Michael Anthony Powell v. State of Alabama (Appeal from Shelby Circuit Court: CC-16-942)

Rel: May 3, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections

may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals

OCTOBER TERM, 2023-2024

_________________________

CR-20-0727

_________________________

Michael Anthony Powell

v.

State of Alabama

Appeal from Shelby Circuit Court

(CC-16-942)

COLE, Judge.

Michael Anthony Powell was convicted of capital murder for killing

Tracy Algar during a first-degree robbery, a violation of § 13A-5-40(a)(2),

Ala. Code 1975. The jury, after unanimously finding the existence of two

aggravating circumstances -- that Powell had been previously convicted

of a felony involving the use or threat of violence and that Powell was

CR-20-0727

under a sentence of imprisonment when he committed the capital murder

-- recommended by a vote of 11 to 1 that Powell be sentenced to death.

The trial court followed the jury's recommendation. This appeal, which

is automatic in a case involving the death penalty, follows. See § 13A-5-

53, Ala. Code 1975.

On appeal, Powell raises several arguments. His first argument --

that the State, during its rebuttal closing argument, "repeatedly and

erroneously commented on [his] silence" -- requires this Court to reverse

his capital-murder conviction and death sentence. (Powell's brief, p. 12.)

To provide context to Powell's argument, we first set out the evidence

presented at Powell's trial and detail the closing arguments made by

counsel during the guilt phase of Powell's trial.

Facts and Procedural History

At trial, the State's evidence established the following: Just before

11:00 a.m. on October 30, 2016, the Kirkland Chevron gas station on

Route 31 in Alabaster was robbed. During that robbery, Tracy Algar, the

store's clerk, was shot in the back of the head in the bathroom of the gas

station. The gunshot wound caused Algar's death. Surveillance video

from businesses around the gas station showed that, shortly before the

2

CR-20-0727

robbery and murder, a black male wearing a white shirt, black pants, and

a black fedora hat left "The View" apartment complex on foot, walked

northbound on Route 31 toward the gas station, and entered the gas

station. Surveillance video from businesses around the gas station also

showed that, after the time of the murder, the same black male left the

gas station on foot, continued southbound on Route 31 toward The View,

and entered the apartment complex. Sarah Knighten, who was driving

on Route 31 at that time, also saw a black male wearing a white shirt,

black pants, and a black fedora running southbound along Route 31.

At around 11:00 a.m. on October 30, 2016, Miranda Craig -- a

registered nurse who frequented the gas station and who knew Algar --

pulled into the gas station to get gas. When the pump did not turn on,

Craig went inside the gas station to look for Algar. Craig called for Algar,

but she did not respond. Shortly after Craig entered the gas station to

look for Algar, Johnny Lawson also entered the gas station. Eventually,

Craig opened the bathroom door and found Algar dead on the floor. Craig

and Lawson then went outside, and Craig called 911.

When law enforcement arrived at the gas station, they found Algar

lying on the bathroom floor "with a large amount of blood … around her

3

CR-20-0727

face and head." Law enforcement also found an unopened pack of

Newport cigarettes on the counter by the cash register along with a "no

sale" receipt that was time-stamped "10:51 a.m." 1 When law enforcement

had the owner of the gas station, Scott Kirkland, open the cash register,

they found only coins in the register and, according to the accounting

system for the gas station, there should have been around $265 in the

register.

On November 1, 2016, law enforcement released to the public

photos of a "person of interest," which were taken from the surveillance

videos. Two employees who worked at The View apartment complex

recognized Powell as the person of interest. Those employees knew

Powell because he lived in an apartment at The View, and they contacted

law-enforcement personnel and told them that they thought they knew

who was in the photos. Knighten also contacted law enforcement to

1It was explained at trial that "[a] no sale button in a convenience

store on that type of register … is where they can open the drawer up and

it keeps a record of when that drawer was opened" and, normally, the

employee who used the "no sale" button to open the register "would get a

printout and you would initial it, gives us a reason why you opened the

cash register up at that particular time." (R. 1330-31.) Further, it was

explained that the time stamp on the "no sale" receipt is generated "by

Chevron through the satellite. It is their system. So it is going to be spot

on time." (R. 1333-34.)

4

CR-20-0727

report the man she saw running along Route 31 the day Algar was

murdered. Later, law enforcement contacted Knighten and presented

her with a photographic lineup to identify the person she saw running

along Route 31. Knighten identified Powell as the person she had seen.

On November 4, 2016, law enforcement executed a search warrant

on Powell's apartment at The View. During that search, officers found

black pants, white shirts, and a grey fedora hat. Law enforcement also

executed a search warrant at a home belonging to one of Powell's

girlfriends and, in that home, they found a box of Winchester .380

ammunition inside a silver box -- the same brand and caliber as the shell

casing found by law enforcement at the gas station.

