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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
Ex parte Donald Deardorff
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Donald Deardorff
State of Alabama)
(Baldwin Circuit Court, CC-00-151;
Court of Criminal Appeals, CR-01-0794)
On Application for Rehearing
This Court's opinion of January 4, 2008, is withdrawn,
and the following is substituted therefor.
Donald Deardorff petitions for a writ of certiorari to
review the decision of the Court of Criminal Appeals affirming
his convictions for capital murder and his sentence of death.
We affirm. The facts pertinent to our review are as follows:
On September 22, 1999, Donald Deardorff, armed with a
dealings that had resulted in Turner's pursuing legal action
against Deardorff. They awaited Turner's return to the house,
at which time they subdued him at gunpoint. They kept Turner
in a closet with his hands bound with duct tape. Over the
course of the next 24 hours, Deardorff forced Turner to write
5 checks to Peacock for a total of $21,750.
the checks at a bank and gave the money to Deardorff.
September 24, 1999, Deardorff and Peacock drove Turner, whose
hands and mouth were taped with
duct tape and whose head was
covered with a pillowcase that was taped in place, to the end
of a logging road, at a point at which the road was blocked by
There, they walked Turner, who had recently had knee
surgery, to the end of the road and shot him four times in the
head, killing him.
Turner's body remained undiscovered until
possessing a firearm without a permit; he was subsequently
convicted on several capital-murder and other charges and was
sentenced to death.
death. A jury convicted him of three counts of capital murder,
seven counts of theft, and one count of receiving stolen
After a penalty-phase hearing, a jury, by a 10-2
vote, recommended the imposition of the death penalty. After
recommendation and sentenced Deardorff to death.
On June 25,
2004, the Court of Criminal Appeals affirmed the capitalmurder convictions and the sentence of death but ordered the
Deardorff's double-jeopardy rights. Deardorff v. State, [Ms.
CR-01-0794, June 25, 2004] __ So. 2d __ (Ala. Crim. App.
2004). The Court of Criminal Appeals remanded the case to the
trial court for the limited purpose of vacating the seven
theft convictions and the associated sentences. On September
17, 2004, the Court of Criminal Appeals, on return to remand,
convictions, without an opinion.
Court for a writ of certiorari seeking review of 21 claimed
conflicts and/or errors in the Court of Criminal Appeals'
opinion. We granted certiorari on four grounds, including
three evidentiary issues and Deardorff's claim that the trial
court improperly found as an aggravating circumstance that the
offense was "especially heinous, atrocious, or cruel," when
compared to other capital offenses. Because no objection was
petitioned this Court to conduct a plain-error review of those
issues under Rule 39(a)(2)(A), Ala. R. App. P.
I. Was the offense "especially heinous, atrocious, or
cruel," when compared to other capital offenses?
Deardorff asserts that the Court of Criminal Appeals'
holding that "'[t]he trial court's determination that the
conflicts with both the record in this case and this Court's
decision in Ex parte Clark, 728 So. 2d 1126 (Ala. 1998).
Deardorff's petition at 24 (quoting Deardorff, __ So. 2d at
The trial court ruled that Deardorff's execution-style
murder of Turner fell within the meaning of the "especially
heinous, atrocious, or cruel" aggravating circumstance; the
Court of Criminal Appeals determined that there was sufficient
circumstance existed, stating:
"From the moment Deardorff threatened Turner with
'blowing his brains out' to the moment he was forced
to kneel, bound and with his head covered with a
pillowcase secured with duct tape, Turner's fear for
his life was undoubtedly great. ... The terror he
experienced must have escalated tremendously when
his mouth was taped and his hands were bound as he
was taken away from his home, driven away in his own
car. When the pillowcase was taped and he could no
longer see where he was being taken, he had to know
that his death was imminent."
