . 1809, 143 L.Ed.2d 1012 ( 1 9 9 9 ) ; B u r g e s s v . S t a t e , 723 So. 2d 742 (Ala. C r . App. 1 9 9 7 ) , a f f ' d , 723 So. 2d 770 (Ala. 1998), c e r t . d e n i e d , 526 U.S. 1052, 119 S.Ct. 1360, 143 L . E d . 2 d 521 ( 1 9 9 9 ) ; J o h n s o n v . S t a t e , 620 So. 2d 679, 701 ( A l a . Cr. App. 1 992), rev'd on other g r o u n d s , 620 So. 2d 709 ( A l a . 1 9 9 3 ) , on r e m a n d , 620 12 (Ala. CR-07-0276 So. 2 d 714 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 510 9 0 5 , 114 S . C t . 2 8 5 , 126 L . E d . 2 d 235 (1993)." 820 U.S. So. 2d a t 121-22. I. M a r t i n contends that the t r i a l Batson v. Kentucky, says, the State discriminatory appeal manner. African-American of 90 record prospective several challenges motion peremptory strikes Martin o f one p r o s p e c t i v e on the ground because, in challenges juror, that a on B.B., the he an State's t h a t j u r o r were p r e t e x t u a l . reflects several (1986), Specifically, female, prospective 79 i t s strike for striking The U.S. used the State's reasons 476 court erred i n denying h i s that jurors. jurors the venire After the f o r various court reasons and granted j u r o r s r e m a i n e d , o f w h i c h 14 w e r e A f r i c a n - A m e r i c a n a n d 34 w e r e was allotted each p a r t i e s ' l a s t s t r i k e being u s e d 11 o f i t s s t r i k e s jurors used the p a r t i e s , excused prospective Each party by trial consisted 48 white. f o r cause initially 18 p e r e m p t o r y an a l t e r n a t e j u r o r . t o remove p r o s p e c t i v e and 7 t o remove p r o s p e c t i v e a l l of i t s s t r i k e s Martin's jury consisted t o remove of 3 strikes, white State African-American jurors. prospective African-American 13 The with The white jurors defense jurors. and 9 CR-07-0276 white j u r o r s ; both parties the time a l t e r n a t e j u r o r s were w h i t e . began striking the j u r y , attorneys to state their of the s t r i k e . the t r i a l reasons In s t r i k i n g Before court f o r each j u r o r B.B., instructed strike the the at the prosecutor stated: " I n q u e s t i o n i n g , s h e i n d i c a t e d s h e h a d a nephew t h a t h a d b e e n c o n v i c t e d o f r a p e a n d when I a s k e d h e r d i d s h e t h i n k h e h a d b e e n f a i r l y t r e a t e d , s h e was extremely hesitant i n answering that question. She a l s o i n d i c a t e d t h a t s h e knew i n f o r m a t i o n a b o u t t h i s case from the media. On h e r q u e s t i o n n a i r e , she f a i l e d t o answer t h e two q u e s t i o n s t h a t s p e c i f i c a l l y went t o whether o r n o t you would impose t h e d e a t h penalty. S h e i n d i c a t e d t h a t s h e t h e n d i d n ' t know about the death penalty. Finally, she s a i d she t h o u g h t maybe s h e c o u l d . A d d i t i o n a l l y , she d i d n ' t f i l l out other questions, I believe, on t h e q u e s t i o n n a i r e , and l a s t b u t n o t l e a s t , she d i r e c t l y works f o r L . S . , who I recently prosecuted for f a i l i n g t o d i s c l o s e c e r t a i n i n f o r m a t i o n r e q u i r e d by law by w o r k i n g a t R u s s e l l E l e m e n t a r y . " (R. 946.) A f t e r t h e j u r y was s t r u c k , b u t b e f o r e the following i t was occurred: "[Martin's counsel]: Judge, yes, there c h a l l e n g e t o t h e j u r y as s e l e c t e d . "THE upon? sworn, COURT: And what's the challenge i s a based "[Martin's counsel]: The r a c i a l composition, Judge. T h e r e a r e 14 j u r o r s , 12 j u r o r s a n d t w o alternates. According t o my t a l l y , t h e r e a r e 11 whites and three blacks on t h i s j u r y . Of t h e w h i t e s , there a r e f i v e w h i t e females and s i x w h i t e 14 CR-07-0276 males. T h e r e a r e no b l a c k m a l e s on t h i s j u r y a n d t h e r e a r e t h r e e b l a c k f e m a l e s , a n d we certainly don't believe that this reflects the racial composition o f t h i s county and would object t o t h i s j u r y being impaneled. "THE COURT: Anything further other than that? "[Prosecutor]: Judge, i n response, I p o i n t out t h a t o u t o f 18 s t r i k e s , t h e D e f e n d a n t d i d n o t s t r i k e any A f r i c a n - A m e r i c a n s . They were a l l w h i t e males. The S t a t e ' s s t r i k e s w e n t b o t h w h i t e m a l e s , b l a c k m a l e s , b l a c k f e m a l e s a n d w h i t e f e m a l e s , a n d we f e e l we h a v e g i v e n r a c i a l l y n e u t r a l r e a s o n s f o r e a c h a n d e v e r y one o f t h o s e s t r i k e s a n d t h e C o u r t h e a r d t h o s e a s we g a v e t h e m . "THE COURT: T h e C o u r t a c c e p t s t h e b a s i s f o r t h e s t r i k e s g i v e n by t h e S t a t e and, a l s o , t h e C o u r t does not f e e l l i k e t h e Batson motion has been p l e a d e d w i t h s p e c i f i c i t y t o show r a c i a l d i s c r i m i n a t i o n i n the prosecution's selection of the jury nor a h i s t o r y of s e l e c t i o n by race i n t h e past and would deny t h e m o t i o n a t t h i s t i m e . " (R. 964-65.) M a r t i n never presented to the t r i a l court the a r g u m e n t h e now m a k e s o n a p p e a l r e g a r d i n g t h e S t a t e ' s r e a s o n s f o r s t r i k i n g p r o s p e c t i v e j u r o r B . B . ; t h e r e f o r e , we r e v i e w claim for plain "The party s t r i k e bears 1997). error. alleging the burden discrimination." this discriminatory of establishing Ex p a r t e Brooks, However, 15 use of a a prima peremptory facie case of 6 9 5 S o . 2 d 1 8 4 , 190 ( A l a . CR-07-0276 "where, as i n t h e p r e s e n t c a s e , t h e t r i a l c o u r t does n o t make a n e x p r e s s f i n d i n g t h a t a p r i m a f a c i e c a s e of discrimination has been established but nonetheless requires the challenged party to explain i t s peremptory strikes, the appellate court w i l l presume t h a t t h e t r i a l c o u r t found a p r i m a facie case and w i l l e v a l u a t e t h e e x p l a n a t i o n s o f f e r e d by the challenged party." Rogers v. S t a t e , 8 1 9 S o . 2 d 6 4 3 , 648 See a l s o Ex p a r t e B r o o k s , 627 So. 2 d 1013 ( A l a . 1 9 9 2 ) ; 0965, March 2009). that Martin the t r i a l began, and Johnson a prima court instructed reasons f o reach we h a v e no c h o i c e b u t t o p r e s u m e prosecutor's strike was reasons [Ms. C R - 0 7 - (Ala. Crim. c o u r t d i d n o t make a n e x p r e s s facie Rather, before the s t r i k i n g the t r i a l discrimination v. S t a t e , So. 3 d ___ , ___ had e s t a b l i s h e d discrimination. 2001). 695 S o . 