After Powell was arrested and while he was incarcerated in the

Shelby County jail, Powell telephoned one of his girlfriends and told her

to find alibi witnesses who would say that he was in Andalusia the day

Algar was murdered. While he was jail, Powell also convinced another

inmate -- David Jackson -- to author a letter confessing to being an

accessory to the murder. Powell had Jackson read that letter on a

recorded jail telephone call. Jackson said that, for his work, Powell "gave

5

CR-20-0727

[him] two packs of cookies," "a tablespoon of coffee," and "one phone call."

(C. 404.) Jackson's "confession letter" provided as follows 2:

"I David Jackson on 11th December 2016 in Shelby Co.

jail am stating this true fact of the matter that Michael Powell

is completely and totally innocent and not guilty of the crimes

and charges that he has been wrongly and falsely charged

with, accused of and did not commit.

"I David Jackson was one of two individuals connected

to this incident or crime sunday October 30th in Alabaster.

The other defendant or individual is James Moore. He is a

older man (Black) have known for over two years in alabaster.

We purchased and used street drugs together from a friend of

his called 'Boy.'

"On Saturday Oct. 29 Moore called me in Birmingham

and said to come to Alabaster for a deal that he would pay me

for.

"[Illegible] We met at the park Moore told me that he

needed me to lookout for him while he got me some money

from his old girlfriend (Tracy) at the Chevron gas station on

first street. (Tracey) was going to give him the money and

state that she had been Robbed.

"Moore stated tracy said that business would be slow

Sunday morning at around 11:00 am.

"James Moore entered the building from the direction of

the hotel. I come from the back left side walking close to the

back of building. Moore entered the station and asked Tracey

for a pack of newports. She placed the cigarettes on the

counter. Moore left the Cigarettes on the counter and showed

2The"confession letter" has been reproduced here without any

grammatical, punctuation, or capitalization corrections.

6

CR-20-0727

her his Cobra 380 pistol, took her into the restroom after I

heard a shot inside Moor ran out of the Building and told me

to be near the motel down the street. [Illegible]. He ran in

the direction of the Shelby Baptist Hospital to get his Black

sport utility vehicle. I ran behind the store and behind

buildings to the back of the hotel where Moore picked me up

on the street.

"He then proceeded to his friend 'Boy's' trailer off of

Simmeville Rd. to purchase Crack and Methamphetamine. I

also noticed Moore had Red spots on his white T shirt that

appeared to be blood. He also wore a Black Kangol Hat with

a white Kangaroo on it, Black boots, Black pants. Mooore

drove back to the park, we smoked the Crack. He also gave

me fifty dollars and a small package of Meth. Afterwards

Moore and I hid the gun and left. I went back after I got my

own car and moved the gun to another spot.

"Moore called me one day later 'Monday' to tell me that

the gun was missing.

"On Monday night October 31 I saw on the news what

Moore had did at the Chevron station. I kept silent.

"On the news friday November fourth I saw that they

had wrongly arrested a innocent man for the crime that I was

involved in.

"I called the alabaster police dept to try to explain that

I knew who actually had committed the crime. I also was told

that they had arrested the right man and was immediately

hung up on.

"On tuesday November 8 I tried to talk to a dective but

was instructed to 'leave it alone' I also was asked my phone

number and a place that we could meet.

7

CR-20-0727

"In Birmingham I was met by two dectives one whom's

name was Josh. They told me to leave it alone or I would not

be saying anything else at all and that 'Nobody was going to

save that "Smart Ass" "Big Mouth" "N[*****]." '

"I told the dectectives it was wrong they laughed saying

that 'I bet that "n[*****]" will not file a lawsuit on us about

this.'

"I apologized to Mr Powell for him being wrongly

accused for something that I was involved in. I also told where

to find Mr James Moore's gun. I refuse to speak to a dectective

or D.A. after their mistakes and threats on my life and bodily

harm. All I wish to say is that Michael Powell is a innocent

man. I can prove this by my words.

"Please share this information with a firm or someone

who can free Mr Powell and please stop these corrupt, Racist

officers from framing a innocent, not guilty man with a crime

that I was involved in october 30 in alabaster at the Chevron

that also harmed Miss tracy.

"After his crimes made the news Mr Moore tried calling

many times leaving messages instructing me to keep my

mouth closed. He also stated that the alabaster police and

detectives would not believe me if I told them. Mr Moore

claims he has always worked for them and that he is also good

friends with the district attorney and that explains why he

never stays in jail long, no matter what he does. He told me

that he has 2 pending charges ([illegible]/lying). This is the

truth, the whole truth and I have nothing else to say about

these wrongdoings, corruption, Racism and this terrible

injustice done to a completely innocent man for actions and

things that I and Mr James Moore are completely guilty for

and of.

"Michael Powell is innocent ... Thank you ...

8

CR-20-0727

"I plan to be present at Michael Powells trial for his

defense. As I stated I have nothing to say to dectives or the

d.a. also I wish for a jury to hear my confession."

(C. 477-84.)