Deardorff, ___ So. 2d at ___.
impending death. However, the evidence introduced at trial
shows that at one point while Turner was being held captive by
Deardorff and Peacock, Deardorff drew his gun, pointed it at
Turner, and told him to be quiet and say nothing or Deardorff
would "blow his brains out." Turner pleaded with Deardorff,
telling him that he would give him whatever he wanted so long
as Deardorff did not kill him. Two months before his death,
executed in January 1999, reaffirming its validity "just in
case Don Deardorff is really crazy." Thus, there is sufficient
evidence indicating that Turner was aware of his
death through the threat, the fears, the pleas, the final
abduction in the car, and the forced walk down a dirt road.
The Court of Criminal Appeals repeatedly asserted in its
opinion that Turner was forced to kneel on the ground before
he was shot; however, the only eyewitness to the killing,
Peacock, testified that he was not aware that Deardorff was
going to shoot Turner, and he testified that "[Deardorff]
walked [Turner] a few more feet and he shot him." Deardorff's
support of those statements in the Court of Criminal Appeals'
opinion that Turner was "forced to kneel" is lacking:
"Deardorff makes much of the statements in the Court
of Criminal Appeals' opinion that Turner was 'forced
to kneel' before he died. This finding was not made
by the trial court, nor did the State argue [that]
this was the case. The evidence is silent on this
question. But the finding is not necessary to
support the [aggravating circumstance that the
offense was especially heinous, atrocious, or
cruel].... [S]tanding or kneeling, Turner had every
reason to fear that his death was imminent and
unpreventable. The trial court properly found that
the murder of Ted Turner was 'especially heinous,
atrocious, or cruel.' No error, much less plain
State's brief at 54-55. The absence of evidence indicating
that Turner was forced to kneel, however, does not negate the
impact of the evidence previously cited showing Turner's fear
and his knowledge of his impending death.
This Court discussed the meaning of the words "especially
heinous, atrocious or cruel," as used in § 13A-5-49(8), Ala.
Code 1975, in Ex parte Clark as follows:
"We cannot depart from the established meaning
of the words enacted by the Legislature–-'especially
heinous, atrocious or cruel'–- and apply those words
infliction of torture on the victim.
departure would abandon the essential characteristic
that made our previous applications of § 13A-5-49(8)
compatible with the Eighth Amendment. We are bound
to retain the interpretation of 'especially heinous,
atrocious or cruel' that has provided a consistent
and principled distinction between those murders for
which the death penalty sentence is appropriate and
those for which it is not.
See [Maynard v.]
Cartwright, 486 U.S.  at 363, 108 S. Ct. 1853
[(1988)]; Godfrey [v. Georgia], 446 U.S.  at
433, 100 S. Ct. 1759 [(1980)]."
728 So. 2d at 1140-41. This Court in Ex parte Clark refused to
expand the definition of "especially heinous, atrocious or
cruel" to include murder not involving torture:
"The State urges us to hold that the 'executionstyle' murder in this case, for which the record
Such an expansion of the
circumstance set out in § 13A-5-49(8) to encompass
a murder not involving torture, merely because the
State labels the murder an 'execution-style' slaying
would abandon the very interpretation that the
Eleventh Circuit held critical to the constitutional
Indeed, the Supreme Court of the United States has
held that a state supreme court's failure to apply
its previously recognized limiting construction of
an aggravating circumstance, which required a
finding of torture or aggravated battery of the
victim, rendered the application of the aggravating
Georgia], 446 U.S. [420,] 429, 432, 100 S.Ct. 1759
728 So. 2d at 1140.
When considering whether a particular capital offense is
especially heinous, atrocious, or cruel, the Court of Criminal
Appeals adheres to the standard set out in Ex parte Kyzer, 399
So. 2d 330, 334 (Ala. 1981), namely, the particular offense
must be one of those "'conscienceless or pitiless homicides
which are unnecessarily torturous to the victim.'" Duke v.
State, 889 So. 2d 1, 36 (Ala. Crim. App. 2002).
particularly indicative that a murder is 'especially
heinous, atrocious or cruel' is the infliction of
psychological torture. Psychological torture can be
inflicted where the victim is in intense fear and is
aware of, but helpless to prevent, impending death.