2 d a t 1 9 0 ; H u n t l e y v . S t a t e , 2 0 , 2 0 0 9 ] ___ Here, ( A l a . C r i m . App. both case established, parties forstriking a prima a n d we finding racial of the j u r y will Therefore, facie case of evaluate the B.B. " A f t e r a prima f a c i e case i s e s t a b l i s h e d , there i s a p r e s u m p t i o n t h a t t h e peremptory c h a l l e n g e s were used t o d i s c r i m i n a t e a g a i n s t b l a c k j u r o r s . Batson, 476 U.S. a t 9 7 , 1 0 6 S . C t . a t 1 7 2 3 . T h e s t a t e t h e n has t h e b u r d e n o f a r t i c u l a t i n g a c l e a r , specific, and legitimate reason f o r the challenge which r e l a t e s t o t h e p a r t i c u l a r c a s e t o be t r i e d , a n d which i s nondiscriminatory. B a t s o n , 4 7 6 U.S. a t 9 7 , 106 S . C t . a t 1 7 2 3 . H o w e v e r , t h i s s h o w i n g n e e d n o t 16 even to state the a s t h e s t r i k e s w e r e made. that of App. CR-07-0276 r i s e to the l e v e l of a challenge f o r cause. parte] Jackson, [516 So. 2 d 768 (Ala. 1986)]." Ex parte Branch, 526 So. 2d 609, 623 (Ala. [Ex 1987). "Within the context of Batson, a ' r a c e - n e u t r a l ' e x p l a n a t i o n ' m e a n s a n e x p l a n a t i o n b a s e d on s o m e t h i n g other than the race of the j u r o r . At t h i s step of the i n q u i r y , the i s s u e i s the f a c i a l v a l i d i t y of the prosecutor's explanation. Unless a d i s c r i m i n a t o r y i n t e n t i s i n h e r e n t i n the p r o s e c u t o r ' s explanation, t h e r e a s o n o f f e r e d w i l l be deemed r a c e n e u t r a l . ' H e r n a n d e z v . New Y o r k , 500 U.S. 3 5 2 , 3 6 0 , 111 S.Ct. 1859, 1866, 114 L . E d . 2 d 395 (1991). 'In e v a l u a t i n g t h e r a c e - n e u t r a l i t y o f an a t t o r n e y ' s e x p l a n a t i o n , a c o u r t must d e t e r m i n e whether, assuming the p r o f f e r e d reasons f o r the peremptory c h a l l e n g e s are t r u e , the c h a l l e n g e s v i o l a t e t h e E q u a l P r o t e c t i o n C l a u s e as a matter of law.' Id. '[E]valuation of the prosecutor's s t a t e o f m i n d b a s e d on d e m e a n o r and credibility lies "peculiarly within the trial judges's province."' H e r n a n d e z , 500 U.S. at 365, 111 S . C t . a t 1 8 6 9 . " Allen v. State, 659 (emphasis added). trial court So. See 2d 135, 147 a l s o Rogers, (Ala. Crim. 819 So. i s i n a b e t t e r p o s i t i o n than 2d the at App. 1994) 649. "'The appellate to d i s t i n g u i s h bona f i d e r e a s o n s f r o m sham e x c u s e s . ' " v. State, 899 H e a r d v. 2 So. 3d 880, State, 584 So. Thus, " ' " [ o ] n a p p e a l , whether reasons the not 556, the t r i a l responding will 2d (Ala. Crim. be party 561 App. court Harris 2007) (quoting ( A l a . C r i m . App. 1991)). c o u r t ' s r u l i n g on t h e question offered legitimate race-neutral overturned 17 unless i t is clearly CR-07-0276 erroneous."'" State, turn H a r r i s , 2 So. 3 d a t 899 8 7 9 S o . 2 d 5 9 4 , 607 Ex p a r t e Brooks, 695 S o . 2 d a t 1 9 0 ) ) ) . it, the reviewing court the definite firm committed."'" (Ala. So. 2 d 5 9 0 , 594 (Ala. conviction (quoting Davis C r i m . App. 1989) "'"A on t h e e n t i r e e v i d e n c e (quoting that a finding i s support i s left mistake has i n turn Powell ( A l a . C r i m . App. 1988), a f f ' d , v. S t a t e , 548 548 S o . 2 d 605 "Once the prosecutor has articulated a nondiscriminatory reason f o r challenging the black j u r o r s , the other side can o f f e r evidence showing t h a t t h e r e a s o n s o r e x p l a n a t i o n s a r e m e r e l y a sham or p r e t e x t . [ P e o p l e v . ] W h e e l e r , 22 C a l . 3 d [ 2 5 8 ] a t 2 8 2 , 5 8 3 P . 2 d [ 7 4 8 ] a t 7 6 3 - 6 4 , 148 C a l . R p t r . [890] a t 906 [ ( 1 9 7 8 ) ] . Other than reasons that are obviously contrived, the f o l l o w i n g are i l l u s t r a t i v e o f t h e t y p e s o f e v i d e n c e t h a t c a n be u s e d t o show sham o r p r e t e x t : are not r e l a t e d " 2 . T h e r e was a l a c k o f q u e s t i o n i n g t o the challenged juror, or a lack of meaningful questions. 18 been 5 5 5 S o . 2 d 3 0 9 , 312 1989))). to with 7 0 3 S o . 2 d 4 3 2 , 436 ( A l a . v. S t a t e , " 1 . The r e a s o n s g i v e n the f a c t s of the case. v. (quoting i n there i s evidence to F l e t c h e r v. S t a t e , C r i m . App. 1997) Harrison ( A l a . C r i m . App. 2003) ' c l e a r l y e r r o n e o u s ' when a l t h o u g h and (quoting CR-07-0276 "3. Disparate treatment -persons w i t h t h e same o r s i m i l a r c h a r a c t e r i s t i c s a s t h e c h a l l e n g e d j u r o r w e r e n o t s t r u c k . ... "4. D i s p a r a t e e x a m i n a t i o n o f members o f t h e v e n i r e ; e.g., a q u e s t i o n d e s i g n e d t o provoke a c e r t a i n response t h a t i s l i k e l y t o d i s q u a l i f y t h e j u r o r was a s k e d t o b l a c k j u r o r s , but not to white j u r o r s . ... "5. The prosecutor, having p e r e m p t o r y c h a l l e n g e s , u s e d 2 t o remove o n l y 2 b l a c k s r e m a i n i n g on t h e v e n i r e . 6 the " 6 . 'An e x p l a n a t i o n b a s e d on a g r o u p b i a s where t h e g r o u p t r a i t i s n o t shown t o apply to the challenged juror specifically.' S l a p p y [ v . S t a t e ] , 503 So. 2 d [ 3 5 0 ] a t 355 [ ( F l a . D i s t . C t . A p p . 1 9 8 7 ) ] . F o r i n s t a n c e , an a s s u m p t i o n t h a t t e a c h e r s as a c l a s s a r e t o o l i b e r a l , w i t h o u t any s p e c i f i c q u e s t i o n s having been d i r e c t e d to the p a n e l or the i n d i v i d u a l j u r o r showing the potentially liberal nature of the challenged juror." Ex parte Branch, 526 So. 2d In the i n s t a n t case, for striking appeal by mention o n l y t h r e e of those long as one B.B. reasons the for striking reason juror Martin -- the f i r s t reasons challenges three final B.B. g i v e n by two reasons It is well the 19 prosecutor on asserted M a r t i n m a k e s no a r g u m e n t , n o r d o e s he in his brief, prosecutor 624. the prosecutor p r o v i d e d f i v e prospective the p r o s e c u t o r . at even a s s e r t e d by settled f o r the that the "[a]s strike of CR-07-0276 a potential juror determination concerning reason State, 648 So. 629, also Jackson v. State, App. 2000); 1994). See (Ala. Crim. (Ala. C r i m . App. (Ala. Crim. App. gives 1996), race-neutral we of 574 2d have t h o r o u g h l y the prospective -- as by and n o n e was that The she was 949 -- n.6 2d 871, 874 2d 812, 816 So. 819 be for (Ala. 1998). a pretext, the ... strike, strike." the Battle v. Even so, 1990). individual voir dire over 800 pages questionnaires filled we and App. conclude a l l five that f o r s t r i k i n g B.B. were out in the by the reasons race-neutral pretextual. prosecutor's first reason for striking i n answering questions nephew had been t r e a t e d for Hesitancy rape. 2d be 1009 So. 715 ( A l a . C r i m . App. not 979, the the p r o s e c u t o r hesitant the encompassing w e l l as jurors, provided support reviewed the e x t e n s i v e veniremembers transcript So. 2d 705 State, need a (Ala. Crim. a r e a s o n w h i c h may will 943, 632 State, 715 given So. a d d i t i o n a l grounds reasons So. 791 Wood v . aff'd, gives valid 2d Brown v. 1 9 9 7 ) ; and "Where a p r o s e c u t o r State, race-neutral, other J o h n s o n v. also sufficiently any made." but is fairly with i n answering 20 B.B. regarding respect questions was whether to h i s during that her conviction voir dire CR-07-0276 is a race-neutral Morris State v. v. State, 246 Ga. W e a v e r , 912 hesitancy striking reason f o r a peremptory s t r i k e . App. 260, S.W.2d 499 (Mo. i n answering questions a prospective prospective juror has 540 juror). See, S . E . 2 d 244 1995) (2000), a relative a d d i t i o n , the who and (both h o l d i n g i s a race-neutral In e.g., has that reason fact that been c o n v i c t e d crime i s a r a c e - n e u t r a l Ex 686 parte McNair, of reason for a peremptory s t r i k e . e.g., for 898 So. State, parte 2d 896 record 653 790, So. Martin because, Brown, he So. 814 2d 612 i t is the 2d 356 Crim. 409, not that Now, Lee App. and this supported we (Ala. (Ala. 1994); following during "[Prosecutor]: questionnaire. 