Benito Ocampo Albarran v. State of Alabama
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REL: 02/25/2011
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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2010-2011
_________________________
CR-07-2147
_________________________
Benito Ocampo Albarran
v.
State of Alabama
Appeal from Madison Circuit Court
(CC-06-1522)
WINDOM, Judge.
Benito
Ocampo
Albarran
appeals
conviction and his sentence of death.
his
capital-murder
Albarran was convicted
of murder made capital because he shot and killed Officer
Daniel Golden, a member of the Huntsville Police Department,
CR-07-2147
while Officer Golden was on duty, see § 13A-5-40(a)(5), Ala.
Code 1975.
The jury, by a vote of 10-2, recommended that
Albarran be sentenced to death.
The circuit court followed
the jury's recommendation and sentenced Albarran to death.
The State's evidence tended to show the following.
On
September 20, 2006, Officer Golden was dispatched to the El
Jalisco restaurant on Jordan Lane in Huntsville to respond to
an
emergency
911
telephone
call
concerning
a
domestic
disturbance between Albarran and his wife, Laura Castrejon.
Castrejon
told
the
911
drinking and was abusive.
operator
that
Albarran
had
been
Albarran and his wife managed and
cooked at the restaurant.
When Officer Golden arrived at the restaurant he got out
of
his
patrol
vehicle
and
approached
the
door
of
the
restaurant. Albarran walked toward him pointing a .38 caliber
Smith & Wesson brand revolver. Officer Golden put his arms in
the air.
Albarran fired at Officer
Golden, and
Golden
returned fire with his 9 millimeter Beretta firearm until his
gun misfired.
One of Albarran's shots hit Officer Golden in
the lower abdomen, and he fell to the ground.
As Officer
Golden lay on the ground pleading for his life, Albarran
2
CR-07-2147
approached him and fired another gun, a .38 caliber Rossi, at
him.
This bullet lodged in Golden's protective vest.
As
Golden yelled: "Wait!" Albarran fired two more shots at
Golden's head.
Charles Ward, an employee of Warehouse Furniture, a
business located next to the El Jalisco restaurant, testified
that when he returned to the store's office after making his
deliveries, another employee, Chad Steele, yelled, "Oh, my
God, a[n] officer's just been shot."
(R. 2123.)
Ward said
that he went to the back door and opened it so that he could
see what was happening.
Ward stated that an officer was on
the ground and a man behind a black truck picked up a black
handgun, "discharged the magazine and pitched the gun."
2126.)
The
individual,
whom he described
as
(R.
a "Latino
gentleman," (R. 2126.), walked toward the car dealership near
the restaurant and spoke to an employee of the dealership.
Ward said he telephoned emergency 911, and when he went back
to the door to look out, he saw the Latino man smoking a
cigarette.
Tanisha Thomas testified that she and her husband were
driving past the El Jalisco restaurant when Officer Golden was
3
CR-07-2147
shot.
She said that she saw a police officer backing out of
the restaurant and a man, whom she identified at trial as
Albarran, in front of Officer Golden shooting at him.
Thomas
testified that the officer fell to the ground and yelled
"Wait!" and that Albarran kept shooting at the officer. (R.
2029.)
William Thomas, Tanisha Thomas's husband, testified:
saw the police gun jam.
"I
Then the Mexican fired the shot and
hit him and on impact he went down."
(R. 2086.)
He further
testified that after the officer went down, Albarran shot him
and then walked up to the officer and shot him again.
Corporal Chris Carter of the Alabama State Troopers
testified that he was driving down Jordan Lane on August 29,
2005, when he saw a police vehicle in a ditch.
He pulled in
behind the vehicle and observed an officer on the ground and
two Huntsville police officers with their guns drawn in front
of the El Jalisco restaurant. He pulled his weapon and walked
to the back of the building.
Cpl. Carter testified that a
male from the car dealership next door said:
"[That] is the
guy that shot him," and he pointed at Albarran.
Cpl. Carter
said that he and several other officers approached Albarran
4
CR-07-2147
and repeatedly told him to get down and that he failed to
respond to their commands, which were given both in English
and in Spanish.
Cpl. Carter testified that the officers
could see both of Albarran's hands so they walked toward
Albarran, pulled him to the ground, and handcuffed him.
Dr. Emily Ward, the State Medical Examiner, testified
that Golden died of multiple gunshot wounds.
One of the
bullets entered his head between his nose and left eye, a
second bullet entered his left cheek and lodged in his brain,
and a third bullet entered his lower abdomen.
Albarran did not dispute that he shot and killed Officer
Golden.
Albarran's defense was that he was suffering from a
substance-induced psychosis when the shooting occurred, that
he was unable to appreciate the wrongfulness of his actions,
and that his psychosis robbed him of the ability to form the
specific intent to kill.
Albarran presented the testimony of
Dr. Jose Silva, a forensic psychiatrist.
Dr. Silva testified
that, in his opinion, at the time of the shooting Albarran was
unable to appreciate the wrongfulness of his actions because
of
his
cocaine-
and
alcohol-induced
psychosis
and
that
Albarran believed that his wife and Officer Golden had been
5
CR-07-2147
sent by the "Devil" to harm him.
(R. 3027.)
Dr. Silva also
said that Albarran was paranoid.
The State countered Dr. Silva's testimony by presenting
the testimony of Dr. James Hooper, Chief of Psychiatric
Services at Taylor Hardin Secure Medical Facility. Dr. Hooper
testified that, in his opinion, Albarran showed "no evidence
of any abnormality -- behavior interactions or anything else."
(R. 3252.)
He testified that when Albarran was at Taylor
Hardin, Albarran stated that "he was going to be found not
guilty by reason of insanity."
The jury convicted Albarran of capital murder for the
intentional killing of Officer Golden.
hearing was held.
A separate sentencing
During the sentencing hearing, Albarran
presented the testimony of numerous individuals and family
members from Albarran's home town of Cacahuananshe, Mexico,
who testified concerning Albarran's difficult and impoverished
life in Cacahuananshe. The jury recommended, by a vote of 102, that Albarran be sentenced to death.
A sentencing hearing
was held before the court pursuant to § 13A-5-47(c), Ala. Code
1975.
Dr. Ricardo Weinstein, a forensic neuropsychologist,
testified that he administered the Spanish version of the
6
CR-07-2147
Wechsler
Adult
Intelligence
Scale
("WAIS
III")
Albarran and determined that his IQ was 71.
test
to
It was Dr.
Weinstein's opinion that Albarran was borderline mentally
retarded and that he was functioning at a fourth-grade level.
The State presented the testimony of two individuals who had
made deliveries to the restaurant and had dealt with Albarran.
Both said that they did not believe that Albarran had any
mental problems.
The circuit court entered a detailed order
sentencing Albarran to death.
Standard of Review
Because Albarran has been sentenced to death, this Court,
according to Rule 45A, Ala. R. App. P., must search the record
for "plain error."
Rule 45A states:
"In all cases in which the death penalty has
been imposed, the Court of Criminal Appeals shall
notice any plain error or defect in the proceedings
under review, whether or not brought to the
attention of the trial court, and take appropriate
appellate action by reason thereof, whenever such
error has or probably has adversely affected the
substantial right of the appellant."
(Emphasis added.)
In Ex parte Brown, 11 So. 3d 933 (Ala. 2008), the
Alabama Supreme Court explained:
7
CR-07-2147
"'"To 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
deliberations."' Ex parte Bryant, 951 So. 2d 724,
727 (Ala. 2002) (quoting Hyde v. State, 778 So. 2d
199, 209 (Ala. Crim. App. 1998)). In United States
v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed.
2d 1 (1985), the United States Supreme Court,
construing the federal plain-error rule, stated:
"'The Rule authorizes the Courts of Appeals
to correct only "particularly egregious
errors," United States v. Frady, 456 U.S.
152,
163
(1982),
those
errors
that
"seriously affect the fairness, integrity
or
public
reputation
of
judicial
proceedings," United States v. Atkinson,
297 U.S. [157], at 160 [(1936)]. In other
words, the plain-error exception to the
contemporaneous-objection rule is to be
"used
sparingly,
solely
in
those
circumstances in which a miscarriage of
justice would otherwise result."
United
States v. Frady, 456 U.S., at 163, n. 14.'
"See also Ex parte Hodges, 856 So. 2d 936, 947-48
(Ala. 2003) (recognizing that plain error exists
only if failure to recognize the error would
'seriously affect the fairness or integrity of the
judicial proceedings,' and that the plain-error
doctrine is to be 'used sparingly, solely in those
circumstances in which a miscarriage of justice
would otherwise result' (internal quotation marks
omitted))."
11 So. 3d at 938.
"The standard of review in reviewing a
claim under the plain-error doctrine is stricter than the
standard used in reviewing an issue that was properly raised
8
CR-07-2147
in the trial court or on appeal."
See Hall v. State, 820 So.
2d 113, 121 (Ala. Crim. App. 1999).
While Albarran's failure
to object will not bar this Court from reviewing any issue, it
will weigh against any claim of prejudice. See Dill v. State,
600 So. 2d 343, 352 (Ala. Crim. App. 1991).
Guilt-Phase Issues
I.
Albarran first argues that his statement to police should
have been suppressed because he was not properly informed of
his Miranda1 rights in Spanish; therefore, he was unable to
knowingly and voluntarily waive those rights.
He also argues
that the rights afforded him under the Vienna Convention on
Consular Relations ("the Vienna Convention") were violated
because law-enforcement officials failed to notify him of his
right to speak to a consul from the Mexican Embassy, that the
cultural barriers interfered with his ability to waive his
Miranda rights, and that his low intellect rendered him
incapable of waiving his rights.
Before trial, Albarran filed a 31-page motion to suppress
his statement to police, and a hearing was held on the motion.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
9
CR-07-2147
(C.R. 149.)
Issues regarding the motion to suppress his
statement are now raised on appeal.
In McLeod v. State, 718 So. 2d 727 (Ala. 1998), the
Alabama Supreme Court explained:
"For a confession, or an inculpatory statement,
to be admissible, the State must prove by a
preponderance of the evidence that it was voluntary.
Ex parte Singleton, 465 So. 2d 443, 445 (Ala. 1985).
The initial determination is made by the trial
court.
Singleton, 465 So. 2d at 445.
The trial
court's determination will not be disturbed unless
it is contrary to the great weight of the evidence
or is manifestly wrong. Marschke v. State, 450 So.
2d 177 (Ala. Crim. App. 1984). ...
"The Fifth Amendment to the Constitution of the
United States provides in pertinent part: 'No person
... shall be compelled in any criminal case to be a
witness against himself....' Similarly, § 6 of the
Alabama Constitution of 1901 provides that 'in all
criminal prosecutions, the accused ... shall not be
compelled to give evidence against himself.' These
constitutional guarantees ensure that no involuntary
confession, or other inculpatory statement, is
admissible to convict the accused of a criminal
offense. Culombe v. Connecticut, 367 U.S. 568, 81
S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); Hubbard v.
State, 283 Ala. 183, 215 So. 2d 261 (1968).
"It has long been held that a confession, or any
inculpatory statement, is involuntary if it is
either coerced through force or induced through an
express or implied promise of leniency.
Bram v.
United States, 168 U.S. 532, 18 S. Ct. 183, 42 L.
Ed. 568 (1897). In Culombe, 367 U.S. at 602, 81 S.
Ct. at 1879, the Supreme Court of the United States
explained that for a confession to be voluntary, the
defendant must have the capacity to exercise his own
10
CR-07-2147
free will in choosing to confess. If his capacity
has been impaired, that is, 'if his will has been
overborne' by coercion or inducement, then the
confession is involuntary and cannot be admitted
into evidence. Id. (emphasis added).
"The Supreme Court has stated that when a court
is determining whether a confession was given
voluntarily it must consider the 'totality of the
circumstances.'
Boulden v. Holman, 394 U.S. 478,
480, 89 S. Ct. 1138, 1139-40, 22 L. Ed. 2d 433
(1969); Greenwald v. Wisconsin, 390 U.S. 519, 521,
88 S. Ct. 1152, 1154, 20 L. Ed. 2d 77 (1968); see
Beecher v. Alabama, 389 U.S. 35, 38, 88 S. Ct. 189,
191, 19 L. Ed. 2d 35 (1967). Alabama courts have
also held that a court must consider the totality of
the circumstances to determine if the defendant's
will was overborne by coercion or inducement. See
Ex parte Matthews, 601 So. 2d 52, 54 (Ala.) (stating
that a court must analyze a confession by looking at
the totality of the circumstances), cert. denied,
505 U.S. 1206, 112 S. Ct. 2996, 120 L. Ed. 2d 872
(1992); Jackson v. State, 562 So. 2d 1373, 1380
(Ala. Crim. App. 1990) (stating that, to admit a
confession, a court must determine that the
defendant's will was not overborne by pressures and
circumstances swirling around him); Eakes v. State,
387 So. 2d 855, 859 (Ala. Crim. App. 1978) (stating
that the true test to be employed is 'whether the
defendant's will was overborne at the time he
confessed') (emphasis added)."
718 So. 2d at 729 (footnote omitted).
A.
First, Albarran argues that he could not effectively
waive his Miranda rights because the interpreter's translation
of the rights was flawed.
Specifically, he asserts that the
11
CR-07-2147
interpreter used a word that does not exist in the Spanish
language -- "silento" -- when translating the word "silent"
and that the interpreter informed him that a lawyer would be
"selected for him" and not "appointed at the State's expense."
The United States Supreme Court has stated the following
concerning Miranda warnings:
"Reviewing courts ... need not examine Miranda
warnings as if construing a will or defining the
terms of an easement.
The inquiry is simply
whether the warnings reasonably 'conve[y] to [a
suspect] his rights as required by Miranda.'
[California v.] Prysock, supra, 453 U.S. [355], at
361 [(1981)]."
Duckworth v. Eagan, 492 U.S. 195, 361 (1989).
v.
Prysock,
453
U.S.
355,
359
(1981)
See California
("Miranda
itself
indicated that no talismanic incantation was required to
satisfy its strictures.")
The United States Court of Appeals for the Tenth Circuit,
when addressing the validity of a foreign-speaking defendant's
waiver of his Miranda rights, has stated:
"To determine whether a suspect's waiver of his
Miranda rights was intelligent, we inquire whether
the defendant knew that he did not have to speak to
police and understood that statements provided to
police could be used against him. United States v.
Yunis, 859 F.2d 953, 964-65 (D.C. Cir. 1988).
A
suspect need not, however, understand the tactical
advantage of remaining silent in order to effectuate
12
CR-07-2147
a valid waiver.
Id. at 965.
Although language
barriers may inhibit a suspect's ability to
knowingly and intelligently waive his Miranda
rights, when a defendant is advised of his rights in
his native tongue and claims to understand such
rights, a valid waiver may be effectuated. See
United States v. Boon San Chong, 829 F.2d 1572, 1574
(11th Cir. 1987). The translation of a suspect's
Miranda rights need not be a perfect one, so long as
the defendant understands that he does not need to
speak to police and that any statement he makes may
be used against him. See, e.g., Yunis, 859 F.2d at
959 (grammatical errors in translated Miranda
warning did not render warning constitutionally
insufficient);
Perri
v.
Director,
Dep't
of
Corrections, 817 F.2d 448, 452-53 (7th Cir.)
(Miranda warning administered in Italian by police
officer with no formal training in Italian in
dialect different from defendant's sufficient to
effectuate valid waiver), cert. denied, 484 U.S.
843, 108 S. Ct. 135, 98 L. Ed. 2d 92 (1987); United
States v. Gonzales, 749 F.2d 1329, 1335 (9th Cir.
1984) (waiver valid where defendant appeared to
understand Miranda warning administered by officer
in broken Spanish)."
United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir.
1990).
In State v. Ortez, 178 N.C. App. 236, 631 S.E.2d 188
(2006), the Court of Appeals of North Carolina considered the
adequacy of Miranda warnings given to a Spanish-speaking
defendant and stated:
"[D]efendant claims that the Spanish translation of
the Miranda rights read to him did not properly
convey the right of an indigent defendant to have
counsel appointed before questioning. Although the
13
CR-07-2147
Spanish translation of Miranda warnings used by the
Raleigh Police Department in this case contained
grammatical errors, we do not find these errors
rendered defendant's Miranda warnings inadequate.
The United States Supreme Court has never required
Miranda warnings to 'be given in the exact form
described in that decision.'
Duckworth v. Eagan,
492 U.S. 195, 202, 109 S. Ct. 2875, 2880, 106 L. Ed.
2d 166, 176 (1989). When reviewing the adequacy of
Miranda warnings, an appellate court asks 'simply
whether the warnings reasonably "conve[y] to [a
suspect] his rights as required by [Miranda]."' Id.
at 203, 109 S. Ct. at 2880, 106 L. Ed. 2d at 177
(quoting California v. Prysock, 453 U.S. 355, 361,
101 S. Ct. 2806, 69 L. Ed. 2d 696, 702 (1981)).
"In the present case, the warnings read to
defendant
in
Spanish
reasonably
conveyed
to
defendant his Miranda rights and were therefore
adequate. While defendant argues the term 'corte de
ley' has no meaning in Spanish, when defendant was
asked in Spanish whether he understood his rights,
defendant answered in the affirmative and signed the
bottom of the waiver form.
Moreover, a material
part of the Miranda warning given -- that anything
defendant said could be used against him -- was
preserved in the translation."
178 N.C.App. at 244-45, 631 S.E.2d at 195.
See Annot.,
Suppression of Statements Made During Police Interview of NonEnglish-Speaking Defendant, 49 A.L.R. 6th 343 (2009).
"Whether an accused understood the Miranda
warnings
depends
on
the
totality
of
the
circumstances, not solely the skill of the
interpreter.
Nguyen v. State, 273 Ga. 389(2)(b),
543 S.E.2d 5 (2001). There is no requirement that
Miranda warnings be given by a certified translator.
In Nguyen, supra, this Court upheld the validity of
Miranda warnings administered in Vietnamese by the
14
CR-07-2147
defendant's
son,
who
was
not
a
certified
interpreter. So long as the accused understands the
explanation of rights, an imperfect translation does
not rule out a valid waiver. Tieu v. State, 257 Ga.
281(2), 358 S.E.2d 247 (1987)."
Delacruz v. State, 280 Ga. 392, 394, 627 S.E.2d 579, 583
(2006).
At the suppression hearing, Investigator Charlie Gray of
the Huntsville Police Department testified that on August 29,
2005, he interviewed Albarran at the police station at around
9:40 p.m. -- approximately six hours after the shooting.
Investigator Gray said that he was accompanied by another
investigator, Wayne Sharp, and by a Spanish interpreter, Flora
Boardman, a Spanish professor at the University of Alabama in
Huntsville and a teacher at the Huntsville Police Academy. He
said that Albarran was not coerced or promised anything in
order to secure his statement.
Gray testified that Albarran
looked normal, was calm and willing to talk, did not smell of
alcohol, and appeared lucid.
An audiotape of the interview
was offered and admitted at the suppression hearing.
At the hearing, Albarran argued that the Miranda warnings
as administered by the interpreter were inadequate because the
interpreter's translation of the warnings was flawed.
15
Dr.
CR-07-2147
Ricardo Weinstein, a neuropsychologist who was fluent in
Spanish, testified that, in his opinion, the Miranda warnings
given to Albarran had not been properly translated and that he
believed that Albarran's low intellect inhibited his ability
to understand his rights.
several
phrases
that
He said that the interpreter used
were
Albarran's Miranda rights.
confusing
when
translating
First, the interpreter used the
word "silento" for "silent."
According to Dr. Weinstein,
"silento" is not a word in Spanish.
Dr. Weinstein also said
that when the interpreter informed Albarran of his right to
have an attorney, the interpreter substituted the phrase a
lawyer would be "selected for him" for the phrase a lawyer
would be "appointed for him."
Dr. Weinstein did testify that
most of the dialogue between the interpreter and Albarran was
understandable. (R. 1827.) Further, Albarran had been in the
United States periodically since 1989 and spoke some English.
A review of the transcript of the translated interview
shows that each Miranda right was read to Albarran separately
and that after each right was read, Albarran was asked if he
understood
question,
that
he
particular
would
ask
right.
the
16
When
interpreter
Albarran
to
had
repeat
a
the
CR-07-2147
information. The translation of the Miranda rights shows that
Albarran was informed of the following:
"You have the right
to stay silent"; "Anything you say can and will be used
against you in a court of law"; "You have the right to talk to
a lawyer"; "If you cannot afford to hire a lawyer one will be
appointed to represent you before any questioning if you
wish"; and "If you don't have money for an attorney one will
be selected to represent you before we ask you questions if
you want."
(S.R. 200-01.)
After he was informed of his
rights, he indicated that he understood those rights and
waived them.
"The Spanish translation of the Miranda form given to
[Albarran]
clearly
expressed
the
required
concepts;
deviation was at most minor and inconsequential."
280 Ga. at 394-95, 627 S.E.2d at 583.
any
Delacruz,
Accordingly, the
circuit court committed no error in denying Albarran's motion
to suppress his statement to police on the ground that the
Miranda
rights
had
not
been
Spanish.
17
adequately
translated
into
CR-07-2147
B.
Second, Albarran argues that he was not given sufficient
notice of his right to speak to consular officials from the
Mexican Embassy; therefore, the rights granted him by the
Vienna Convention were violated.
Albarran raised this issue
in his motion to suppress his statement to police.
(C.R.
149.)
The record shows that during Albarran's interview he was
informed that he had the right to talk to the "Mexican
Consulate" and that he had the right to "have the attorney and
the consul present with [him]" when he was questioned.
200.)
(S.R.
Albarran, however, asserts that there were numerous
defects in the way he was informed of his right to speak with
a consul from the Mexican Embassy.
Even if Albarran were not properly informed of his right
to speak to a consul from the Mexican Embassy, the remedy
would not be to suppress his statement.
In Sharifi v. State,
993 So. 2d 907 (Ala. Crim. App. 2008), this Court joined the
majority of jurisdictions that have addressed this issue and
held that the Vienna Convention does not confer any judicially
18
CR-07-2147
enforceable rights on individuals.
Specifically, this Court
stated:
"Many other courts have declined to address this
specific issue but have held that the remedies of
suppression of evidence or the dismissal of an
indictment are not appropriate remedies for a
nation's violation of the Vienna Convention.
The
United States Court of Appeals for the Eighth
Circuit in United States v. Ortiz, 315 F.3d 873 (8th
Cir. 2002), stated:
"'Again, even assuming that the Convention
creates individually enforceable rights,
this conclusion does not follow. There is
no causal or logical connection at all
between the penalty imposed on defendants
and violation of the Vienna Convention.
The death penalty is provided by statute.
It comes into the case, of course, only
after defendants are convicted....
The
Convention itself says nothing about the
appropriateness of penalties, and certainly
does not provide that the death penalty is
excluded if the Convention is violated. We
do not believe that courts are authorized
to create such a remedy.'
"315 F.3d at 887.
See also United States v.
Duarte-Acero, 296 F.3d 1277, 1282 (11th Cir. 2002)
('[T]he Convention nowhere suggests that the
dismissal of an indictment is an appropriate remedy
for a violation.
See United States v. Page, 232
F.3d 536, 540 (6th Cir. 2000); [United States v.]
Li, 206 F.3d [56,] 62 [(1st Cir. 2000)].'); United
States v. Lawal, 231 F.3d 1045, 1048 (7th Cir. 2000)
('In [United States v.] Chaparro-Alcantara, [226
F.3d 616 (7th Cir. 2000),] we determined that since
there
is
no
general
exclusionary
rule
for
international
law
violations,
suppression
of
evidence is appropriate "only when the treaty
19
CR-07-2147
provides for that remedy." See 226 F.3d at 623-24.
We read Article 36 as not providing such an
extraordinary remedy. See Id. at 624-25.'); United
States v. Minjares-Alvarez, 264 F.3d 980, 986-87
(10th Cir. 2001) ('There is no evidence that the
Vienna Convention's drafters intended to remedy
violations of Article 36 through the suppression of
evidence.'); Garcia v. State, 117 Nev. 124, 128, 17
P.3d 994, 997 (2001) ('The State Department has
rejected the proposition that Vienna Convention
violations warrant evidence suppression or case
dismissal, and instead has concluded that the only
remedies are diplomatic or political or exist
between states under international law.')."
Sharifi, 993 So. 2d at 918.
Because a violation of the Vienna Convention does not
require the suppression of a statement, the circuit court
correctly denied Albarran's motion on this ground. Therefore,
Albarran is not due any relief on this issue.
C.
Albarran next argues that his statement was due to be
suppressed because of cultural barriers that, he claims,
interfered with his ability to intelligently waive his Miranda
rights.
To support his assertions, Albarran cites United
States v. Garibay, 143 F.3d 534 (9th Cir. 1998).
In Garibay, the Spanish-speaking defendant was given his
Miranda rights in English. The United States Court of Appeals
for the Ninth Circuit held that Garibay's statement should
20
CR-07-2147
have been suppressed because of his difficulty understanding
English.
143 F.3d at 538.
Garibay has no application to this
case because Albarran was given his Miranda rights in Spanish.
Furthermore,
Albarran
had
lived
periodically
United States for many years and managed a restaurant.
in
the
There
is no indication that any cultural barriers interfered with
Albarran's ability to knowingly and intelligently waive his
Miranda rights.
D.
Albarran also argues that his statement was due to be
suppressed because his limited intellectual capacity rendered
him incapable of waiving his Miranda rights.
"Having a low IQ will not render a waiver
ineffective unless the individual's IQ is so low
that the person attempting to waive his rights
absolutely cannot understand his Miranda rights.
Arnold v. State, 448 So. 2d 489 (Ala. Crim. App.
1984).
"'We have often held that "the fact
that a defendant may suffer from a mental
impairment or low intelligence will not,
without other evidence, render a confession
involuntary."
See Colorado v. Connelly,
479 U.S. 157, 163-65, 107 S. Ct. 515, 520,
93 L. Ed. 2d 473 (1986); Baker v. State,
599 So. 2d 60, 63 (Ala. Cr. App. 1991),
State v. Austin, [596 So. 2d 598 (Ala. Cr.
App. 1991)] supra, Holladay v. State, 549
So. 2d 122 (Ala. Cr. App. 1988), aff'd, 549
21
CR-07-2147
So. 2d 135 (Ala. 1989), cert. denied, 493
U.S. 1012, 110 S. Ct. 575, 107 L. Ed. 2d
569 (1989).'
"Youngblood v. State, 656 So. 2d 385, 387 (Ala. Cr.
App. 1993).
"'[A] defendant's mental impairment, even
if it exists, is merely one factor
affecting the validity of his waiver of
rights and the voluntariness of his
confession. See generally Annot., 8 A.L.R.
4th 16 (1981).
"While an accused's
intelligence and literacy are important
factors to be considered in determining
whether he intelligently and voluntarily
waived his constitutional rights and made
a confession, weak intellect or illiteracy
alone
will
not
render
a
confession
inadmissible." Hobbs v. State, 401 So. 2d
276, 282 (Ala. Cr. App. 1981).'
"Whittle v. State, 518 So. 2d 793, 796-97 (Ala. Cr.
App. 1987).
"Although it is undisputed that the appellant's
mental
capabilities
were
below
average,
but
'average' is the middle mark, there is no evidence
that the appellant could not understand that he had
the right to remain silent and that he had the right
to an attorney. The court did not err in receiving
the appellant's confession into evidence at trial."
Dobyne v. State, 672 So. 2d 1319, 1337 (Ala. Crim. App. 1994).
"In this case, no rebuttal testimony was offered
to the evidence that the appellant's mental capacity
was below average. However, there was absolutely no
evidence presented that the appellant's mental
capacity was so low that she could not understand
her Miranda rights.
The appellant indicated that
she understood these rights, and she signed a waiver
22
CR-07-2147
of rights form.
There was testimony that the
appellant did not appear to be under the influence
of alcohol or drugs, was not offered any reward, and
was not threatened or induced to make a statement.
The court did not err in receiving the appellant's
confession into evidence at trial."
Turley v. State, 659 So. 2d 191, 194 (Ala. Crim. App. 1994).
At the suppression hearing, Dr. Weinstein testified that
he administered the
Spanish version of
the
IQ tests to
Albarran, that he determined from the results of those tests
that Albarran's IQ was 71, and that it was his opinion that
Albarran was mildly mentally retarded.
He admitted on cross-
examination that Albarran was depressed and that that would
affect his IQ scores. He further testified that Albarran did,
in fact, understand some of the Miranda rights.
(R. 1843.)
The State presented evidence indicating that Albarran was the
manager of a restaurant and regularly conducted business
without trouble.
Further, each right set out in Miranda was
read to Albarran separately and after each right was read,
Albarran was asked if he understood that particular right.
When Albarran had a question, he would ask the interpreter to
repeat the information.