According to Jackson, he did not know it was Powell who had

employed him to author the confession letter. Rather, Jackson said, he

was led to believe that he was assisting an unknown-to-him person in

writing a confession letter because the person could not physically do it.

(C. 401.) Jackson said that he did not write his name in the version of

the confession letter he wrote and, instead, he "drew a blank at the very

beginning of it for [the unknown person] to fill his name in and [he] left

a blank for the date and that's it." (C. 406.) Jackson said that, after he

gave the letter back to Powell, he did not see it again until he was being

interrogated by law enforcement at the jail. (C. 410.) Jackson said that

he was "astonished" when he saw the letter with his name added to it.

(C. 411.)

Finally, while he was in jail, Powell told a different inmate, Kelvin

Hines, about several details of the murder that were not made known to

the public, and Hines spoke to law enforcement about his conversations

with Powell. (R. 2171.) According to Hines, Powell confronted him in the

9

CR-20-0727

jail about having "wrote [his] prosecutor," which resulted in Hines having

to be moved out of the Shelby County jail. (R. 2172-73.) Hines said that

Powell had talked to him about the "money problems" he was having

before Algar's murder, about the type of hat he was wearing in the

surveillance videos, about the evidence in the case, about how his nephew

was going to claim that the box of .380 ammunition that police found was

his, and about how the gas station would be an "easy spot for someone to

rob or do whatever they were going to do if they wanted to do it" because

it had only one functioning camera. (R. 2174-79.) Hines also said that

Powell told him details about Algar's murder:

"He was saying that his attorney had explained to him

that they had blood droppings supposedly on his clothes or

outside of the bathroom. He was saying there was no way that

blood could have got out of the bathroom because of the way

the door was cracked, the way the door was cracked and from

the angle he was in, there is no way that that blood could have

got out of the bathroom."

(R. 2179.) Hines said that Powell told him that "the victim panicked and

made him panic," and that, although he did not admit to shooting Algar,

he mentioned "her brains or something along the lines of that." (R. 2179.)

In his defense, Powell presented testimony from Tina Brown, who

had seen the person-of-interest photos that law enforcement made public.

10

CR-20-0727

Brown said that she telephoned law enforcement because the person of

interest looked like "a man that [she] see[s] walking on a regular basis."

(R. 2275.) Brown said she's seen this person walking through her

"neighborhood, at the stores, outside the neighborhood, and up and down

[Route] 31." (R. 2275.) Brown said she continues to see this person

walking around her neighborhood and last saw him walking three days

before she testified at Powell's trial. (R. 2275.) Brown said that, although

she called law enforcement to report that the person of interest looked

like the man she sees walking around her neighborhood, no one returned

her telephone call. (R. 2278.)

At the end of the guilt phase of Powell's trial, the parties presented

closing arguments to the jury. The State, in its closing argument,

addressed evidence that, it said, showed that Powell had murdered Algar,

including clips from the surveillance videos. It also addressed evidence

that Powell presented in his defense case and the importance of the David

Jackson "confession" letter, which, it alleged, Powell had had Jackson

write. (R. 2359-65.) The State also addressed Powell's missing .380

handgun -- the weapon the State alleged was used to shoot Algar -- as

follows:

11

CR-20-0727

"Now, the gun disappeared. The silver box hidden under

[Powell's girlfriend's] house, bullets in it matching the

description of the bullets that were found and used to kill

Tracy Algar. When he was caught, he began running to alibi

after alibi. When that didn't seem to be working, he ran to

David Jackson, scheming to move this and shift the blame."

(R. 2365-66.)

In his closing argument, Powell's counsel argued:

"Now, the judge has charged you that a defendant has a

right to remain silent. Michael exercised his right to remain

silent in this particular case. You swore that you would not

hold that against him. That is what we are going to ask you

to do right now. You heard the evidence. You heard things

that are going on in this case, but we are going to ask you to

not hold it against Michael Powell because he exercised his

right to remain silent that we all have."

(R. 2369-70.) Powell's counsel then addressed the weaknesses in the

State's evidence and questioned the usefulness of the surveillance videos

that the State had presented to the jury. Powell's counsel also addressed

the .380 ammunition and the lack of evidence linking Powell to the

murder as follows:

"There is a .380 caliber Winchester spent shell found in

the store after individuals went in the store and before the

store was roped off, but they even checked that. No

fingerprints, no DNA belonging to Michael Powell. They lifted

fingerprints off of the silver box, no DNA, no fingerprint lifts

belonging to Michael Powell. They lifted DNA and fingerprint

lifts off of the live rounds that were in the box, no DNA, no

fingerprint lifts connecting Michael Powell.

12

CR-20-0727

"There is doubt all over the place, DNA, ballistics, no

gun. Misidentification problems."

(R. 2386-87.)