418 2001); ( A l a . C r i m . App. however, says, "[B.B.]: 353, (Ala. 584, argues, reflects 2d So. voir have a State, Clark the dire copy record. of of B.B.: your Yes. Yes, s i r . "[Prosecutor]: "[B.B.]: And t h a t was Yes, s i r . 21 this v. pretextual " [ P r o s e c u t o r ] : And t h e r e are a c o u p l e of t h i n g s I w a n t e d t o f o l l o w up. You i n d i c a t e d you had a n e p h e w who was c h a r g e d w i t h r a p e i n A t l a n t a ? "[B.B.]: Ex 2000). r e a s o n was by a See, 1996); v. a year, 2007? The CR-07-0276 -- " [ P r o s e c u t o r ] : And was he g i v e n a j a i l "[B.B.]: he was f o u n d g u i l t y a n d g i v e n sentence, or what happened? Yes, s i r . " [ P r o s e c u t o r ] : Do t r e a t e d f a i r l y by the you f e e l system? like y o u r nephew " [ B . B . ] : I r e a l l y can't say d o n ' t know t h e w h o l e s i t u a t i o n . because "[Prosecutor]: trial? didn't "[B.B.]: (R. i t you agree hesitancy on nephew's questions, ofttimes attend the No, s i r . " reflected with the not Martin part of that B.B. conviction. like prosecutor's be the stated i n the the of in reason race-neutral reason for M a r t i n t o show t h a t t h e a the for r e c o r d does not once record. as The a prosecutor striking B.B., about answering juror, fact juror will that is the burden pretextual. a not reason articulated this was on Martin did not stated a r e a s o n f o r s t r i k i n g B.B., 22 reflect n e c e s s a r i l y make t h a t the r e a s o n was in prospective striking not questions hesitancy o b j e c t , o r e v e n d i s a g r e e , when t h e p r o s e c u t o r answering questions does when a n s w e r i n g demeanor Rather, record However, reflected pretextual. in really 621.) We her I take I was hesitancy nor did CR-07-0276 Martin for make a n y a r g u m e n t t o t h e t r i a l s t r i k i n g B.B. was p r e t e x t u a l . 860 So. stated the to 2d 367, reason 380 App. 2002) juror's opinion -- o n e o f t h e p r o s e c u t o r ' s this regarding reasons reason v. S t a t e , (prosecutor's j u r o r was n o t p r e t e x t u a l j u r o r ' s nodding of h e r head and s t a t i n g another that See, e.g., F i n n e y ( A l a .Crim. forstriking court although "yeah" i n response confidential forstriking informants t h e j u r o r -¬ was n o t r e f l e c t e d i n t h e r e c o r d , b e c a u s e t h e d e f e n d a n t d i d n o t object or otherwise regarding disagree the juror); with and Rogers, the prosecutor's assertion 8 1 9 S o . 2 d a t 650 (although d e m e a n o r o f p r o s p e c t i v e j u r o r was n o t r e f l e c t e d i n r e c o r d , t h e State's juror dire the p r o f f e r e d reason was looking -- was h e l d defendant assertion defendant). the trial State's we t h e j u r o r -- t h a t t h e a t the defendant during voir t o be r a c e - n e u t r a l and n o t p r e t e x t u a l where juror to object was or disagree looking at and with prosecutor's laughing at the I n a d d i t i o n , when d e n y i n g M a r t i n ' s B a t s o n m o t i o n , court reasons cannot and laughing failed that for striking find specifically stated for i t s strikes. that this 23 i t accepted Under these reason pretextual. that the circumstances, for striking B.B. was CR-07-0276 The p r o s e c u t o r ' s s e c o n d r e a s o n f o r s t r i k i n g B.B. was had heard she that fact that [a publicity i s a State, related race-neutral aff'd, v. S t a t e , reason prospective gained to the facts reason for a 20 information from of the case App. he s a y s , v. (quoting App. M a r t i n argues, because, t o be Blanton 2003) (Ala. Crim. (Ala. 1995)). W.W. "' [ T ] h e strike.'" (Ala. Crim. was p r e t e x t u a l jurors, t h e media. have 675 S o . 2 d 4, 675 S o . 2 d 38 this from may 8 8 6 S o . 2 d 8 5 0 , 874 Sockwell that the case veniremember] pretrial tried about 1993), however, two o t h e r a n d J . H . , b o t h w h i t e m a l e s who were n o t s t r u c k b y t h e S t a t e a n d who u l t i m a t e l y s e r v e d o n h i s j u r y , had a a l s o been exposed concern regarding (Martin's b r i e f , Martin concern about media exposure and "would than be more o f [j]uror argues that j u r o r W.W. according to Martin, asked whether the case presented he c o u l d and base at trial, same q u e s t i o n . B.B." a t 22-23.) s h o u l d have b e e n more o f a t o t h e p r o s e c u t o r t h a n B.B. r e g a r d i n g m e d i a because, when t o media coverage W.W. stated only " I think so" s e t a s i d e a n y t h i n g he h a d h e a r d h i s decision w h i l e B.B. We d i s a g r e e . coverage stated solely on t h e e v i d e n c e " I c a n " when a s k e d t h e " I t h i n k s o " and " I can" a r e n o t 24 CR-07-0276 so substantially to the dissimilar prosecutor Martin first as t h a n B.B. regarding f u r t h e r a r g u e s -- argument -- that t o make W.W. media i n obvious B.B.'s more o f a coverage. c o n t r a d i c t i o n to answers and W.W.'s r e g a r d i n g media c o v e r a g e were " a l m o s t i d e n t i c a l " to the issue [B.B. and of media exposure is j u r o r W.W.] "the race." their concern only and answers that difference (Martin's his "as between brief, at 23.) We agree discernable their they that the d i f f e r e n c e b e t w e e n B.B. and W.W. coverage -- answers had with regarding heard remember any Martin about any opinions stated that they striking at t r i a l . about regard Although B.B. both the aside stated case; any both that and that W.W. j u r o r c a n n o t be other were reasons exposure to media coverage of the case, 25 could not had not essentially the had from evidence stated reason for v i e w e d i n a vacuum for striking similar that they on with to stated they both no respect they knowledge However, a p r o s e c u t o r ' s t o any and set but reveals with base t h e i r d e c i s i o n s o l e l y a prospective without case, facts; could media c o v e r a g e and presented the specific formed media record that respect to and juror. their t h e r e were s u b s t a n t i a l CR-07-0276 d i f f e r e n c e s between them i n o t h e r expressed mixed discussion in favor had below), of been feelings the while of a worked d i r e c t l y W.W. prosecutor who was Therefore, we based on prosecutor's striking e x p o s u r e was Martin of a B.B. while who W.W. had in part very did not B.B. the by on who and not. striking indicates argues that j u r o r to the because, J.H. should prosecutor according to than that her the media He was B.B. and a l s o argues J.H. n e v e r a s k e d by by the that there prosecutor the p r o s e c u t o r about the case asked that question. a r g u m e n t -- based on However, t h a t J.H. had disparate because, media the had he "constant" examination says, J.H. f o r m e d an exposure entire while premise at of was opinion B.B. was underlying been exposed to media 26 media (Martin's b r i e f , w h e t h e r he h a d his regarding J.H. d i d not. 23.) a l s o h a v e b e e n more B.B. Martin, e x p o s u r e t o t h e m e d i a w h i l e B.B. this strongly W.W. prosecutor's based (see a relative while exposure B.B. was been prosecuted the media of penalty d i d not; Martin, that had B.B. pretextual. concern coverage his say death juror prosecuting cannot the For example, i n d i c a t e d t h a t he crime, f o r a man W.W. regarding death penalty; convicted respects. coverage CR-07-0276 