After he was informed of his rights,
he indicated that he understood those rights, and he waived
them.
Based on the conflicting evidence, this Court cannot
23
CR-07-2147
say that the circuit court abused its discretion in finding
that Albarran was not "so mentally impaired that he did not
understand his Miranda rights."
Beckworth v. State, 946 So.
2d 490, 517 (Ala. Crim. App. 2005) (citations and quotations
omitted).
E.
Finally, even if Albarran's statement were erroneously
admitted for any reason, this Court would find that the error
was harmless beyond
a reasonable
doubt.
In Arizona v.
Fulminante, 499 U.S. 279 (1991), the United States Supreme
Court held that the erroneous admission of a defendant's
confession may be harmless.
"'When reviewing the erroneous admission of
an involuntary confession, the appellate
court, as it does with the admission of
other
forms
of
improperly
admitted
evidence, simply reviews the remainder of
the evidence against the defendant to
determine whether the admission of the
confession was harmless beyond a reasonable
doubt.'
"[Arizona v. Fulminante,] 499 U.S. [279] 210
[(1991)].
(Emphasis added.)
'In order for the
harmless error doctrine to be applied in this
situation, the evidence against the accused must be
overwhelming.' McCary, 629 So. 2d at 732, Smith v.
State, 623 So. 2d 369, 372 (Ala. Cr. App. 1992),
cert. denied, 510 U.S. 1030 (1993)."
24
CR-07-2147
Fisher v. State, 665 So. 2d 1014, 1017-18 (Ala. Crim. App.
1995).
Albarran's statement was not inculpatory. Albarran never
admitted that he shot Officer Golden but repeatedly said that
he was not there when the shooting occurred.
Further, the
State presented overwhelming evidence of Albarran's guilt,
including multiple eyewitness accounts of Albarran shooting
Officer
Golden.
Therefore,
the
admission
of
Albarran's
statement was harmless beyond a reasonable doubt. See Arizona
v. Fulminante, supra.
II.
Albarran next argues that the circuit court erred in
requiring
him
to
wear
a
"stun
belt"
during
his
trial.
Specifically, he argues that forcing him to wear the device
deprived him of the presumption of innocence, hindered his
right to confer with his attorney, and violated his right to
a fair trial.
The record shows that Albarran orally objected to the use
of the stun belt and that a hearing was held on his objection.
(R. 554.)
A memorandum detailing the police department's
policies and procedures on the use of the stun belt was
25
CR-07-2147
admitted into evidence at the hearing. (Supp. R. 21-23.)
The
memorandum stated that the device would emit a shock for eight
seconds when activated and that it would be activated in the
following circumstances:
"(1) Any attempt to escape or to assault the
Court, Courtroom staff, Sheriff Department employee,
or any other individual(s) within the courtroom.
"(2)
Any outburst or movement which appears
threatening, threatening to escape, or assault.
"(3)
Any failure to comply with verbal
direction of the custodial department employee. Any
attempt to remove the E.S.D.
('electronic stun
device') or other physical restraints.
"(4) Anytime the wearer moves out of sight of
the custodial or control department employee."
(Supp. R. 21-22.)
Sgt. Manuel Ray Simmons testified concerning the stun
belt Albarran was wearing.
The device was five or six inches
wide, was strapped around Albarran's waist, and was capable of
being activated by a remote control.
Albarran's belt was not
visible because he was wearing a jacket over it. The belt
incapacitates the wearer when it is activated.
Sgt. Simmons
testified that it was the police department's policy to have
individuals on trial for capital murder wear the belt because
26
CR-07-2147
they were not restrained in any other way, i.e., Albarran was
not wearing handcuffs or shackles.
The circuit court held that, based on the totality of the
circumstances, the use of the stun belt was proper.
In
support of its ruling, the circuit court cited security
concerns caused by the poor layout of the courthouse, the fact
that the belt was not visible to the jury and was used in lieu
of handcuffs and shackles, and the department's policy on the
use of the device. (R. 1022-24.)
There is no indication that
the stun belt was a hindrance to Albarran during the trial or
that the belt was activated during any of the proceedings.
This Court has approved the use of a stun belt as a
security measure in a capital-murder trial.
See Hyde v.
State, 13 So. 3d 997 (Ala. Crim. App. 2007); Belisle v. State,
11 So. 3d 256 (Ala. Crim. App. 2007); Snyder v. State, 893 So.
2d 488 (Ala. Crim. App. 2003).
In Snyder, this Court upheld
the use of a stun belt in Snyder's capital-murder trial after
the court held a hearing on the issue and made a determination
on the record that the use of the stun belt was appropriate.
See also State v. Were, 118 Ohio St. 3d 448, 464, 890 N.E.2d
263,
283 (2008) ("A trial court can require the use of stun
27
CR-07-2147
belts
when
record.");
Gagging,
the
prosecution
Annot.,
Shackling,
justifies
Propriety
or
and
Otherwise
their
use
Prejudicial
Physically
on
Effect
the
of
Restraining
Accused During Course of State Criminal Trial, 90 A.L.R. 3d 17
(1979).
As the State of Florida stated when addressing a similar
issue:
"[The appellant] further argues that the jury
was prejudiced because he had to wear a stun belt
during trial and that the use of this stun belt
implied his guilt.
A trial judge has discretion
when it comes to the issue of whether or not to
restrain the defendant. See Elledge v. State, 408
So. 2d 1021, 1023 (Fla. 1981). The record clearly
reflects that although the trial court found the
belt necessary because of the magnitude of the case,
it also found that Smith could not be prejudiced by
its use because it was not visible to anyone,
including the judge.
It is true that while
restraints are sometimes necessary, a defendant
generally has the right to appear free from
restraint while in front of the jury. See Illinois
v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L.
Ed. 2d 353 (1970). However, we have held that the
use of a stun belt is allowed because it is less
visible than the alternative of shackles.
See
Weaver v. State, 894 So. 2d 178, 195 (Fla. 2004).
Because the stun belt was not visible, Smith
appeared free from restraint and, as a result, he
was not prejudiced."
Smith v. State, 7 So. 3d 473, 493-94 (Fla. 2009).
Also,
"[W]e cannot conclude that the district court abused
its discretion under controlling precedent.
The
28
CR-07-2147
district court appropriately justified the measure
through the articulation of defendant-specific
security concerns, and it minimized the risk of
prejudice, after considering the unacceptability of
other, more visible measures.
And there is no
current well-settled law that would support Mr.
Wardell's stun-belt objection based upon detrimental
psychological impact under plain error review."
United States v. Wardell, 591 F.3d 1279, 1298 (10th Cir.
2009).
Here,
the
circuit
court
complied
with
this
Court's
decision in Snyder and held a hearing on whether the use of
the stun belt was appropriate.
Based on the record, this
Court finds no evidence that the circuit court abused its
discretion in approving the use of the stun belt in this case.
Consequently, Albarran is not entitled to any relief based on
this issue.
III.
Albarran next argues that the circuit court committed
errors during the jury-selection process and that those errors
undermined his ability to obtain a fair and impartial jury.
This Court disagrees.
A.
First, Albarran contends that the circuit court failed to
conduct an adequate investigation after prospective juror
29
CR-07-2147
D.B.2 informed the court that a fellow veniremember had made
a statement to her about Albarran's guilt.
During voir dire examination, prospective juror D.B.
informed the circuit court that another prospective juror had
told her that "Albarran was guilty [and] no one could convince
him otherwise."
(R. 818.)
D.B. said that she got up and
walked away because she knew that she should not be listening
to that juror's opinion.
She further said that another
prospective
was
female
juror
present,
but
that
prospective juror had been excused from jury service.
that
D.B.
described what the prospective juror who made the comment was
wearing, and defense counsel indicated that that juror had
also been excused from jury service.
(R. 820.)
The court
then asked D.B. whether she could set aside what she had heard
and render a decision based solely on the evidence.
D.B.
indicated that she could.
After D.B. indicated that she could set aside what she
had heard, defense counsel made no objection to the circuit
court's method of handling the situation.
2
Thus, this Court
To protect the anonymity of the jurors, this Court will
use their initials.
30
CR-07-2147
reviews this issue for plain error only.
See Rule 45A, Ala.
R. App. P.
"[W]hen the trial judge acts promptly to investigate
the circumstances surrounding the making of an
inherently prejudicial remark [to] a veniremember,
determining specifically whether the remark was made
and whether the remark had a prejudicial effect on
those who, ultimately selected to serve as jurors,
heard it, there is no error in the denial of a
motion for mistrial based on jury contamination."
Holland v. State, 588 So. 2d 543, 548 (Ala. Crim. App. 1991).
"What constitutes a 'reasonable investigation of
irregularities claimed to have been committed' will
necessarily differ in each case. A significant part
of the discretion enjoyed by the trial court in this
area lies in determining the scope of the
investigation that should be conducted.
"'Th[e] discretion of the trial court
to grant a mistrial includes the discretion
to determine the extent and type of
investigation requisite to a ruling on the
motion. United States v. Flynn, 216 F.2d
354, 372 (2d Cir. 1954) [, cert. denied,
348 U.S. 909, 75 S. Ct. 295, 99 L. Ed. 713
(1955)]; Lewis v. United States, 295 F. 441
(1st Cir. 1924) [, cert. denied, 265 U.S.
594, 44 S. Ct. 636, 68 L. Ed. 1197 (1924)];
Tillman, [v. United States, 406 F.2d 930
(5th Cir.), vacated on other grounds, 395
U.S. 830, 89 S. Ct. 2143, 23 L. Ed. 2d 742
(1969)]; Killilea v. United States, 287
F.2d 212 (1st Cir. 1961) [, cert. denied,
366 U.S. 969, 81 S. Ct. 1933, 6 L. Ed. 2d
1259 (1961) ]; United States v. Khoury, 539
F.2d 441 (5th Cir. 1976) [, cert. denied,
429 U.S. 1040, 97 S. Ct. 739, 50 L. Ed. 2d
752 (1977)]. A full evidentiary hearing at
31
CR-07-2147
which witnesses and jurors can be examined
and cross examined is not required.
Tillman, supra, 406 F.2d [at] 938.
The
trial judge need not examine the juror to
determine if that juror admits to being
prejudiced before granting a mistrial.
"Woods v. State, 367 So. 2d 974, 980 (Ala. Cr.
App.), reversed on other grounds, 367 So. 2d 982
(Ala. 1978), partially quoted in Cox v. State, 394
So. 2d 103, 105 (Ala. Cr. App. 1981). As long as
the court makes an inquiry that is reasonable under
the circumstances, an appellate court should not
reverse simply because it might have conducted a
different or a more extensive inquiry."
Sistrunk v. State, 596 So. 2d 644, 648-49 (Ala. Crim. App.
1992).
See also Taylor v. State, 808 So. 2d 1148, 1174 (Ala.
Crim. App. 2000); Burgess v. State, 827 So. 2d 134, 157 (Ala.
Crim. App. 1998); Hamilton v. State, 680 So. 2d 987, 993 (Ala.
Crim. App. 1996).
Contrary to Albarran's assertions, the record indicates
that the circuit court's investigation was reasonable.
The
circuit court determined that the potential juror who made the
comment had already been removed from the venire.
Likewise,
the one other potential juror who, aside from D.B., had
overheard the comment had already been removed from the
venire.
Further, D.B. was questioned and stated that she
could be impartial.
There is no indication from the record
32
CR-07-2147
that other members of the venire were present and heard the
prospective
juror's
comments.
Accordingly,
this
Court
concludes that no error occurred in the circuit court's method
of handling the matter.
See Sistrunk, 596 So. 2d at 648-49.
B.
Second, Albarran argues that the circuit court erred in
refusing his request for the State to provide him with the
criminal records of all the potential jurors.
Albarran filed a pretrial motion requesting that the
circuit court direct the State to furnish the defendant with
the criminal and arrest records of all the prospective jurors
who were called for Albarran's trial.
(C.R. 259.)
At a
pretrial hearing, the circuit court denied the motion. (R.
466.)
This Court has repeatedly held that a circuit court
commits no error in denying a defendant's motion for discovery
of the criminal records of prospective jurors.
As this Court
stated in Kelley v. State, 602 So. 2d 473 (Ala. Crim. App.
1992):
"This Court has held that arrest and conviction
records of potential jurors do not qualify as the
type of discoverable evidence that falls within the
scope of Brady [v. Maryland, 373 U.S. 83 (1963),]
33
CR-07-2147
and that a trial court will not be held in error for
denying an appellant's motion to discover such
documents. Slinker v. State, 344 So. 2d 1264 (Ala.
Cr. App. 1977). Cf., Clifton v. State, 545 So. 2d
173 (Ala. Cr. App. 1988) (the nondisclosed evidence
was not exculpatory, thus Brady was inapplicable).
In other words, the appellant does not have an
absolute right to the disclosure of the arrest and
conviction records of prospective jurors.
See
Slinker, supra. Cf., Davis v. State, 554 So. 2d 1094
(Ala. Cr. App. 1984), aff'd, 554 So. 2d 1111 (Ala.
1989), rehearing overruled, 569 So. 2d 738 (Ala.
1990), cert. denied, 498 U.S. 1127, 111 S. Ct. 1091,
112 L. Ed. 2d 1196 (1991) (defendant is not entitled
to the general disclosure of the criminal records of
the state's witnesses); Wright v. State, 424 So. 2d
684 (Ala. Cr. App. 1982) (No absolute right to
disclosure
of
criminal
records
of
state's
witnesses).
"Several jurisdictions have similarly held. See
e.g., People v. Murtishaw, 29 Cal. 3d 733, 175 Cal.
Rptr. 738, 631 P.2d 446 (1981), cert. denied, 455
U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 464 (1982)
(trial judge has discretionary authority to permit
defense access to jury records); Moon v. State, 258
Ga. 748, 375 S.E.2d 442 (1988), cert. denied, 499
U.S. 982, 111 S. Ct. 1638, 113 L. Ed. 2d 733 (1991)
(trial court did not err in denying defendant's
motion for pretrial discovery of state's juror
information records); State v. Wiggins, 556 So. 2d
622 (La. App. 1990) (defendant is not necessarily
entitled to 'rap sheets' of prospective jurors);
State v. Weiland, 540 So. 2d 1288 (La. App. 1989)
(defendant is not entitled to rap sheets of
prospective jurors because those records are useful
to state in its desire to challenge jurors with
inclinations or biases against state, but are not
pertinent to purpose of defendant's voir dire: to
challenge jurors who defendant believes will not
approach the verdict in a detached and objective
manner); State v. Childs, 299 S.C. 471, 385 S.E.2d
34
CR-07-2147
839 (1989) (no right to discovery of criminal
records of potential jurors absent statute or court
rules requiring such disclosure); Jeffrey F. Ghent,
Annot., Right of Defense in Criminal Prosecution to
Disclosure of Prosecution Information Regarding
Prospective Jurors, 86 A.L.R.3d 571, § 4(a) (1978),
and the cases cited therein.
"Also, the state has no duty to disclose
information that is available to the appellant from
another source.
Hurst v. State, 469 So. 2d 720
(Ala. Cr. App. 1985).
Here, the appellant could
have
procured
this
information
from
the
veniremembers themselves during voir dire. See also
Clifton, supra (nondisclosure did not prejudice
appellant's defense)."
602 So. 2d at 477-78.
See also Doster v. State, [Ms. CR-06-
0323, July 30, 2010] ___ So. 3d ___ (Ala. Crim. App. 2010);
Phillips v. State, [Ms. CR-06-1577, May 28, 2010] ___ So. 3d
___ (Ala. Crim. App. 2010); Brown v. State, 982 So. 2d 565
(Ala. Crim. App. 2006); Hall v. State, 816 So. 2d 80 (Ala.
Crim. App. 1999); David v. State, 740 So. 2d 1142 (Ala. Crim.
App. 1998); Arthur v. State, 711 So. 2d 1031 (Ala. Crim. App.
1996); Williams v. State, 654 So. 2d 74 (Ala. Crim. App.
1994).
Because Albarran was not entitled to discovery of the
criminal and arrest records of potential jurors, the circuit
court did not err in denying Albarran's motion seeking such
35
CR-07-2147
information.
Therefore, Albarran is not entitled to any
relief based on this issue.
IV.
Albarran next argues that the circuit court erred in
refusing
to
remove
because
those
several
prospective
prospective
jurors
jurors' responses
for
cause
to questions
during voir dire indicated that they were biased against him.
"'"A trial judge's finding on whether
or not a particular juror is biased 'is
based upon determination of demeanor and
credibility that are peculiarly within a
trial judge's province.' [Wainwright v.]
Witt, 469 U.S. [412] 429, 105 S. Ct. [844]
855 [(1985)].
That finding must be
accorded proper deference on appeal. Id.
'A trial court's rulings on challenges for
cause based on bias [are] entitled to great
weight and will not be disturbed on appeal
unless clearly shown to be an abuse of
discretion.' Nobis v. State, 401 So. 2d
191, 198 (Ala. Cr. App.), cert. denied, Ex
parte Nobis, 401 So. 2d 204 (Ala. 1981)."'"
Dallas v. State, 711 So. 2d 1101, 1107 (Ala. Crim. App. 1997)
(quoting Martin v. State, 548 So. 2d 488, 490-91 (Ala. Crim.
App. 1988)). "'[J]urors who give responses that would support
a challenge for cause may be rehabilitated by subsequent
questioning by the prosecutor or the Court.'"
36
Sharifi v.
CR-07-2147
State, 993 So. 2d 907, 926 (Ala. Crim. App. 2008) (quoting
Johnson v. State, 820 So. 2d 842, 855 (Ala. Crim. App. 2000)).
"'[T]he test for determining whether a strike
rises to the level of a challenge for cause is
"whether a juror can set aside their opinions and
try the case fairly and impartially, according to
the law and the evidence." Marshall v. State, 598
So. 2d 14, 16 (Ala. Cr. App. 1991). "Broad
discretion is vested with the trial court in
determining whether or not to sustain challenges for
cause." Ex parte Nettles, 435 So. 2d 151, 153 (Ala.
1983). "The decision of the trial court 'on such
questions is entitled to great weight and will not
be interfered with unless clearly erroneous,
equivalent to an abuse of discretion.'"
Nettles,
435 So. 2d at 153.'"
Sneed v. State, 1 So. 3d 104, 136 (Ala. Crim. App. 2007)
(quoting Dunning v. State, 659 So. 2d 995, 996 (Ala. Crim.
App. 1994)).
With these principles in mind, this Court reviews the
challenged prospective jurors.
A.
First, Albarran argues that the circuit court erroneously
failed to grant his motion to remove prospective juror J.J.
for cause on the ground that she indicated in her juror
questionnaire that she felt that a defendant who did not
testify in his own behalf was hd ing something.
i
37
CR-07-2147
J.J.'s juror questionnaire shows that she checked "yes"
to question number 80, which asked:
"Do you feel if someone
does not testify that he or she must be hiding something?
Beside the checked "yes" is the word "maybe" and the following
explanation: "If info has already taken me in that direction."
During the voir dire examination of prospective juror J.J.,
the following occurred:
"[Defense counsel]: How important is that to you?
Because, you know, you seemed in here like it's
important and your questionnaire's pretty definitive
about that. So it sounds like to me that's deeply
held view or feeling.
"[J.J.]:
It is but I still understand the legal
system and I would try to be fair about it.
"[Defense counsel]:
"[J.J.]:
Oh, sure.
Of course.
Yeah.
"[Defense counsel]: Of course. At the same time it
would be a struggle? Would it be difficult for you
to set aside your feelings that he might be hiding
something or -- or it would be easy?
"[J.J.]:
It wouldn't be easy but I could do it."
"....
"[Prosecutor]: You do believe that [the] Defendant
sitting right there has the right to not take the
stand, right?
"[J.J.]:
I certainly do.
38
CR-07-2147
"[Prosecutor]: And you're not going to hold that -I'm not hearing you're going to hold that against
him.
"[J.J.]:
I'm certainly not going to hold that
against him.
"[Prosecutor]: In fact, what I'm kind of hearing
from you is that you would wonder about your vote of
guilty because you kind of want to hear from him but
you're not going to hold it against him that he
didn't talk, right?
"[J.J.]:
That's correct.
"[Prosecutor]:
Okay.
And you will follow the
judge's instructions to that effect, right?
"[J.J.]:
I certainly would."
(R. 1047-53.)
Prospective juror J.J. clearly stated that she could
follow the law as instructed by the court and would not hold
Albarran's failure to testify against him.
circuit
court
did
not
abuse
its
Therefore, the
discretion
by
denying
Albarran's challenge to prospective juror J.J. on the ground
that she would like for Albarran to testify. See Sharifi, 993
So. 2d at 926.
Albarran also asserts that J.J. indicated that she would
not consider "expressions of a defendant's impoverished or
39
CR-07-2147
unstable childhood" as mitigating evidence. This assertion is
refuted by the record and is without merit.
On
the
juror
questionnaire,
following question:
J.J.
responded
to
the
"In your opinion, is the death penalty
the only appropriate sentence for someone who has been proven
guilty beyond a reasonable doubt of intentional murder?
J.J.
wrote, "No. Always mitigating circumstances." (Supp. R. 271.)
When read in full, J.J.'s responses during voir dire regarding
the
mitigating
circumstance
that
a
defendant
had
an
impoverished or unstable childhood indicated that the weight
she could place on that mitigating circumstance would depend
on the facts of the case.
(R. 1050-51.)
Specifically, J.J.
indicated that the weight she would place on a mitigating
circumstance involving a defendant's childhood would depend
on "how many years [the defendant has had] to rise above what
happened in [his] childhood."
(R. 1051.)
J.J.'s view that
childhood traumas become less mitigating with the passage of
time is not unreasonable.
696,
703 (11th Cir.
1990)
Cf. Francis v. Dugger, 908 F.2d
(holding
that "evidence
of
a
deprived and abusive childhood is entitled to little, if any,
mitigating weight" because the defendant was 31 years old when
40
CR-07-2147
the crime was committed); Callahan v. Campbell, 427 F.3d 897,
937 (11th Cir. 2005) (holding that "[w]hen a defendant is
several decades removed from the abuse being offered as
mitigation evidence its value is minimal").
circuit
court
did
not
abuse
its
Therefore, the
discretion
by
denying
Albarran's challenge to J.J. for cause.
Moreover, there is no requirement that a court strike a
juror based on his/her feelings towards certain types of
mitigating evidence.
The
United
States Supreme Court in
Morgan v. Illinois, 504 U.S. 719, 727 (1992), held that a
capital defendant is entitled to question prospective jurors
about their views in favor of capital punishment:
"A juror who will automatically vote for the death
penalty in every case will fail in good faith to
consider the evidence of aggravating and mitigating
circumstances as the instructions require him to do.
Indeed, because such a juror has already formed an
opinion on the merits, the presence or absence of
either aggravating or mitigating circumstances is
entirely irrelevant to such a juror."
504 U.S. at 729.
In interpreting the scope of the United
States Supreme Court's decision in Morgan, the Alabama Supreme
Court has held:
"[R]ather than simply attempting to identify those
jurors who were not impartial and who would vote for
the death penalty in every case regardless of the
41
CR-07-2147
facts, Taylor's counsel sought to identify any
prospective juror who would vote for death under the
facts of this particular case and then to eliminate
that prospective juror by using strikes for cause.
The due process protections recognized in Morgan do
not extend that far. Accordingly, we conclude that
[the prospective jurors] were impartial prospective
jurors who would not automatically vote for the
death penalty in every case. The trial court did
not err in refusing to strike them for cause on that
basis."
Ex parte Taylor, 666 So. 2d 73, 82 (Ala. 1995), disagreed with
on other grounds, Ex parte Borden, 769 So. 2d 950 (Ala. 2000)
(emphasis in original).
Other courts have followed our
Supreme Court's interpretation of Morgan.
"Morgan requires that defendants be afforded an
opportunity during voir dire to identify, and to
strike for cause, prospective jurors who would
automatically impose the death penalty once guilt is
found. See [State v.] Glassel, 211 Ariz. [33] 45-46,
116 P.3d [1193] 1205-06 [(2005)]. Morgan does not,
however, entitle defendants to ask prospective
jurors to identify circumstances they would find
mitigating or to answer open-ended questions about
their views on mitigation."
State v. Moore, 222 Ariz. 1, 18, 213 P.3d 150, 167 (2009).
"Glassel contends that Morgan gives defendants
the right to question a prospective juror to assess
the likelihood that the prospective juror will
assign substantial weight to the mitigation evidence
the defendant plans to offer.
Morgan's holding,
however, is considerably narrower:
'[D]efendants
have a right to know whether a potential juror will
automatically impose the death penalty once guilt is
found, regardless of the law,' and '[t]hus,
42
CR-07-2147
defendants are entitled to address that issue during
voir dire.' State v. Jones, 197 Ariz. 290, 303, 4
P.3d 345, 358 (2000) (construing Morgan)."
State v. Glassel, 211 Ariz. 33, 45, 116 P.3d 1193, 1205
(2005).
See also Trevino v. Johnson, 168 F.3d 173 (5th Cir.
1999).
Because a prospective juror is not disqualified from
serving on a capital jury based on that juror's views of
certain types of mitigation, the circuit court committed no
error in failing to remove prospective juror J.J. for cause
based on her responses to questions concerning certain types
of mitigating evidence.
Therefore, Albarran is not entitled
to any relief based on this issue.
B.
Second, Albarran asserts that the circuit court erred in
not granting his motion to remove prospective juror T.B. for
cause on the ground that T.B. indicated that he believed that
the only sentence for an "intentional, cold-blooded murder"
was the death penalty.
The following occurred during the voir dire examination
of T.B.:
"[Prosecutor]: I want to be clear that you're clear
on really the process here.
Because as [defense
43
CR-07-2147
counsel] asked you questions about if it's a coldblooded murder then you say death penalty.
"[T.B.]:
Yes, I agree in that --
"[Prosecutor]: In that sparse example. But what
I'm saying to you is hypothetically, a guy is
convicted of a cold-blooded murder, beyond a
reasonable doubt, capital murder.
You go into a
second phase of a capital murder case and at that
phase the State can present to the jury what are
called aggravating circumstances or factors that
would lend themselves towards a jury voting for
death.
And, additionally, the Defense has the
opportunity to present mitigating circumstances,
whatever it may be.
It might be about his
background, it might be about the emotional state he
was in, the circumstances of the case. And the jury
is to weigh those factors and then either vote for
death or for life without.
"And all I want to know is do you believe you're
able to have an open mind about getting to that
phase and considering the possibility of, I've
listened to aggravating, I've listened to mitigating
and I can consider either life without or death?
"[T.B.]:
(R. 1109-10.)
Yes, sir.
I could."
The court further questioned this juror and he
indicated again that he could make his decision based on the
facts and evidence that were presented in the case.
(R.
1111.)
It is well settled that "'jurors who give responses that
would support a challenge for cause may be rehabilitated by
subsequent
questioning
by
the
44
prosecutor
or
the
Court.'
CR-07-2147
Johnson v. State, 820 So. 2d 842, 855 (Ala. Crim. App. 2000)."
Sharifi v. State, 993 So. 2d at 926.
Here, after prospective
juror T.B. indicated that he would be in favor of the death
penalty, he further stated that he would consider mitigating
circumstances and that he "could consider both punishments,
life without parole and death ...."
(R. 1113.)
Therefore,
the circuit court committed no error in failing to remove
juror T.B. for cause.
C.
Third, Albarran argues that the circuit court erred in
failing to remove prospective juror B.H. for cause because, he
says, he indicated that the death
penalty
was the only
punishment for someone who killed a police officer.
B.H.'s juror questionnaire shows that he responded that
he would "not" automatically vote for the death penalty.
On
question number 96, he was asked to detail the circumstances
under which he would consider voting for the death penalty and
he wrote:
"Murder of a police officer while on duty and
potential of premeditated murder."
(R. 1384-85.)
During the
individual voir dire of B.H. the following occurred:
"[Prosecutor]:
But the question is could you
consider whatever mitigation they might put forth
45
CR-07-2147
and weigh it?
Again, I'm not asking you do you
think you're going to come on life without instead
of death? I'm not asking you that.
"[B.H.]:
Correct.
"[Prosecutor]:
I'm just asking you could you
consider and is there a possibility that it could -"[B.H.]:
Yes, sir.
"[Prosecutor]:
"[B.H.]:
-- outweigh it?
Yes, I could."
(R. 1378.) After B.H. was questioned, defense moved that B.H.
be removed for cause.
The circuit court reserved ruling on
the motion until it had an opportunity to further examine the
United States Supreme Court's decision in Morgan.
(R. 1384.)
Sometime later, the circuit court denied the motion to remove
B.H. for cause.
(R. 1649.)
B.H. indicated that he would not automatically vote for
the death penalty and that he would consider the evidence
presented in mitigation. The circuit court committed no error
in failing to remove B.H. for cause.