The State, in its rebuttal argument, addressed the missing gun,

telling the jury: "You know there is only one person in this room who

knows where the gun is. One person, he is sitting over there. That guy

knows where the gun is." (R. 2393-94.) Powell's counsel objected to the

State's argument, and the following exchange occurred outside the

presence of the jury:

"[Prosecutor]: If I could. Your Honor --

"The Court: Can you finish the thought?

"[Prosecutor]: It is within the David Jackson letter that

David Jackson told him where the gun is.

"The Court: You are afraid he is headed for comment on

--

"[Powell's counsel]: It is not in the possession of --

"The Court: I think that is what the objection is, yes?

"[Powell's counsel]: Yes, sir.

"The Court: He hadn't finished his --

"[Powell's counsel]: I didn't want him to finish. I thought

it was improper.

13

CR-20-0727

"The Court: Tell them what you are fixing to say.

"[Prosecutor]: The David Jackson letter says that David

Jackson told him where the gun is. That is it, I am not going

to say he didn't tell us or anything like that. I am not a first

year prosecutor, but I appreciate the instruction.

"The Court: That bell hasn't been rung yet. I don't find

that to be improper depending on what comes next of course.

We will resume.

"(End of side-bar.)

"The Court: [Prosecutor], you may continue.

"[Prosecutor]: Thank you, Your Honor. There is one

man in this courtroom who knows where that gun is, one man

and he is sitting right over there next to that jury box. You

remember that letter from David Jackson? I have one copy

here. State's 1001. You have the original, State's Exhibit 223.

"[Powell's counsel]: I still renew my objection.

"The Court: Noted, overruled.

"[Prosecutor]: This letter, I am on page three for

reference, 'I apologize to Mr. Powell for him wrongly -- for him

being wrongly accused for something that I was involved in, I

also told him where to find Mr. James Moore's gun.' That is

what David Jackson said. That is what David Jackson copied

from the defendant's letter. Do you remember him telling us

about that?"

(R. 2394-96 (emphasis added).)

14

CR-20-0727

After the parties' closing arguments, the circuit court charged the

jury. (R. 2421-64.) Thereafter, the circuit court dismissed the alternate

jurors and the remaining jurors retired to deliberate. After its

deliberations, the jury returned a verdict finding Powell guilty of capital

murder. (R. 2492.) Powell's case then proceeded to the penalty phase.

At the conclusion of the penalty phase, the jury unanimously found two

aggravating circumstances to exist beyond a reasonable doubt, and it

recommended by a vote of 11 to 1 that Powell be sentenced to death. The

trial court followed the jury's recommendation.

Standard of Review

Rule 45A, Ala. R. App. P., currently provides:

"In all cases in which the death penalty has been

imposed, the Court of Criminal Appeals may, but shall not be

obligated to, 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."

Recently, this Court explained that it would continue to review the

entire record for plain error in all cases in which the death penalty has

been imposed, but we made clear that our analysis on issues that are

reviewed for plain error may not be as extensive as was our historical

15

CR-20-0727

practice. See Iervolino v. State, [Ms. CR-21-0283, August 18, 2023] ___

So. 3d ___ (Ala. Crim. App. 2023).

In conducting plain-error review, we apply the following standard:

" '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 in the trial court

or on appeal.' Hall v. State, 820 So. 2d 113, 121 (Ala. Crim.

App. 1999), aff'd, 820 So. 2d 152 (Ala. 2001). Plain error is

'error that is so obvious that the failure to notice it would

seriously affect the fairness or integrity of the judicial

proceedings.' Ex parte Trawick, 698 So. 2d 162, 167 (Ala.

1997), modified on other grounds, Ex parte Wood, 715 So. 2d

819 (Ala. 1998). '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.' Hyde v. State, 778 So. 2d 199, 209

(Ala. Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala. 2000). 'The

plain error standard applies only where a particularly

egregious error occurred at trial and that error has or

probably has substantially prejudiced the defendant.' Ex

parte Trawick, 698 So. 2d at 167. '[P]lain error must be

obvious on the face of the record. A silent record, that is a

record that on its face contains no evidence to support the

alleged error, does not establish an obvious error.' Ex parte

Walker, 972 So. 2d 737, 753 (Ala. 2007). Thus, '[u]nder the

plain-error standard, the appellant must establish that an

obvious, indisputable error occurred, and he must establish

that the error adversely affected the outcome of the trial.'

Wilson v. State, 142 So. 3d 732, 751 (Ala. Crim. App. 2010).

'[T]he 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. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L.

Ed. 2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152,

163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982))."

16

CR-20-0727

DeBlase v. State, 294 So. 3d 154, 182-83 (Ala. Crim. App. 2018).

Discussion

I.

As set out above, Powell first argues that, during its rebuttal closing

argument, the State "repeatedly and erroneously commented on [his]

silence." (Powell's brief, p. 12.) The State, on the other hand, argues that

the complained-of comment was proper rebuttal, was not a comment on

Powell's failure to testify, and that "no jury would naturally and

necessarily take it to be a comment on Powell's failure to testify." (State's

brief, pp. 13-14.) We agree with Powell.