Such torture 'must have been present for an
appreciable lapse of time, sufficient enough to
cause prolonged or appreciable suffering.' Norris v.
State, 793 So. 2d 847, 861 (Ala. Crim. App. 1999)."
Ex parte Key, 891 So. 2d 384, 390 (Ala. 2004). See also Ex
parte Rieber, 663 So. 2d 999, 1003 (Ala. 1995).
Deardorff has not shown any merit in his claim that the
threatened with death, being held in captivity and confined in
a closet, being transported by car while his head was hooded
and his hands taped, being forced to walk down the dirt road
with a hood over his head and his hands taped, and the events
psychological torture so as to meet the standard for a murder
that is "especially heinous, atrocious, or cruel." There was
no plain error in the trial court's finding that Turner's
Deardorff is not entitled to any relief on this claim.
Did the trial court err in admitting evidence of
Deardorff's prior bad acts?
Deardorff specifically challenged certain testimony that
he asserts constitutes the improper admission of evidence of
prior bad acts: testimony that Deardorff had killed several
people before Turner's murder, that he had illegally possessed
penitentiary before Turner's murder.
Because no objection was made to this testimony at trial,
Deardorff has petitioned this Court for plain-error review of
this issue, under Rule 39(a)(2)(A), Ala. R. App. P.
"As this Court stated in Hall v. State, 820 So.
2d 113, 121-22 (Ala. Crim. App. 1999), aff'd, 820
So. 2d 152 (Ala. 2001), regarding our standard of
review when conducting a plain-error analysis:
"'The standard of review in reviewing a
claim under the plain-error doctrine is
reviewing an issue that was properly raised
in the trial court or on appeal. As the
United States Supreme Court stated in
United States v. Young, 470 U.S. 1, 105 S.
Ct. 1038, 84 L. Ed. 2d 1 (1985), the
plain-error doctrine applies only if the
error is "particularly egregious" and if it
integrity or public reputation of judicial
proceedings." See Ex parte Price, 725 So.
2d 1063 (Ala. 1998), cert. denied, 526 U.S.
1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012
(1999); Burgess v. State, 723 So. 2d 742
(Ala. Cr. App. 1997), aff'd, 723 So. 2d 770
(Ala. 1998), cert. denied, 526 U.S. 1052,
119 S. Ct. 1360, 143 L. Ed. 2d 521 (1999);
Johnson v. State, 620 So. 2d 679, 701 (Ala.
Cr. App. 1992), rev'd on other grounds, 620
So. 2d 709 (Ala. 1993), on remand, 620 So.
2d 714 (Ala. Cr. App.), cert. denied, 510
U.S. 905, 114 S. Ct. 285, 126 L. Ed. 2d 235
Irvin v. State, 940 So. 2d 331, 341 (Ala. Crim. App. 2005).
As to the testimony that Deardorff had previously killed
several other people, we note that defense counsel, during
the cross-examination of Walter Fambro, a convict in whom
Deardorff had confided while they were both incarcerated,
authorities detailing conversations Fambro alleged he had had
with both Peacock and Deardorff about Turner's murder. On
concerning that letter. When asked to read a page of the
letter, Fambro stated that Deardorff had mentioned to him that
testimony by Fambro was based entirely on the letter admitted
into evidence as a defense exhibit. State's brief at 30.
previously been incarcerated in a penitentiary, Alabama Bureau
of Investigation Agent Andrew Huggins read from a report that
had been admitted into evidence by the defense for impeachment
purposes; the report stated that Deardorff told police when he
was arrested for Turner's murder that he was on probation for
Deardorff now complains that this testimony
was admitted in error, when this information was in fact
placed in evidence by defense counsel.
The scope of cross-examination in Alabama is quite broad.
Rule 611(b), Ala. R. Evid. This means that any question may be
asked on cross-examination that is relevant either to any
substantive issue in the case or to the witness's credibility.
See Rule 611(b), Ala. R. Evid., Advisory Committee's Notes.