See Sharifi, 993 So. 2d
at 926.
Moreover, even if the circuit court erred in failing to
remove B.H. for cause, that error was harmless beyond a
reasonable doubt.
Rule 45, Ala. R. App. P.
46
"[T]he Alabama
CR-07-2147
Supreme Court has held that the failure to remove a juror for
cause is harmless when that juror is removed by the use of a
peremptory strike.
Bethea v. Springhill Mem'l Hosp., 833 So.
2d 1 (Ala. 2002)."
Pace v. State, 904 So. 2d 331, 341 (Ala.
Crim. App. 2003).
But see Ex parte Colby,
(Ala.
2009)
(holding
that
erroneously
challenges for cause is not harmless).
41 So. 3d 1, 7
denying
multiple
Here, defense counsel
used a peremptory strike to remove prospective juror B.H.;
therefore, any error was harmless.
See Pace, 904 So. 2d at
341.
V.
Albarran next argues that the circuit court erred in
denying
his motion in limine
to
prevent the
referencing Albarran's immigration status.
State
from
Specifically,
Albarran argues that the erroneous admission of information
concerning
his
reversible error.
illegal
immigration
status
constituted
He cites State v. Avendano-Lopez, 79 Wash.
App. 706, 904 P.2d 324 (1995), and Sandoval v. State, 264 Ga.
199, 442 S.E.2d 746 (1994), in support of his argument.
The record shows that Albarran filed a pretrial motion
seeking to bar certain prosecutorial arguments.
47
In the 28-
CR-07-2147
page motion, Albarran asserted that the State should be
prevented
from
defendant."
arguing
(C.R. 283.)
"the
immigration
status
of
the
During a pretrial-motion hearing,
the circuit court indicated that it was denying the motion
because Albarran had already injected his status into the
proceedings
when
he
inserted
questions
on
the
juror
questionnaire that related to his Mexican citizenship.
867.)3
(R.
The record also shows that several times during voir
dire examination, defense counsel asked the jurors how they
felt about Albarran's not having "met his legal status yet"
and about Albarran's being an "undocumented worker."
3
(R.
Question number 58 on the juror questionnaire asked:
"(a): Do you believe that the protections of the
Constitution should extend to both citizens and noncitizens?
"(b): Do you believe that the protections of
the Constitution should extend to both citizens as
well as undocumented workers (so-called illegal
immigrants)?
"....
"(d): Mr. Albarran is Hispanic and a citizen of
the Country of Mexico. Is there anything about his
ethnicity or national origin that would cause you to
hesitate in extending the rights and protections the
law allows?"
48
CR-07-2147
1275, 1137.)
This Court agrees with the circuit court that
Albarran was the first to inject his immigration status into
the proceedings.
In State v. Avendano-Lopez, the prosecutor asked the
defendant on cross-examination:
country, are you?"
"You are not legal in this
The Washington Court of Appeals, in
finding reversible error, stated:
"We do not condone any reference to a person's race
which is intended to slur or to disparage either the
person or the race.... [the references'] effect may
have been to impugn the standing of the defendants
before the jury and intimate that the defendants
would be more likely than those of other races to
commit the crime charged. Such an inference is
improper and prejudicial."
79 Wash. App. at 719, 904 P. 2d at 331 (footnote omitted).
In
Sandoval v. State, 264 Ga. 199, 442 S.E.2d 746 (1994), the
Supreme Court of Georgia held that evidence of the defendant's
immigration
status
was
inadmissible
relevant to any issue in the case.
because
it
was
However, in finding no
reversible error, the Georgia Supreme Court stated:
"[W]e cannot agree with appellant that reversible
error was committed. The factors we have considered
include the non-accusatory manner in which the
prosecutor framed the question, the lack of further
comment by the State on appellant's immigration
status, and the overwhelming nature of the evidence
of appellant's guilt adduced at trial, with all the
49
not
CR-07-2147
eyewitnesses testifying that appellant fired the
shot from outside the bar and the absence of any
evidence to corroborate appellant's testimony that
he fired the shot in self-defense during his
struggle with the victim inside the bar.
Even
assuming, arguendo, that the erroneous admission of
appellant's immigration status rose to the level of
constitutional magnitude, 'the record does not
establish that the [prosecutor's one question] "so
tainted the entire trial that it denied [appellant]
that fundamental fairness which is the essence of
due process." [Cit.]' Baca v. Sullivan, 821 F.2d
1480, 1484 (10th Cir. 1987). We are satisfied beyond
a reasonable doubt that the error was harmless."
264 Ga. at 200-01, 442 S.E.2d at 747-48.
A.
First, Albarran argues that it was reversible error to
allow the prosecutor to cross-examine Dr. Silva about whether
he was aware that Albarran had been deported.
This Court
disagrees.
Dr.
Silva,
a
defense
expert,
testified
concerning
Albarran's mental state at the time of the offense.
The
report that Dr. Silva compiled on Albarran was admitted into
evidence
as
Defense
Exhibit
concluded that Albarran
disorders,"
that
44.
(R.
4518.)
Dr.
Silva
"suffered from various psychiatric
Albarran
"was
suffering
from
several
psychiatric disorders at the time of the instant offense,"
that "there are psychiatric and psychosociocultural factors
50
CR-07-2147
that help clarify the nature of the instant case," and that
"as a result of severe mental disease or defect, Mr. Albarran
was
unable
to
appreciate
the
nature
and
qualify
or
wrongfulness of his acts at the time of the commission of the
acts constituting the offense."
On cross-examination, the prosecutor questioned Dr. Silva
about the information that Dr. Silva had relied on to arrive
at his conclusions.
The prosecutor asked Dr. Silva if he was
aware of Albarran's prior criminal record.
Defense counsel
then made the following objection during cross-examination:
"[Defense counsel]: Here's what we don't object to.
We don't object to the fact that [Albarran] has two
domestic violence and three DUI arrests because it's
an insanity case. If it wasn't an insanity case that
would be other crimes under the [Ex parte]
Drinkard[, 777 So. 2d 295 (Ala. 2000)], case and all
these other ones. Because it's insanity we can't
object to the two DUI -- the three DUI arrests and
the two domestic violence...."
(R. 3065.)
Defense counsel objected to the admission of one
prior instance of domestic violence on the ground that the
defense team was not given a certified copy of the offense
during discovery.
object
to
the
(R. 3061.)
introduction
of
Albarran had been deported.
51
Counsel did not, however,
evidence
indicating
that
CR-07-2147
Also,
"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 mode and order of interrogating witnesses
and presenting evidence. Rule 611(a), Ala R. Evid."
Ex parte Deardorff, 6 So. 3d 1235, 1241 (Ala. 2008).
"'Cross-examination is the principal
means by which the believability of a
witness and the truth of his testimony are
tested.
Subject always to the broad
discretion of a trial judge to preclude
repetitive
and
unduly
harassing
interrogation, the cross-examiner is not
only permitted to delve into the witness'
story to test the witness' perceptions and
memory,
but
the
cross-examiner
has
traditionally been allowed to impeach,
i.e., discredit, the witness.'
"[Davis v. Alaska,] 415 U.S. [308] 316, 94 S. Ct.
1105 [1105] [(1974)]. '"The latitude and extent of
cross-examination, of necessity, is a matter within
the sound discretion of the trial court, and, in the
absence of prejudicial abuse, it is not reviewable
on appeal." Turner v. State, 289 Ala. 97, 100, 265
So. 2d 883 (1972).' Ashurst v. State, 462 So. 2d
999, 1008-09 (Ala. Crim. App. 1984)."
Marshall v. State, 20 So. 3d 830, 835 (Ala. Crim. App. 2008).
"'It has long been held that "wide latitude" is
allowed both the defendant and the state in
inquiries into a person's mental state when an issue
as to the sanity of such person is presented.'
52
CR-07-2147
Barbour v. State, 262 Ala. 297, 303, 78 So. 2d 328,
333 (1954); Peoples v. State, 257 Ala. 295, 58 So.
2d 599 (1952); Smith v. State, 257 Ala. 47, 57 So.
2d 513 (1952); Hall v. State, 248 Ala. 33, 26 So. 2d
566 (1946); Parvin v. State, 248 Ala. 74, 26 So. 2d
573 (1946); Eldridge v. State, 247 Ala. 153, 22 So.
2d 713 (1945). 'Where insanity is relied upon as a
defense, every act of the accused's life which
throws some light on such issue is relevant
thereto.' Nichols v. State, 276 Ala. 209, 211, 160
So. 2d 619, 621 (1964). 'These inquiries, however,
are subject to the necessary limitation that the
acts, declarations and conduct inquired about must
have a tendency to shed light on the accused's state
of mind when the act for which he is being tried was
committed.'
Barbour, supra, 262 Ala. at 303, 78
So.2d at 333."
Ex parte Vaughn, 869 So. 2d 1090, 1095 (Ala. 2002).
Here, Albarran first injected his immigration status into
the proceedings, and he did not object when Dr. Silva was
asked whether he was aware that Albarran had been deported.
The question
was
within
the proper scope of the
cross-
examination of an expert witness, i.e., it tested the depth of
Dr. Silva's knowledge of Albarran and Albarran's past.
Based
on the record, this Court cannot say that the admission of
this evidence was so egregious that it constituted plain
error.
See Hall v. State, 820 So. 2d 113, 121-22 (Ala. Crim.
App. 1999).
53
CR-07-2147
B.
Albarran next argues that it was reversible error to
allow Dr. Hooper to testify that Albarran had no Social
Security number.
Dr. Hooper testified that he had examined Albarran at
Taylor Hardin and that Albarran was at the facility for 26
days. He testified that there was no evidence indicating that
Albarran had any "abnormality -- behavior interactions or
anything else."
(R. 3252.)
The prosecutor asked Dr. Hooper
about what information he relied on to form this opinion. The
following occurred:
"[Prosecutor]: And in your report on page two, the
-- did you note whether or not there was any
psychiatric history on Mr. Albarran?
"[Dr. Hooper]: Yes, sir. We were not aware of any
psychiatric history in this particular man.
"[Prosecutor]:
And what about legal history?
"[Dr. Hooper]: We could not get an NCIC [National
Crime Information Center] on him. We didn't have a
Social Security number to process because he is in
this country illegally.
And the computer crime
information center runs on Social Security numbers.
Eventually his fingerprints may come back with
something but that takes years."
(R. 3257.)
54
CR-07-2147
Albarran
did
not
object
to
Dr.
Hooper's
testimony;
therefore, this Court reviews this issue for plain error only.
See Rule 45A, Ala. R. App. P.
Initially, this Court notes
that the above reference to Albarran's having no Social
Security number was not elicited by the prosecutor and that
Albarran's status was first injected into the trial by defense
counsel.
Further, courts have upheld references to a defendant's
immigration status when that status was relevant to an issue
in the case. See United States v. Lopez-Medina, 596 F.3d 716,
739-40 (10th Cir. 2010) ("Lopez-Medina's immigration status is
not relevant to whether he committed the crime of possession
with intent to distribute but it does counter his suggestion
he was a law-abiding citizen wrongly accused of his halfbrother's criminal acts."); United States v. Lopez, 477 F.3d
1110, 1117 (9th Cir. 2007) ("No law supports [the defendant's]
contention that the jury's knowledge that he was an illegal
alien
created
'prejudice
of
such
magnitude
that
defendant's right to a fair trial [was] abridged.'
the
Unlike
evidence of a prior felony conviction, relevant evidence that
55
CR-07-2147
a
person
is
a
previously-deported
illegal
alien
is
admissible." (footnotes omitted))
In distinguishing Avendano-Lopez, the Washington Court of
Appeals in State v. Acevedo, 140 Wash. App. 1022 (2007) (an
unpublished-listed opinion reported in P.3d), stated:
"The case upon which Mr. Acevedo primarily
relies, [State v.] Avendano-Lopez, [79 Wash. App.
706, 904 P.2d 324 (1995)] is distinguishable.
There, the defendant was charged with possession of
a controlled substance with intent to deliver.
During trial, the prosecutor asked Mr. AvendanoLopez, '"You are not legal in this country, are
you?"' Avendano-Lopez, 79 [Wash.] App. at 718. The
court found the question immaterial and solely
designed 'to incite the jury's passion and
prejudice.' Id. at 719-20. In this case, however,
the immigration evidence assisted the jury in
understanding both the relationship of the parties
and [the defendant's] motive.
Accordingly, we
conclude
the
probative
value
outweighed
the
prejudice."
The fact that Albarran did not have a Social Security
number was relevant to explain why the State's mental-health
expert did not have documents relating to Albarran's criminal
history.
Further, Albarran's immigration status was relevant
to Albarran's entire case.
Defense counsel argued that
cultural barriers interfered with his ability to waive his
Miranda rights.
At sentencing, counsel argued that Albarran
killed Officer Golden because he knew that if he was arrested
56
CR-07-2147
he would be deported.
Based on the record in this case, no
error, much less plain error, occurred in the admission of
testimony concerning Albarran's having no Social Security
number.4
See Ex parte Vaughn, supra.
VI.
Albarran next argues that the circuit court erred in
allowing the State's expert to testify concerning a legal
conclusion.
allowing
Dr.
Specifically, he asserts that the court erred in
Hooper
to
testify
that
a
substance-induced
psychosis did not qualify as a severe mental disease or
defect.
The following occurred during the prosecutor's direct
examination of Dr. Hooper:
"The Court:
I think, if I understand correctly,
[defense counsel is] objecting to him saying
voluntary intoxication is not a defense. Now, let
me hear from you in that regard.
"[Prosecutor]: What I'm saying is for his purposes,
his understanding of severe mental disease or
4
Albarran also argues in this section of his brief that
the prosecutor erred in referring to his status in arguments.
However, evidence of his immigration status was admitted at
trial and was the proper subject for comment by the
prosecutor. "It is axiomatic that a prosecutor may
legitimately argue facts in evidence ...." Harris v. State,
2 So. 3d 880, 920 (Ala. Crim. App. 2007).
57
CR-07-2147
defect, if he hears voluntary intoxication does that
take it out of the category of severe mental disease
or defect?
"The Court:
You can ask him that.
"[Defense counsel]:
that.
"The Court:
In his opinion.
"[Defense counsel]:
"The Court:
I don't have a problem with
In his opinion?
Yeah.
You can ask him that.
"[Defense counsel]:
Most certainty.
I don't object to that.
"....
"Q [Prosecutor]:
Dr. Hooper, with respect to
substance
-substance
induced
psychosis,
hypothetically speaking, for your purposes does that
qualify as a severe mental disease or defect?
"A [Dr. Hooper]:
No, sir."
(R. 3364-65.) Defense counsel specifically stated that he had
no objection to the testimony he now challenges. Thus, if any
error occurred, it was invited error.
"'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). 'The doctrine of
invited error applies to death-penalty cases and
operates to waive any error unless the error rises
to the level of plain error.' Snyder v. State, 893
So. 2d 488, 518 (Ala. Crim. App. 2003)."
58
CR-07-2147
Robitaille v. State, 971 So. 2d 43, 59 (Ala. Crim. App. 2005).
See also Saunders v. State, 10 So. 3d 53 (Ala. Crim. App.
2007); Brown v. State, 11 So. 3d 866 (Ala. Crim. App. 2007);
Whitehead v. State, 955 So. 2d 448 (Ala. Crim. App. 2006);
Scott v. State, 937 So. 2d 1065 (Ala. Crim. App. 2005); Snyder
v. State, 893 So. 2d 488 (Ala. Crim. App. 2003).
Also, the circuit court gave the following instruction
immediately before allowing Dr. Hooper to answer the question:
"Ladies and gentlemen, as it relates to the law this Court
will instruct you as to the law applicable to the facts in
this case."
"Alabama
(R. 3365.)
case
law
has
traditionally
embraced
the
principle that a witness, whether expert or lay, cannot give
an opinion when such constitutes a legal conclusion or the
application of a legal definition."
Gamble and Goodwin,
McElroy's Alabama Evidence, § 128.07 (6th ed. 2009).
Rule 704, Ala. R. Evid., states:
"(a)
Except as provided in subdivision (b),
testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the
trier of fact.
"(b) No expert witness testifying with respect
to the mental state or condition of a defendant in
59
CR-07-2147
a criminal case may state an opinion or inference as
to whether the defendant did or did not have the
mental state or condition constituting an element of
the crime charged or of a defense thereto.
Such
ultimate issues are matters for the trier of fact
alone."
"'Rule 704(b) does not prohibit an expert witness from stating
his opinion and reviewing facts from which a jury could
determine whether a defendant had the requisite criminal
intent....'"
Wilkerson v. State, 686 So. 2d 1266, 1279 (Ala.
Crim. App. 1996) (quoting United States v. Orr, 68 F.3d 1247,
1252 (10th Cir. 1995)).
In discussing Rule 704, Ala. R. Evid., this Court in
Henderson v. State, 715 So. 2d 863 (Ala. Crim. App. 1997),
stated:
"Rule 704, Ala. R. Evid., provides that
'[t]estimony in the form of an opinion or inference
otherwise admissible is to be excluded if it
embraces an ultimate issue to be decided by the
trier of fact.'
However, in the case of expert
testimony, enforcement of this rule has been lax.
C. Gamble, Gamble's Alabama Rules of Evidence § 704
(1995).
We have noted previously in Travis v.
State, [776 So. 2d 819, 849] (Ala. Cr. App. 1997),
that expert testimony as to the ultimate issue
should be allowed when it would aid or assist the
trier of fact, and the fact that '"'a question
propounded to an expert witness will elicit an
opinion from him in practical affirmation or
disaffirmation of a material issue in a case will
not suffice to render the question improper.'"'
(citations omitted); see also Rule 702, Ala. R.
60
CR-07-2147
Evid. (stating that expert testimony should be
allowed when it will aid or assist the trier of
fact)."
715 So. 2d at 864-65.
See also § 12-21-160, Ala. Code 1975,
("The opinions of experts on any question of science, skill,
trade or like questions are always admissible, and such
opinions
may
be
given
on
the
facts
as
proved
by
other
witnesses.").
Here, Dr. Hooper's testimony aided the trier of fact in
understanding whether voluntary intoxication constitutes a
disease or defect of the mind. Because Dr. Hooper's testimony
aided the jury in understanding a material fact, i.e., what
constitutes a mental disease or defect, no error, much less
plain error, occurred in the admission of his testimony.
Henderson, 715 So. 2d at 864-65.
Moreover, if error did occur, it was harmless.
Chapman v. California, 386 U.S. 18 (1967).
"In United States v. Hasting, 461 U.S. 499, 103
S. Ct. 1974, 76 L. Ed. 2d 96 (1983), the Court cited
'the interest in the prompt administration of
justice and the interests of the victims' in
reversing the judgment of a lower federal appellate
court for not applying the harmless error doctrine
to a prosecutor's comment on a defendant's failure
to proffer evidence to rebut testimony presented by
the prosecution, when the defendant had elected not
to testify. 461 U.S. at 509, 103 S. Ct. at 1980.
61
See
CR-07-2147
In so holding, the Court observed that '[s]ince
Chapman [v. California, 386 U.S. 18 (1967)], the
Court has consistently made clear that it is the
duty of a reviewing court to consider the trial
record as a whole and to ignore errors that are
harmless, including most constitutional violations,'
id. (citations omitted), and stated that the proper
question for a reviewing court to ask is: '[A]bsent
the prosecutor's allusion to the failure of the
defense to proffer evidence to rebut the testimony
of the victims, is it clear beyond a reasonable
doubt that the jury would have returned a verdict of
guilty?' Id. at 510-11, 103 S. Ct. at 1981.
"Our harmless error rule provides in pertinent
part:
"'No judgment may be reversed or set
aside on the ground of misdirection of the
jury ... unless in the opinion of the court
to which the appeal is taken or application
is made, after an examination of the entire
cause, it should appear that the error
complained of has probably injuriously
affected
substantial
rights
of
the
parties.'
"Rule 45, Ala. R. App. P."
Ex parte Greathouse, 624 So. 2d 208, 210 (Ala. 1993).
Here, the circuit court specifically instructed the jury
that substance-induced psychosis did not amount to a severe
mental disease or defect.
Because the jury was instructed by
the court that substance-induced psychosis did not amount to
a severe mental disease or defect, any error in the admission
62
CR-07-2147
of expert testimony to the same effect was harmless beyond a
reasonable doubt.
See Chapman.
VII.
Albarran next argues that the circuit court erred in
allowing the State to assume facts not in evidence during the
cross-examination of Dr. Silva and Dr. Weinstein, both mentalhealth experts who testified for the defense.
Initially, this Court notes that "'"[n]ot only is there
allowable great latitude on cross-examination of a witness,
but this latitude is enlarged as to [an] expert witness."'"
Grayson v. State, 824 So. 2d 804, 838 (Ala. Crim. App. 1999)
(quoting Clements v. Stewart, 595 So. 2d 858, 864 (Ala. 1992),
quoting in turn Louisville & N.R.R. v. Martin, 240 Ala. 124,
132, 198 So. 141, 147 (1940)).
A.
First, Albarran asserts that it was error to question Dr.
Silva about a statement that Laura Castrejon, Albarran's wife,
made
to
police
on
the
day
of
the
shooting
because
the
statement was not admitted into evidence and was hearsay.
The record shows that during direct examination, Dr.
Silva testified concerning the contents of a report that he
63
CR-07-2147
had compiled on Albarran.
The State then cross-examined Dr.
Silva about what he had relied on in preparing the report.
Dr. Silva indicated that he had spoken with Albarran's wife,
that he had seen her statement, and that he had examined the
transcript of the 911 telephone call. The following occurred:
"[Prosecutor]:
In [paragraph 33] you state, 'The
environmental aspects associated with the incident
offense are important in understanding the structure
of the incident offense. I am of the opinion that
Mr. Albarran exited the restaurant with the
intention of leaving. But for the officer victim
objectively and reasonably perceiving Mr. Albarran
as a threat, and act[ing] accordingly, and Mr.
Albarran's concomitant delusional interpretation of
the victim's actions, this unfortunate event likely
would not have occurred.
"....
"[Prosecutor]:
Were you aware that Investigator
Gray had interviewed Laura Castrejon after this
event and took a statement from her where she
provided Charlie Gray information about what
happened leading right up to the shooting?
"[Dr. Silva]:
Yes, sir.
"....
"[Prosecutor]: Would it change your opinion about
that paragraph you wrote if you knew that Mrs.
Castrejon said to Charlie Gray that when the police
-- when Daniel Golden arrived that she was talking
on the phone and that [Albarran] stayed there. And
when he got there that [Albarran] then opened the
door and went out and that she went to the kitchen.
Okay.
But before [Albarran] went out, when she
64
CR-07-2147
called the police officers, he said, 'Go ahead and
call them. I'll be waiting.'
"[Defense counsel]: And I object to that. That's
a question of about ten different things and I
object to it on a number of different grounds, to
the interpretation, to the effect that he hadn't
seen it, that's the prosecutor testifying, and I
don't know that that's an accurate translation of
it.
"....
"[Dr. Silva]: Yes. It would not change my opinion
because I did ask Mrs. Castrejon about that aspect
of -- that you are talking about. And I also asked
Mr. Albarran about. And I also took into account
the background speech of the 911 statement."
(R. 3075-81.)
Rule 705, Ala. R. Evid., specifically provides:
"The expert may testify in terms of opinion or
inference and give reasons therefor without first
testifying to the underlying facts or data, unless
the court requires otherwise. The expert may in any
event be required to disclose the underlying facts
or data on cross-examination."
The Advisory Committee's Notes to Rule 705, Ala. R.
Evid., state:
"It is left to the cross-examiner to elicit the
facts or data on which the opinion is based, and the
witness must, if asked, disclose such information.
See Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th
Cir.), cert. denied, 426 U.S. 907, 96 S. Ct. 2229,
48 L. Ed. 2d 832 (1976) (holding that '[t]he
weakness in the underpinnings of such opinions may
be developed upon cross-examination and such
65
CR-07-2147
weakness goes to the weight and credibility of the
testimony').
The cross-examiner, of course, is
under no obligation to bring out such facts or data
and, indeed, may limit inquiry solely to facts or
data that are unfavorable to the opinion."
In discussing the scope of Rule 705, Ala. R. Evid., this
Court in Grayson v. State, 824 So. 2d 804 (Ala. Crim. App.
1999), stated:
"In order to test the credibility of an expert's
testimony, it is permissible for a challenging party
to question the witness concerning the completeness
and accuracy of his knowledge of the facts that
formed the basis for his opinion.
"'It has been recognized that expert
opinion evidence may be rebutted by showing
the incorrectness or inadequacy of the
factual assumptions upon which the opinion
is based, "the reasoning by which he
progresses from his material to his
conclusion," the interest or bias of the
expert, inconsistencies or contradictions
in his testimony as to material matters,
material variations between the experts
themselves,
and
defendant's
lack
of
co-operation with the expert.
Also, in
cases
involving
opinions
of
medical
experts, the probative force of that
character of testimony is lessened where it
is predicated on subjective symptoms, or
where it is based on narrative statements
to the expert as to past events not in
evidence at the trial. In some cases, the
cross-examination of the expert may be such
as to justify the trier of facts in not
being convinced by him. One or more of
these factors may, depending on the
particular facts of each case, make a jury
66
CR-07-2147
issue as to the credibility and weight to
be given to the expert testimony; and, in
determining whether such issue is raised,
due consideration must be given to the fact
that the trier of facts has the opportunity
to observe the witness if he testifies in
person.'
"Mims v. United States, 375 F.2d 135, 143-44 (5th
Cir. 1967) (footnotes omitted.)
See also United
States v. McGraw, 515 F.2d 758, 760 (9th Cir. 1975)
('Once the defendant has introduced sufficient
expert testimony to support a reasonable doubt as to
sanity, the government must: (1) introduce its own
expert testimony in rebuttal; or (2) discredit the
defendant's expert testimony on cross-examination;
or (3) rely upon evidence from which the jury may
infer that the defendant's expert testimony depends
upon an incorrect view of the facts.').
"....
"In the present case, the State was using the
factual information from the accomplices' statements
in order to challenge the expert witness's basis for
his diagnosis, rather than to prove the truth of the
matter asserted. Because the State could properly
test the credibility of the expert's diagnosis by
questioning him concerning the information upon
which he based his diagnosis, the prosecutor's
questions were introduced for a permissible purpose.
'"[N]ot only is there allowable great latitude on
cross-examination of a witness, but this latitude is
enlarged as to [an] expert witness."' Clements v.
Stewart, 595 So. 2d 858, 864 (Ala. 1992), quoting
Louisville and N.R.R. v. Martin, 240 Ala. 124, 132,
198 So. 141, 147 (1940)."
824 So. 2d at 837-38.
67
CR-07-2147
"Under Rule 705 the burden is placed upon the adverse
party during cross-examination to elicit the facts underlying
the expert opinion."
Wilson v. Clark, 84 Ill. 2d 186, 194,
417 N.E.2d 1322 (1981).
"Rule 705 permits inquiry on cross-
examination into facts underlying an expert's opinion even if
those facts would be otherwise inadmissible." Carignan v. New
Hampshire Int'l. Speedway, Inc., 151 N.H. 409, 417, 858 A.2d
536, 544 (2004).
"An expert witness may be cross-examined
about facts not in evidence to test the validity of his
opinion."
State v. Goodwin, 43 S.W.3d 805, 817 (Mo. 2001).
In this case, the prosecutor used the contents of Laura
Castrejon's statements, not to prove the truth of the matters
asserted, but to "challenge the expert witness's basis for his
diagnosis."
Grayson, 824 So. 2d at 838.
According to this
Court's holding in Grayson, the prosecutor's questions were
well within the permissible scope of cross-examination of an
expert witness and did not constitute error.
B.
Second, Albarran asserts that it was error to allow the
prosecutor to question Dr. Silva about whether he was aware
that no cocaine had been found at the restaurant.
68
CR-07-2147
Dr. Silva stated in his report that Albarran had ingested
cocaine "three times" before the shooting.
The prosecutor
then asked the following during cross-examination:
"[Prosecutor]: Now, let me ask you about cocaine
though. Because in your report it's there he had
had cocaine three times that morning before the
event. You recall all of that?
"[Dr. Silva]:
"[Prosecutor]:
"[Dr. Silva]:
Yes, of course.
Where did he have that cocaine?
Where did he have it?
"[Prosecutor]:
Yeah.
ingesting cocaine.
Where was he when he was
"[Dr. Silva]: He had it on his own person while he
was ingesting it, of course. He had it. He had -he had supply.
"[Prosecutor]: Yeah. But where was he physically
when he was ingesting cocaine, there at the
restaurant?
"[Dr. Silva]:
Yes.
"[Prosecutor]:
Okay.
Was it powder?
smoking cocaine? What does he say?
Was he
"[Dr. Silva]: No. I think he was -- I think he was
smoking it, but he was very unclear on that count.