of t h e c a s e -- the p r o s e c u t o r case, had "quite The record reflects a s k e d J.H. i f he h a d h e a r d a n y t h i n g J . H . r e s p o n d e d : "No, that " i f " he i s incorrect. sir." (R. 8 8 0 . ) that when about the J.H. t h e n added t h e r e was s o m e t h i n g i n t h e n e w s p a p e r a b o u t t h e c a s e , "probably" a bit." read (R. 8 8 0 . ) i t because he reads J.H., however, of h e a r i n g or reading about the case. the h a d no newspaper recollection J.H. h a d a l s o indicated o n t h e j u r o r q u e s t i o n n a i r e t h a t h e d i d n o t know w h e t h e r h e h a d heard anything other hand, heard about the case and a l s o that could about the case answered "Yes, s i r " she had h e a r d about n o t remember from the media. any when asked whether indicated the case. specifics B.B., on t h e she had on t h e q u e s t i o n n a i r e (R. 6 2 2 . ) about A l t h o u g h she the case, B.B. d i d r e m e m b e r h e a r i n g a b o u t t h e c a s e , u n l i k e J . H . , who d i d n o t e v e n remember h e a r i n g never heard about about the case. Moreover, because the case, the prosecutor h a d no J.H. h a d reason to a s k J.H. i f he h a d f o r m e d any o p i n i o n a b o u t t h e c a s e b a s e d on what he had heard. We find no racial disparity i n the prosecutor's questioning of the j u r o r s that would i n d i c a t e the prosecutor's striking o f B.B. b a s e d o n h e r m e d i a e x p o s u r e was pretextual. 27 CR-07-0276 The p r o s e c u t o r ' s t h i r d she d i d n o t answer regarding reason f o r s t r i k i n g two q u e s t i o n s on t h e j u r o r the death penalty, and she s t a t e d how she f e l t out the questionnaire, dire that penalty. of the penalty are strikes...." 197 ( A l a . C r i m . App. 2002). cause, his explanation v. S t a t e , race-neutral State, [or her] view may v. S t a t e , for striking 659 S o . 2 d 2 2 1 , 2 2 3 a reasonable Johnson rev'd In addition, of veniremembers a prospective 2d challenge strike." ( A l a . C r i m . App. 28 7 So. 3d reservations fora constitute ( A l a . 1993). for 840 S o . ( A l a . C r i m . App. 1992), by or p a r t i c i p a t i o n reason imposition 790 S o . 2 d 9 7 5 , 988 of a peremptory 620 S o . 2 d 7 0 9 voir reasons "Although a juror's 620 S o . 2 d 6 7 9 , 696 response race-neutral and Hocker filled impose the death may n o t b e s u f f i c i e n t f o r the exercise other grounds, v. 2007), the death penalty valid dire during See a l s o M a s h b u r n v . S t a t e , (Ala. Crim. of App. stated she regarding A c k l i n v. S t a t e , 453 for a t the time "Mixed f e e l i n g s or r e s e r v a t i o n s death voir s h e d i d n o t know t h a t maybe s h e c o u l d " C r i m . App. 2000). about penalty b u t she e v e n t u a l l y "she thought peremptory (Ala. the death that questionnaire during t h a t she d i d n o t answer t h e q u e s t i o n s because about B.B. was on "lack i s a valid juror." Macon 1994). CR-07-0276 M a r t i n argues that this r e a s o n was p r e t e x t u a l b e c a u s e , says, i t i s n o t supported by the r e c o r d . argues that B.B. she could" she h a d no p r o b l e m s impose impose d i d not state i t . that the death penalty, with During voir Specifically, dire, Martin "she thought that but clearly stated the death penalty the following maybe know. I mean I didn't answer occurred: i t because I don't -¬ " [ P r o s e c u t o r ] : W e l l , l e t me a s k y o u , d o y o u t h i n k t h e S t a t e s h o u l d be a b l e t o s e e k t h e d e a t h penalty? "[B.B.]: Yes. "[Prosecutor]: Ma'am? "[B.B.]: Yes. " [ P r o s e c u t o r ] : A n d do y o u f e e l l i k e a p p r o p r i a t e p u n i s h m e n t i n some c a s e s ? "[B.B.]: Yes. i t i s an " [ P r o s e c u t o r ] : L e t me k i n d o f a s k y o u t h e b i g question. C o u l d you p e r s o n a l l y v o t e t o impose o r recommend t h e d e a t h p e n a l t y , because the jury's v e r d i c t on l i f e w i t h o u t p a r o l e o r d e a t h i s , i n f a c t , a recommendation to the Court, but could you recommend t h e d e a t h p e n a l t y f o r someone? 29 that and c o u l d vote t o " [ P r o s e c u t o r ] : ... Now, I n o t i c e t h e r e w e r e some q u e s t i o n s t h a t asked you what's your o p i n i o n about the death p e n a l t y and you d i d n ' t answer t h a t . What i s your opinion? "[B.B.]: he CR-07-0276 "[B.B.]: (R. 623.) We recollection Yes." must about the is t o us voir dire answer t h a t i t was the the she did not that of was prosecutor's the However, i t her that failure to and questions because about the penalty that the answers us during questionnaire answer the her during that this death prosecutor's voir dire reason for was striking pretextual. The on fact exact convince regarding death penalty i t was feelings The B.B.'s i n a c c u r a t e does not that d i d not time. prosecutor's dire about the Rather, her the inaccurate. questions t h a t she know w h a t recollection B.B. that B.B.'s u l t i m a t e a n s w e r s feelings death-penalty explanation at her not prosecutor. her were Martin d e a t h p e n a l t y was regarding concerned with o f B.B.'s a n s w e r s d u r i n g v o i r feelings clear agree B.B. failed questionnaire recently been prosecuting See, answer prosecuted is e.g., two t h a t B.B. Martin. questionnaire strike. and to final a r e a s o n s f o r s t r i k i n g B.B. several questions worked d i r e c t l y by Failure the to answer race-neutral J o n e s v. State, 30 very the f o r a man prosecutor questions reason 826 on So. for a 2d 901, who who on a were juror had was juror peremptory 903 (Ala. CR-07-0276 Crim. App. 2001), (Ala. Crim. and App. worked d i r e c t l y J o h n s o n v. 1994). In a peremptory 515, a 518 strike. criminal See, striking is 1994). Moreover, otherwise, that e.g., these a by the on State, questions W.W. the the As who by the while been juror prosecuted B.B. and not. convicted for a person very prosecutor of who 31 who 639 So. 2d reason 2d does 522 not for (Ala. argue Although t o a n s w e r some who were not to answer struck as many f a i l e d to answer, j u r o r was were not So. failed failed was State, pretextual. j u r o r s who juror j u r o r s who had directly recently one 639 Martin a b o v e , h o w e v e r , W.W. some p r o s p e c t i v e worked and juror questionnaire death penalty, relatives aff'd, on t h e q u e s t i o n n a i r e a s B.B. noted a race-neutral reasons were not only that 631 juror's association with valid find, t h e r e were o t h e r p r o s p e c t i v e questions 629, r e c e n t l y been ("A juror."), we 2d fact A d k i n s v. 1993) also a prospective had So. o f f i c e i s a race-neutral reason for ( A l a . C r i m . App. known 648 a d d i t i o n , the f o r s o m e o n e who by the d i s t r i c t a t t o r n e y ' s State, strongly i n favor In a d d i t i o n , s t r u c k by crimes, had was been no the in although State other jurors prosecuted prosecuting had very Martin. CR-07-0276 Therefore, we find that these reasons for striking B.B. were not p r e t e x t u a l . For the court's reasons denial to this of we above, we Batson Martin's Therefore, erroneous. as stated motion find no find error, that was plain the not or trial clearly otherwise, claim. II. Martin because, contends he says, that his t r i a l they investigation into phase trial. of billing in the statements counsel