Both the United States Constitution and the Alabama Constitution

protect the right of every person to be free from being compelled to give

evidence against themselves. See Art. I, § 6, Ala. Const. 2022, and U.S.

Const. amend. V. The Alabama Supreme Court has held that courts

"must carefully guard against a violation of a defendant's constitutional

right not to testify." Ex parte Williams, 461 So. 2d 852, 853 (Ala. 1984)

(citing Whitt v. State, 370 So. 2d 736, 739 (Ala. 1979)). This Court, citing

and quoting decisions from the Alabama Supreme Court, has provided

17

CR-20-0727

the following framework to be used to determine whether the State has

impermissibly commented on a defendant's right not to testify:

" ' " 'Comments by a prosecutor on

a defendant's failure to testify are

highly prejudicial and harmful, and

courts must carefully guard against a

violation of a defendant's constitutional

right not to testify. Whitt[ v. State, 370

So. 2d 736] at 739 [(Ala. 1979)]; Ex

parte Williams, 461 So. 2d 852, 853

(Ala. 1984); see Ex parte Purser, 607

So. 2d 301 (Ala. 1992). This Court has

held that comments by a prosecutor

that a jury may possibly take as a

reference to the defendant's failure to

testify violate Art. I, § 6, of the

Alabama Constitution of 1901. Ex

parte Land, 678 So. 2d 224 (Ala.), cert.

denied, 519 U.S. 933, 117 S. Ct. 308,

136 L. Ed. 2d 224 (1996); Ex parte

McWilliams, 640 So. 2d 1015 (Ala.

1993); Ex parte Wilson, [571 So. 2d

1251 (Ala. 1990)]; Ex parte Tucker, 454

So. 2d 552 (Ala. 1984); Beecher v. State,

294 Ala. 674, 320 So. 2d 727 (1975).

Additionally, the Fifth and Fourteenth

Amendments of the United States

Constitution may be violated if the

prosecutor comments upon the

accused's silence. Griffin v. California,

380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed.

2d 106 (1965); Ex parte Land, supra;

Ex parte Wilson, supra. Under federal

law, a comment is improper if it was

" ' "manifestly intended or was of such a

character that a jury would naturally

18

CR-20-0727

and necessarily take it to be a comment

on the failure of the accused to

testify." ' " United States v. Herring,

955 F.2d 703, 709 (11th Cir.), cert.

denied, 506 U.S. 927, 113 S. Ct. 353,

121 L. Ed. 2d 267 (1992) (citations

omitted); Marsden v. Moore, 847 F.2d

1536, 1547 (11th Cir.), cert. denied, 488

U.S. 983, 109 S. Ct. 534, 102 L. Ed. 2d

566 (1988); United States v.

Betancourt, 734 F.2d 750, 758 (11th

Cir.), cert. denied, 469 U.S. 1021, 105

S. Ct. 440, 83 L. Ed. 2d 365 (1984). The

federal courts characterize comments

as either direct or indirect, and, in

either case, hold that an improper

comment may not always mandate

reversal.

" ' " 'Consistent with this

reasoning, Alabama law distinguishes

direct comments from indirect

comments and establishes that a direct

comment on the defendant's failure to

testify mandates the reversal of the

defendant's conviction, if the trial court

failed to promptly cure that comment.

Whitt v. State, supra; Ex parte Yarber,

[375 So. 2d 1231 (Ala. 1979)]; Ex parte

Williams, supra; Ex parte Wilson,

supra. On the other hand, "covert," or

indirect, comments are construed

against the defendant, based upon the

literal construction of Ala. Code 1975, §

12-21-220, which created the "virtual

identification doctrine." Ex parte

Yarber, 375 So. 2d at 1234. Thus, in a

case in which there has been only an

19

CR-20-0727

indirect reference to a defendant's

failure to testify, in order for the

comment to constitute reversible error,

there must have been a virtual

identification of the defendant as the

person who did not become a witness.

Ex parte Yarber, 375 So. 2d at 1234; Ex

parte Williams, supra; Ex parte

Wilson, supra; Ex parte Purser, supra.

A virtual identification will not exist

where the prosecutor's comments were

directed toward the fact that the

State's evidence was uncontradicted, or

had not been denied. See Beecher v.

State, 294 Ala. 674, 682, 320 So. 2d 727,

734 (1975); Ex parte Williams, supra;

Ex parte Purser, supra. Yet, in such

circumstances, it becomes important to

know whether the defendant alone

could have provided the missing

evidence.

" ' " 'A challenged comment of a

prosecutor made during ... arguments

must be viewed in the context of the

evidence presented in the case and the

entire ... arguments made to the jury --

both defense counsel's and the

prosecutor's. Ex parte Land, supra;

Windsor v. State, 683 So. 2d 1021, 1023

(Ala. 1994); Ex parte Musgrove, 638 So.