"[Prosecutor]:
"[Dr. Silva]:
way, right?
Yeah.
He was confused.
Yeah.
He was -- it got kind of vague that
69
CR-07-2147
"[Prosecutor]:
Okay.
Because you know when
Investigator Gray, when he investigated it, he asked
-- he asked the wife, Laura Castrejon, 'Any other
drugs?' She said, 'No, just drinking.'
"[Dr. Silva]:
Yes.
"[Prosecutor]: Or I withdraw that because I don't
know that he actually did say that so I withdraw
that.
All she reported though, he was drinking.
They did ask his brother and his brother said, 'No,
he doesn't do drugs.'
"[Defense counsel]:
"[Prosecutor]:
Which brother?
Jose.
"[Prosecutor]: And you're also aware that when he
was booked at the jail that night, he told the nurse
at the jail, he filled out a sheet, and it said,
'Any drugs?' 'No.'
"[Dr. Silva]:
Yes.
I'm aware of that.
"....
"Prosecutor]: Is it your professional opinion that
he had ingested cocaine that day?
"[Dr. Silva]:
Yes.
"....
"[Prosecutor]:
Do you also know that when the
investigators conducted the investigation there, his
person, his car, his restaurant, no evidence of
cocaine anywhere?
"[Dr. Silva]:
That's right."
(R. 3035-39.)
70
CR-07-2147
Given that Dr. Silva testified that it was his opinion
that Albarran was on cocaine at the time of the shooting and
that he had ingested cocaine three times while he was at the
restaurant that day, the prosecutor was well within the broad
scope of
permissible cross-examination of an expert.
That
is, the prosecutor's questions properly tested Dr. Silva's
knowledge of the facts underlying his opinion. See Grayson,
824 So. 2d at 837 (holding that "[i]n order to test the
credibility of an expert's testimony, it is permissible for a
challenging party to question the witness concerning the
completeness and accuracy of his knowledge of the facts that
formed
the
basis
for
his
opinion").
Therefore,
the
prosecutor's question did not amount to error, much less plain
error.
C.
Albarran next argues that the circuit court erred in
allowing the prosecutor to cross-examine Dr. Weinstein during
the sentencing hearing about a previous case that he testified
in as an expert in Colorado.
Dr. Weinstein testified that it was his opinion that
Albarran was mildly mentally retarded.
71
On cross-examination,
CR-07-2147
the prosecutor questioned Dr. Weinstein about the frequency of
his testimony in capital-murder cases and about specific
capital-murder cases in which he had appeared as an expert.
The prosecutor questioned him about an order issued by a judge
in a Colorado case he had testified in about three months
before the trial in this case.
(R. 4412.)
Then,
the
following occurred:
"[Prosecutor]: 'Dr. Weinstein has chosen the reverse
and has abandoned scientific objectivity in order to
reach the end he has chosen.' Were you aware that
Judge King had said that about you?
"[Defense counsel]: May I interpose this objection?
I'm not objecting to the form of the question to the
trial or where [the prosecutor's] heading. But if
he's got a document that Mr. Weinstein hasn't seen,
could he show it to him and make sure that it's in
context and we would like to see it, too.
"[Prosecutor]:
(R.
4415-16.)
Sure."
Defense
counsel
did
not
object
to
the
prosecutor's questioning Dr. Weinstein about his testimony in
prior cases or to the Colorado court's findings relating to
Dr. Weinstein's credibility.
In fact, counsel specifically
said that he had no objection. Accordingly, this Court reviews
this issue for plain error.
See Rule 45A, Ala. R. App. P.
72
CR-07-2147
"The right to cross-examine a witness extends to any
matter relevant to any issue and to matters affecting the
credibility of the witness ...."
Rule 611(b), Ala. R. Evid.
"The credibility of a witness is always relevant and
material. See, e.g., Mickle v. State, 226 Ala. 616,
617, 148 So. 319, 320 (1933) ('Any fact tending to
discredit the testimony of an adverse witness is
always relevant and material.'). Rule 616, Ala. R.
Evid., provides that '[a] party may attack the
credibility of a witness by presenting evidence that
the witness has a bias or prejudice for or against
a party or the case or that the witness has an
interest in the case.'"
Satterwhite v. City of Auburn, 945 So. 2d 1076, 1089 (Ala.
Crim. App. 2006).
"It cannot be gainsaid that the prosecutor was
vigorous and aggressive in his cross-examination of
[the expert]; however, we are unable to conclude
that the prosecutor's cross-examination amounted to
misconduct. The prosecutor's questions included the
number and types of cases in which she testified for
defendants in death penalty cases, the thrust of her
testimony, and her compensation in such cases. This
line of questioning of opposing expert witnesses is
standard fare and is not prohibited."
Eaton v. State, 192 P.3d 36, 118 (Wyo. 2008).
testimony
in
prior
cases
involving
similar
legitimate subject of cross-examination."
"[A]n expert's
issues
is
a
People v. Price, 1
Cal. 4th 324, 457, 3 Cal. Rptr. 2d 106, 184, 821 P.2d 610, 688
(1991).
"The witness's personal philosophical opposition to
73
CR-07-2147
the death penalty is relevant to his credibility."
People v.
Bennett, 45 Cal. 4th 577, 606, 88 Cal. Rptr. 3d 131, 156, 199
P.3d 535, 556 (2009).
"Wide latitude is permitted in cross-
examination to show bias or motive and the affect on a
witness's credibility." Bennett v. State, 933 So. 2d 930, 947
(Miss. 2006).
"The state had the right to question [the
expert] about his role as a mitigation expert in other cases
to establish a testimonial pattern and thus to expose a
possible bias for or against the death penalty."
Irish, 807 So. 2d 208, 213-14 (La. 2002).
recognized
a
host
of
matters
upon
which
State v.
"We have in fact
cross-examining
counsel may inquire in demonstration of bias, including, for
instance, the frequency with which a defense expert testifies
for capital defendants."
Rose v. State, 787 So. 2d 786, 798
(Fla. 2001).
It is clear that the prosecutor's cross-examination was
focused on determining the extent of Dr. Weinstein's bias
against capital punishment. "[T]he prosecutor's questioning
was not improper, but was designed to detect bias in [the
expert] and thereby discredit his findings of mitigating
74
CR-07-2147
evidence in favor of appellant." State v. Ahmed, 103 Ohio St.
3d 27, 48, 813 N.E.2d 637, 661 (2004).
VIII.
Albarran next argues that the circuit court erred in
allowing the prosecutor to ask Albarran's cousin, Obdulio
Albarran, if he thought that Albarran was crazy.
During the cross-examination of Obdulio, the prosecutor
asked: "You don't think [Albarran]'s crazy, do you?" Obdulio
responded:
"No."
Sometime after the witness concluded his
testimony, defense counsel moved to exclude Obdulio's answer.
The circuit court then stated the following:
"The Court:
If you're going to -- if you wanted
this tape in -- there was a portion of this trial
where you wanted certain portions in because Laura
says, 'He's loco,' which means he's crazy.
"[Defense counsel]:
Right.
"The Court:
Which means he's crazy.
It's her
opinion he's crazy. That's coming -- I don't see
any distinction between that and them asking the
witness on cross-examination if they believe
someone's crazy.
"So I think you have the right to follow up and
clarify ...."
(R. 2666.)
75
CR-07-2147
Rule 701, Ala. R. Evid., which became effective January
1, 1996, states:
"If the witness is not testifying as an expert,
the witness's testimony in the form of opinions or
inferences is limited to those opinions or
inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear
understanding of the witness's testimony or the
determination of a fact in issue."
The Alabama Supreme Court in Ex parte Lee, (Ala. 1987),
stated:
"In Alabama, a lay witness may give his opinion
on the question of a defendant's sanity or insanity
as long as the proper predicate has been laid.
Williams v. State, 291 Ala. 213, 279 So. 2d 478
(1973); Lokos v. State, 434 So. 2d 818 (Ala. Crim.
App. 1982), affirmed, 434 So. 2d 831 (Ala. 1983);
Carroll v. State, 370 So. 2d 749 (Ala. Crim. App.),
cert. denied, 370 So. 2d 761 (Ala. 1979). To lay a
proper predicate for the admission of such an
opinion, a witness must first have testified: (1) to
facts showing that he had an adequate opportunity to
observe such defendant's conduct in general, and (2)
to his personal observation of specific irrational
conduct of the defendant. See Williams v. State,
supra; Lokos v. State, supra; Carroll v. State,
supra. See also C. Gamble, McElroy's Alabama
Evidence, § 128.02 (3d ed. 1977).
Of course, in
making the determination as to whether the witness
has had an adequate opportunity to observe such
defendant's conduct so as to render his opinion
admissible, much is left to the sound legal
discretion of the trial court. Williams v. State,
supra."
76
CR-07-2147
506 So. 2d at 303.
See also Simmons v. State, 675 So. 2d 79
(Ala. Crim. App. 1995); Flenory v. State, 588 So. 2d 940 (Ala.
Crim. App. 1991); Ellis v. State, 570 So. 2d 744 (Ala. Crim.
App. 1990).
Obdulio testified that he was Albarran's cousin, that
they grew up together, and that he worked with Albarran when
Albarran lived in Tennessee. Obdulio testified on direct
examination
that
Albarran
was
typically
fine
but
sometimes he would change and become very angry.
that
He also
testified that Albarran's behavior changed after he married,
that he became very jealous of anyone who had contact with his
wife, and that he tried to keep people away from his wife.
The
prosecutor
then
asked
Obdulio,
"You
don't
[Albarran]'s crazy, do you?" Obdulio replied: "No."
2658.)
think
(R.
A proper predicate was established for Obdulio's
testimony, and the testimony was correctly admitted into
evidence.
See Ball v. State, 337 So. 2d 31, 36 (Ala. Crim.
App. 1976) ("Insanity is a defense which must be proved to the
jury.... Inquiry during cross-examination touching upon the
question
of
appellant's
sanity,
is
proper
and
testimony
relating thereto is for the jury's consideration.").
77
CR-07-2147
IX.
Albarran argues that the circuit court erred in allowing
several witnesses for the State to testify to what he asserts
were
Albarran's
mental
operations,
that
their
testimony
amounted to "speculative opinion" concerning Albarran's state
of
mind,
and
testimony.
that
it
Albarran
constituted
challenges
the
inadmissible
testimony
opinion
of
three
witnesses -- Investigator David Mullins, Tanisha Thomas, and
Tommy Joiner.
A.
First,
Albarran
argues
that
it
was
error
to
allow
Investigator David Mullins of the Huntsville Police Department
to testify that when he was transporting Albarran to the
police station immediately after he was arrested, Albarran had
a "kind of flippant attitude like he didn't care what was
going on."
(R. 3195.)
The record shows that after Investigator Mullins made the
statement, defense counsel objected and moved to exclude his
testimony.
The circuit court denied the motion.
(R. 3195.)
"The courts have adhered to the wide latitude
rule relating to the admissibility of the conduct
and condition of a criminally accused offered in
support of his plea of insanity. This wide latitude
78
CR-07-2147
has encompassed many forms of conduct and conditions
which the trial courts have held are relevant to
show his mental incapacity at the time in issue.
This same wide latitude has been exercised in the
decisions relating to the admissibility of the
conduct and condition of the accused offered by the
state in opposition to the accused's plea of
insanity."
Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama
Evidence § 61.01(7) (6th ed. 2009).
"It is true that this
court has held in a long line of cases that 'wide latitude' is
allowed both the defendant and the State in inquiries into a
person's mental state when an issue as to the sanity of such
a person is presented."
Watts v. State, 282 Ala. 245, 246,
210 So. 2d 805, 807 (Ala. 1968).
As this Court stated in Tuck
v. State, 384 So. 2d 1240 (Ala. Crim. App. 1980):
"The law in Alabama is clear that a witness may
testify whether another person appeared to be mad or
angry.
Tagert v. State, 143 Ala. 88, 39 So. 293
(1905); Dozier v. State, Ala. Cr. App., 337 So. 2d
148 (1976); Gamble, McElroy's Alabama Evidence, §
127.01(3), (3d ed. 1977). In Carney v. State, 79
Ala. 14 (1885), Chief Justice Stone wrote:
"'Human emotions and human passions
are not, in themselves, physical entities,
susceptible of proof, as such. Like the
atmosphere, the wind, and some acknowledged
forces in nature, they are seen only in the
effects they produce. Pleasure, pain, joy,
sorrow, peace, restlessness, happiness,
misery, friendship, enmity, anger, are of
this class. So, tenderness, sympathy,
79
CR-07-2147
rudeness, harshness, contempt, disgust, the
outcrop of emotional status, can not, in
their constitution, be made so far physical
facts, or entities, as to become the
subject of intelligible word description.
They are proved by what is called opinion
evidence. Not the mere unreasoning opinion,
or arbitrary conclusion of the witness, but
his opinion based on experience and
observation of the conduct, conversation,
and facial expression of others, in similar
emotional conditions. Facial expression and
vocal intonation are so legible, as that
brutes comprehend them; and yet human
language has no terms by which they can be
dissected, and explained in detail. The
reasoning in such cases is a posteriori,
and the major proposition is but the sum or
resultant of every one's experience and
observation .... "
384 So. 2d at 1242. "'Witnesses may always be allowed to
testify as to the appearance and emotions of other persons.'"
Renfroe v. State, 382 So. 2d 627, 631 (Ala. Crim. App. 1980)
(quoting Hamilton v. State, 281 Ala. 448, 203 So. 2d 684
(1967)).
See McMorris v. State, 394 So. 2d 392 (Ala. Crim.
App. 1980) (witness allowed to testify that victim was in a
"highly emotional state, upset, and disoriented"); Beard v.
State, 337 So. 2d 1372, 1376 (Ala. Crim. App. 1976) (police
officer allowed to testify that appellant "appeared rational,
spoke clearly and distinctly and appeared mad").
80
CR-07-2147
Here,
Investigator
Mullins's
testimony
regarding
Albarran's appearance and apparent emotions was relevant to
Albarran's guilt and his insanity defense.
Accordingly, the
circuit court committed no error in allowing Investigator
Mullins
to
testify
concerning
immediately after the shooting.
Albarran's
appearance
Renfroe, 382 So. 2d at 631.
B.
Second, Albarran asserts that the circuit court erred in
allowing Tanisha Thomas, an eyewitness to the shooting, to
testify that when Albarran was shooting he was jumping around
like he enjoyed it.
The record shows that defense counsel objected and moved
for a curative instruction.
following
instruction:
The circuit court gave the
"[J]ust
a
moment
ago
the
witness
testified that it was her opinion that the Defendant appeared
to enjoy himself as in regard to a certain act.
It's the
instruction of this Court that you are to disregard that
statement."
(R. 2039.)
"'There is a prima facie presumption against error where
the trial court immediately charges the jury to disregard the
improper remarks or answers.'"
81
St. John v. State, 523 So. 2d
CR-07-2147
521, 524 (Ala. Crim. App. 1987), quoting Wadsworth v. State,
439 So. 2d 790 (Ala. Crim. App. 1983).
"The prejudicial
effect of the comment was, therefore, cured ...."
Grace v.
State, 431 So. 2d 1331, 1335 (Ala. Crim. App. 1982).
Because
the circuit court instructed the jury to disregard Thomas's
statement, this Court finds that any error was cured at trial.
Therefore, Albarran is not entitled to any relief based on
this issue.
C.
Third, Albarran asserts that the circuit court erred in
allowing Tommy Joiner, an eyewitness, to testify that Albarran
was being "willfully nonresponsive" when he failed to comply
with the police officers' commands to get down on the ground.
Specifically,
Albarran
asserts
that
Joiner's
testimony
improperly conveyed Joiner's opinion regarding Albarran's
undisclosed mental operations around the time of the shooting.
Albarran bases his argument on the following portion of
the trial transcript:
"[Prosecutor]:
Well, what happened next?
"[Tommy Joiner]: The next thing you know I seen a
cop just sort of start slowly moving in.
And he
just grabbed him and put him to the ground,
handcuffed him, and got him in the car. And one of
82
CR-07-2147
the officers come over there and was like, you know,
'What was we supposed to do?'
He was like
nonresponsive. And I was like, 'Well, he come up to
me and asked me [for a cigarette] in English.' I
mean, 'So he understands.'
"[Defense counsel]: I'm going to move to exclude
that because what he understood about a cigarette
doesn't mean he understands in general.
"The Court: Well, that's the statement.
make that statement? Did you say that?
Did you
"[Tommy Joiner]: I said that to an officer that was
standing there."
(R. 1987-88.)
Contrary to Albarran's assertion, it does not appear that
Joiner testified regarding his opinion of Albarran's mental
operation.
Instead, Joiner was simply testifying as to a
conversation he had had with one of the police officers at the
scene.
Further, testimony indicating that Albarran appeared
to
nonresponsive
be
to
police
officers'
commands
was
admissible. Renfroe v. State, 382 So. 2d 627, 631 (Ala. Crim.
App. 1980) ("'Witnesses may always be allowed to testify as to
the appearance and emotions of other persons.'") (quoting
Hamilton v. State, 281 Ala. 448, 203 So. 2d 684 (1967)).
Therefore, the circuit court did not commit any error in
83
CR-07-2147
allowing Joiner's testimony regarding Albarran's apparent
unresponsiveness to the officers' commands.
X.
Albarran next argues that the circuit court erred in
allowing Chad Steele to testify regarding his opinion of what
the screams he heard from Officer Golden resembled.
The record shows that Steele was asked if he was able to
hear screams for help. Steele replied that "[i]t sounded like
a dog when it was getting wounded."
moved to exclude Steele's answer.
(R. 2169.)
Albarran
The circuit court denied
the motion, stating that it was Steele's opinion about what he
had heard and that it was admissible.
"A witness may characterize a sound, including as to the
noise level of the sound, or state the cause.
... A witness
may also characterize a sound by stating that it had a
resemblance to other sounds ...."
32 C.J.S. Evidence § 780
(2010).
"As an exception to the general rule prohibiting
the introduction of nonexpert opinion evidence, lay
witnesses are allowed to express their opinions when
it is impractical for them to detail the facts or
otherwise reproduce the data upon which the opinion
is based in such a way as to enable the jury to
comprehend what the witness observed.
This
exception is almost uniformly applied where the
84
CR-07-2147
opinion
in
question
relates
to
visibility,
audibility, redolence, or the like, the courts
taking the view that such matters cannot be
adequately conveyed to the jury in any form but
opinion, and thus holding the opinion admissible."
Comment Note, Ability to See, Hear, Smell, or Otherwise Sense,
as Proper Subject of Opinion by Lay Witness, 10 A.L.R. 3d 258
(1966).
Here, Steele's testimony regarding what Officer Golden's
screams resembled after he was shot and was begging for his
life was admissible. Further, this Court has reviewed Steel's
testimony and holds that the probative value of Steel's
testimony was not outweighed by any prejudice. Rule 403, Ala.
R. Evid.
Therefore, the circuit court committed no error in
denying Albarran's motion to exclude Steele's testimony.
XI.
Albarran next argues that the circuit court erred in
allowing the jurors to submit proposed questions to the
witnesses.
The record shows that the circuit court allowed the
jurors to submit proposed questions to the witnesses and
indicated that not all the questions could be answered.
The
court
the
stated
for
the
record
85
that
it
would
examine
CR-07-2147
questions with all the attorneys, that it would not allow a
question to be asked of the witness unless both parties agreed
to the question, and that it would instruct the jury "to take
nothing from the fact that any question was not answered."
(R. 2369.)
The questions ranged from "Was the front door [of
the restaurant] tinted as dark as it is today?"5 to "Have you
[Dr. Hooper] ever treated any patients with a cocaine induced
psychosis?"
In his brief, Albarran specifically challenges questions
that the jury formulated to ask Dr. Hooper, the State's
mental-health expert.
At the conclusion of Dr. Hooper's
testimony, the court asked the following questions posed by
the jury:
"The Court: Have you ever treated -- Dr. Hooper,
have you ever treated any patients with a cocaine
induced psychosis?
"[Dr. Hooper];
"The Court:
Dozens of times.
How many?
"[Dr. Hooper]:
"The Court:
Yes, ma'am.
At least 30 or 40.
Were any of them calm and/or logical?
5
The jurors were allowed to visit the crime scene. (R.
2354.) The jurors were also shown photographs of the crime
scene.
86
CR-07-2147
"[Dr. Hooper]:
(R. 3375.)
No, ma'am.
None of them."
Albarran did not object when Dr. Hooper was asked
these questions.
The questions appear to be an expansion of
questions asked Dr. Hooper on direct examination.
During
direct examination, Dr. Hooper testified: "I've seen lots and
lots of people who have had a cocaine induced psychosis"; he
also testified that it would be very unlikely that a person in
a cocaine-induced psychosis would be calm and logical.
(R.
3267.)
The Alabama Supreme Court in Ex parte Malone, 12 So. 3d
60 (Ala. 2008), addressed the validity of the circuit court's
allowing jurors to submit questions to witnesses. The Supreme
Court stated:
"A substantial number of state courts in other
jurisdictions have considered the issue whether
jurors
may
question
witnesses.
They
have
overwhelmingly held that the practice is not error
per se.
Moreover, 'every [federal] circuit to
consider the practice has permitted it, holding that
the decision to allow juror questioning rests within
the discretion of the trial judge.' United States
v. Richardson, 233 F.3d 1285, 1289 (11th Cir. 2000).
'Allowing jurors to ask witnesses questions is
"neither radical nor a recent innovation." State v.
Doleszny, 176 Vt. 203, [211,] 844 A.2d 773, [780]
(2004). It is a practice with "deeply entrenched"
roots in the common law. United States v. Bush, 47
F.3d 511, 515 (2nd Cir. 1995).' Medina v. People,
114 P.3d 845, 851 (Colo. 2005). 'American courts
87
CR-07-2147
have long sanctioned the practice.' United States
v. Bush, 47 F.3d 511, 515 (2nd Cir. 1995).
"The jury's role in a trial is to '"'assure a
fair and equitable resolution of factual issues.'"'
Richardson, 233 F.3d at 1289 (quoting Standard Oil
Co. of California v. Arizona, 738 F.2d 1021, 1031
(9th Cir. 1984), quoting in turn Colgrove v. Battin,
413 U.S. 149, 157, 93 S.Ct. 2448, 37 L.Ed.2d 522
(1973)). Allowing jurors to question witnesses can
'serve to advance the search for truth by
alleviating uncertainties in the jurors' minds,
clearing up confusion, or alerting the attorneys to
points that bear further elaboration.'
United
States v. Sutton, 970 F.2d 1001, 1005 n. 3 (1st Cir.
1992).
Juror questioning can also lead to 'more
attentive jurors and thereby leads to a more
informed verdict.'
Richardson, 233 F.3d at 1290
(citing Larry Heuer & Steven Penrod, Increasing
Juror Participation in Trials: A Field Experiment
with Jury Notetaking and Question Asking, 12 Law and
Hum.
Behav.
231,
233-34
(1988)).
Proper
communication is necessary for a jury to correctly
fulfill its fact-finding duty and 'there is reason
to believe that permitting receivers of information,
e.g., jurors, to ask questions enhances not only
their
ability
to
understand
what
is
being
communicated, but results in their putting forth
more effort to listen and to understand because they
know they may ask questions.' Yeager v. Greene, 502
A.2d 980, 999-1000 (D.C. 1985).
"....
"We agree with the majority position that
allowing jurors to question witnesses is not error
per se on the part of the trial court. For the same
reasons the aforementioned jurisdictions have upheld
the practice, we hold that it is within the
discretion of the trial court to allow jurors to
question a witness.
88
CR-07-2147
"Malone argues that the trial court here erred
when it went beyond merely allowing jurors to ask
questions of the witnesses and actively solicited
questions from the jurors. In United States v.
Ajmal, 67 F.3d 12, 15 (2d Cir. 1995), the United
States Court of Appeals for the Second Circuit held
that the trial court exceeded its discretion by
allowing extensive juror questioning as a matter of
course and by inviting questions at the end of each
witness's testimony.
That court stated that the
trial court's decision to invite and allow extensive
juror questioning was not 'necessitated by the
factual intricacies of [that case].' Ajmal, 67 F.3d
at 14.
It also noted that it considered the
practice of juror questioning an allowable but
disfavored practice.
"In contrast, the Supreme Court of Utah, in a
case in which the trial judge invited jurors to ask
questions at the end of each witness's testimony,
held:
"'The fact that the trial court
granted the jurors permission to ask
questions of witnesses without any special
request from them for this privilege does
not, in our opinion, in and of itself
constitute error. The determining factors
as to whether error has been committed is
the type of questions asked and allowed to
be answered. If the questions asked are not
germane to the issues involved or are such
as would be clearly improper and therefore
prejudicial to the rights of the defendants
to a fair and impartial trial, the court's
allowing them to be answered would be
error.'
"State v. Anderson, 108 Utah 130, 133, 158 P.2d 127,
128 (1945).
89
CR-07-2147
"We agree with the Utah Supreme Court that
soliciting questions from jurors is not error per
se, but that whether the trial court has exceeded
its discretion in so doing is determined by the type
of questions the trial judge allows and whether
those questions are prejudicial to the defendant's
rights.
However, we also agree with the Second
Circuit Court of Appeals that the practice should be
disfavored and that a trial court should not promote
or encourage the practice because it risks 'altering
the role of the jury from neutral fact-finder to
inquisitor and advocate.' Ajmal, 67 F.3d at 15."
12 So. 3d at 63-66.
See also
Annot., Propriety of Jurors
Asking Questions in Open Court During Course of Trial, 31
A.L.R. 3d 872 (1970); Note, The Current Debate on Juror
Questions:
"To Ask or Not to Ask, That is the Question," 78
Chi-Kent L. Rev. 1099 (2003); Note, Breaking the Silence:
Should Jurors Be Allowed to Question Witnesses During Trial?,
44 Vand. L. Rev. 117 (1991); Note, Juror Questions A Survey of
Theory and Use, 55 Mo. L. Rev. 817 (1990).
Thus, according to Malone, this Court must examine the
type
of
questions
asked
and
whether
prejudicial to the defendant's rights.
the
questions
were
The majority of the
questions dealt with matters that had already been addressed
on direct examination or on cross-examination.
As stated
above, the questions ranged from "Was the front door [of the
restaurant] tinted as dark as it is today?" to "Have you [Dr.
90
CR-07-2147
Hooper]
ever
psychosis?"
treated
a
patient
with
a
cocaine
induced
The circuit court did not allow a great many of
the questions to be asked.
This Court has reviewed all the
questions that were submitted and those the court allowed to
be asked of the witnesses and finds no prejudice to Albarran.
Accordingly, this Court holds that no error occurred when the
circuit
court
witnesses.
allowed
the
jury
to
submit
questions
to
See Malone, 12 So. 3d at 63-66.
XII.
Albarran next argues that his constitutional rights were
violated because Alabama lacks a certification procedure for
foreign-language
interpreter
interpreters
made
"critical
and
errors
because
when
the
court's
translating
the
testimony of the Mexican Spanish-speaking defense witnesses
into English."
(Albarran's brief, at 124.)
Before trial, the circuit court swore Patrick Castle in
as the court's interpreter and administered the following
oath:
"Do you solemnly swear or affirm that you will
interpret accurately, completely and impartially
using your best skill and judgment in accordance
with the standards proscribed by law, follow all
official guidelines established by this Court for
legal interpreting and translating, and discharge
91
CR-07-2147
all of the solemn duties and obligations of legal
interpretation and translation?"
Castle responded:
"I do."
(R. 342.)
Another interpreter, Dara Fernandez Perez, was later
sworn in as the court's interpreter. Perez was recommended to
the court by Castle. Perez indicated that she was from Spain,
that she was in her third year of law school, that she had
been interpreting for several years, and that she had acted as
an interpreter in numerous legal proceedings.
(R. 1920.)
Perez was examined by the court and stated:
"Although I am from Spain and, for those of you who
know, the slang or the vocabulary that we use in
Spain is very different from that used in Mexico.
However, in -- since I came to the United States
because of the demographics of the population, both
in Minnesota where I was residing prior to
Birmingham and also in Birmingham, Alabama, the
demographics of the population is largely Mexican.
So in my professional experience for the last eight
years now that I've been working exclusively with
the Latino population, that's the dialect that I've
been forced to utilize. And so I feel comfortable
with the Mexican terminology."
(R. 1923-24.)
Perez then met with the defense mitigation
specialist and a member of Albarran's family to see if she
could understand the dialect of the remote area where the
witnesses were from in Mexico. After this meeting, Perez
testified:
"I would say it was fine and smooth.
92
I think we
CR-07-2147
agreed on asking for clarifications if there was a time where
a term was not known to me or if a term wasn't appropriately
explained."
Perez.
(R. 1932.)