The trial court shall exercise reasonable control over the
evidence. Rule 611(a), Ala R. Evid. Deardorff challenges both
testimony that he had previously killed several people
and that he had previously been incarcerated, and he asserts
that such testimony constitutes the improper admission of
evidence of prior bad acts under Rule 404(b), Ala. R. Evid.
conformity with those prior bad acts, but was elicited on
by the State regarding documents that
had already been offered into evidence by the defense
"[O]n redirect examination, the object is to answer
any matters brought out on the cross-examination of
the witness by his adversary. Whether, on redirect
examination, a calling party may elicit from a
witness matters which do not rebut that which was
brought out on cross-examination is within the
discretion of the trial court."
Charles Gamble, McElroy's Alabama Evidence § 439.01(1) (5th
ed. 1996) (footnote omitted). See Sistrunk v. State, 596 So.
2d 644, 647 (Ala. Crim. App. 1992).
"It does not seem consonant with sound principles of
introduce evidence and assert on appeal that the
trial court erred to reversal by admitting that
evidence. In 32A C.J.S. Evidence § 1040(1) (1964)
the appropriate rule is stated:
"'[A] party who has introduced certain
evidence cannot subsequently object that
consideration as its natural probative
value entitled it to, or that it is
insufficient to sustain a judgment based
thereon.' (Footnotes omitted.)"
Peterson v. Jefferson County, 372 So. 2d 839, 842 (Ala. 1979).
"'Under the doctrine of invited error, a defendant
cannot by his own voluntary conduct invite error and
then seek to profit thereby.' Phillips v. State, 527
So. 2d 154, 156 (Ala. 1988). Although evidence that
he had been convicted of a prior crime would not
ordinarily have been admissible at trial, the
appellant cannot claim that it was error to receive
concerning his arrest for
when he injected the issue
Franklin v. State, 644 So. 2d 35, 38 (Ala. Crim App. 1994).
possession of a gun, testimony was elicited that Deardorff had
told Peacock that his grandmother's house had been broken into
and that the gun was reported stolen. However, the testimony
indicated that Deardorff later found the gun but did not tell
anyone it had been recovered; instead, he kept it. Deardorff
October 1, 1999, when the car in which he was riding was
stopped by the police. A gun was found during a search of the
car, along with the proceeds from the checks Deardorff had
Deardorff admitted that he had lied about having
because he was afraid of going back to the penitentiary.
Deardorff was arrested on a charge of possessing a firearm
without a permit; the offense he expressed concern about was
possession of a firearm by a convicted felon.
"'[T]he State is not permitted to give in
evidence other crimes alleged to have been
committed by the defendant unless they are
so connected by circumstances with the
particular crime charged as that proof of
one fact with its circumstances has some
bearing on the issue on trial other than to
show in the defendant a tendency or
disposition to commit the crime with which
he is charged.'"
Ex parte Casey, 889 So. 2d 615, 618 (Ala. 2004) (quoting
Garner v. State, 269 Ala. 531, 533, 114 So. 2d 385, 386 (1959)
Deardorff challenges the admission of this testimony -two concerning prior bad acts and one concerning the source of
a gun in Deardorff's possession, also involving a prior bad
act. The first two were derived from evidence admitted by
Deardorff, and, under the doctrine of invited error, he may
not challenge evidence he has presented to the court. The
reported stolen from his grandmother's house was related to
challenge on appeal to the evidence has no merit, and there
was no error in admitting the testimony at trial.
III. Did the trial court err in allowing the State's
expert witness to testify to facts not in evidence?
Deardorff contends that the testimony of George Glaser,
an agent of the Federal Bureau of Investigation who testified
as an expert for the State, was based on hearsay and on
collateral sources that were not admitted into evidence.
Rule 703, Ala. R. Evid., requires that the facts or data
relied upon by the expert in testifying and procured by the
expert other than by firsthand knowledge generally must be
admitted into evidence. See Charles Gamble, McElroy's Alabama
Evidence § 127.02(5) (5th. ed. 1996). It is clear that under
information upon which an expert relies.