failed mitigating conduct circumstances Martin presented to argues that to the trial that counsel for a social a m i t i g a t i o n expert, expert to According "mandated" counsel. help to in prepare Martin, order for funds to (Martin's b r i e f , counsel presented o n l y two the c o u r t and a total for worker, a provide a t 33.) He adequate penalty detailed contained of o n l y s i x a l s o argues to request or phase funds a psychological of mitigation effective the trial. expert are assistance M a r t i n f u r t h e r argues witnesses 32 failed penalty an f o r the circumstances. that the r e c o r d r e f l e c t s ineffective counsel's the r e c o r d , i n d i c a t e t h a t counsel spent hours i n v e s t i g a t i n g m i t i g a t i n g were d u r i n g the p e n a l t y of that phase CR-07-0276 of the t r i a l and report prepared introduced before t r i a l into evidence the psychiatric by the State's p s y c h i a t r i s t , b u t f a i l e d t o o b t a i n and p r e s e n t h i s s c h o o l records or h i s mentalhealth records from w h e n h e was a c h i l d 4 or t o address before the j u r y any s p e c i f i c i n f o r m a t i o n c o n t a i n e d i n the p s y c h i a t r i c report. Martin maintains so and lacking that investigation and a t the p e n a l t y phase of h i s t r i a l presentation of evidence was i t constituted that prejudice should Martin d i dnot raise this we review i tforplain witnesses cousin, to testimony p e r se d e f i c i e n t be presumed error. based See R u l e of the t r i a l , testify C a r l a Branscomb, counsel's claim i n the t r i a l At the penalty-phase two that on on t h e r e c o r d . court; therefore, 4 5 A , A l a . R. A p p . P. defense Martin's performance counsel behalf -- called Martin's and M a r t i n ' s b r o t h e r , Brady. indicated that Martin's father l e f t Their t h e f a m i l y home w h e n M a r t i n was v e r y y o u n g a n d p a s s e d a w a y w h e n M a r t i n was 11 or of h i s father's 12 years Martin's old. mother Within passed two y e a r s away, leaving Martin and death, his five The r e p o r t o f t h e S t a t e ' s p s y c h i a t r i s t i n d i c a t e s t h a t M a r t i n a t t e n d e d t h e r a p y f o r a p p r o x i m a t e l y o n e y e a r w h e n h e was a p p r o x i m a t e l y 11 o r 12 y e a r s o l d , a r o u n d t h e t i m e o f h i s parents' deaths. 4 33 CR-07-0276 siblings, the oldest o f whom w a s 20 y e a r s o l d a t t h e t i m e a n d took custody o f t h e younger s i b l i n g s , When M a r t i n was Martin and h i s remaining introduced before into trial. determine state 16 y e a r s evidence Although report old, h i s oldest siblings. indicates the purpose smoking marijuana started using cocaine. trial drinking a t t h e age o f 12. Some a pint three of liquor on a d a i l y t o four marijuana grams o f c o c a i n e basis. cigarettes alcohol time later and he a six-pack of beer He w a s a l s o and i n g e s t i n g " ' I n o r d e r t o p r e v a i l on a c l a i m o f ineffective assistance of counsel, a d e f e n d a n t must meet t h e t w o - p r o n g e d t e s t a r t i c u l a t e d b y t h e U n i t e d S t a t e s Supreme C o u r t i n S t r i c k l a n d v . W a s h i n g t o n , 466 U.S. 6 6 8 , 104 S . C t . 2 0 5 2 , 80 L . E d . 2 d 674 ( 1 9 8 4 ) : " ' " F i r s t , t h e d e f e n d a n t must show that counsel's performance was deficient. T h i s r e q u i r e s showing that counsel made errors so serious that counsel was n o t smoking one t o two daily. 34 i n the o f t h e o f f e n s e s -- w h e n M a r t i n w a s 32 y e a r s o l d -- h e w a s d r i n k i n g and prepared and h i s mental the background began By t h e time report counsel o f t h e r e p o r t was t o to stand Martin abandoned In addition, of the offenses, that themselves. sibling the psychiatric M a r t i n ' s competency a t the time t o fend f o r CR-07-0276 functioning as the 'counsel' g u a r a n t e e d t h e d e f e n d a n t by the Sixth Amendment. Second, the defendant must show that the d e f i c i e n t performance prejudiced the defense. This requires showing that counsel's errors w e r e so s e r i o u s as t o d e p r i v e the defendant of a fair trial, a t r i a l whose r e s u l t i s r e l i a b l e . Unless a defendant makes both s h o w i n g s , i t c a n n o t be s a i d t h a t the c o n v i c t i o n or d e a t h s e n t e n c e r e s u l t e d from a breakdown i n the adversary process that renders the r e s u l t u n r e l i a b l e . " "'466 U.S. at 687, 104 S.Ct. at 2064. "'"The p e r f o r m a n c e c o m p o n e n t o u t l i n e d i n S t r i c k l a n d i s an o b j e c t i v e o n e : t h a t i s , whether counsel's a s s i s t a n c e , judged under 'prevailing professional norms,' was 'reasonable considering a l l the circumstances.'" Daniels v. State, 650 So. 2d 544, 552 ( A l a . C r . A p p . 1 9 9 4 ) , c e r t . d e n i e d , [514 U.S. 1 0 2 4 , 115 S . C t . 1 3 7 5 , 131 L . E d . 2 d 230 (1995)], quoting S t r i c k l a n d , 4 66 U.S. a t 688 , 1 04 S . C t . a t 20 65. "A c o u r t d e c i d i n g an a c t u a l i n e f f e c t i v e n e s s claim must judge the reasonableness of counsel's c h a l l e n g e d c o n d u c t on t h e f a c t s o f t h e p a r t i c u l a r c a s e , v i e w e d as o f the time of c o u n s e l ' s conduct." Strickland, 466 U.S. a t 690, 104 S . C t . a t 2 0 6 6 . "'The claimant alleging ineffective a s s i s t a n c e of c o u n s e l has the burden of showing that counsel's assistance was ineffective. Ex p a r t e B a l d w i n , 456 So. 2d 129 ( A l a . 1 9 8 4 ) , a f f ' d , 472 U.S. 372, 105 S.Ct. 2 7 2 7 , 86 L . E d . 2 d 300 (1985). "Once 35 CR-07-0276 a p e t i t i o n e r has i d e n t i f i e d t h e s p e c i f i c a c t s o r o m i s s i o n s t h a t he a l l e g e s w e r e n o t the result of reasonable professional j u d g m e n t on c o u n s e l ' s p a r t , t h e c o u r t must determine whether those acts or omissions fall 'outside the wide range of professionally competent assistance.' [ S t r i c k l a n d , ] 466 U.S. a t 6 9 0 , 104 S . C t . a t 2066." D a n i e l s , 650 S o . 2 d a t 5 5 2 . When reviewing a claim of i n e f f e c t i v e assistance of c o u n s e l , this court indulges a strong presumption that counsel's conduct was appropriate and reasonable. H a l l f o r d v. S t a t e , 629 S o . 2 d 6 ( A l a . C r . A p p . 1 9 9 2 ) , cert. denied, 5 1 1 U.S. 1 1 0 0 , 114 S . C t . 1870, 128 L . E d . 2 d 4 9 1 (1994); Luke v. S t a t e , 484 S o . 2 d 5 3 1 ( A l a . C r . A p p . 1 9 8 5 ) . " T h i s c o u r t must a v o i d u s i n g ' h i n d s i g h t ' t o evaluate the performance of counsel. We must evaluate a l l the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance." H a l l f o r d , 629 S o . 2 d a t 9. See a l s o , e . g . , C a r t w r i g h t v . S t a t e , 645 So. 2 d 326 ( A l a . C r . A p p . 