Counsel's
The defense appeared satisfied with
only
objection
was
the
lack
of
a
certification procedure in Alabama. The court then gave Perez
the same oath that was administered to Castle.
(R. 1936.)
While Albarran objected to the lack of a certification
procedure in Alabama, he did not object to any of Perez's
interpretations.
In Alabama, § 15-1-3, Ala. Code 1975, addresses the use
of foreign-language interpreters, and it states, in pertinent
part:
"(a)(1) If at any stage of a criminal or
juvenile proceeding the defendant, juvenile, or a
witness informs the court that he or she does not
speak or understand the English language, the court
may appoint an interpreter.
"....
"(b) Upon appointment, an interpreter shall
swear under oath that he or she will render a true
and clear interpretation to the best of his or her
skill and judgment."
Alabama
interpreter
has
be
no
statute
certified.
that
requires
"Although
the
that
use
of
a
court
court-
certified interpreters is mandated by statute in federal
93
CR-07-2147
criminal proceedings, the Supreme Court has not held that the
use
of
court-certified
requirement."
(E.D.
Cal.
interpreters
is
a
constitutional
Singh v. Curry, 689 F. Supp. 2d 1250, 1263
2010)
(footnotes
omitted).
"There
is
no
requirement that interpreters be certified. ... The need for
certification is a matter for the legislature to address."
State v. Her, 510 N.W.2d 218, 223 n. 2
(Minn. Ct. App. 1994).
"In People v. Estrada, 176 Cal. App. 3d 410, 221 Cal. Rptr.
922,
924
(1986),
the
court
recognized
a
defendant's
constitutional right to an interpreter means a competent
interpreter, not necessarily a certified interpreter."
State
v. Pham, 75 Wash. App. 626, 633, 879 P.2d 321, 326 (1994).
"[I]t has been stated unequivocally that 'rulings on
the appointment and qualifications of interpreters
do not reach constitutional proportions.
See
Fairbanks v. Cowan, 6 Cir. 551 F.2d 97, 99.
Whatever problems there may be with the testimony of
[an interpreter] go to the sufficiency of the
evidence.' (Emphasis added) Soap v. Carter, 632
F.2d 872, 874-75 (10th Cir. 1980), cert. denied, 451
U.S. 939 (1981)."
Commonwealth v. Carrillo, 319 Pa. Super. 115, 130-31, 465 A.2d
1256, 1264 (1983). See Thomas M. Fleming, Anno., Right of
Accused to Have Evidence or Court Proceedings Interpreted,
94
CR-07-2147
Because Accused or Other Participant in Proceedings is not
Proficient in the Language Used, 32 A.L.R. 5th 149 (1995).
Albarran's
constitutional
rights
were
not
violated
because Alabama has no certification procedure for court
interpreters.
interpreter
See Pham, supra.
are
determined
by
"The qualifications of an
the
trial
judge,
and
his
determination will not be overturned in the absence of an
abuse of discretion."
(6th Cir. 1977).
Fairbanks v. Cowan, 551 F.2d 97, 99
Accordingly, Albarran is not entitle to any
relief based on this issue.
To the extent Albarran asserts that the interpreter made
mistakes in her translation, Albarran failed to object at
trial. Therefore, this issue will be reviewed for plain error
only.
Rule 45A, Ala. R. App. P.
This Court has reviewed the
record and finds that any alleged misinterpretations did not
rise to the level of plain error. The record establishes that
the
non-English
speaking
witnesses'
testimony,
although
somewhat confusing at times, conveyed the information intended
to be conveyed.
Accordingly, this Court holds that any
alleged errors in the interpretation was not prejudicial and
does not rise to the level of plain error.
95
CR-07-2147
XIII.
Albarran next argues that the prosecutor engaged in
misconduct
that
denied
him
his
right
to
a
fair
trial.
Specifically, he asserts that the prosecutor misstated the
law, characterized the defendant in "opprobrious terms," based
his
closing
argument
on
personal
knowledge,
and
made
inflammatory remarks that undermined Albarran's presumption of
innocence.
Albarran did not object to any of the now challenged
instances of prosecutorial misconduct.
Accordingly, this
Court reviews these claims for plain error.
See Rule 45A,
Ala. R. App. P.
"'While this failure to object does not preclude
review in a capital case, it does weigh against any
claim of prejudice.' Ex parte Kennedy, 472 So. 2d
[1106,] at 1111 [(Ala. 1985)] (emphasis in
original). 'This court has concluded that the
failure
to
object
to
improper
prosecutorial
arguments ... should be weighed as part of our
evaluation of the claim on the merits because of its
suggestion that the defense did not consider the
comments in question to be particularly harmful.'
Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th
Cir. 1985), cert. denied, 484 U.S. 872, 108 S. Ct.
201, 98 L. Ed. 2d 152 (1987)."
Kuenzel v. State, 577 So. 2d 474, 489 (Ala. Crim. App. 1990)
(emphasis omitted).
96
CR-07-2147
"In judging a prosecutor's closing argument, the
standard is whether the argument '"so infected the
trial with unfairness as to make the resulting
conviction a denial of due process."'
Darden v.
Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464,
2471, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868,
1871, 40 L. Ed. 2d 431 (1974)).
"'In
reviewing
allegedly
improper
prosecutorial
comments,
conduct,
and
questioning of witnesses, the task of this
Court is to consider their impact in the
context of the particular trial, and not to
view the allegedly improper acts in the
abstract.
Whitlow v. State, 509 So. 2d
252, 256 (Ala. Cr. App. 1987); Wysinger v.
State, 448 So. 2d 435, 438 (Ala. Cr. App.
1983); Carpenter v. State, 404 So. 2d 89,
97 (Ala. Cr. App. 1980), cert. denied, 404
So. 2d 100 (Ala. 1981).
Moreover, this
Court has also held that statements of
counsel in argument to the jury must be
viewed as delivered in the heat of debate;
such statements are usually valued by the
jury at their true worth and are not
expected to become factors in the formation
of the verdict. Orr v. State, 462 So. 2d
1013, 1016 (Ala. Cr. App. 1984); Sanders v.
State, 426 So. 2d 497, 509 (Ala. Cr. App.
1982).'
"Bankhead v. State, 585 So. 2d 97, 106-07 (Ala.
Crim. App. 1989), aff'd in relevant part, 585 So. 2d
112, 127 (Ala. 1991), rev'd on other grounds, 625
So. 2d 1146 (Ala. 1993). Finally,
"'"[d]uring closing argument, the
prosecutor, as well as defense counsel, has
a right to present his impressions from the
evidence, if reasonable, and may argue
every legitimate inference." Rutledge v.
97
CR-07-2147
State, 523 So. 2d 1087, 1100 (Ala. Cr. App.
1987), rev'd on other grounds, 523 So. 2d
1118 (Ala. 1988) (citation omitted). Wide
discretion is allowed the trial court in
regulating the arguments of counsel. Racine
v. State, 290 Ala. 225, 275 So. 2d 655
(1973).
"In
evaluating
allegedly
prejudicial remarks by the prosecutor in
closing argument, ... each case must be
judged on its own merits," Hooks v. State,
534 So. 2d 329, 354 (Ala. Cr. App. 1987),
aff'd, 534 So. 2d 371 (Ala. 1988), cert.
denied, 488 U.S. 1050, 109 S. Ct. 883, 102
L. Ed. 2d 1005 (1989) (citations omitted)
(quoting Barnett v. State, 52 Ala. App.
260, 264, 291 So. 2d 353, 357 (1974)), and
the remarks must be evaluated in the
context of the whole trial, Duren v. State,
590 So. 2d 360 (Ala. Cr. App. 1990), aff'd,
590 So. 2d 369 (Ala. 1991). "In order to
constitute
reversible
error,
improper
argument must be pertinent to the issues at
trial or its natural tendency must be to
influence the finding of the jury."
Mitchell v. State, 480 So. 2d 1254, 1257-58
(Ala. Cr. App. 1985) (citations omitted).
"To
justify
reversal
because
of
an
attorney's argument to the jury, this court
must conclude that substantial prejudice
has resulted." Twilley v. State, 472 So.
2d 1130, 1139 (Ala. Cr. App. 1985)
(citations omitted).'
"Coral v. State, 628 So. 2d 954, 985 (Ala. Crim.
App. 1992), aff'd, 628 So. 2d 1004 (Ala. 1993)."
Sneed v. State, 1 So. 3d 104, 138-39 (Ala. Crim. App. 2007).
98
CR-07-2147
A.
First, Albarran argues that the prosecutor misstated the
law concerning mental disease or defect when he made the
following argument during closing in the guilt phase:
"What does the law mean when they talk about a
severe mental disease or defect?
They're talking
about the people who are -- who are picking bugs off
their skin.
And they're -- and that's real.
Unfortunately some people are that way.
"....
"Now if you take that whole standard of
suffering from a severe mental disease or defect and
unable to appreciate the nature and quality of
wrongfulness of your actions, what do you envision?
I envision somebody out of their mind out there on
the scene. I envision somebody in his shoes when
the officers roll up saying, 'I killed the Devil.'
That's a guy who doesn't appreciate the nature or
quality of wrongfulness.
"It's not the guy who's over there smoking a
cigarette. It's not the guy who talks to Charlie
Gray and say to Charlie, 'I didn't do it.' I didn't
do it?
You think that's appreciating right from
wrong? I would say so.
"You know, if you had a guy -- if you had a guy
who is howling at the moon with a gun in his hand
talking about the Devil, at least you are in the
game for an insanity defense. They're not close on
this case."
(R. 3651-56.)
99
CR-07-2147
The circuit court gave the following instruction during
the guilt-phase instructions:
"An attorney's statements and arguments are
intended to help you understand the evidence and
apply the law.
The statements and arguments of
attorneys, however, are not evidence.
You should
therefore disregard any remark, statement, or
argument which is not supported by the evidence or
by the law as given to you by this Court."
(R. 3670-71.)
"[P]rosecutors are to be allowed a wide latitude in
their exhortations to the jury. Varner v. State,
418 So. 2d 961 (Ala. Cr. App. 1982). 'Statements of
counsel and argument must be viewed as in the heat
of debate and must be valued at their true worth
rather than as factors is the formation of the
verdict.' Orr v. State, 462 So. 2d 1013, 1016 (Ala.
Cr. App. 1984)."
Armstrong v. State, 516 So. 2d 806, 809 (Ala. Crim. App.
1986).
Viewed as a whole, the prosecutor's argument conveyed the
message
that
Albarran's
actions
after
the
murder
were
inconsistent with insanity. This argument was well within the
wide range of permissible comment during closing arguments and
did not result in such unfairness as to constitute a denial of
due process.
See Darden v. Wainwright, 477 U.S. 168 (1986).
Therefore, this Court holds that no error, much less plain
error, resulted from the prosecutor's comment.
100
CR-07-2147
B.
Second, Albarran argues that the prosecutor characterized
him in "opprobrious terms" when he referred to him as "coldblooded," "evil," "dark-hearted," and "heartless."
"'[T]he prosecuting attorney may characterize the accused
or his conduct in language which, although it consists of
invective or opprobrious terms, accords with the evidence of
the case.'"
Henderson v. State, 584 So. 2d 841, 857 (Ala.
Crim. App. 1988) (quoting Nicks v. State, 521 So. 2d 1018,
1023 (Ala. Crim. App. 1987)).
In Nicks v. State, this Court
stated:
"There is a multitude of reported cases
concerning derogatory characterization of an accused
by a prosecuting attorney in closing arguments.
Examples of such cases can be found in Watson v.
State, 266 Ala. 41, 44, 93 So. 2d 750, 752 (1957);
Barbee v. State, 395 So. 2d 1128, 1134 (Ala. Cr.
App. 1981); and the Alabama Digest. The general rule
pertaining to such comments is set out in 23A C.J.S.
Criminal Law § 1102 (1961), as follows:
"'Comments by the prosecuting attorney
which refer to, and make unfavorable
inferences from, the conduct of accused in
the course of the transaction for which he
is on trial, or his conduct at any other
time or place, or which refer to his
character as shown by such conduct, or to
his background, breeding, or associations,
or to other details of his personal history
or characteristics are proper, where the
101
CR-07-2147
purported facts referred to by counsel are
supported by competent evidence in the
case,
and
where
the
inferences
and
deductions sought to be made from such
facts are within the bounds of proper
argument. On the other hand, remarks or
argument of the prosecuting attorney
concerning the character or conduct of
accused, which is not supported by the
record or which exceeds the limits of fair
argument or inference is improper.
"'In a proper case, the prosecuting
attorney may characterize accused or his
conduct in language which, although it
consists of invective or opprobrious terms,
accords with the evidence in the case, and,
where the evidence warrants the belief that
accused is guilty, the prosecutor may
employ terms appropriate to the nature or
degree of turpitude involved in the crime
charged;
but
characterizations
not
justified by the evidence or the charge
which the evidence tends to prove and hence
merely abusive, or which are couched in
intemperate and inflammatory language are
... improper.'"
521 So. 2d at 1022-23 (footnotes omitted).
See Melson v.
State, 775 So. 2d 857, 889 (Ala. Crim. App. 1999) (prosecutor
referred to defendant as "cold-blooded
murderer"); Kinard v.
State, 495 So. 2d 705, 711 (Ala. Crim. App. 1986) (prosecutor
referred to defendant as "'an unmitigated liar and murderer").
Here, the terms that the prosecutor used to describe
Albarran were consistent with the evidence presented in the
102
CR-07-2147
case.
The evidence indicated that Albarran shot and murdered
a law-enforcement officer while that officer begged for his
life. Thus, the evidence indicated that Albarran's actions
were "cold-blooded," "evil," "dark-hearted," and "heartless."
Accordingly,
no
error
resulted
from
the
prosecutor's
characterization of Albarran.
C.
Third, Albarran argues that the prosecutor erred in
making arguments that were based on his personal knowledge.
Specifically, he references arguments that were made in the
State's rebuttal closing argument in the guilt phase.
The prosecutor first argued in rebuttal that defense
counsel had challenged the testimony of the eyewitnesses to
the shooting.
The prosecutor then argued:
"Now, has Tanisha Thomas told the exact word for
word same statement every time?
I'm sure she
hasn't. I'm sure she hasn't. And there may be some
periphery items that blur in her mind. There may
be. But as far as the core of what happened, I've
never had a witness that was really self-validated
by her 911 tape. I absolutely have not."
(R. 3633) (emphasis added.)
This
Court
has
held
that
"[a]ttorneys,
particularly
prosecutors, should be careful in arguments to the jury to
103
CR-07-2147
refrain from injecting their own personal belief, experience,
or knowledge in support of an argument...."
Bankhead v.
State, 585 So. 2d 97, 109 (Ala. Crim. App. 1989).
"Although it is never proper for a prosecutor to
state his or her personal opinion regarding the
ultimate issue to be decided by the jury, we cannot
say that the prosecutor's comment in this case so
infected the trial with unfairness that [the
defendant] was denied due process. See Darden v.
Wainwright, 477 U.S. 168 (1986)."
Smith v. State, [Ms. CR-97-1258, August 31, 2007] ___ So. 3d
___, ___ (Ala. Crim. App. 2007).
See also
Ex parte Sharp,
[Ms. 1080959, December 4, 2009] ___ So. 3d ___, ___ (Ala.
2009).
Here, the prosecutor's comment did not infect the trial
with unfairness so as to deny Albarran due process.
[Ms. CR-97-1258, August 31, 2007] ___ So. 3d at
Smith,
___.
The
prosecutor's comment merely informed the jury of what it
should have already known, i.e., that witnesses' memories of
details fade over time.
The prosecutor did not imply that
there was unpresented evidence that the jury would consider,
nor did his comment urge the jury to abandon its role as the
fact-finder and rely on the prosecutor.
104
Accordingly, this
CR-07-2147
Court holds that the prosecutor's comment did not rise to the
level of plain error.
Rule 45A, Ala. R. App. P.
D.
Fourth, Albarran argues that the prosecutor improperly
undermined the presumption of his innocence by stating during
closing argument that Albarran's lawyers had given him an
"impressive defense" that "I don't know that he deserves."
In the State's rebuttal closing argument, the prosecutor
argued the following:
"Let me tell you what their defense is. Their
defense is please do not convict him of capital
murder.
Whatever you do, do not convict him of
capital murder. And for them to get there they want
to get you scattered in all kind of directions.
That's their tactic.
That's what they're doing.
And when I say that, I know Richard and Derek and
Bruce, they don't take it personally that I'm saying
that because these are fine lawyers. They really
are. And they have given this man a defense that,
frankly, is impressive.
I don't know that he
deserves it, but under our system I'm glad it's
happened."
(R. 3625.)
This comment was not so egregious that it denied Albarran
a fair trial.
See Darden v. Wainwright, supra. See also
People v. Whitehurst, 70 A.D.3d 1057, 895 N.Y.S.2d 523 (2010)
(comment by prosecutor that defendant did not deserve the
105
CR-07-2147
jury's sympathy was improper but harmless); Young v. State, 12
P.3d 20, 45-46 (Okla. Crim. App. 2000) (comment that the
appellant did not "deserve to lie in a 'prison environment,
not have to go to work every day, get his meals prepared, have
a nice clean place to live' while his victim 'lies dead in his
grave' was error but did not "affect the fundamental fairness
of the proceeding"); Johnson v. Zant, 249 Ga. 812, 818,
295
S.E.2d 63, 69 (1982) ("This court has held that flight of
oratory, figurative speech, and false logic are not error
requiring reversal. ... These may include closing argument by
the district
attorney
charactering the district attorney
characterizing a defendant as a 'brute, beast, an animal and
a mad dog who did not deserve to live.'").
prosecutor
did
not
innocence;
instead,
undermine
the
Albarran's
prosecutor,
Here, the
presumption
inartfully,
of
praised
defense counsel and the impressive defense that counsel had
presented.
Accordingly,
this
Court
holds
that
the
prosecutor's comment did not rise to the level of plain error.
Rule 45A. Ala. R. App. P.
XIV.
106
CR-07-2147
Albarran next challenges several jury instructions given
by the circuit court in the guilt phase of his trial.
"When reviewing a trial court's jury instructions, we
must view them as a whole, not in bits and pieces, and as a
reasonable juror would have interpreted them."
Johnson v.
Sate, 820 So. 2d 842, 874 (Ala. Crim. App. 2000) (citing
Ingram v. State, 779 So. 2d 1225 (Ala. Crim. App. 1999)).
"A trial court has broad discretion when
formulating its jury instructions. See Williams v.
State, 611 So. 2d 1119, 1123 (Ala. Cr. App. 1992).
When reviewing a trial court's instructions, '"the
court's charge must be taken as a whole, and the
portions challenged are not to be isolated therefrom
or taken out of context, but rather considered
together."'
Self v. State, 620 So. 2d 110, 113
(Ala. Cr. App. 1992) (quoting Porter v. State, 520
So. 2d 235, 237 (Ala. Cr. App. 1987)); see also
Beard v. State, 612 So. 2d 1335 (Ala. Cr. App.
1992); Alexander v. State, 601 So. 2d 1130 (Ala. Cr.
App. 1992)."
Williams v. State, 795 So. 2d 753, 780 (Ala. Crim. App. 1999).
Moreover,
"'In setting out the standard for plain error
review of jury instructions, the court in United
States v. Chandler, 996 F.2d 1073, 1085, 1097 (11th
Cir. 1993), cited Boyde v. California, 494 U.S. 370,
380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990), for
the proposition that "an error occurs only when
there is a reasonable likelihood that the jury
applied the instruction in an improper manner."
Williams v. State, 710 So. 2d 1276, 1306 (Ala. Cr.
App. 1996), aff'd, 710 So. 2d 1350 (Ala. 1997),
107
CR-07-2147
cert. denied, 524 U.S. 929, 118 S. Ct. 2325, 141 L.
Ed. 2d 699 (1998).'"
Broadnax v. State, 825 So. 2d 134, 196 (Ala. Crim. App. 2000)
(quoting Pilley v. State, 789 So. 2d 870, 882-83 (Ala. Crim.
App. 1998)).
With these principles in mind, this Court will now turn
to Albarran's arguments concerning the circuit court's jury
instructions.
A.
First, Albarran argues that the circuit court undermined
his defense and confused the jury by instructing it that
"voluntary intoxication in and of itself is not a severe
mental disease or defect."
(R. 3702);(emphasis added.)
After the circuit court charged the jury, defense counsel
objected to the above instruction.
(R. 3714-15.)
prosecutor then argued:
"Based on the facts of this case the State's
response is that -- well, there isn't any evidence
that the intoxication rose to the level of a mental
disease or a defect or a severe mental disease or
defect. Severe being the operative word and really
the only purpose for this particular objection and
this particular instruction. We've already gotten
the instruction on intoxication as negating intent.
This particular instruction is going to offer even
more confusion into the issue of mental state or
mental disease or defect ...."
108
The
CR-07-2147
(R. 3715-16.)
instruction
disease.
The defense then argued that the court's
failed
to
contain
the
word
"severe"
mental
The court's instruction, however, did state "severe
mental disease or defect."
The
circuit
court
instructed
the
jury
on
voluntary
intoxication and on manslaughter, and instructed the jury that
intoxication was relevant to negate an element of an offense
such as intent, and that "voluntary intoxication is not a
defense to a criminal charge unless it rises to the level of
insanity."
(R. 3686.)
The court instructed the jury on the
lesser offenses of reckless murder, provocation murder, and
manslaughter.
The following instruction was then given:
"[I]f you find that the State has proven beyond a
reasonable doubt all of the elements of one of the
offenses or crimes that I just explained to you, you
must then determine whether Benito Albarran has
proven by clear and convincing evidence that he was
legally insane or suffering from a severe mental
disease or defect at the time the offense was
committed. Insanity which will excuse a crime under
the law of this state must be the result of a severe
mental disease or defect. ...
"For you to find the Defendant not guilty by
reason of insanity or severe mental disease or
defect, you must be convinced that Benito Albarran
has proven to each of you the following elements by
clear and convincing evidence to your reasonable
satisfaction and there are two. That at the time of
the crime Benito Albarran suffered from a severe
109
CR-07-2147
mental disease or defect and that as a result of
such severe mental disease or defect he was unable
to appreciate the nature and quality of his act or
was unable to appreciate the wrongfulness of his
acts.
"Clear and convincing evidence is evidence that
makes it highly probable that Benito Albarran had a
severe mental disease or defect that prevented him
from understanding the nature and quality of his
acts or unable to appreciate the wrongfulness of his
acts.
"In determining whether Benito Albarran is
legally responsible for his conduct, you must
consider his mental condition at the time of the
offense and not his current condition. Accordingly,
you are instructed not to consider Benito Albarran's
appearance and demeanor or to speculate concerning
his present mental condition since those issues are
not relevant in determining his mental condition on
August 29, 2005.
"I also need to instruct you that under the laws
of this state voluntary intoxication in and of
itself is not a severe mental disease or defect."
(R. 3700-02.)
Section 13A-3-2, Ala. Code 1975, specifically provides:
"Intoxication in itself does not constitute mental disease or
defect within the meaning of § 13A-3-1."
Section 13A-3-1(a),
Ala. Code 1975, provides: "It is an affirmative defense to a
prosecution for any crime that, at the time of the commission
of the acts constituting the offense, the defendant, as a
result of severe mental disease or defect, was unable to
110
CR-07-2147
appreciate the nature and quality or wrongfulness of his
acts."
"Voluntary intoxication
'is
not
a
defense to a
criminal charge,' § 13A-3-2(a), nor does intoxication in and
of itself 'constitute mental disease or defect within the
meaning of § 13A-3-1,' § 13A-3-2(d)."
Ware v. State, 584 So.
2d 939, 946 (Ala. Crim. App. 1991) (footnote omitted). "'[A]
trial
court
has
broad
discretion
in
fashioning
a
jury
instruction, provided it accurately reflects the law and facts
of the case.'"
Flowers v. State, 922 So. 2d 938, 954 (Ala.
Crim. App. 2005) (quoting Raper v. State, 584 So. 2d 544, 545
(Ala. Crim. App. 1991)).
Because voluntary intoxication does not constitute a
severe mental disease or defect for insanity purposes, the
circuit court's instructions to that effect were proper.
Accordingly,
the
circuit
court
committed
no
error
in
instructing the jury that voluntary intoxication does not
constitute a severe mental disease or defect.
B.
Albarran next argues that the circuit court improperly
restricted the jury's consideration of evidence of Albarran's
mental state at the time of the murder by refusing to instruct
111
CR-07-2147
the jury that it could specifically consider observational
evidence of Albarran's mental illness when evaluating whether
Albarran possessed the requisite mens rea for capital murder.
To support his argument, Albarran relies on the United States
Supreme Court's decision in Clark v. Arizona, 548 U.S. 735
(2006).
In Clark v. Arizona, the United States Supreme Court
discussed the three types of evidence that are relevant to the
issue of mens rea: (1) observational evidence, which concerns
the defendant's conduct that is witnessed by others; (2)
mental-disease evidence in the form of opinion testimony; and
(3)
"capacity evidence" about "a defendant's capacity for
cognition and moral judgment ...."
548 U.S. at 758.
The
United States Supreme Court in Clark did not hold that a
defendant was entitled to jury instructions on each of the
three categories of evidence related to mens rea.
Here, the following discussion occurred at the charge
conference:
"[Defense counsel]: Well, the only thing -- I'm not
trying to add more argument. All I'm saying is that
I do think that we should be able to well, first of
all, we've given a lot of different considerations
that I think are in line with Clark and the Alabama
statutes on intoxication with respect to the capital
112
CR-07-2147
charge. And we just want to make sure that we're
not going to be, you know, in anyway [sic]
restricted from arguing our case in light of the
Supreme Court decision in Clark v. Arizona.
"....
"The court: All right. Duly noted. And I do not
-- most certainly I think that as it related to
observational evidence that's fine.
"[Defense counsel]:
Right. Okay."
(R. 3481-83.)
Clearly,
the
circuit
court
complied
with
Clark
and
allowed the defense to present "observational evidence" of
Albarran's mental state. Further, the circuit court's failure
to instruct the jury to consider observational evidence did
not prevent the jury considering such evidence.
Therefore,
Albarran is not entitled to any relief based on this issue.
C.
Next, Albarran argues that the circuit court erred in
instructing the jury that "unusual or weird behavior alone
cannot be equated with mental incapacity or insanity."
After the instructions were given, counsel noted that the
court had given examples of "emotional, unusual, weird, or
bizarre behavior" that would not necessarily be insanity.
Counsel then stated that "we're not necessarily saying that
113
CR-07-2147
those things aren't."
(R. 3716-17.)
The circuit court then
noted that it had taken the instruction from the pattern jury
instructions. Counsel did not object to the examples given in
the court's instructions; therefore, this Court reviews this
claim for plain error.
See Rule 45A, Ala. R. App. P.
The circuit court gave the following instruction:
"Finally, as it relates to this particular issue,
the law is that emotional insanity or temporary
mania not associated with a disease of the mind does
not constitute insanity.
Where one does not act
under the duress of a diseased mind or insane
delusion but from motives of anger, revenge, or
other passion, he cannot claim to be shielded from
the punishment of a crime on the ground of insanity.
High temper, hot blood and passion arising from
anger, hatred, jealousy, desire for revenge or other
emotions will not excuse the commission of crime.
Unusual or weird behavior alone cannot be equated
with mental incapacity or insanity. Whether or not
the defendant was suffering from a severe mental
disease or defect is for you, the jury, to determine
from all of the evidence presented to you."
(R. 3703.)
Initially, this Court notes that the circuit
court's instruction was consistent with the pattern jury
instruction.6
6
"While most pattern jury instructions may be properly
used in the majority of criminal and civil cases, there may be
some instances when using those pattern charges would be
misleading or erroneous." Ex parte Wood, 715 So. 2d 819, 824
(Ala. 1998).
114
CR-07-2147
Moreover, "[a] '"[s]evere mental disease or defect" does
not
include
an
abnormality
manifested
only
by
repeated
criminal or otherwise antisocial conduct.' [§ 13A-3-1, Ala.
Code 1975.]
'Unusual or weird behavior alone cannot be
equated with ... insanity.'"
McFarland v. State, 581 So. 2d
1249, 1254 (Ala. Crim. App. 1991).
"'[A] belief in witchcraft does not make one
insane, just as belief in other faiths and religions
[or cults] which deal in mysticism and rituals does
not per se make one insane.' McCord v. State, 507
So. 2d 1030, 1032 (Ala. Cr. App. 1987). 'Unusual or
weird behavior alone cannot be equated with mental
insanity.' Meredith v. State, 370 So. 2d 1075, 1078
(Ala. Cr. App.) cert. denied, 370 So. 2d 1079 (Ala.
1979)."
Moss v. State, 536 So. 2d 129, 135 (Ala. Crim. App. 1988),
rev'd on other grounds,
Ex parte Gentry, 689 So. 2d 916 (Ala.