See Ex parte Wesley,
575 So. 2d 127, 129 (Ala. 1990) (holding that reversible error
occurred where expert, in giving opinion on defendant's mental
condition, based opinion in part on police reports and medical
records that were not admitted into evidence).
"Alabama has followed the traditional rule. Carroll
v. State, 370 So. 2d 749 (Ala. Cr. App.), cert.
denied, 370 So. 2d 761 (Ala. 1979); Hurst v. State,
356 So. 2d 1224 (Ala. Cr. App. 1978); Cordle v.
State, 53 Ala. App. 148, 298 So. 2d 77, cert.
denied, 292 Ala. 717, 298 So. 2d 85 (1974), cert.
denied, 419 U.S. 1033, 95 S. Ct. 516, 42 L. Ed. 2d
309 (1974). However, in Nash v. Cosby, 574 So. 2d
700 (Ala. 1990), the Alabama Supreme Court modified
the traditional rule by allowing a medical expert to
give opinion testimony based in part on the opinions
of others when those other opinions are found in the
medical records admitted into evidence. However, as
the Alabama Supreme Court noted in Ex parte Wesley[,
575 So. 2d 127 (Ala. 1990)], Nash did not change
'the traditional rule followed in Alabama that the
information upon which the expert relies must be in
evidence,' 575 So. 2d at 129 (footnote omitted). In
Ex parte Wesley, the expert, in giving his opinion
on the mental condition of the defendant in that
case, based his opinion in part on police reports
and medical records that were not in evidence.
Following the traditional rule, as modified, the
inadmissible. More recently, in W.S. v. T.W., 585
So. 2d 26 (Ala. 1991), Justice Houston, the author
of the opinion in Ex parte Wesley, in an effort to
clarify the rule in Alabama, stated in a concurring
opinion, as follows:
"'It is my understanding that an
expert witness may give opinion testimony
based upon facts of which he has personal
knowledge; based upon opinions of others,
if these are opinions of a type customarily
relied upon by the expert in the practice
of his profession; or based upon facts that
are assumed in a hypothetical question. In
any event, the facts known to the expert,
customarily relied upon by the expert in
the practice of his profession, and the
hypothesized facts must all be facts in
"585 So. 2d at 29."
Madison v. State, 620 So. 2d 62, 68 (Ala. Crim. App. 1992).
Deardorff asserts that the prosecution relied on
testimony of Agent Glaser, using information obtained from two
computers–-one belonging to Turner and one belonging to Dawn
particular place and time
to prove that Deardorff, and not
Peacock, the only witness against him, was the killer.
provided by Tom Montgomery, an agent with the Federal Bureau
of Investigation. Agent Glaser testified that Agent Montgomery
gave him a list of words, all of which he found on the hard
drives of the computers he examined. Agent Glaser "was not
sure exactly how [Agent Montgomery] derived that information
during the investigation, but when I got [the words] they were
The State contends that all the facts upon which Agent
Glaser based his testimony were within his direct knowledge.
State's brief at 35. Deardorff states:
"Agent Glaser testified that his analysis of the
computer hard drives was based on information
provided to him by a third party, Agent Montgomery.
... In describing his methodology, Agent Glaser
testified that [Agent] Montgomery gave him some
information, including a list of words or part
numbers [for automobile parts] ... and he was 'not
sure exactly' how Agent Montgomery derived that
Deardorff's reply brief at 15.
However, before Agent Glaser testified, Agent Montgomery
had already testified, and he presented substantial evidence
that laid the foundation for Agent Glaser's analysis.
"The relevance of computer searches performed by
Agent Glaser had already been demonstrated by
testimony. For example, documents found in a car
Deardorff had used, which Agent Montgomery described
as receipts from car parts ordered on the internet
in Turner's name, were admitted into evidence. ...