1 9 9 4 ) . "'"Judicial scrutiny of counsel's performance must be highly deferential. It i s a l l too t e m p t i n g f o r a defendant t o second-guess counsel's a s s i s t a n c e after conviction or adverse sentence, and i t i s a l l t o o easy for a court, examining counsel's defense after i t has proved unsuccessful, to conclude that a particular act or omission of c o u n s e l was u n r e a s o n a b l e . A fair assessment of attorney performance requires that every e f f o r t b e made t o e l i m i n a t e t h e 36 CR-07-0276 d i s t o r t i n g e f f e c t s of h i n d s i g h t , to r e c o n s t r u c t the circumstances of counsel's c h a l l e n g e d conduct, and t o e v a l u a t e t h e c o n d u c t f r o m counsel's perspective at the time. Because of the difficulties i n h e r e n t i n making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that i s , the d e f e n d a n t must overcome the presumption that, under the circumstances, the challenged a c t i o n ' m i g h t be c o n s i d e r e d s o u n d trial strategy.' There are countless ways to provide e f f e c t i v e a s s i s t a n c e i n any g i v e n case. Even the b e s t criminal defense attorneys would not defend a p a r t i c u l a r c l i e n t i n the same way." " ' S t r i c k l a n d , 4 66 U.S. a t 68 9, 104 S . C t . a t 2065 (citations omitted). See E x parte L a w l e y , 512 So. 2 d 1 3 7 0 , 1372 ( A l a . 1987). "'"Even i f an attorney's performance i s determined t o be d e f i c i e n t , the p e t i t i o n e r i s not entitled to relief unless he establishes that 'there is a reasonable p r o b a b i l i t y t h a t , but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' 37 CR-07-0276 [Strickland,] 466 U.S. 104 S . C t . a t 2 0 6 8 . " "'Daniels, at 694, 650 S o . 2 d a t 5 5 2 . "'"When a d e f e n d a n t c h a l l e n g e s a d e a t h s e n t e n c e s u c h as t h e one a t issue i n t h i s case, the question i s whether there i s a reasonable probability that, absent the errors, the sentencer -¬ i n c l u d i n g an a p p e l l a t e c o u r t , t o the extent i t independently reweighs the evidence -- w o u l d have c o n c l u d e d t h a t t h e b a l a n c e of aggravating and mitigating circumstances d i d not warrant death." " ' S t r i c k l a n d , 466 U.S. a t 6 9 7 , 104 S . C t . a t 2069, q u o t e d i n T h o m p s o n v . S t a t e , 615 So. 2 d 1 2 9 , 132 ( A l a . C r . A p p . 1 9 9 2 ) , c e r t . d e n i e d , 510 U.S. 9 7 6 , 114 S . C t . 4 6 7 , 126 L . E d . 2 d 418 ( 1 9 9 3 ) . fl I I "Bui v . S t a t e , 717 S o . 2 d 6, 1 2 - 1 3 ( A l a . C r . A p p . 1 9 9 7 ) , c e r t . d e n i e d , 717 S o . 2 d 6 ( A l a . 1 9 9 8 ) . " Dobyne v. State, 2000), aff'd, Although that So. 2d 805 S o . 2 d 763 the United a showing ineffectiveness likely 805 733, 742-44 ( A l a . Crim. App. ( A l a . 2001). States Supreme Court has recognized of p r e j u d i c e i s not r e q u i r e d to e s t a b l i s h of counsel in to p r e j u d i c e the accused 38 circumstances "that that of the cost are the so litigating CR-07-0276 their effect States in v. particular Cronic, circumstances State, a are 13 So. 3d 466 U.S. extremely 997, case 1021 to claims Indeed, they rare counsel has advocate." counsel did solely not mitigating presented at into the U.S. fail to of counsel."). "situations function mitigating penalty circumstances here is phase to whether 175, as i n which the 189 client's (2004). trial standard we Here, the time the jury. trial, The and only argued question investigation for the reasonable c o n s i d e r i n g a l l the we d e c l i n e to apply that there on d i r e c t the "presumed case. reviewing claims of ineffective the f i r s t of presented was in this note function circumstances, counsel's Therefore, Initially, for has conducted circumstances. in ("Rarely v. Martin's p e n a l t y phase of the prejudice" 2007) Hyde as investigation evidence to 543 entirely See assistance to those failed v. N i x o n , those Indeed, the r e c o r d r e f l e c t s that counsel advocates. an ineffective Florida (1984 ) , limited. App. United a p p l i e d a 'presumed p r e j u d i c e ' of entirely 658 and (Ala. Crim. limited are unjustified," 648 , t h e U n i t e d S t a t e s Supreme C o u r t standard is i s an inherent assistance of t r i a l a p p e a l when t h o s e 39 difficulty counsel c l a i m s have not CR-07-0276 been raised in the trial record. "'Claims r a r e l y be determined So. 3d (Alaska at 1020 C t . App. explained of court ineffective from the t r i a l ( q u o t i n g Sharp 1992)). i n Massarro and v. As v. fully developed assistance of on the counsel can record alone.'" State, 837 P.2d Hyde, 718, t h e U n i t e d S t a t e s Supreme United States, 538 U.S. 500 722 Court (2003): "When a n i n e f f e c t i v e - a s s i s t a n c e c l a i m i s b r o u g h t on d i r e c t a p p e a l , a p p e l l a t e c o u n s e l and the c o u r t must p r o c e e d on a t r i a l r e c o r d n o t d e v e l o p e d precisely for the o b j e c t of l i t i g a t i n g or p r e s e r v i n g the c l a i m and thus o f t e n i n c o m p l e t e or i n a d e q u a t e f o r t h i s purpose. Under S t r i c k l a n d v. W a s h i n g t o n , 466 U.S. 668 ( 1 9 8 4 ) , a d e f e n d a n t c l a i m i n g i n e f f e c t i v e c o u n s e l m u s t show t h a t c o u n s e l ' s a c t i o n s w e r e n o t s u p p o r t e d by a r e a s o n a b l e s t r a t e g y and t h a t the e r r o r was prejudicial. The evidence introduced at trial, however, w i l l be devoted to issues of g u i l t or i n n o c e n c e , a n d t h e r e s u l t i n g r e c o r d i n many c a s e s will not d i s c l o s e the f a c t s necessary to decide e i t h e r prong of the S t r i c k l a n d a n a l y s i s . I f the a l l e g e d e r r o r i s one o f c o m m i s s i o n , t h e r e c o r d may r e f l e c t the a c t i o n t a k e n by c o u n s e l b u t not the r e a s o n s f o r i t . T h e a p p e l l a t e c o u r t may h a v e no way of k n o w i n g w h e t h e r a s e e m i n g l y u n u s u a l o r m i s g u i d e d a c t i o n by c o u n s e l had a sound s t r a t e g i c m o t i v e or was t a k e n because the c o u n s e l ' s a l t e r n a t i v e s were even worse. See G u i n a n [ v . U n i t e d S t a t e s , 6 F . 3 d 468,] 473 [ ( 7 t h C i r . 1993)] (Easterbrook, J., c o n c u r r i n g ) ('No m a t t e r how o d d o r d e f i c i e n t trial c o u n s e l ' s p e r f o r m a n c e may s e e m , t h a t l a w y e r may h a v e h a d a r e a s o n f o r a c t i n g a s he d i d .... Or i t may turn out t h a t counsel's o v e r a l l performance was s u f f i c i e n t despite a glaring omission . . . ' ) . The trial r e c o r d may c o n t a i n no e v i d e n c e o f alleged e r r o r s o f o m i s s i o n , much l e s s t h e r e a s o n s u n d e r l y i n g them. And e v i d e n c e o f a l l e g e d c o n f l i c t s o f i n t e r e s t 40 13 CR-07-0276 might be found only in attorney-client correspondence or other documents that, in the t y p i c a l c r i m i n a l t r i a l , are not i n t r o d u c e d . See, e . g . , B i l l y - E k o [ v . U n i t e d S t a t e s , 8 F . 3 d 111,] 114 [(2d Cir. 1993)]. Without additional factual d e v e l o p m e n t , m o r e o v e r , a n a p p e l l a t e c o u r t may n o t b e able to a s c e r t a i n whether the alleged error was prejudicial." 538 U.S. October and a t 504-05. 