1996).
"Legal insanity does not embrace every kind of
mental disease and disorder that renders a person
not responsible for his acts. Waters v. State, 22
Ala. App. 644, 646, 119 So. 248 (1928). 'Emotional
insanity or moral obliquity will not sustain plea of
insanity.' Rowe v. State, 243 Ala. 618, 624, 11 So.
2d 749 (1943). Moral obliquity 'has no recognition
in the law of this state as an excuse for crime.'
Hall v. State, 208 Ala. 199, 200, 94 So. 59 (1922).
'(T)hat which is sometimes called "moral", or
"emotional insanity", savors too much of a seared
conscience or atrocious wickedness to be entertained
as a legal defense.' Boswell v. State, 63 Ala. 307,
321 (1879). 'Moral idiocy' does not qualify under
115
CR-07-2147
the defense of insanity. Clayton v. State, 45 Ala.
App. 127, 131, 226 So. 2d 671 (1969).
"'Where by "moral insanity" is meant a mere
mental depravity, or moral insanity,
so-called, which results not from any
disease of the mind, but from a perverted
condition of the moral system, where the
person is mentally sane, this does not
exempt one from responsibility for crimes
committed under its influence.' 22 C.J.S.
Criminal Law, Section 63 (1961).
"'High temper, hot blood, and passion, whether
of an amorous nature, or arising from anger, hatred,
jealousy, desire for revenge, or other emotions,
will not excuse the commission of crime.' 22 C.J.S.
Criminal Law, Section 63. 'Unusual or "weird"
behavior alone cannot be equated with mental
incompetency or insanity.' Carey v. State, 361 So.
2d 1176, 1179 (Ala. Cr. App. 1978), cert. denied,
374 So. 2d 332 (Ala. 1979)."
Brackin v. State, 417 So. 2d 602, 604 (Ala. Crim. App. 1982).
Here, the circuit court's instruction that unusual or
weird behavior alone cannot be equated with mental incapacity
or insanity
is
consistent with the law.
Further, this
instruction was not, under the facts of the case, misleading
and would not have confused the jury.
Accordingly, the
circuit court committed no error in instructing the jury on
unusual or weird behavior.
116
CR-07-2147
D.
Albarran
next
argues
that
the
circuit
court's
instructions on reasonable doubt lessened the State's burden
of proof.
He specifically objects to the court's use of the
phrases: 1) in describing the evidence that could establish a
reasonable doubt as "if you would be willing to accept such
evidence of that type and character in matters of the highest
importance
to
you
personally";
and
2)
in
describing
a
reasonable doubt as a doubt for which a "rational reason can
be given."
He cites Holland v. United States, 348 U.S. 121
(1954); Cage v. Louisiana, 498 U.S. 39 (1990); and Estelle v.
McGuire, 502 U.S. 62 (1991), in support of his assertion.
The circuit court gave the following instruction on
reasonable doubt:
"The phrase reasonable doubt is somewhat selfexplanatory. Efforts to define this term, however,
do not always clarify the term. A reasonable doubt
is not a mere possible doubt because everything
relating to human affairs is open to some possible
or imaginary doubt.
A reasonable doubt is not a
mere guess or surmise. It does not mean a vague or
arbitrary notion, nor is it -- excuse me -- or a
doubt arising from bare imagination, a mere
possibility, or from fanciful conjecture.
A
reasonable doubt cannot be based upon speculation.
"A reasonable doubt is a doubt based upon logic
and reason. It is an actual doubt based upon the
117
CR-07-2147
evidence, the lack of evidence, or a conflict in the
evidence or a combination thereof.
A reasonable
doubt is a doubt of a fair-minded juror honestly
seeking the truth after careful and impartial
consideration of all of the evidence in the case.
A reasonable doubt is a doubt for which a rational
reason can be given.
"Now, finally, as it relates to the burden of
proof I want to state it to you another way. If you
would be willing to accept such evidence of that
type and character in matters of the highest
importance to you personally then you are so
satisfied to the required degree of beyond a
reasonable doubt."
(R. 3676-78);(emphasis added.)
At the charge conference, defense counsel objected to the
proposed charge on reasonable doubt and cited the United
States Supreme Court's opinion in Cage.
The following then
occurred:
"I'll note that there are two Pattern Jury
Instructions in the State of Alabama regarding
burden of proof and I may just use one of those or
I may merge this one requested with one with part of
what's already written. Okay.
"[Defense counsel]:
(R.
3436.)
However,
Very well."
after
the
circuit
court
gave
its
instructions, defense counsel failed to object.
Accordingly,
this Court reviews this claim for plain error.
See Rule 45A,
Ala. R. App. P.
118
CR-07-2147
This Court has explained:
"'"The Due Process Clause of the Fourteenth
Amendment 'protects the accused against conviction
except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he
is charged.' In re Winship, 397 U.S. 358, 364, 90
S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970). ...
[T]he Court 'made it clear that the proper inquiry
is not whether the instruction "could have" been
applied in an unconstitutional manner, but whether
there is a reasonable likelihood that the jury did
so apply it.' Victor v. Nebraska, 511 U.S. 1, 6,
114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583 (1994)
(quoting Estelle v. McGuire, 502 U.S. 62, 72-73, and
n. 4, 112 S. Ct. 475, 482 and n. 4, 116 L. Ed. 2d
385 (1991), emphasis in original).
Thus, the
constitutional question presented here is whether
there is a reasonable likelihood that the jury
understood the instructions to allow the conviction
based on proof insufficient to meet the Winship
reasonable doubt standard. Victor v. Nebraska; Ex
parte Kirby, 643 So. 2d 587 (Ala.), cert. denied,
[513] U.S. [1023], 115 S. Ct. 591, 130 L. Ed. 2d 504
(1994); Cox v. State, 660 So. 2d 233 (Ala. Cr. App.
1994).
"'"In
reviewing
the
reasonable
doubt
instruction, we do so in the context of the charge
as a whole. Victor v. Nebraska; Baker v. United
States, 412 F.2d 1069 (5th Cir. 1969), cert. denied,
396 U.S. 1018, 90 S. Ct. 583, 24 L. Ed. 2d 509
(1970); Williams v. State, 538 So. 2d 1250 (Ala. Cr.
App. 1988).
So long as the definition of
'reasonable doubt' in the charge correctly conveys
the concept of reasonable doubt, the charge will not
be considered so prejudicial as to mandate reversal.
Victor v. Nebraska; Holland v. United States, 348
U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954)."'"
119
CR-07-2147
Lewis v. State, 24 So. 3d 480, 518-19 (Ala. Crim. App. 2006)
(quoting Lee v. State, 898 So. 2d 790, 841-42 (Ala. Crim. App.
2001), quoting in turn Knotts v. State, 686 So. 2d 431, 459
(Ala. Crim. App. 1995)).
First, contrary to Albarran's assertion on appeal, the
circuit court's instruction that "[i]f you would be willing to
accept such evidence of that type and character in matters of
the highest importance to you personally then you are so
satisfied to the required degree of beyond a reasonable doubt"
did not conflict with Holland v. United States, 348 U.S. 121,
140 (1954).
In Holland, the Supreme Court reviewed the
following jury instruction describing reasonable doubt: "the
kind of doubt ... which you folks in the more serious and
important affairs of your own lives might be willing to act
upon."
Id.
The Court held that "this section of the charge
should have been in terms of the kind of doubt that would make
a person hesitate to act ... rather than the kind on which he
would be willing to act. But we believe that the instruction
as given was not of the type that could mislead the jury into
finding no reasonable doubt when in fact there was some." Id.
(emphasis added and citation omitted).
120
Here, the circuit
CR-07-2147
court's instruction did
not relate to the type of doubt that
would cause a person to act.
Instead, the circuit court
explained that the type of evidence relied upon by the State
must be of the type that the juror's "would be willing to
accept such evidence ... in matters of the highest importance
to
you
personally."
Because
the
circuit
court
was
not
referring to the type of doubt that would cause a person to
act, Holland does not apply.
Second, the circuit court's instruction that a reasonable
doubt is a doubt that may arise from "the evidence, the lack
of evidence, or a conflict in the evidence or a combination
thereof" and that it is one for which a "rational reason can
be given," did not lower the State's burden of proof in
violation of Cage v. Louisiana, 498 U.S. 39 (1990).
In Cage,
the Supreme Court held that the trial court's instruction
describing
the
doubt
necessary
for
an
acquittal
as
"substantial" and "grave" impermissibly suggested a higher
degree of doubt than is required for an acquittal under the
reasonable-doubt standard.
Victor v. Nebraska,
Cage, 498 U.S. at 41.
But see
511 U.S. 1, 20 (1994) (holding that an
instruction that defines reasonable doubt as a substantial
121
CR-07-2147
doubt is not unconstitutional when substantial refers to the
existence of doubt as opposed to the magnitude of doubt).
Here, the circuit court's instruction that a reasonable doubt
is a doubt that may arise from "the evidence, the lack of
evidence, or a conflict in the evidence or a combination
thereof," but is one for which a "rational reason can be
given,"
did
not
suggest
a
necessary for an acquittal.
higher
degree
of
doubt
than
Instead, it merely conveyed the
message that the State's burden is beyond a reasonable doubt
as opposed to beyond all doubt.
Finally, this Court has thoroughly reviewed the circuit
court's instructions on reasonable doubt and holds that there
is no reasonable likelihood that the jury applied those
instructions in a manner that would unconstitutionally lower
the State's burden of proof.
"The jury could not have
interpreted the trial court's instruction to allow a finding
of guilt based upon a degree of proof below that mandated by
the United States Constitution."
480,
519
(Ala.
Crim.
App.
Lewis v. State, 24 So. 3d
2006).
Because
there
is
no
reasonable likelihood that the jury applied the instructions
in such a manner as to lessen the State's burden of proof,
122
CR-07-2147
this Court holds that there was no error, plain or otherwise,
in the circuit court's instructions.
E.
Albarran further argues that the circuit court erred in
refusing to give
a jury instruction
on
the "absence of
flight."
At the charge conference, defense counsel requested an
instruction on the "absence of flight."
The circuit court
noted that there was no authority to support the giving of
that instruction and declined to include it in her charge to
the jury.
(R. 3441.)
Albarran re qu es ted the following
instruction:
"The absence of flight of a person or the failure of
a person to attempt to evade the police immediately
after the commission of the acts leading to an
arrest, if the person had the opportunity to flee,
is a matter to consider in light of all the
circumstances, in deciding whether or not the
defendant's guilty has been proven beyond a
reasonable doubt."
(C.R. 295.)
Alabama
has
never
specifically
addressed
whether
a
defendant is entitled to a jury instruction on "absence of
flight." However, this Court agrees with the reasoning of the
Pennsylvania Superior Court:
123
CR-07-2147
"While a 'flight' instruction, whereby a jury may
infer consciousness of guilt from an attempt to
flee, is well established in this Commonwealth, see
Pa. S.S.J.I. (Crim) 3.14; Commonwealth v. Bruce, 717
A.2d 1033 (Pa. Super. 1998), appeal denied, 568 Pa.
643, 794 A.2d 359 (1999), there is no authority for
a corresponding but inverse 'absence of flight'
instruction. Indeed, Appellant cites no authority
for his notion. Other states that have addressed
the issue, however, have uniformly rejected it. See
e.g. Smith v. U.S., 837 A.2d 87, 100 (D.C. 2003),
cert. denied, 541 U.S. 1081, 124 S. Ct. 2435, 158 L.
Ed. 2d 996 (2004); People v. Williams, 55 Cal. App.
4th 648, 64 Cal. Rptr. 2d 203, 205 (1997); State v.
Pettway, 39 Conn. App. 63, 664 A.2d 1125, 1134
(1995), appeal denied, 235 Conn. 921, 665 A.2d 908
(1995); State v. Walton, 159 Ariz. 571, 769 P.2d
1017, 1030 (1989), affirmed, 497 U.S. 639, 110 S.
Ct. 3047, 111 L. Ed. 2d 511 (1990); State v.
Mayberry, 411 N.W.2d 677, 684 (Iowa 1987).
"....
"[T]he
'absence
of
flight'
instruction
is
unnecessary because, from the outset, an individual
is presumed innocent until proven guilty and the
jury is so instructed. Pa. S.S.J.I. (Crim) 7.01.
Because the defendant is already 'clothed with a
presumption
of
innocence,'
[Commonwealth
v.]
Collins, [810 A.2d 698 (Pa. Super. 2002)] at 701
(citing Commonwealth v. Bishop, 472 Pa. 485, 372
A.2d 794, 796 (1977)), the jury need not be
additionally charged on an inference of innocence
where a suspect does not flee."
Commonwealth v. Hanford, 937 A.2d 1094, 1097-98 (Pa. Super.
2007).
See State v. Jennings, 19 Conn. App. 265,
273, 562 A.
2d 545, 549 (1989) ("The failure to flee, like voluntary
surrender, 'is not a theory of defense from which, as a matter
124
CR-07-2147
of
law,
an
inference
of
innocence
may
be
drawn
by
the
and
the
jury.'").
Because
the
defendant
is
presumed
innocent
absence of flight "is not a theory of defense from which ...
an inference of innocence may be drawn by the jury," Jennings,
19 Conn. App. at 273, 562 A. 2d at 549, the circuit court did
not err in denying Albarran's request for an "absence of
flight" instruction.
XV.
Albarran next argues that the circuit court erred in
denying his motion for a new trial after it was discovered
that the jury foreperson, E.M., failed to accurately answer a
question on her juror questionnaire.
The record shows that 200 prospective jurors were called
for jury service for Albarran's trial.
(C.R. 340.)
After
excusing jurors for health and undue-hardship reasons, 183
jurors
remained.
(R.
460.)
These
prospective
jurors
completed a 35-page juror questionnaire that contained 116
questions,
many
of
which
had
numerous
sub-parts.
After
reviewing the questionnaires, the number of prospective jurors
was
reduced
to
114.
Defense
125
counsel
moved
to
conduct
CR-07-2147
individual voir dire of the prospective jurors on certain
issues and stated:
"Then we've got the ones like that have
connections to family and stuff like victims of crime.
We're
willing to give up practically all of the individual voir dire
on that and just hone" in on their feelings toward the death
penalty.
(R. 517.)
The jury-selection process consists of 7
volumes of the 32-volume record, and the majority of it
focused on the juror's views on capital punishment.
Here, Albarran moved for a new trial after learning that
E.M. failed to disclose that she had been the victim of a
crime.
Albarran argued in his motion for a new trial that
E.M. failed to disclose that her husband had assaulted her
approximately 19 months before trial.
When
reviewing
a
juror-misconduct
claim,
this
Court
applies the standard articulated by the Alabama Supreme Court
in Ex parte Dixon, [Ms. 1071564, June 30, 2010] ___ So. 3d ___
(Ala. 2010):
"In [Ex parte] Dobyne, [805 So. 2d 763 (Ala.
2001),] this Court explained the standard for
granting a new trial based on a juror's failure to
answer questions on voir dire truthfully:
"'The proper standard for determining
whether juror misconduct warrants a new
trial, as set out by this Court's
126
CR-07-2147
precedent, is whether the misconduct might
have prejudiced, not whether it actually
did prejudice, the defendant. See Ex parte
Stewart, 659 So. 2d 122 (Ala. 1993)....
The "might-have-been-prejudiced" standard,
of course, casts a "lighter" burden on the
defendant
than
the
actual-prejudice
standard. See Tomlin v. State, supra, 695
So. 2d [157] 170 [(Ala. Crim. App. 1996)].
...
"'It is true that the parties in a
case are entitled to true and honest
answers to their questions on voir dire, so
that they may exercise their peremptory
strikes wisely....
However, not every
failure to respond properly to questions
propounded during voir dire "automatically
entitles [the defendant] to a new trial or
reversal of the cause on appeal." Freeman
v. Hall, 286 Ala. 161, 166, 238 So. 2d 330,
335 (1970).... As stated previously, the
proper standard to apply in determining
whether a party is entitled to a new trial
in this circumstance is "whether the
defendant might have been prejudiced by a
veniremember's failure to make a proper
response." Ex parte Stewart, 659 So. 2d at
124. Further, the determination of whether
a party might have been prejudiced, i.e.,
whether there was probable prejudice, is a
matter within the trial court's discretion.
...
"'"The
determination
of
whether the complaining party was
prejudiced by a juror's failure
to answer voir dire questions is
a matter within the discretion of
the trial court and will not be
reversed unless the court has
abused its discretion. Some of
127
CR-07-2147
the factors that this Court has
approved for using to determine
whether
there
was
probable
prejudice
include:
'temporal
remoteness of the matter inquired
about, the ambiguity of the
question
propounded,
the
prospective juror's inadvertence
or willfulness in falsifying or
failing to answer, the failure of
the juror to recollect, and the
materiality
of
the
matter
inquired about.'"
"'Union Mortgage Co. v. Barlow, 595 So. 2d
[1335] at 1342-43 [(Ala. 1992)]....
"'The form of prejudice that would
entitle a party to relief for a juror's
nondisclosure or falsification in voir dire
would be its effect, if any, to cause the
party to forgo challenging the juror for
cause or exercising a peremptory challenge
to strike the juror. Ex parte Ledbetter,
404 So. 2d 731 (Ala. 1981)....
If the
party
establishes
that
the
juror's
disclosure of the truth would have caused
the
party
either
to
(successfully)
challenge the juror for cause or to
exercise a peremptory challenge to strike
the juror, then the party has made a prima
facie showing of prejudice.
Id.
Such
prejudice can be established by the obvious
tendency of the true facts to bias the
juror, as in Ledbetter, supra, or by direct
testimony of trial counsel that the true
facts would have prompted a challenge
against the juror, as in State v. Freeman,
605 So. 2d 1258 (Ala. Crim. App. 1992).'
"Dobyne, 805 So. 2d at 771-73 (footnote omitted;
emphasis added).
128
CR-07-2147
Dixon, ___ So. 3d at ___.
"While we agree ... that a juror's silence during
voir dire could be a basis for granting a new trial,
we must stress that the initial decision on this
issue is within the trial court's sound discretion.
Hayes v. Boykin, 271 Ala. 588, 126 So. 2d 91 (1960).
Further, the trial court's decision on this matter
will not be disturbed on appeal unless the appellant
establishes that the decision was arbitrarily
entered into or was clearly erroneous. Id."
Carter v. Henderson, 598 So. 2d 1350, 1354 (Ala. 1992).
"[N]ot every failure of a venireman to respond correctly to a
voir dire question will entitle the losing party to a new
trial." Wallace v. Campbell, 475 So. 2d 521, 522 (Ala. 1985).
"It is not 'any failure of any prospective juror
to respond properly to any question regardless of
the excuse or circumstances [that] automatically
entitles a party to new trial or reversal of the
cause on appeal.' Freeman v. Hall, 286 Ala. 161,
166, 238 So. 2d 330 (1970) (emphasis in original)."
Washington v. State, 539 So. 2d 1089, 1095
1988).
"[T]he
facts
in
each
case
must
(Ala. Crim. App.
be
considered
individually and much will remain in the discretion of the
trial judge."
Parish v. State, 480 So. 2d 29, 32 (Ala. Crim.
App. 1985).
129
CR-07-2147
This
Court
questionnaire.7
has
reviewed
the
challenged
juror's
For question number 35, E.M. responded that
she had never been the victim of a crime.
Question number 36
read: "Have you, or anyone close to you, ever been accused of,
arrested or charged with a criminal offense?"
E.M. initially
checked the "no" box, but scratched that out and checked the
"yes" box.
In the explanation section she said that her
husband had been accused of domestic assault, that he had been
arrested, that there was no trial and no conviction, and that
as a result of the arrest he was placed in anger management
counseling.
Below this section of the questionnaire, E.M.
indicated that she believed that her husband had been treated
fairly by the criminal justice system. E.M. also indicated in
the first section of the questionnaire that she had been
married over nine years.
E.M.'s questionnaire shows that she
answered most of the questions very candidly.
evidence indicating
There is no
that E.M. deliberately concealed
the
domestic-assault charge.
7
This questionnaire was sealed by the circuit court and
forwarded to this Court at our request.
130
CR-07-2147
At the hearing on the motion for a new trial, it was
disclosed that E.M. had been the victim of the domestic
assault for which her husband had been charged in municipal
court.
The charges had been nolle prossed.
Apparently, the
alleged assault occurred about 19 months before Albarran's
trial.
E.M. was not called to testify at the hearing,
although it appears from the record that she was available to
testify.
Thus, this Court does not know if, or why, E.M.
answered "no" to question 35 on her questionnaire.
The
prosecutor noted that "because of the juror's answer to
question number 36 it does necessarily imply that there was
not some kind of purposeful attempt on that juror's part to be
deceitful in the preceding question, 35." (R. 4321.)
The
prosecutor also argued that it was clear after examining
E.M.'s questionnaire that E.M. had been the victim of her
husband's domestic-assault charge.
When
responding
to
defense
counsel's
argument,
prosecutor stated:
"As noted in the State's response, and probably
the best place for us to start is that there
remained, in addition to the anonymous juror, seven
other jurors that remained on the panel that were of
the 16 that answered affirmatively to the question,
'Have you ever been the victim or a witness to a
131
the
CR-07-2147
crime?'
Some of which were victims of violent
crimes and those persons remained on the panel.
"For the same reasons espoused as to why the
anonymous juror would be struck by defense, the
State is -- well, the State is of a mind to disagree
that that would have been the defense's tact because
they did, in fact, leave seven other jurors who
answered yes to question number 35 on the panel.
"In addition, the State would submit that the
defense actually believed the anonymous juror to be
perhaps a favorable juror to the Defendant. And the
State goes through -- I'm not sure I want to detail
all of the answers to those questions, but, for
instance, that particular juror noted that they
might receive some negative feedback from their
friends, from their clergy if they were to vote for
death.
"....
"[Question] 99(c) the juror admitted that
relatives and close friends would criticize her if
she voted for the death penalty for going against
the church's teachings, and that's a quote.
"And, 104, the juror indicated that nothing
about the charges or facts caused her any doubt as
to her ability to be fair and impartial.
"Now, this all flies in the face of question
number 36, where this particular juror really
answered question number 35 as well, where she
detailed that her husband had been charged and
arrested for domestic violence....
And question
number 36, you know, it at least would allow the
defense to deduce that they needed to follow-up some
more with some more questions during voir dire. The
fact that they didn't I think further supports the
idea that the defense actually believed this
particular juror to be a possible favorable juror
132
CR-07-2147
for the verdict and sentence that the defense was
trying to get from this -- from this panel or from
the inevitable panel.
"....
"There's no indication at all here that the -- that
this particular juror was willfully trying to
deceive anybody. And that's indicated by her answer
to question number 36 where she -- she clearly
stated to all of us that this had happened in her
life, at least, or to her husband."
(R. 4306-11.)
"We are mindful of the heavy responsibility
placed on the trial court to maintain the statutory
right which parties have to a full and truthful
disclosure by jurors on voir dire. However, we must
also be aware of inadvertent concealment and failure
to recollect on the part of prospective jurors."
Freeman v. Hall, 286 Ala. 161, 167, 238 So. 2d 330, 336
(1970).
Given the unique circumstances presented in this
case, this Court cannot say that the circuit court erred in
denying Albarran relief on this claim.
Here, the prospective
juror's inaccurate response regarding her prior victimization
appears to have been inadvertent, and her responses to other
questions should have led counsel, if they were concerned with
the matter in question, to ask follow-up questions.
Further,
the record indicates that defense counsel were not concerned
with prospective jurors' prior victimizations because counsel
133
CR-07-2147
did not strike a number of other potential jurors who had been
victims of violent crimes.
Ex parte Dixon, ___ So. 3d at ___
("The form of prejudice that would entitle a party to relief
for a juror's nondisclosure or falsification in voir dire
would be its effect, if any, to cause the party to forgo
challenging the juror for cause or exercising a peremptory
challenge to strike the juror." (citations and quotations
omitted)).
Based on these facts, this Court cannot say that
the circuit court abused its discretion in denying Albarran's
motion for a new trial.
Penalty-Phase Issues
XVI.
Albarran next
unconstitutional
argues that
under
his sentence
of
the United States Supreme
death is
Court's
decision in Atkins v. Virginia, 536 U.S. 304 (2002), because
he is mentally retarded.
Albarran further contends that the
circuit court abused its discretion in sentencing him to death
because he established by a preponderance of the evidence that
he is mentally retarded.
In Atkins, the United States Supreme Court held that the
execution of mentally retarded capital offenders violates the
134
CR-07-2147
Eighth
Amendment's
prohibition
punishment.
Id. at 321.
establish
national
a
of
cruel
and
unusual
The Court, however, declined to
standard
for
determining
whether
a
capital offender is mentally retarded and, instead, left to
the states "the task of developing appropriate ways to enforce
the
constitutional
sentences."
restriction
upon
their
execution
of
Id. at 317.
The Alabama Legislature has not yet established a method
for
determining
whether
a
capital
defendant
is
mentally
retarded and, thus, ineligible for a sentence of death.
"However, the Alabama Supreme Court, in Ex parte Perkins, 851
So. 2d 453 (Ala. 2002), adopted the most liberal definition of
mental retardation as defined by those states that have
legislation barring the execution of a mentally retarded
individual." Byrd v. State, [Ms. CR-07-0113, May 1, 2009] ___
So.
3d
___,
___
(Ala.
Crim.
App.
2009)
(citations
and
quotations omitted); see also Smith v. State, [Ms. 1060427,
May 25, 2007] ___ So. 3d ___, ___ (Ala. 2007) ("Until the
legislature
defines
mental
retardation
for
purposes
of
applying Atkins, this Court is obligated to continue to
operate under the criteria set forth in Ex parte Perkins.").
135
CR-07-2147
Pursuant to Ex parte Perkins, "to be considered mentally
retarded,
[a
capital
defendant]
must
have
significantly
subaverage intellectual functioning (an IQ of 70 or below),
and significant or substantial deficits in adaptive behavior."
Ex parte Perkins, 851 So. 2d at 456; see also Atkins, 536 U.S.
at 321 n.5.; Holladay v. Allen, 555 F.3d 1346, 1353 (11th Cir.
2009) ("According to literature in the field, significant or
substantial deficits in adaptive behavior are defined as
'concurrent
deficits
or
impairments
in
present
adaptive
functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional
academic skills, work, leisure, health and safety.' American
Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders, 39 (4th ed.1994)").
deficits]
must
have
manifested
Further, "these [two
themselves
during
the
developmental period (i.e., before the defendant reached age
18)."
Ex parte Perkins, 851 So. 2d at 456; Brownlee v. Haley,
306 F.3d 1043, 1073 (11th Cir. 2002) (recognizing that mental
retardation generally requires a showing of an IQ of 70 or
below, significant limitations in adaptive skills, and the
136
CR-07-2147
manifestation of these two deficits during the developmental
years). "Therefore, in order for an offender to be considered
mentally retarded in the Atkins context, the offender must
currently
exhibit
subaverage
intellectual
functioning,
currently exhibit deficits in adaptive behavior, and these
problems must have manifested themselves before the age of
18."
Smith v. State, [Ms. 1060427, May 25, 2007] ___ So. 3d
at ___; see also Byrd v. State, [Ms. CR-07-0113, May 1, 2009]
___ So. 3d at ___ (same); cf. Ex parte Perkins,
851 So. 2d at
456 (holding that Perkins was not mentally retarded because,
among other reasons, Perkins's full-score adult IQ was 76);
Roper v. Simmons, 543 U.S. 551, 578-79 (2005) (focusing on
defendants' culpability "when their crimes were committed").
"'In the context of an Atkins claim, the defendant has
the burden of proving by a preponderance of the evidence that
he or she is mentally retarded.'"
Byrd, ___ So. 3d at ___
(quoting Smith, ___ So. 3d at ___). "The question of [whether
a capital defendant is mentally retarded] is a factual one,
and as such, it is the function of the factfinder, not this
Court, to determine the weight that should be accorded to
expert testimony of that issue."
137
Byrd, ___ So. 3d at ___
CR-07-2147
(citations and quotations omitted).
Court
has
explained,
questions
As the Alabama Supreme
regarding
weight
and
credibility determinations are better left to the circuit
courts, "'which [have] the opportunity to personally observe
the witnesses and assess their credibility.'" Smith v. State,
___ So. 3d at ___ (quoting Smith v. State, [Ms. CR-97-1258,
Sept. 29, 2006] ___ So. 3d. ___, ___ (Ala. Crim. App. 2006)
(Shaw, J., dissenting) (opinion on return to third remand)).
"This court reviews the circuit court's findings of fact
for an abuse of discretion." Byrd, ___ So. 3d at ___ (citing
Snowden v. State, 968 So. 2d 1004, 1012 (Ala. Crim. App.
2006)).