2d 1360, 1368 (Ala.1993), cert. denied,

513 U.S. 845, 115 S. Ct. 136, 130 L. Ed.

2d 78 (1994)."

" ' "Ex parte Brooks, 695 So. 2d 184, 188-89 (Ala.)

(footnotes omitted), cert. denied, 522 U.S. 893, 118

20

CR-20-0727

S. Ct. 233, 139 L. Ed. 2d 164 (1997), quoted in Ex

parte Clark, 728 So. 2d 1126, 1130-31 (Ala. 1998).

" ' "In United States v. Knowles, 66 F.3d 1146

(11th Cir. 1995), cert. denied, 517 U.S. 1149, 116

S. Ct. 1449, 134 L. Ed. 2d 568 (1996), more

specifically addressing the alternative criteria for

a comment to be improper -- the comment was (1)

manifestly intended to be a comment on the

defendant's failure to testify or (2) of such

character that the jury would have naturally and

necessarily taken it to be a comment on the

defendant's failure to testify -- the court stated:

" ' " ' "The question is not whether

the jury possibly or even probably

would view the remark in this manner,

but whether the jury necessarily would

have done so." [United States v.

Swindall, 971 F.2d 1531, 1552 (11th

Cir. 1992), cert. denied, 510 U.S. 1040,

114 S. Ct. 683, 126 L. Ed. 2d 650 ...

(1994) (citations omitted) (emphasis in

Swindall).] "The defendant bears the

burden of establishing the existence of

one of the two criteria." [United States

v. Muscatell, 42 F.3d 627, 632 (11th

Cir.), cert. denied, 515 U.S. 1162, 115

S. Ct. 2617, 132 L. Ed. 2d 859 ... (1995).]

The comment must be examined in

context, in order to evaluate the

prosecutor's motive and to discern the

impact of the statement. [Id.]" '

" ' "66 F.3d at 1163." '

"Smith v. State, 797 So. 2d 503, 539-41 (Ala. Crim. App. 2000)

(quoting Thomas v. State, 824 So. 2d 1, 21-23 (Ala. Crim. App.

21

CR-20-0727

1999), overruled on other grounds by Ex parte Carter, 889 So.

2d 528 (Ala. 2004))."

Smith v. State, [Ms. CR-17-1014, Sept. 2, 2022] ___ So. 3d ___, ___ (Ala.

Crim. App. 2022) (emphasis added). In short, this Court must first

determine whether the comment in question was either a direct comment

or an indirect comment on Powell's failure to testify.

As set out above, during its rebuttal closing argument, the State

told the jury: "You know there is only one person in this room who knows

where the gun is. One person, he is sitting over there. That guy knows

where the gun is." (R. 2393-94.) Powell objected to the prosecutor's

comment, and after the court overruled his objection, the prosecutor

continued: "There is one man in this courtroom who knows where that

gun is, one man and he is sitting right over there next to that jury box."

(R. 2395.)

These comments are nearly identical to the comment made by the

prosecutor in Whitt v. State, 370 So. 2d 736 (Ala. 1979), which the

Alabama Supreme Court held was a direct comment on the defendant's

failure to testify and, because the circuit court failed to promptly remedy

the prejudice caused by the comment, constituted reversible error.

22

CR-20-0727

"In Whitt, supra, the defendant was indicted for first degree

murder arising out of a fatality in an automobile collision. He

was convicted of second degree murder and the conviction was

affirmed by the Court of Criminal Appeals. This Court

reversed, however, finding that the district attorney's

argument to the jury was an impermissible comment on the

defendant's failure to testify. In Whitt, none of the closing

arguments appeared in the record except the statements

objected to by counsel, including the comment regarding the

defendant's failure to testify: 'The only person alive today that

knows what happened out there that night is sitting right

there.' The defendant promptly objected to this remark and

made a motion for mistrial.

"We stated in Whitt:

" 'The comment "The only person alive today

that knows what happened out there that night is

sitting right there" is almost identical to the

comment "No one took the stand to deny it" held to

be a direct comment on the defendant's failure to

testify and held to be reversible error in Beecher

[v. State], 294 Ala. 674, 320 So. 2d 727 (1975) (per

Justice Embry). The comment is very close to the

comment made in Warren v. State, 292 Ala. 71,

288 So. 2d 826 (1973). There, this Court held (per

Justice McCall) that the argument "The only one

that said he didn't sell it [marijuana] was the little

brother" was also a direct comment on the failure

of the defendant to testify and constituted

reversible error. It is thus that we must conclude,

based on the holding and rationale of those two

cases, that the comment by the district attorney in

this case was a direct comment on the failure of the

defendant to testify and constituted error to

reverse.'

"370 So. 2d at 738."

23

CR-20-0727

Ex parte Wilson, 571 So. 2d 1251, 1261-62 (Ala. 1990) (emphasis added).