2, See 2009] So. 3d R o b i t a i l l e v. State, 971 Reviewing ineffective for the assistance investigation is of failure certain evidence or which time failure actions to or i f not counsel's counsel even on to counsel's counsel's o f f the In trial admission certain record. to -¬ of jury least be Thus, i t determine addition, knowledge 41 the claims i n v e s t i g a t i o n i s conducted impossible, made. the of counsel's Unlike request investigation i s generally based to claim i n a c t i o n s would at c o u r t r o o m and was a relating object the investigation appeal difficult. entirely difficult, 2005). on counsel record, is 2009), ( A l a . C r i m . App. 2 d 43 to CR-06-1770, ( A l a . C r i m . App. r e f l e c t e d i n the outside [Ms. a c t i o n s or i n a c t i o n s d u r i n g counsel's -- So. first as instructions State, , particularly r e l a t i n g to counsel's such a l s o L e w i s v. the what extent a strategic decision at the time. As of by the CR-07-0276 U n i t e d S t a t e s Supreme C o u r t n o t e d i n S t r i c k l a n d v . W a s h i n g t o n , 466 U.S. 668 (1984): "[S]trategic choices made after thorough i n v e s t i g a t i o n of law and f a c t s r e l e v a n t t o p l a u s i b l e options a r e v i r t u a l l y u n c h a l l e n g e a b l e ; and s t r a t e g i c c h o i c e s made a f t e r l e s s t h a n c o m p l e t e investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on i n v e s t i g a t i o n . In other words, c o u n s e l h a s a d u t y t o make r e a s o n a b l e i n v e s t i g a t i o n s or t o make a reasonable decision that makes particular investigations unnecessary. I n any i n e f f e c t i v e n e s s case, a p a r t i c u l a r d e c i s i o n not t o investigate must be directly assessed for reasonableness i n a l l the circumstances, applying a heavy measure o f d e f e r e n c e t o c o u n s e l ' s judgments." 466 U.S. a t 6 9 0 - 9 1 . (2003) . The record, See a l s o W i g g i n s however, v. Smith, cannot 5 3 9 U.S. 510 possibly reflect the decision-making process behind counsel's i n v e s t i g a t i o n , and i t is well settled t h a t an ambiguous or s i l e n t overcome t h e s t r o n g and c o n t i n u i n g p r e s u m p t i o n conduct State, In was a p p r o p r i a t e a n d r e a s o n a b l e . 21 S o . 3 d 7 7 2 , 7 8 3 this completely, case, silent investigation. statements As are affirmatively the (Ala. Crim. record contained establishes i n the that 42 See, e.g., Hooks v. App. 2008) . counsel's points not that counsel's i s virtually, regarding Martin record w i l l albeit penalty-phase out, counsel's record, counsel not and filed the no billing record motions CR-07-0276 requesting funds assistance. billing billing that only prison but counsel as of p h a s e w i t h no of time calls noted above, behalf regarding mitigating witnesses is specifically the a The to Additionally, the mere six we t o and mitigating as as extent Moreover, of counsel the listed discern counsel's although the from witnesses well called penalty from for the hours penalty witnesses of trial of those statements. billing statements investigation. statements here conducted only a l i m i t e d i n v e s t i g a t i o n for penalty of the trial and 43 the to the suggest counsel phase the "preparation" neither penalty-phase billing two the billing the for numerous phase yet i n the of circumstances, possible circumstances, cannot hours statements i n d i c a t e "preparation" at apparent sufficient f u r t h e r i n d i c a t i o n as t o w h a t t h a t Martin's alone to as testify put, not traveling Martin investigative Martin's are than spent trial, As Simply more the entailed. on alone or ineffective. generally only to a l l e g e d by M a r t i n . telephone phase described was discussing with three penalty contrary reflect seven hours and assistance statements statements investigation, not expert However, contention, establish for record may the affirmatively CR-07-0276 reflects expert that counsel assistance, counsel trial chose to d i d not nothing do i n the this. court granted seek funds f o r i n v e s t i g a t i v e The counsel's record record billing reviewing Rule statements the 10(a)(4), included reflect discovery Ala. i n the App. i n f o r m a t i o n was we by P., thus, record; included on why that reflect i n the known t o t h e countless provided R. does light the p r e t r i a l motion f o r the State disclose a l l m i t i g a t i n g circumstances the sheds the hours pretrial h a v e no State's State, by State. of counsel is knowing discovery or has cited requires counsel assistance "'The no a u t h o r i t y , and to request i n order have funds f o r expert to provide reasonableness we effective of counsel's found and defendant.'" State, 987 So. Commonwealth (2002)). met with 2d v. 1186, Bond, 1195 572 ( A l a . C r i m . App. Pa. 588, 609, none, for several 44 hours that Waldrop 2007) 819 regarding and critically A.2d Here, the r e c o r d a f f i r m a t i v e l y r e f l e c t s t h a t Martin Also, investigation upon the the what assistance. o f t e n depends s u p p l i e d by not investigative p r e p a r a t i o n f o r t h e p e n a l t y p h a s e ... information to whether that information pertained to m i t i g a t i n g circumstances. Martin to and Pursuant discovery way or v. (quoting 33, 45 counsel mitigating CR-07-0276 circumstances; information, however, i f the any, record Martin does provided regarding mitigating circumstances. cannot determine investigation Finally, could have, conducted was whether Martin or more and restricted has would failed to investigation phase that his 32 of the t r i a l . h i s counsel mental-health years what Although should have records information was attorneys simply counsel's what obtained they information i f counsel did or to him during makes a b a r e obtained h i s school of the crime), i n those that penalty allegation records a child he failed that records allege would or failure him. the "'A part d e f e n d a n t who of h i s counsel investigation altered would t h e outcome to obtain alleges those must a l l e g e w i t h have revealed of the t r i a l . ' " 45 records a failure and was to t o him d u r i n g the p e n a l t y phase of the counsel's and (Martin have been h e l p f u l how had how the Martin contained what himself. f r o m w h e n he was o l d a t the time his extent allege than i n f o r m a t i o n would have been h e l p f u l to what to been reflect I n o t h e r w o r d s , we by M a r t i n have, not trial prejudiced to i n v e s t i g a t e specificity how Nelson what t h e i t would v. on Hargett, have 989 CR-07-0276 F.2d 8 4 7 , 850 ( 5 t h C i r . 1993) 882 F . 2 d 9 9 9 , 1 0 0 3 Two w i t n e s s e s phase of the circumstances trial As (5th C i r . trial. found four Counsel several mitigating both t o the j u r y d u r i n g the p e n a l t y phase of the i n Part court during I I I of t h i s the sentencing opinion, hearing. the t r i a l court to exist. Based on t h e u s , l i m i t e d as i t i s w i t h r e s p e c t to this issue, we c a n n o t s a y t h a t c o u n s e l ' s performance with respect to t h e i r investigation and p r e s e n t a t i o n penalty of the t r i a l phase e r r o r as t o t h i s of m i t i g a t i n g evidence was performance p r e j u d i c e d Martin no p l a i n behalf at the penalty argued m i t i g a t i n g circumstances record before S t a t e s v. Green, 1989)). t e s t i f i e d on M a r t i n ' s and t o the t r i a l explained (quoting United deficient i n a n y way. or that at the counsel's Therefore, we find 1 9 7 5 , we will claim. III. In now accordance review murder: commission see § 13A-5-53, A l a . Code the p r o p r i e t y of Martin's M a r t i n was capital with indicted death f o r and c o n v i c t e d of three (1) m u r d e r i n g Darryl of f i r s t - d e g r e e kidnapping § 13A-5-40(a)(1), sentence. A l a . Code 46 1975; Carrillo counts of during o r an a t t e m p t (2) m u r d e r i n g