"'"'"A judge abuses his discretion only when his
decision is based on an erroneous conclusion of law or where
the record contains no evidence on which he rationally could
have based his decision."'"'" Byrd, ___ So. 3d at ___ (quoting
Hodges v. State, 926 So. 2d 1060, 1072 (Ala. Crim. App. 2005),
quoting in turn State v. Jude, 686 So. 2d 528, 530 (Ala. Crim.
App. 1996), quoting in turn Dowdy v. Gilbert Eng'g Co., 372
So. 2d 11, 12 (Ala. 1979), quoting in turn Premium Serv. Corp.
v. Sperry & Hutchinson, Co., 511 F.2d 225 (9th Cir. 1975)).
138
CR-07-2147
Applying these principles, this Court concludes that the
circuit court did not abuse its discretion when it determined
that Albarran is not mentally retarded and, thus, is eligible
for a sentence of death. At the sentencing hearing before the
court,
Albarran
Weinstein,
a
presented
forensic
the
testimony
neuropsychologist.
of
Dr.
Dr.
Ricardo
Weinstein
testified that he conducted four different tests on Albarran
and administered the Spanish version of the WAIS test to
Albarran and that Albarran's full-scale IQ was 71. He further
testified that based on the "Flynn effect," Albarran's IQ was
around 68, and that given the margin of error, he believed
that Albarran's IQ was actually between 63 and 73.
According
to Dr. Weinstein, a person is mildly mentally retarded if that
person has an IQ of between 55 and 75.8
He said that he
evaluated numerous records and spoke to some of Albarran's
family members.
He said that Albarran was slow to learn, was
socially withdrawn, had problems with learning skills, and,
though he had completed the equivalent of the 9th grade,
8
Alabama has not adopted Dr. Weinstein's definition.
Ex parte Perkins, 851 So. 2d 453, 456 (Ala. 2002).
139
See
CR-07-2147
performed
at
a
4th-grade
level.
Dr.
Weinstein
further
testified:
"[I]t's my opinion to a high degree of scientific
certainty that Mr. Albarran fulfills the definition
of mental retardation according to the DSM-IV
[Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition] and the AAIDD [American
Association on Intellectual and Developmental
Disabilities].
In addition he suffers from
significant brain disfunction [sic] with particular
compromise to the frontal lobes. As a result his
judgment and impulse control are severely affected."
(R. 4388.)
The cross-examination of Dr. Weinstein was extensive.
The State presented evidence indicating that Dr. Weinstein
was personally opposed to capital punishment.
Dr. Weinstein
also admitted that Albarran was depressed when he took the IQ
tests and that depression may affect some areas of IQ scores.
He also testified that Albarran "has quite a bit of adaptive
functioning." (R. 4445.) Dr. Weinstein further admitted that
he was aware of studies that were conducted and published that
showed that subsequent to Atkins, defendants were faking their
IQ scores.
The record indicates Albarran had been employed for most
of
his adult life.
While in Mexico, he started his own farm.
Further, the record indicates that Albarran was the manager of
140
CR-07-2147
a restaurant. The State also presented the testimony of Roger
Durr, an employee of Supreme Beverage Company, and Rodney
Reece, a supervisor with Turner Beverage Company.
Both
testified that they made frequent deliveries to the El Jalisco
restaurant, that Albarran would make the orders and pay and
sign for the deliveries, and that in the time they were around
Albarran, he never
appeared slow
or
to
have any
mental
problems.
The record further shows that Albarran had maintained
long-term relationships.
Albarran had been married for over
11 years and had a daughter, who was 11 years old at the time
of the offense.
Albarran's four sisters and one brother, who
all testified at the sentencing hearing, portrayed Albarran as
a loving father who worked hard to support his family.
Three
of his siblings read letters that Albarran had written to
them.
The letters reflected a close-knit family and showed
Albarran as a considerate and loving brother.
Albarran wrote
to his brother to thank him for looking after his daughter.
It is clear from their testimony that Albarran maintained a
close relationship with his siblings.
141
CR-07-2147
Dr. Hooper testified at the guilt phase for the State.
Dr. Hooper testified that Albarran was admitted to Taylor
Hardin in November 2007 and that he remained there for 26
days.
He testified that in the period Albarran was at Taylor
Hardin,
"[t]here
was
no
evidence
of
any
abnormality
of
thought, behavior, interactions or anything else," (R. 3252),
and Albarran showed "no evidence of any mental problem."
3265.)
(R.
Dr. Hooper further testified that Albarran told him:
"'I had hallucinations of the Devil before I pulled the
trigger. The doctor who examined me for my attorney says that
I will have a not guilty by reason of insanity.'"
(R. 3264.)
Also, there were no records that showed any type of
testing that was conducted on Albarran before he reached the
age of 18.
There were no school records, medical records, or
any other documents that reflected that Albarran's alleged
mental condition manifested itself before the age of 18.
See
Nava Feldman, Annot., Application of Constitutional Rule of
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d
335
(2002),
that
Execution
of
Mentally
Retarded
Person
Constitutes 'Cruel and Unusual Punishment' in Violation of
Eighth Amendment, 122 A.L.R. 5th 145 (2004).
142
First, this
CR-07-2147
Court cannot, based on the record, say that the circuit court
abused its discretion in determining that Albarran failed to
meet the definition of mental retardation adopted by the
Alabama Supreme Court in Perkins based on Albarran's IQ score.
Dr. Weinstein testified that Albarran's full-scale IQ was 71.
Although Dr. Weinstein also testified that, when adjusted for
the "Flynn effect," Albarran's IQ was around 68, the circuit
court could have reasonably rejected the "Flynn effect"9 and
determined that Albarran's IQ was 71.
Gray v. Epps, 616 F. 3d
436, 446 n. 9 (5th Cir. 2010) (quoting In re Mathis, 483 F.3d
395, 398 n.1 (5th Cir. 2007) ("[T]he Flynn Effect 'has not
been accepted in this Circuit as scientifically valid.'"));
Bowling v. Commonwealth, 163 S.W.3d 361, 375 (Ky. 2005)
(holding that "Atkins did not discuss margins of error or the
'Flynn
effect'
and
held
that
9
the
definition
[of
mental
"The so-called 'Flynn effect' is a phenomenon positing
that, over time, standardized IQ test scores tend to increase
with the age of the test without a corresponding increase in
actual intelligence in the general population.
Those who
follow the Flynn effect adjust for it by deducting from the IQ
score a specified amount for each year since the test was
normalized." Wiley v. Epps, 625 F.3d 199, 203 n.1 (5th Cir.
2010) (citing In re Salazar, 443 F.3d 430, 433 n.1 (5th Cir.
2006)).
143
CR-07-2147
retardation] in KRS 532.130(2) 'generally conform[ed]' to the
approved clinical definitions" so the court could not consider
the Flynn effect); Thomas v. Allen, 607 F. 3d 749, 758 (11th
Cir. 2010) ('[T]here is no uniform consensus regarding the
application of the Flynn effect in determining a capital
offender's intellectual functioning, and there is no Alabama
precedent specifically discounting a court's application of
the Flynn effect....").
Because the circuit court could have
reasonably determined that Albarran's IQ was 71, a score that
places him outside the Alabama Supreme Court's definition of
mental retardation, this Court cannot say that the circuit
court abused its discretion in denying Albarran's Atkins
motion.
Likewise, the circuit court could have, based on the
record, found that Albarran failed to meet his burden to
establish
significant
deficits
in
adaptive
behavior. The
circuit court was presented with evidence from individuals who
dealt with Albarran on a regular basis and from a mentalhealth expert indicating that Albarran appeared normal.
The
circuit court had information indicating that Albarran was the
manager of a restaurant and that he regularly conducted
144
CR-07-2147
business for the restaurant.
The circuit court was aware of
articulate letters Albarran had written his family. Testimony
was presented that Albarran had owned his own farm while he
was
in
Mexico.
illegally
enter
Albarran
into
the
also
United
successfully
States
managed
multiple
to
times.
Finally, the record establishes that Albarran maintained a
close relationship with his family, that he was married, and
that he had helped raise his 11-year-old daughter.
Based on
this evidence, this Court cannot say that the circuit court
abused its discretion in determining that Albarran failed to
meet his burden to establish significant deficiencies in
adaptive behavior.
See Byrd, ___ So. 3d at ___ (holding that
"[a] judge abuses his discretion only when his decision is
based on an erroneous conclusion of law or where the record
contains no evidence on which he rationally could have based
his decision") (citations and quotations omitted).
XVII.
Albarran next argues that his death sentence violates the
United States Supreme Court holding in Ring v. Arizona, 536
U.S. 584 (2002), and is due to be vacated.
145
CR-07-2147
The United
States Supreme
Court
in
Apprendi
v.
New
Jersey, 530 U.S. 466 (2000), held that any fact that increases
the maximum punishment must be presented to a jury and proven
beyond a reasonable doubt.
This holding was extended to
death-penalty cases in Ring v. Arizona.
In this case, the jury specifically found that the murder
was especially heinous, atrocious, or cruel.
(R. 4293.)10
This finding, found by the jury to exist beyond a reasonable
doubt, made Albarran eligible to receive the death penalty.
Thus, the requirements of Ring were satisfied.
See also
Kimberly J. Winbush, Annot., Application of Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)
and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d
556 (2002) to State Death Penalty Proceedings, 110 A.L.R. 5th
1 (2003).
10
The foreman read this finding when the jury returned its
verdict.
The jury was instructed on two aggravating
circumstances -- § 13A-5-49(5), Ala. Code 1975, "The capital
offense was committed for the purpose of avoiding or
preventing a lawful arrest or effecting an escape from
custody," and § 13A-5-49(8), Ala. Code 1975, "The capital
offense was especially heinous, atrocious, or cruel compared
to other capital offenses."
The jury found the existence of
one aggravating circumstance.
146
CR-07-2147
Moreover, in Ex parte Waldrop, 859 So. 2d 1181 (Ala.
2002), the Alabama Supreme Court stated:
"Contrary to [the appellant's] argument, the
weighing process is not a factual determination. In
fact,
the
relative
'weight'
of
aggravating
circumstances and mitigating circumstances is not
susceptible to any quantum of proof. As the United
States Court of Appeals for the Eleventh Circuit
noted, 'While the existence of an aggravating or
mitigating circumstance is a fact susceptible to
proof under a reasonable doubt or preponderance
standard ... the relative weight is not.' Ford v.
Strickland, 696 F.2d 804, 818 (11th Cir. 1983).
This
is
because
weighing
the
aggravating
circumstances and the mitigating circumstances is a
process in which 'the sentencer determines whether
a defendant eligible for the death penalty should in
fact
receive
that
sentence.'
Tuilaepa
v.
California, 512 U.S. 967, 972, 114 S. Ct. 2630, 129
L. Ed. 2d 750 (1994). Moreover, the Supreme Court
has held that the sentencer in a capital case need
not even be instructed as to how to weigh particular
facts when making a sentencing decision. See Harris
v. Alabama, 513 U.S. 504, 512, 115 S. Ct. 1031, 130
L. Ed. 2d 1004 (1995) (rejecting 'the notion that "a
specific method for balancing mitigating and
aggravating
factors
in
a
capital
sentencing
proceeding is constitutionally required"' (quoting
Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S. Ct.
2320, 101 L. Ed. 2d 155 (1988)) and holding that
'the Constitution does not require a State to
ascribe any specific weight to particular factors,
either in aggravation or mitigation, to be
considered by the sentencer').
"Thus, the weighing process is not a factual
determination or an element of an offense; instead,
it is a moral or legal judgment that takes into
account a theoretically limitless set of facts and
that cannot be reduced to a scientific formula or
147
CR-07-2147
the discovery of a discrete, observable datum. See
California v. Ramos, 463 U.S. 992, 1008, 103 S. Ct.
3446, 77 L. Ed. 2d 1171 (1983) ('Once the jury finds
that the defendant falls within the legislatively
defined category of persons eligible for the death
penalty, ... the jury then is free to consider a
myriad of factors to determine whether death is the
appropriate punishment.'); Zant v. Stephens, 462
U.S. 862, 902, 103 S. Ct. 2733, 77 L. Ed. 2d 235
(1983) (Rehnquist, J., concurring in the judgment)
('sentencing decisions rest on a farbl-reaching
inquiry into countless facts and circumstances and
not on the type of proof of particular elements that
returning a conviction does')."
859 So. 2d at 1189 (footnote omitted).
Because the jury unanimously found that the murder was
especially heinous, atrocious, or cruel, it found a fact
necessary to make Albarran eligible for a sentence of death.
(R. 4293.).
Accordingly, Albarran's death sentence complies
with the United States Supreme Court's holding in Ring, and
Albarran is due no relief on this issue.
XVIII.
Albarran argues that evolving standards of decency have
rendered Alabama's method of execution -- lethal injection -cruel and unusual punishment.
This issue has been addressed by both the Alabama Supreme
Court and the United States Supreme Court.
148
In Ex parte
CR-07-2147
Belisle, 11 So. 3d 323 (Ala. 2008), the Alabama Supreme Court
stated:
"The Supreme Court upheld the constitutionality
of Kentucky's method of execution, Baze [v. Rees,
553 U.S. 35, 62,] 128 S. Ct. [1520] 1538 [(2008)],
and noted that '[a] State with a lethal injection
protocol substantially similar to the protocol we
uphold today would not create a risk that meets this
standard.' Baze, [553 U.S. at 61], 128 S. Ct. at
1537. Justice Ginsburg and Justice Souter dissented
from the main opinion, arguing that 'Kentucky's
protocol lacks basic safeguards used by other States
to confirm that an inmate is unconscious before
injection of the second and third drugs.'
Baze,
[553 U.S. at 114], 128 S. Ct. at 1567 (Ginsburg, J.,
dissenting).
The dissenting Justices recognized,
however, that Alabama's procedures, along with
procedures used in Missouri, California, and Indiana
'provide a degree of assurance--missing from
Kentucky's protocol--that the first drug had been
properly administered.'
Baze, [553 U.S. at 121],
128 S. Ct. at 1571 (Ginsburg, J., dissenting).
"The State argues, and we agree, that Belisle,
like the inmates in Baze, cannot meet his burden of
demonstrating
that
Alabama's
lethal-injection
protocol poses a substantial risk of harm by
asserting the mere possibility that something may go
wrong. 'Simply because an execution method may
result in pain, either by accident or as an
inescapable consequence of death, does not establish
the sort of "objectively intolerable risk of harm"
that qualifies as cruel and unusual.' Baze, [553
U.S. at 50], 128 S. Ct. at 1531. Thus, we conclude
that Alabama's use of lethal injection as a method
of execution does not violate the Eighth Amendment
to the United States Constitution."
149
CR-07-2147
11 So. 3d at 339. See also Vanpelt v. State, [Ms. CR-06-1539,
Dec. 18, 2009] ___ So. 3d ___, ___ (Ala. Crim. App. 2009)
(holding that lethal injection as a means of administering the
death penalty is not unconstitutional).
Because this issue has been raised and rejected by the
Alabama Supreme Court, the United States Supreme Court, and
this Court, it is without merit.
Therefore, Albarran is not
entitled to any relief on this issue.
XIX.
Albarran further argues that the circuit court erred in
failing to prohibit the imposition of the death penalty in
this case because, he argues, Alabama's capital-murder statute
violates
the
Equal
Protection
Clause
of
the
Amendment to the United States Constitution.
Fourteenth
Specifically,
Albarran argues "Alabama's death penalty scheme violates the
Equal Protection Clause because it fails to establish uniform
statewide standards to guide prosecutors in deciding when they
should
seek
the
death
penalty
and
does
not
provide
any
guidance as to what weight the trial court should give the
jury's advisory verdict."
(Albarran's brief, at 129.)
150
CR-07-2147
To the extent that Albarran argues that the prosecutorial
discretion in determining when to seek a death sentence
renders Alabama's death-penalty statute unconstitutional, this
argument was rejected in Gregg v. Georgia, 428 U.S. 153, 199
(1976), and is without merit.
Court
recognized
in
Gregg,
As the United States Supreme
prosecutorial
discretion
is
inherent in criminal cases and does not render a death-penalty
statute unconstitutional.
Id.; See also People v. Hinton, 37
Cal. 4th 839, 913, 126 P.3d 981, 1035 (2006) (holding that
"prosecutorial discretion to determine which defendants merit
the death penalty does not render the scheme invalid"); State
v. Harris, 106 Wash. 2d 784, 794, 725 P.2d 975, 980 (1986)
(holding
that
"[p]rosecutorial
discretion
regarding
the
decision whether to seek the death penalty presents no equal
protection problem").
Accordingly, this argument is without
merit.
To
the
extent
that
Albarran
argues
that
Alabama's
sentencing scheme violates the Equal Protection Clause because
it fails to set forth uniform standards as to how much weight
a jury's sentencing recommendation should be given by the
trial judge, this Court rejected an identical argument in
151
CR-07-2147
Lewis v. State, 24 So. 3d 480, 536 (Ala. Crim. App. 2006).
In
Lewis, this Court explained:
"Lewis also contends that our death-penalty
scheme violates the Equal Protection Clause because,
he says, it is arbitrary and disparate in that it
fails to set forth uniform standards as to the
weight a trial court must give a jury's sentencing
recommendation. As authority for this proposition,
Lewis cites the decision in Bush v. Gore [, 531 U.S.
98, 121 S. Ct. 525 (2000)]. We fail to see how this
decision lends support for Lewis's claim, given that
the Supreme Court took care to state that its
decision was 'limited to the present circumstances,'
noting that 'the problem of equal protection in
election
processes
generally
present
many
complexities.'
531 U.S. at 109, 121 S. Ct. [at
532]. Moreover, in Harris v. Alabama, 513 U.S. 504,
511-15, 115 S. Ct. 1031, 130 L. Ed. 2d 1004 (1995),
the United States Supreme Court rejected a claim
that
Alabama's
death
penalty
statute
was
unconstitutional because it did not specify what
weight the trial court must afford a jury's
recommendation.
Alabama courts have rejected
similar claims that trial judges deprive defendants
of equal protection under the law by employing
different processes in determining what weight to
give a jury's recommendation as to sentencing. See,
e.g., Smith v. State, 756 So. 2d 892, 920 (Ala.
Crim. App. 1997), aff'd, 756 So. 2d 957 (Ala.),
cert. denied, 531 U.S. 830, 121 S. Ct. 82, 148 L.
Ed. 2d 44 (2000). Thus, no basis for reversal exists
as to these claims."
24 So. 3d 480, 536 (Ala. Crim. App. 2006).
See also Mitchell
v. State, [Ms. CR-06-0827, Aug. 27, 2010] ___ So. 3d ___, ___
(Ala. Crim. App. 2010) (same).
152
CR-07-2147
Based on this Court's holding in Lewis, Albarran's equalprotection argument is without merit.
Therefore, Albarran is
not entitled to any relief based on this issue.
XX.
Albarran
next
argues
that
the
circuit
instructions in the penalty phase were flawed.
court's
He makes
several different arguments in support of this contention.
"A trial court has broad discretion when
formulating its jury instructions. See Williams v.
State, 611 So. 2d 1119, 1123 (Ala. Cr. App. 1992).
When reviewing a trial court's instructions, '"the
court's charge must be taken as a whole, and the
portions challenged are not to be isolated therefrom
or taken out of context, but rather considered
together."'
Self v. State, 620 So. 2d 110, 113
(Ala. Cr. App. 1992) (quoting Porter v. State, 520
So. 2d 235, 237 (Ala. Cr. App. 1987)); see also
Beard v. State, 612 So. 2d 1335 (Ala. Cr. App.
1992); Alexander v. State, 601 So. 2d 1130 (Ala. Cr.
App. 1992)."
Williams v. State, 795 So. 2d 753, 780 (Ala. Crim. App. 1999).
A.
First, Albarran asserts that the circuit court erred in
instructing the jury that it could not consider any of his
mitigating evidence. Specifically, he argues that the circuit
court's
instructions
concerning
153
Defense
Exhibit
64
were
CR-07-2147
confusing and precluded the jury from considering mitigating
evidence.
Defense
recording
hearing.
exhibit
was
The
played
first
64
to
is
a 69-minute
the
part
of
jury
the
recording.
during
the
recording
This
sentencing
contains
interview with Albarran's then 11-year-old daughter.
an
She
described her relationship with her father and said that she
was not allowed to see him in prison because you had to be 12
years of age before you could visit.
Next, the recording
shows the rural area where Albarran grew up in Mexico.
narrator asks the jury to spare Albarran's life.
The
Next, a
female resident of the community discusses how she had known
Albarran since he was born and how she would feel if Albarran
was executed.
Next, Albarran's mother testified about the
poverty in the area.
Albarran's cousin and niece next asked
the jury to spare Albarran's life.
The niece detailed the
pain the family would suffer if Albarran was executed.
Other
residents of Albarran's birthplace asked the jury to spare
Albarran's life and stated how they would feel if Albarran was
executed.
The circuit court gave the following instruction in the
penalty phase related to the recording:
154
CR-07-2147
"I want you to understand that the testimony of
Mrs. Golden[, the victim's mother, who testified
concerning the impact of her son's death on her
life,] is what has been referenced here and what is
referenced commonly in the field as victim impact
evidence. Victim impact evidence is not a statutory
aggravating circumstance and is not to be considered
by you as such.
"You have also heard testimony from witnesses on
the stand and witnesses through Defense exhibit 64,
the 69 minute CD or DVD, if you will, that is
commonly referenced in this field as execution
impact evidence. That, ladies and gentlemen, is not
evidence of a mitigating circumstance and is not to
be considered by you as a mitigating circumstance."
(R. 4229.)
Defense counsel objected to the instruction and
stated:
"And the Court's pointing out that as it relates to
the video, which I understand why the Court did
that, but we think that also would be objectionable,
confusing and misleading and against the -"The Court: And I need to state for the record
that the reason that was done was because the
attorneys -referenced execution impact and the
State
objected.
These
jurors
don't
know
specifically what's being referenced regarding
execution impact.
They've heard death by lethal
injection.
They've heard death.
You know, what
execution means to them may be very different than
what it means to all of us. So that was the reason
I specifically referenced Mrs. Golden for victim
impact and the Defendant's 64 for execution impact."
(R. 4254.)
Immediately after giving the challenged instruction the
circuit court said that mitigating circumstances are "anything
155
CR-07-2147
about the character and background of the defendant that
supports a sentence of life without the possibility of parole
as the appropriate sentence in this case." (R. 4229-30.) The
court
had
earlier
circumstances
instructed
include
"any
the
jury
aspect
of
that
the
mitigating
defendant's
character, childhood, maturity, mentality, education, life or
background, any circumstances surrounding the offense and any
other relevant mitigating evidence that you find is supported
by the evidence in this case."
(R. 4226.)
Clearly, the court
instructed the jury that how the defendant's family would be
affected
by
Albarran's
execution
was
not
a
mitigating
circumstance but that it could consider "any aspect of the
defendant's
character,
childhood,
maturity,
mentality,
education, life or background, any circumstances surrounding
the offense."
In Woods v. State, 13 So. 3d 1, 33-34 (Ala. Crim. App.
2007), this Court joined the majority of courts and held that
execution-impact evidence does not support a valid mitigating
circumstance and is irrelevant in the penalty-phase of a
capital-murder
trial
"because
it
does
not
relate
to
a
defendant's character or record or the circumstances of the
crime."
See also Taylor v. State, 666 So. 2d 36, 53 (Ala.
156
CR-07-2147
Crim. App. 1994) (holding that "the opinion of the friends or
relatives of the defendant that the defendant should not be
sentenced to death is not a relevant mitigating circumstance
for the jury to consider at the penalty phase of a capital
case").
As the Arizona Supreme Court aptly stated:
"In capital cases, 'the Eighth and Fourteenth
Amendments require that the sentencer ... not be
precluded from considering, as a mitigating factor,
any aspect of a defendant's character or record and
any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less
than death.' Lockett v. Ohio, 438 U.S. 586, 604, 98
S. Ct. 2954, 57 L. Ed. 2d 973 (1978).
This
requirement,
however,
does
not
limit
'the
traditional authority of a court to exclude, as
irrelevant, evidence not bearing on the defendant's
character, prior record, or the circumstances of his
offense.' Id. at n. 12.
"We have previously held that execution impact
evidence is not relevant to mitigation. [State v.
Roque, 213 Ariz. 193, 222, 141 P.3d 368, 397
(2006)]. In Roque, we upheld the trial court's
exclusion of sections of a letter from the
defendant's sister that 'addressed the suffering of
[defendant's]
family,'
concluding
they
were
'altogether
unrelated
to
defendant,
to
his
character, or to the circumstance of the offense.'
Id. (citation and internal quotations omitted).
Similarly, the trial court did not abuse its
discretion here in excluding the execution impact
evidence."
State v. Chappell, 225 Ariz. 229, 236 P.3d 1176, 1185 (2010).
See also United States v. Umana, [No. 3:08-cr-134, July 27,
2010] ___ F. Supp. 2d ___, ___ (W.D.N.C. 2010) (unpublished
157
CR-07-2147
opinion)("Permitting a capital defendant to argue execution
impact as a mitigating factor would run contrary to the
principles underpinning Payne[ v. Tennessee, 501 U.S. 808
(1991)] ...."); United States v. Taylor, 583 F. Supp. 2d 923,
944 (E.D. Tenn. 2008) ("[T]he testimony [of execution impact
evidence] would be speculative.
While testimony about the
victim's death is based on past events that witnesses can
clearly and accurately testify about, the execution of a
person in the future is a speculative event.");
Jackson v.
Dretke, 450 F.3d 614, 618 (5th Cir. 2006) ("[T]he Supreme
Court has never included friend/family impact testimony among
the
categories
of
mitigating
evidence
that
must
be
admitted...."); Commonwealth v. Harris, 572 Pa. 489, 524-25,
817 A.2d 1033, 1054, n.16 (2002) ("Appellant's 'execution
impact'
or
'third
party
impact'
testimony
also
was
not
relevant under Pennsylvania's capital sentencing statute. ...
It would be a strange proposition to allow such 'execution
impact' evidence to be introduced as mitigation for the act of
murder." ); State v. Stenson, 132 Wash. 2d 668, 752, 940 P.2d
1239, 1281 (1997) ("[W]hile the impact on the victim's family
is arguably relevant to show the specific harm caused by the
crime and the blameworthiness of the defendant -- factors the
158
CR-07-2147
United States
Supreme
Court
has
found
relevant
to
the
appropriate punishment -- the impact on the defendant's family
is not comparably relevant to mitigate the specific harm of
the crime or its blameworthiness.").
Because "execution-impact [evidence] ... does not relate
to a defendant's character or record or the circumstances of
the crime," Woods, 13 So. 3d at 34, such evidence does not
support a valid mitigating circumstance and is irrelevant in
the penalty-phase of a capital murder trial.
Therefore, the
circuit court correctly instructed the jury not to consider
the evidence presented relating to how Albarran's execution
would affect third parties.
B.
Albarran next argues that the circuit court erred in
failing to instruct the jury on all the specific nonstatutory
mitigation circumstances he presented in the penalty phase.
Albarran objected to the circuit court's failure to
instruct the jury on the specific mitigating circumstances he
had submitted, approximately 200 mitigating circumstances, and
the circuit court stated:
"I'm going to give childhood.
I'm
going to give that global instruction that you have requested,
159
CR-07-2147
but those that were specifically delineated I'm not going [to
give.]"
(R. 4208.)
"This Court has held that the trial court does not have
to instruct the jury from a list of specific nonstatutory
mitigating circumstances provided by the defendant." Brown v.
State, 686 So. 2d 385, 403 (Ala. Crim. App. 1995).
See also
James v. State, [Ms. CR-04-0395, March 26, 2010] ___ So. 3d
___ (Ala. Crim. App. 2010); McNabb v. State, 887 So. 2d 929,
986 (Ala. Crim. App. 2001).
In
this
case,
the
circuit
court
gave
the
following
instruction:
"The law also includes a provision that would allow
you to further consider as a mitigating circumstance
not only the three that are specifically enumerated
in this statute that I'm going to read to you, but
shall also include any aspect of the Defendant's
character,
childhood,
maturity,
mentality,
education, life or background, any circumstances
surrounding the offense and any other relevant
mitigating evidence that you find is supported by
the evidence in this case.
"....
"Mitigating circumstances, again, relate to
those mitigating circumstance I read to you. And in
addition thereto, anything about the character and
background of the defendant that supports a sentence
of life without the possibility of parole as the
appropriate sentence in this case."
160
CR-07-2147
(R. 4226-30.)11
Here, the circuit court's instruction properly informed
the jury that it could consider any aspect of Albarran's
character, his record, or the circumstances of the crime as
mitigation.
The circuit court was not required to list,
classify, or name evidence of possible nonstatutory mitigating
circumstance.
See McNabb, 887 So. 2d at 986.