So, just as in Whitt, supra, Beecher v. State, 294 Ala. 674, 320 So. 2d 727

(1975), and Warren v. State, 229 Ala. 71, 288 So. 2d 826 (1973), the

prosecutor's comment in this case -- that "there is only one person in this

room who knows where the gun is" and that he is "sitting right over

there" -- is clearly a direct comment on Powell's failure to testify at trial.

The State, in its brief on appeal, says that "no jury would naturally

and necessarily take [the prosecutor's comment] to be a comment on

Powell's failure to testify," claiming that the prosecutor's comment "on

Powell's knowledge of the gun was not commentary on his failure to

testify, but rather, was a refutation of defense counsel's argument that

the State had the wrong person." (State's brief, pp. 14-15.) But when

Powell objected to the prosecutor's comment at trial, the prosecutor

responded differently, arguing that the comment was appropriate

because "[i]t is within the David Jackson letter that David Jackson told

him where the gun is." (R. 2394.) The State on appeal tries to tie its

"wrong-person" argument to the prosecutor's argument in the circuit

court by saying that, "if Powell told Jackson about the murder weapon

for Jackson to include in the letter, then Powell had knowledge of the

24

CR-20-0727

murder weapon, thereby supporting the conclusion that the State had not

tried the wrong person." (State's brief, pp. 15-16.) Under either theory,

however, the prosecutor's comment was still an impermissible direct

reference to Powell's failure to explain where the gun is, as Powell is the

only person who could have testified as to the whereabouts of the gun.

This is precisely the type of comment that is forbidden under the

Constitution.

Although we recognize that "[a] prosecutor has the latitude to

comment on the fact that the State's evidence is uncontradicted or has

not been denied," we also recognize that "a prosecutor may not make

comments that step over the line drawn by the right of a defendant not

to testify at trial." Ex parte Williams, 461 So. 2d at 853 (citing Beecher,

294 Ala. at 682, 320 So. 2d at 734). The prosecutor's comment in this

case crossed that line, requiring this Court to reverse Powell's capital-

murder conviction and death sentence and to remand this case to the

circuit court for further proceedings.

Although the State's direct comment on Powell's right not to testify

requires this Court to reverse Powell's capital-murder conviction and

death sentence, this Court, in the interest of judicial economy and

25

CR-20-0727

efficiency, also addresses some of the other issues that Powell raises on

appeal.

II.

We start with Powell's arguments that the circuit court erred when

it allowed the State to present Jackson's deposition testimony at his trial

because the deposition was taken outside the presence of a judge and

because, he says, it was admitted at his trial when he did not have "an

adequate prior opportunity to cross-examine the witness." (Powell's

brief, p. 18.) Powell's arguments are without merit.

The taking of a deposition in a criminal proceeding is governed by

Rule 16.6(a), Ala. R. Crim. P., and § 12-21-264, Ala. Code 1975. Rule

16.6(a) makes it clear that depositions are permitted in criminal cases

"[w]henever, due to the exceptional circumstances of the case, it is in the

interest of justice that the testimony of a prospective witness be taken

and preserved for use at trial." Further, § 12-21-264(b), Ala. Code 1975,

states that such depositions "shall be taken before the judge in the court's

chambers or at another suitable location as the court may direct and shall

be conducted in the presence of the district attorney or assistant district

attorney, the defendant and his or her attorney, and any other persons

26

CR-20-0727

as the court in its discretion may permit, taking into consideration the

welfare and well-being of the victim or witness." And Rule 16.6(e) allows

either party to use, at trial,

"a part or all of a deposition, so far as otherwise admissible

under the Alabama Rules of Evidence, may be used as

substantive evidence if the witness is unable to be present or

to testify at the hearing because of death or mental illness or

infirmity, or is absent from the hearing and the proponent of

the statement has been unable to procure the witness's

attendance by process or other reasonable means, or the

witness gives testimony at the trial or hearing inconsistent

with that witness's deposition. Any deposition may also be

used by any party for the purpose of contradicting or

impeaching the testimony of the deponent as a witness. If

only a part of a deposition is offered in evidence by a party, an

adverse party may require the offering of all of it that is

relevant to the part offered and any party may offer other

parts."

(Emphasis added). What is more, Rule 16.6(f), Ala. R. Crim. P., requires

that "[o]bjections to deposition testimony or evidence or parts thereof and

the grounds for the objection shall be stated at the time of the taking of

the deposition." Powell raises two arguments concerning Jackson's

deposition.

First, Powell argues that Jackson's deposition does not comply with

§ 12-21-264, Ala. Code 1975, because it was taken outside the presence

of a judge. Although Powell is correct, the judge's absence here was

27

CR-20-0727

invited by Powell. See Albarran v. State, 96 So. 3d 131, 167 (Ala. Crim.

App. 2011) (holding that a defendant cannot invite error and then

predicate a reversal on the error he or she invited).

Indeed, before the parties took Jackson's deposition, Powell's

counsel objected to the taking of the deposition based on having had

inadequate time to prepare to cross-examine Jackson. After the parties

made their arguments, the following exchange occurred:

"The Court: Do y'all need me in here?