Similarly, Agent Montgomery testified that other
website names were discovered based on reports from
Turner's family that they had discovered websites on
Turner's computer that were 'odd, unusual, out of
character sites visited on the dates in question
when Mr. Turner was missing.' ... Receipt for orders
placed on Turner's credit card, provided by the
credit card company and the various merchants, were
also admitted into evidence. ... Agent Montgomery
also testified concerning the seizing of the
computers and the handing off of the computers to
Agent Glaser for analysis."
State's brief at 35-36 n.12.
regarding information Agent Glaser sought on the computers had
testified. We find no plain error.
IV. Did the prosecutor's arguments in the penalty phase
amount to improper "testifying"?
"testified" in the penalty phase of his trial. Specifically,
inferences, and opinions going to critical issues at
the penalty phase .... The prosecutor offered
testimony that the victim suffered 'extensive pain,'
'great fear in his heart,' and 'great torture in his
mind' and that he was kept 'gagged and bound' in his
house and dragged to his death."
Deardorff's reply brief at 21-22.
During the penalty phase of Deardorff's trial, the State
presented during the guilt phase of the trial.
See § 13A-5-
45(c), Ala. Code 1975.
However, the trial court allowed the
during the evidentiary stage of the penalty phase.
to Deardorff, "[t]his ... misconduct apparently is infrequent
in Alabama capital trials, as [his] research has [found] no
published decisions dealing with [this] precise situation."
argument as plain error.
Under the facts of this case, we
will not do so.
prosecutor's untimely argument.
This failure weighs against
the claim of prejudice Deardorff makes on appeal.
v. State, 973 So. 2d 380, 387 (Ala. Crim. App. 2007).
rise to the level of plain error, the claimed error must not
only seriously affect a defendant's 'substantial rights,' but
it must also have an unfair prejudicial impact on the jury's
Hyde v. State, 778 So. 2d 199, 209 (Ala.
Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala. 2000).
affected Deardorff's substantial rights or that they had an
unfair impact on the jury's penalty-phase deliberations.
At the conclusion of the guilt phase, the trial court
carefully charged the jury on the applicable law.
was told three times that the arguments of the attorneys were
As the trial court began its instructions to
the jury during the penalty phase, it reminded the jury of the
instructions given at the end of the guilt phase and offered
to recharge the jury if any juror felt that it was necessary
for it to do so.
No juror requested any repetition of the
Under these circumstances, we consider
it highly unlikely that any juror considered the prosecutor's
untimely arguments to be evidence.
In fact, the prosecutor
specifically asked the jury to consider the evidence that it
had already heard in the guilt phase.
At no point did the
prosecutor suggest that the jury disregard the evidence or
substitute his recollection of the evidence for its own.
In his application for rehearing, Deardorff alleges that
the prosecutor's untimely argument referred to "facts that
were unproven by reliable, sworn testimony."
the record indicates that that is not the case.
Our review of
the prosecutor argued that the victim had suffered a fractured
cheekbone that would have been painful. A forensic pathologist
had testified that the fracture had resulted from blunt-force
trauma and that it would have caused severe pain.
Deardorff argues that there was no evidence indicating that
Turner's cheekbone was fractured before Turner was killed, he
Deardorff told him that he and Peacock had taken turns beating
Turner until Turner lost consciousness. In fact, during the
cross-examination of the forensic pathologist, Deardorff's
trial counsel raised the possibility that the blunt-force
trauma had rendered Turner unconscious before the shooting.
We certainly do not sanction allowing any attorney to
make arguments during the evidentiary stage of the penalty
phase of a capital-murder trial.
However, under the facts of
this case, we cannot conclude that allowing such an argument
amounted to plain error. See Brooks, 973 So. 2d at 387.
Based on the foregoing, the judgment of the Court of
Criminal Appeals is affirmed.
APPLICATION OVERRULED; OPINION OF JANUARY
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
See, Lyons, Woodall, Smith, and Bolin, JJ., concur.
Murdock, J., concurs in the result.
Cobb, C.J., and Stuart, J., recuse themselves.