Therefore, the
circuit court committed no error in failing to instruct the
jury on each nonstatutory mitigating circumstance Albarran
presented.
C.
Next,
Albarran
instructions
on
circumstance
that
argues
the
the
that
application
murder
was
the
of
circuit
the
court's
aggravating
especially
heinous,
atrocious, or cruel were erroneous when compared to other
capital offenses.
Specifically, he argues that the court
11
As part of this issue, Albarran also argues that it was
error
for
the
court
to
not
allow
him
to
argue
"rehabilitation." Defense counsel stated: "I'm happy to do
redemption instead of rehabilitation if that would -- but I
don't think it's right."
(R. 3880.)
Defense counsel
acquiesced to using the term "redemption" instead of
"rehabilitation."
Because Albarran was allowed to present
this theory of mitigation, although using a different word,
there is no plain error. See Rule 45A, Ala. R. App. P.
161
CR-07-2147
failed to
give
his
requested
jury
instruction
on
the
aggravating circumstance that "the mere apprehension of death
immediately before the fatal wounds are inflicted does not
amount to serious psychological torture."
at 110.)
(Albarran's brief,
Albarran also argues that the circuit court's
instruction that "what constitutes appreciable lapse of time
and what constitutes appreciable or prolonged suffering is for
you ... to determine based upon the facts of this case," left
the jury "free to define the meaning of prolonged suffering"
and unconstitutionally "broadened
the definition
of
this
aggravator." (Albarran's brief, at 109-11.)
The circuit court gave the following instruction on this
aggravating circumstance:
"With respect to [especially heinous, atrocious,
or cruel] the common meanings of the aforereferenced terms are routinely used by our courts.
As
such,
quoting
Webster's
Tenth
Collegiate
Dictionary, the words have been defined as follows.
They also have common meanings, but the Webster's
Dictionary
defines
heinous
as
hatefully
or
shockingly evil.
"Atrocious as extremely wicked, brutal or cruel,
barbaric, appalling, horrifying.
"Cruel: Disposed to inflict pain or suffering,
devoid of human feelings, causing or conducive to
injury, grief or pain.
162
CR-07-2147
"The term 'especially' is an adverb and means
specially or in particular.
"Now, all murders to some extent are heinous,
atrocious or cruel.
The aggravating circumstance
relied upon by the State, in accordance with the
laws of this state, is that this particular murder
was especially heinous, atrocious or cruel as
compared to other capital cases.
"....
"In order to prove beyond a reasonable doubt
that this capital offense was especially heinous,
atrocious or cruel as compared to other capital
cases, I charge you that the standard for you to use
is whether this capital murder was one of those
conscienceless or pitiless homicides which was
unnecessarily torturous to the victim.
"The term 'unnecessarily torturous' may be
either physical torture or psychological torture or
both.
"One factor that is indicative of especially
heinous, atrocious or cruel is the infliction on the
victim of physical violence beyond that necessary or
sufficient to cause death where the victim is
conscious and aware that after the initial assault;
i.e., that the victim was aware of his suffering.
"Another factor 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.
"....
"Furthermore, as it relates to the definition
just provided regarding unnecessary torture, that is
163
CR-07-2147
for you to determine, if any. And if you determine
that there was any I want you to understand that any
unnecessary torture must have been present for an
appreciable lapse of time sufficient to cause
appreciable suffering or prolonged suffering.
"Now, what constitutes appreciable lapse of time
and what constitutes appreciable suffering or
prolonged suffering is for you, ladies and
gentlemen, to determine based upon the facts of this
case. That is for you to decide."
(R. 4221-24.)
After the court gave its jury instructions,
Albarran objected to the court's definition of "appreciable
period of time" as applied to the aggravating circumstance
that the offense was especially heinous, atrocious, or cruel.
(R. 4245.)
In Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991),
this Court addressed the validity of a court's instructions on
this aggravating circumstance, and stated:
“The court's instructions that this aggravating
circumstance should apply to the conscienceless or
pitiless crime which is unnecessarily [torturous] to
the victim and one in which the brutality exceeds
that which is normally present in any capital
offense met the requirements of law. See Proffitt
v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed.
2d 913 (1976); Ex parte Kyzer, 399 So. 2d 330 (Ala.
1981); Hallford v. State, 548 So. 2d 526 (Ala. Cr.
App. 1988), aff'd, 548 So. 2d 547 (Ala. 1989), cert.
denied, 493 U.S. 945, 110 S. Ct. 354, 107 L. Ed. 2d
342 (1989)."
603 So. 2d at 386.
164
CR-07-2147
The circuit court's instructions were very detailed and
limited the jury's use of this aggravating circumstance to
only those murders that were "conscienceless or pitiless
homicides which are unnecessarily torturous to the victim."
The circuit court's instructions complied with the Supreme
Court's holding in Ex parte Kyzer, 399 So. 2d 330 (Ala. 1981).
When
read
in
context,
the
circuit
court's
instruction
regarding what "constitutes appreciable lapse of time and what
constitutes appreciable suffering or prolonged suffering is
for you, [the jury], to determine based upon the facts of this
case," did not leave the jury free to define appreciable
suffering.
Instead, it correctly informed the jury that, as
the finder of fact, it must determine, based on the facts of
this case, whether Officer Golden suffered prolonged torture.
Because
the
regarding
circuit
the
court
especially
correctly
heinous,
instructed
atrocious,
the
or
jury
cruel
aggravating circumstance, this issue does not entitle Albarran
to any relief.
D.
Albarran
next
argues
that
the
circuit
court's
instructions on the weighing process were erroneous because
they failed to instruct the jury that their verdict should be
165
CR-07-2147
life imprisonment if the aggravating circumstances and the
mitigating circumstances were equally balanced.
He asserts
that the circuit court's instructions violate the Alabama
Supreme Court's holding in Ex parte Bryant, 951 So. 2d 724
(Ala. 2002).
Albarran made no objection to the court's instruction on
this issue; therefore, this Court reviews this claim for plain
error.
See Rule 45A, Ala. R. App. P.
In Bryant, Alabama Supreme Court found plain error in the
circuit court's jury instructions on weighing the aggravating
and the mitigating circumstances.
The Supreme Court stated:
"In the case now before us, the jury
instructions erroneously allow the conclusion that
the death penalty is appropriate even if the
aggravating circumstances do not outweigh the
mitigating circumstances so long as the mitigating
circumstances do not outweigh the aggravating
circumstances. The trial judge in this case did not
add the caveat which sufficed in [Ex parte] Trawick,
[698 So. 2d 162 (Ala. 1997)], that the jury was to
'recommend the death penalty only if [the jury]
found that the aggravating circumstances outweighed
the mitigating circumstances.' Trawick, 698 So. 2d
at 173. Indeed, at the end of the instructions on
this topic, the trial judge implicitly told the jury
that it might recommend death even if the jury did
not find an aggravating circumstance at all: 'if you
do not find that an alleged aggravating circumstance
was proved, that does not automatically or
necessarily mean that you should sentence Mr. Bryant
to death....' (R. 1103, quoted supra.) (Emphasis
added)."
166
CR-07-2147
951 So. 2d 724, 730 (Ala. 2002).
Later in Ex parte McNabb,
887 So. 2d 998 (Ala. 2004), the Supreme Court clarified its
earlier holding in Bryant and stated:
"The charge in this case was not infected with
the peculiar error present in Bryant, that is, the
jury in this case was not invited to recommend a
sentence of death without finding any aggravating
circumstance. It was that invitation in Bryant that
caused the error in that case to rise to the level
of plain error, rather than error reversible only by
a proper objection. Thus, in this case, although
the court did not specifically instruct the jury
what to do if it found the mitigating and
aggravating circumstances equally balanced, we
cannot conclude, considering the charge in its
entirety, that the error ‘seriously affect[ed] the
fairness, integrity or public reputation of [these]
judicial proceedings,’ Ex parte Davis, 718 So. 2d
[1166,] 1173-74 [(Ala. 1998)], so as to require a
reversal of the sentence.”
887 So.2d at 1004.
Here, the circuit court specifically instructed the jury
that it could not consider the weighing process until it found
that an aggravating circumstance was present in the case.
It
further instructed the jury on three occasions that if the
jury found aggravating circumstances in the case, it must also
find
that
the
aggravating
circumstances
outweigh
the
mitigating circumstances before the jury could recommend a
sentence of death.
Here, "the trial court did not invite the
jury ... to recommend a sentence of death without finding any
167
CR-07-2147
aggravating circumstance."
Ex parte Walker, 972 So. 2d 737,
743 (Ala. 2007).
"[A]lthough the court did not specifically instruct
the jury what to do if it found the mitigating and
aggravating circumstances equally balanced, we
cannot conclude, considering the charge in its
entirety, that the error 'seriously affect[ed] the
fairness, integrity or public reputation of [the]
judicial proceedings,' Ex parte Davis, 718 So. 2d
[1166] at 1173-74 [(Ala. 1998)], so as to require
reversal of the sentence."
McNabb, 887 So. 2d at 1004.
that
the
circuit
court's
Accordingly, this Court holds
failure
to
instruct
the
jury
regarding what to do if the mitigating circumstances and
aggravating circumstances were equal did not amount to plain
error.
Rule 45A, Ala. R. App. P.
E.
Albarran next argues that the circuit court erred in
instructing the jury that its verdict was a recommendation.
Specifically, Albarran argues that informing the jury that its
penalty-phase verdict was a recommendation "misle[]d the jury
as to its role in the sentencing process in a way that
allow[ed] the jury to feel less responsible than it should for
the
sentencing
decision"
in
violation
of
Caldwell
v.
Mississippi, 472 U.S. 320, 328-29 (1985). (Albarran's brief,
at 115.)
168
CR-07-2147
First, the circuit court did not misinform the jury that
its penalty phase verdict is a recommendation.
Under §
13A-5-46, Ala. Code 1975, the jury's role in the penalty phase
of
a
capital
case
is
to
render
an
advisory
recommending a sentence to the circuit judge.
verdict
It is the
circuit judge who ultimately decides the capital defendant's
sentence, and, "[w]hile the jury's recommendation concerning
sentencing shall be given consideration, it is not binding
upon the courts."
§ 13A-5-47, Ala. Code 1975.
Accordingly,
the circuit court did not misinform the jury regarding its
role in the penalty phase.
Further, Alabama courts have repeatedly held that "the
comments of the prosecutor and the instructions of the trial
court
accurately
sentencing
informing
authority
and
a
that
jury
its
of
the
extent
sentence
of
its
verdict
was
'advisory' and a 'recommendation' and that the trial court
would make the final decision as to sentence does not violate
Caldwell v. Mississippi[.]" Kuenzel v. State, 577 So. 2d 474,
502 (Ala. Crim. App. 1990) (quoting Martin v. State, 548 So.
2d 488, 494 (Ala. Crim. App. 1988)).
See also Ex parte Hays,
518 So. 2d 768, 777 (Ala. 1986); White v. State, 587 So. 2d
1236 (Ala. Crim. App. 1990); Williams v. State, 601 So. 2d
169
CR-07-2147
1062, 1082 (Ala. Crim. App. 1991); Deardorff v. State, 6 So.
3d 1205, 1233 (Ala. Crim. App. 2004); Brown v. State, 11 So.
3d 866 (Ala. Crim. App. 2007); Harris v. State, 2 So. 3d 880
(Ala. Crim. App. 2007).
Such comments, without more, do not
minimize the jury's role and responsibility in sentencing and
do not violate the United States Supreme Court's holding in
Caldwell.
Therefore, the
circuit court
did
not err by
informing the jury that its penalty-phase verdict was a
recommendation.
F.
Albarran further argues that the circuit court erred in
failing to give the jury a mercy instruction.
After the circuit court gave its jury instructions,
Albarran did not object to the court's failure to give an
instruction on mercy.
Accordingly, this Court reviews this
claim for plain error only.
See Rule 45A, Ala. R. App. P.
"Alabama courts have held that capital defendants are not
entitled to jury instructions on mercy and residual doubt."
Burgess v. State, 723 So. 2d 742, 769 (Ala. Crim. App. 1997).
"[A] juror may not arbitrarily consider mercy when deciding
whether a defendant should be sentenced to death or life
imprisonment without the possibility of parole."
170
Blackmon v.
CR-07-2147
State, 7 So. 3d 397, 438 (Ala. Crim. App. 2005).
Because
Albarran was not entitled to a jury instruction on mercy,
McMillan v. State, [Ms. CR-08-1954, Nov. 5, 2010] ___ So. 3d
___, ___ (Ala. Crim. App. 2010), no error, much less plain
error, resulted from the circuit court's failure to give such
an instruction.
G.
Albarran next argues that the circuit court erroneously
charged the jury that it had to unanimously agree on the
existence of a mitigating circumstance.
This issue is being
raised for the first time on appeal; therefore, this Court
reviews it for plain error.
See Rule 45A, Ala. R. App. P.
The circuit court gave the following instruction on
aggravating circumstances:
"In order for you to find the
existence of an aggravating circumstance you must unanimously;
that
is,
all
12
of
your
number
must
agree,
that
the
aggravating circumstance being considered has been proven
beyond a reasonable doubt."
(R. 4216.)
When instructing the
jury on mitigating circumstances, the circuit court stated:
"While all evidence submitted as mitigation is required to be
considered by you, whether the evidence is actually found to
be mitigating, is for you to decide.
171
If you are personally
CR-07-2147
persuaded that
a
mitigating
factor
exists
then
you
may
consider that factor while weighing the evidence." (R. 4228.)
In Freeman v. State, 776 So. 2d 160 (Ala. Crim. App.
1999), this Court addressed a similar issue and stated:
"Freeman also contends that the trial court
erred by failing to instruct the jury that its
findings as to mitigating circumstances did not have
to be unanimous.
In failing to so instruct the
jury, he says, the trial court implied that the
jurors had to unanimously agree before they could
find the existence of a mitigating circumstance.
Freeman did not object at trial to the trial court's
instructions to the jury concerning mitigating
circumstances; therefore, we will review this claim
under the plain error rule.
Rule [45A,] Ala. R.
App. P. We
have
reviewed
the
trial court's
instructions to the jury; we find nothing in the
instructions that would have suggested to the
jurors, or given them the impression, that their
findings concerning the existence of mitigating
circumstances had to be unanimous.
See Coral v.
State, 628 So. 2d 954, 985 (Ala. Cr. App. 1992),
aff'd, 628 So. 2d 1004 (Ala. 1993), cert. denied,
511 U.S. 1012, 114 S. Ct. 1387, 128 L. Ed. 2d 61
(1994); Windsor v. State, 683 So. 2d 1027 (Ala. Cr.
App. 1994), aff'd, 683 So. 2d 1042 (Ala. 1996),
cert. denied, 520 U.S. 1171, 117 S. Ct. 1438, 137 L.
Ed. 2d 545 (1997)."
776 So. 2d at 195.
"The Alabama Supreme Court addressed this
identical issue in Ex parte Martin, 548 So. 2d 496,
499 (Ala.), cert. denied, 493 U.S. 970 (1989), and
held that under the instructions given in Martin,
'the jurors could not have reasonably believed that
they were required to agree unanimously on the
existence of any particular mitigating factor.' For
cases following Martin, see Hutcherson v. State, 677
172
CR-07-2147
So. 2d 1174 (Ala. Cr. App. 1994); Windsor v. State,
683 So. 2d 1027 (Ala. Cr. App. 1994); Kuenzel v.
State, 577 So. 2d 474 (Ala. Cr. App. 1990), aff'd,
577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886,
112 S. Ct. 242, 116 L. Ed. 2d 197 (1991).
The
instructions given in Martin are substantially the
same as those given in the instant case.
After
reviewing the instructions in the present case in
their entirety, we conclude that there is no
reasonable likelihood or probability that the jurors
believed or could have reasonably believed that they
were required to agree unanimously on the existence
of any particular mitigating circumstance.
The
instructions were not only legally correct, but were
clear and understandable."
Williams v. State, 710 So. 2d 1276, 1307 (Ala. Crim. App.
1996).
Here, nothing in the instructions implied that the jury's
findings on mitigation had to be unanimous.
In fact, the
court instructed the jury that "[i]f you are personally
persuaded
that
consider
that
a
mitigating
factor
factor
while
exists
weighing
then
the
you
may
evidence."
Accordingly, this Court holds that no error, much less plain
error, resulted from the court's instructions.
See Williams,
710 So. 2d at 1307.
XXI.
Albarran further argues that the cumulative effect of the
errors requires that he be granted a new trial.
The Alabama Supreme Court explained:
173
CR-07-2147
"'[W]hile, under the facts of a particular case, no
single
error
among
multiple
errors
may
be
sufficiently prejudicial to require reversal under
Rule 45, [Ala. R. App. P.,] if the accumulated
errors
have
"probably
injuriously
affected
substantial rights of the parties," then the
cumulative effect of the errors may require
reversal.' Ex parte Woods, 789 So. 2d 941, 942 n.
1 (Ala. 2001) (quoting Rule 45, Ala. R. App. P.).”
Brownfield v. State, 44 So. 3d 1, 33 (Ala. Crim. App. 2007).
Applying the standard set forth in Woods, this Court has
reviewed the alleged errors Albarran has raised on appeal and
has scrupulously searched the record for errors not raised on
appeal.
Rule 45A, Ala. R. App. P.
After a thorough review of
the record, this Court is convinced that individually or
cumulatively, no error or errors entitle Albarran to relief.
Sentencing Order
XXII.
Albarran
argues
that
the
circuit
court
erred
in
concluding that some of the proffered mitigation evidence was
not mitigating.
As stated above, Albarran submitted a proposed 27-page
memorandum in support of sentencing him to life without the
possibility of parole rather than death.
In the memorandum
Albarran asserted that he had presented evidence in support of
200
nonstatutory
mitigating
174
circumstances.
Those
CR-07-2147
circumstances
ranged from
"[t]he defendant committed
the
offense under the duress of being shot at" to "[t]he defendant
has demonstrated the capacity of accepting responsibility."
(C.R. 371-98.)
In its sentencing order the circuit court specifically
addressed each of the 200 proffered circumstances and stated:
"In
conclusion,
regarding
the
additional
mitigating circumstances alleged by the defendant
addressed by this Court above, this Court finds it
necessary to state that while all of the proffered
mitigating circumstances were considered by this
Court, the Court found many of them to be redundant,
convoluted, and/or speculative.
This Court did,
however, consider all of the afore-referenced
proffered mitigating circumstances and reflected
upon the record in its entirety giving particular
attention to all aspects of the defendant's
character and record."
(C.R. 463.)
The United States Supreme Court's decision in Lockett v.
Ohio, 438 U.S. 586 (1978), requires that a circuit court
consider all evidence offered in mitigation when determining
a capital defendant's sentence.
However,
"[M]erely because an accused proffers evidence of a
mitigating circumstance does not require the judge
or the jury to find the existence of that fact.
Mikenas [v. State, 407 So. 2d 892, 893 (Fla. 1981)];
Smith [v. State, 407 So. 2d 894 (Fla. 1981)].'
Harrell v. State, 470 So. 2d 1303, 1308 (Ala. Cr.
App. 1984), aff'd, 470 So. 2d 1309 (Ala.), cert.
175
CR-07-2147
denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d
276 (1985)."
Perkins v. State, 808 So. 2d 1041 (Ala. Crim. App. 1999).
"'Although
the
trial
court
must
consider
all
mitigating
circumstances, it has discretion in determining whether a
particular mitigating circumstance is proven and the weight it
will give that circumstance.'"
Simmons v. State, 797 So. 2d
1134, 1182 (Ala. Crim. App. 1999), quoting Wilson v. State,
777 So. 2d 856, 893 (Ala. Crim. App. 1999).
"'While Lockett
[v. Ohio, 438 U.S. 586 (1979),] and its progeny require
consideration of all evidence submitted as mitigation, whether
the evidence is actually found to be mitigating is in the
discretion of the sentencing authority.'"
Ex parte Slaton,
680 So. 2d 909, 924 (Ala. 1996), quoting Bankhead v. State,
585 So. 2d 97, 108 (Ala. Crim. App. 1989).
The
circuit
court's
order
clearly
shows
that
it
considered each of the proffered mitigating circumstances and
that it complied with Lockett. Therefore, this issue does not
entitle Albarran to any relief.
XXIII.
Albarran also argues that the circuit court erred in
finding that the murder was especially heinous, atrocious, or
176
CR-07-2147
cruel as compared to other capital murders.
Specifically, he
argues that there was no medical evidence that Officer Golden
"experienced anything more than 'momentary fear or anxiety of
impending death;'" therefore, his murder was not especially
heinous, atrocious, or cruel.
(Albarran's brief, at 119.)
In regard to this aggravating circumstance, the circuit
court stated the following in its order:
"The capital offense was especially heinous,
atrocious, or cruel compared to other capital
offenses, and was proven beyond a reasonable doubt
as evidenced by the following:
"(a) Officer Golden was rendered defenseless
after his weapon jammed and rendered disabled after
the shot that landed him on the pavement.
"(b)
Once defenseless and disabled, Officer
Golden was subjected to the infliction of great
fear, extreme pain and mental anguish prior to the
infliction of the final shot, which ultimately
caused his death.
"(c) The testimony of Chad Steele revealed that
Officer Golden 'sounded like a dog when it was
getting wounded' as he begged the defendant to spare
his life.
"(d) The testimony of William Thomas, who reenacted the shooting with Deputy District Attorney
and demonstrated the position of Officer Golden as
the final shots were fired, evidenced this
defendant's extreme indifference to human life.
"(e)
While this Court recognizes that any
murder of a defenseless victim is to some extent
heinous, atrocious or cruel, this Court finds that
177
CR-07-2147
the degree of atrocity, cruelty and heinousness in
this case exceeds that common to other capital
offenses."
(C.R. 433-34.)
The Alabama Supreme Court in Ex parte Kyzer, 399 So. 2d
330 (Ala. 1981), described the aggravating circumstance of
especially heinous, atrocious, or cruel to include "'those
conscienceless or pitiless homicides which are unnecessarily
torturous to the victim.'"
399 So. 2d at 334 (quoting in part
Lindsey v. Thigpen, 875 F.2d 1509, 1514 (11th Cir. 1989)).
In
considering
the
application
of
this
aggravating
circumstance this Court assessed the following factors:
(1)
whether the infliction of the physical violence was beyond
that
necessary
to
cause
death;
(2)
whether
the
victim
experienced "appreciable suffering after a swift assault that
ultimately resulted in death;" and (3) whether the victim
suffered psychological torture.
See Norris v. State, 793 So.
2d 847 (Ala. Crim. App. 1999).
Here, Officer Golden attempted to ward off the assault,
but his gun jammed.
He was shot and fell to the ground
begging for his life.
Albarran walked up to him and shot him
twice
in
the
head.
Albarran
had
two
different
guns.
Eyewitness testimony showed that Officer Golden was conscious
178
CR-07-2147
until the last shots entered his head.
"This Court has held
that '[w]hen a defendant deliberately shoots a victim in the
head in a calculated fashion, after the victim has already
been
rendered
"extremely
helpless
wicked
or
by
[prior]
shockingly
gunshots
evil"
...,
action
such
may
be
characterized as especially heinous, atrocious, or cruel.'"
Mitchell v. State, [Ms. CR-06-0827, August 27, 2010] ___ So.
3d ___, ___ (Ala. Crim. App. 2010) (quoting Hardy v. State,
804
So.
2d
247,
288
(Ala.
Crim.
App.
1999)).
Also,
"[p]sychological torture can be inflicted by leaving the
victim in his last moments aware of, but helpless to prevent,
impending death." Norris, 793 So. 2d at 859-60. Accordingly,
this Court holds that the murder in this case was especially
heinous, atrocious, or cruel as compared to other capital
murders and that this aggravating circumstance was correctly
applied in this case.
XXIV.
Finally, according to § 13A-5-53, Ala. Code 1975, this
Court must address the propriety of Albarran's conviction and
sentence of death.
179
CR-07-2147
Albarran was convicted of murdering Officer Golden while
he was on duty, a violation of § 13A-5-40(a)(5), Ala. Code
1975.
A review of the record shows that Albarran's sentence was
not imposed under the influence of passion, prejudice, or any
other arbitrary factor. See § 13A-5-53(b)(1), Ala. Code 1975.
The
circuit
court
determined
that
the
aggravating
circumstance outweighed the mitigating circumstances.
The
court found, as did the jury, that the murder was especially
heinous, atrocious, or cruel as compared to other capital
murders.
See § 13A-5-49(8), Ala. Code 1975.
statutory mitigating circumstances,
Albarran
had
no
significant
the
history
(C.R. 433).
As
court found that
of
prior
criminal
activity, § 13A-5-47(d)(1), Ala. Code 1975. The circuit court
then
individually
set
out
each
of
the
200
nonstatutory
mitigating circumstances that Albarran had argued to the court
and found the following nonstatutory mitigating circumstances
to exist:
(1) Albarran was gainfully employed at the time of
the offense; (2) Albarran is a calm, tranquil person who never
caused any problems with anyone while he was in Mexico; (3)
Albarran lived over 30 years without any significant prior
criminal history; (4) Albarran worked hard to support his wife
180
CR-07-2147
and child; (5) Albarran showed the potential for positive and
sustained human relationships; (6) Albarran has no criminal
history in Mexico; (7) Albarran enjoyed a good reputation in
the community where he was raised; (8)
Albarran showed great
love and affection for his daughter; (9)
disciplinary
problem
in
school;
Albarran was not a
(10)
capacity to form loving relationships;
Albarran
showed
a
(11) Albarran helped
support his parents financially; (12) Albarran had been a good
and respectful son; (13) Albarran attempted to manage a
restaurant; (14) Albarran showed the capacity to realize his
mistakes;
(15)
Albarran
continues
to
express
love
and
compassion for his family; (16) the offense was committed
while Albarran was under the influence of alcohol and cocaine;
(17) Albarran had a history of drug and alcohol abuse;
(18)
Albarran's conduct was affected by the use of drugs and
alcohol; (19) Albarran consumed alcohol and cocaine on the day
of
the
murder;
childhood;
(21)
(20)
Albarran
Albarran
was
experienced
the
victim
of
a
an
difficult
abusive,
unstable, and deprived childhood; (22) Albarran was raised in
poverty and third-world conditions; (23) Albarran witnessed a
murder when he was very young; (24) Albarran was subjected to
a nightmarish home environment as a child; (25) Albarran's
181
CR-07-2147
childhood was less than ideal; (26)
Albarran encouraged
family members to avoid his mistakes; (27) Albarran had love
and
affection
from
his
family;
(28)
Albarran
maintained
contact with and had concern for his family; (29) Albarran's
mental health; (30) Albarran has a history of low self-esteem;
(31) Albarran's mood disorder was worsened by drug and alcohol
use; (32) Albarran's family has a long history of mental
illness; (33) Albarran is not antisocial; (34) Albarran has a
psychopathic personality; (35) Albarran has a history of
social-interaction problems; (36) Albarran did not flee from
the
scene
of
the
crime;
(37)
the
court
considered
the
cumulative impact of the mitigating evidence; (38) Albarran's
IQ score was "just outside the range of mental retardation";
and (39) Albarran is remorseful.
In conclusion, the court
stated:
"[W]hile
all
of
the
proffered
mitigating
circumstances were considered by this Court, the
Court found many of them to be redundant,
convoluted, and/or speculative.
This Court did,
however, consider all of the afore-referenced
proffered mitigating circumstances and reflected
upon the record in its entirety giving particular
attention to all aspects of the defendant's
character and record."
182
CR-07-2147
(C.R. 463.)
After weighing the aggravating circumstance and
the mitigating circumstances, the circuit court determined
that death was the appropriate sentence in this case.
According to § 13A-5-53(b)(2), Ala. Code 1975, this Court
must independently weigh the aggravating and the mitigating
circumstances.
This Court is convinced, as was the circuit
court, that death is the appropriate sentence for Albarran's
cold and deliberate actions in murdering Officer Golden.
Further, Albarran's sentence is not disproportionate or
excessive as compared to sentences in other capital-murder
cases. See § 13A-5-53(b)(3), Ala. Code 1975. See Blackmon v.
State, 7 So. 3d 397 (Ala. Crim. App. 2005) (upheld death
sentence when sole aggravating circumstance was that the
murder was especially heinous, atrocious, or cruel); Minor v.
State, 914 So. 2d 372 (Ala. Crim. App. 2004); Freeman v.
State, 555 So. 2d 195 (Ala. Crim. App. 1988).
Rule 45A, Ala. R. App. P., also requires this Court to
search the record for any error that may have adversely
affected Albarran's substantial rights.
This Court has done
so and finds no error that has affected Albarran's substantial
rights.
183
CR-07-2147
For the
foregoing
reasons,
Albarran's
capital-murder
conviction and his sentence of death are affirmed.
AFFIRMED.
Kellum, J., concurs. Welch, P.J., concurs in the result.
184
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