the thereof, Johnnie CR-07-0276 Randolph I I Id u r i n g the commission or an a t t e m p t and of first-degree t h e r e o f , see § 13A-5-40(a)(1), (3) m u r d e r i n g two o r more p e r s o n s , kidnapping A l a . Code 1975; Carrillo and Randolph, b y one a c t o r p u r s u a n t t o one scheme o r c o u r s e o f c o n d u c t , § 13A-5-40(a)(10), A l a . Code 1975. The j u r y , b y a v o t e o f 1 0 ¬ 2, r e c o m m e n d e d t h a t M a r t i n b e s e n t e n c e d The imposed record under reflects the influence other a r b i t r a r y factor. We during the find no that of passion, aggravating sentence was prejudice, or not any See § 1 3 A - 5 - 5 3 ( b ) ( 1 ) , A l a . Code 1975. error court t o death. Martin's adversely affecting the sentencing proceedings. trial see found the circumstances: rights In i t s sentencing order, existence (1) Martin's that of four Martin statutory committed the murders d u r i n g the course of k i d n a p p i n g C a r r i l l o and Johnnie, see that § 13A-5-49(4), intentionally caused Ala. Code the death 1975; (2) o f two o r more p e r s o n s a c t o r p u r s u a n t t o one scheme o r c o u r s e o f c o n d u c t , 5-49(9), A l a . Code 1975; Martin by one s e e § 13A- (3) t h a t M a r t i n h a d p r e v i o u s l y been convicted of another c a p i t a l offense or a felony i n v o l v i n g the use or threat of violence to the person, 47 see § 13A-5-49(2), CR-07-0276 Ala. Code heinous, 1975; and 5 atrocious, offenses, the murders o r c r u e l when compared capital p s y c h o l o g i c a l t o r t u r e o f t h e v i c t i m s as t h e y were h e l d hostage some s e v e n h o u r s b e f o r e The trial mitigating while court circumstance: under specifically, see § their deaths. the existence that the influence disturbance, of Martin affair. that 13A-5-51(2), h i s estranged The t r i a l court one mental Ala. or Code as emotional 1975 was h a v i n g found statutory the murders from h i s w i f e wife also of committed extreme t h e unwanted s e p a r a t i o n his belief marital found A l a . Code t o other on t h e and 13A-5-49(8), were e s p e c i a l l y 1975, b a s e d for see § (4) t h a t -¬ and c h i l d an e x t r a ¬ nonstatutory The record reflects that Martin had three prior c o n v i c t i o n s -- a 1 9 9 3 c o n v i c t i o n f o r r o b b e r y i n the second d e g r e e ; a 2006 c o n v i c t i o n f o r e s c a p e i n t h e f i r s t d e g r e e ; and a 2006 c o n v i c t i o n f o r a t t e m p t e d murder. Although the acts underlying t h e 2006 c o n v i c t i o n s f o r e s c a p e a n d a t t e m p t e d murder o c c u r r e d a f t e r t h e a c t s u n d e r l y i n g h i s c a p i t a l - m u r d e r c o n v i c t i o n s ( M a r t i n e s c a p e d f r o m p r i s o n a f t e r h i s a r r e s t on t h e c a p i t a l - m u r d e r c h a r g e s ) , "where t h e d e f e n d a n t i n a c a p i t a l f e l o n y t r i a l has been c o n v i c t e d of a ' f e l o n y i n v o l v i n g the use or t h r e a t o f v i o l e n c e t o t h e person' a t any time p r i o r t o t h e sentencing phase of h i s c a p i t a l felony t r i a l , this other f e l o n y c a n be u s e d as an a g g r a v a t i n g c i r c u m s t a n c e , e v e n i f i t was p e r p e t r a t e d after the c a p i t a l offense f o r which the defendant i s being sentenced." C o u l t e r v . S t a t e , 438 S o . 2 d 3 3 6 , 347 ( A l a . C r i m . A p p . 1 9 8 2 ) , a f f ' d , 438 S o . 2 d 352 ( A l a . 1983). 5 48 CR-07-0276 m i t i g a t i n g c i r c u m s t a n c e s u n d e r § 1 3 A - 5 - 5 2 , A l a . C o d e 1 9 7 5 : (1) t h a t M a r t i n was u n d e r t h e i n f l u e n c e the time of the murders; (2) of a l c o h o l and cocaine a t that Martin's family was a d y s f u n c t i o n a l f a m i l y , h i s p a r e n t s h a v i n g d i e d w h e n h e was v e r y young a n d he appropriate educated. and h i s b r o t h e r s role After the m i t i g a t i n g model; and weighing and the t r i a l circumstances circumstances circumstances Section concerning are supported 13A-5-53(b)(3), without Martin not court found to the and that the mitigating death. the aggravating an highly circumstances outweighed sentenced up (3) t h a t M a r t i n was circumstances, findings grown the aggravating aggravating court's having The and trial mitigating by the evidence. A l a . Code 1975, r e q u i r e s us t o d e t e r m i n e w h e t h e r M a r t i n ' s d e a t h s e n t e n c e was d i s p r o p o r t i o n a t e or e x c e s s i v e when c o m p a r e d t o t h e p e n a l t i e s i m p o s e d i n s i m i l a r cases. the M a r t i n was course of a kidnapping more p e r s o n s conduct. offenses. This Court c o n v i c t e d o f two c o u n t s pursuant These a n d one c o u n t of murder t o one a c t o r one scheme offenses a r e d e f i n e d by See § 1 3 A - 5 - 4 0 ( a ) ( 1 ) has upheld o f murder as of capital A l a . Code 1975. i m p o s i t i o n of the death 49 o f two o r or course statute and (a)(10), during sentence i n CR-07-0276 cases i n v o l v i n g these p a r t i c u l a r c a p i t a l o f f e n s e s . cases dealing Lewis v. S t a t e , (Ala. Crim. w i t h murder d u r i n g the course [Ms. C R - 0 6 - 1 7 7 0 , O c t o b e r C r i m . App. 2 0 0 9 ) , App. 2008), App. 2007), F l o w e r s v. S t a t e , and Eggers 2004), murder o f two o r more p e r s o n s : 2009), December Harris Washington v. 18 , State, 2 d 134 914 2009] v. S t a t e , Snyder v. S t a t e , So. State, 992 S o . 2 d 64 and t h e cases c i t e d t h e r e i n ; 1398, v. 922 S o . 2 d 883 Jackson S o . 2 d 145 (Ala. ( A l a . C r i m . App. 2000), aff'd, aff'd, ( A l a . 2000), C o n s i d e r i n g the crime committed disproportionate Moreover, after to of [Ms. CR-06- Crim. App. App. App. 2007), 2005), death the p e n a l t y independently i s weighing Crim. and t h e c a s e s excessive i n similar the App. cited a n d M a r t i n , we neither imposed (Ala. find nor cases. aggravating c i r c u m s t a n c e s a n d t h e m i t i g a t i n g c i r c u m s t a n c e s , we a g r e e 50 825 825 S o . 2 d 233 ( A l a . 1999), sentence App. (2003), Broadnax v. S t a t e , 776 S o . 2 d 160 the ( A l a .Crim. ( A l a .Crim. and Freeman v. S t a t e , that App. ( A l a . Crim. 2001), therein. (Ala. Crim. v. S t a t e , 3d 2 S o . 3 d 880 776 S o . 2 d 203 ( A l a . Crim. and cases d e a l i n g w i t h t h e So. 893 S o . 2 d 488 So. 3d 8 S o . 3 d 330 ( A l a . 922 S o . 2 d 938 2005), of a kidnapping: 2, 2 0 0 9 ] S a l e v. S t a t e , Eatmon v. S t a t e , See, e.g., with CR-07-0276 the trial the mitigating sentence court that circumstances i n this Finally, the aggravating case. as and that Rule 45A, have thoroughly examined the record have adversely affected Martin's to sentence of death, to Martin's i n the Based convictions on outweigh i s the proper A l a . Code 1975. A l a . R. App. f o r any e r r o r substantial capital-murder P., that rights convictions and we may with his whether or not brought t o our a t t e n t i o n or the a t t e n t i o n of the t r i a l or d e f e c t death See § 1 3 A - 5 - 5 3 ( b ) ( 2 ) , r e q u i r e d by respect circumstances court. We find no p l a i n error proceedings. the foregoing, and h i s sentence Martin's of death capital-murder are affirmed. AFFIRMED. Wise, P . J . , a n d W e l c h , Windom, a n d M a i n , J J . , 51 concur.

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