"[Prosecutor]: Judge, the State does not. This is a

deposition and a judge is not normally present but I

understand that you would probably be on standby if we do

need you.

"The Court: [Defense counsel], I don't mind staying in

here.

"[Prosecutor]: Whatever y'all think.

"The Court: I mean, you know, generally something that

I may at the preliminary hearing anyway if he was to be

available but --

"[Powell's counsel]: Let me say my client is entitled to a

jury trial. This proceeding is not in front of a jury. You know,

we just object on the record and --

"The Court: I note your objection. I mean --

"[Powell's counsel]: Leave it at that.

28

CR-20-0727

"The Court: And I don't think -- and I think that

anything that's taken down can be redacted at some point in

time if there's something that is obviously, that's not

admissible. It can be redacted or it can even be stricken, the

entire deposition can.

"So I will ... allow y'all to proceed, but I will if y'all want

me to sit in here, but I will be more than happy to do that. So

I will allow y'all to proceed with the deposition.

"[Powell's counsel]: That's fine. You are overruling our

objections, right?

"The Court: Overruling, yes, sir.

"[Prosecutor]: The State defers to the Court on the

matter of whether or not you want to be in here. This is a

deposition where a judge is not normally present but

whatever you think, Judge.

"The Court: If y'all need me, let me know.

"[Powell's counsel]: Defense does not require the Court.

"The Court: I will step out. If y'all need me, I will be

down the hall. All right. We will get the court reporter to

swear Mr. Jackson in."

(C. 387-89 (emphasis added).)

So, although the judge was not present when Jackson's deposition

was taken, the judge absented himself from the deposition only after

Powell's counsel told the judge that he did "not require" the judge to be

29

CR-20-0727

present. 3 Powell cannot now argue that his own voluntary conduct

requires reversal of this case or that the judge's absence from the

deposition prejudiced him. What is more, although invited error in

death-penalty cases can rise to the level of plain error, and although, as

explained above, this Court still examines death-penalty cases for plain

error, we do not find that the invited error here rises to the level of plain

error. Thus, Powell's argument does not entitle him to any relief.

Second, Powell argues that the circuit court erred when it admitted

Jackson's deposition because, he says, his attorneys were not given an

adequate opportunity to "effectively" cross-examine Jackson because the

deposition was scheduled "just days after their appointment." (Powell's

brief, p. 21.) To provide context to Powell's argument on appeal, we set

out some additional procedural history of Powell's case.

On October 30, 2016, the circuit court appointed Mickey Johnson to

represent Powell at a 72-hour hearing, and, at that time, Johnson made

3After Jackson's deposition, the State moved the trial court to enter

a pretrial ruling as to the admissibility of Jackson's deposition testimony

at Powell's trial. During that hearing, Powell objected to the admission

of Jackson's deposition at trial on the basis that it was not done in front

of a judge in violation of § 12-21-264(b), Ala. Code 1975. (R. 232-33.) At

the time Powell raised this argument, however, he had already invited

any error in the judge's not attending the deposition.

30

CR-20-0727

a demand for a preliminary hearing. (C. 34.) On November 17, 2016,

before a preliminary hearing was held, however, Powell was indicted for

capital murder. (C. 26-27.) On November 21, 2016, Powell's case was set

for arraignment. (C. 28.) At the time that his arraignment was set, the

circuit court appointed Victor Portella as Johnson's co-counsel. (C. 28,

30.) Mickey Johnson moved to withdraw from representing Powell on

December 8, 2016 (C. 34), and the circuit court granted his motion the

next day. (C. 36.)

On December 9, 2016, the circuit court appointed Gary Young to

represent Powell. (C. 37.) Thereafter, on December 14, 2016, Portella

moved to withdraw from representing Powell. (C. 38-39.) Two days later,

Young moved to withdraw from representing Powell, citing a "potential

conflict." (C. 40.) The circuit court granted Young's motion the same day

he filed it. (C. 42.) Immediately after granting Young's motion, on

December 16, 2016, the circuit court appointed Everett Wess to represent

Powell (C. 43), and it issued an order setting Powell's arraignment for

December 21, 2016 (C. 44). The circuit court granted Portella's motion to

withdraw on December 21, 2016. (C. 53.)

31

CR-20-0727

On December 16, 2016, the State moved to depose David Jackson

at 9:00 a.m., on December 27, 2016. (C. 45.) On December 20, 2016, Wess

moved the circuit court to appoint Kittren Walker as co-counsel, and the

circuit court granted that motion (C. 51, 54). Thereafter, Wess and

Walker remained as Powell's counsel throughout the trial-court

proceedings.

On December 21, 2016, the circuit court arraigned Powell, and after

Powell pleaded not guilty and not guilty by reason of mental disease or

defect, the circuit court noted that there was a pending notice of

deposition and asked the parties to explain the notice. (R. 6-7.) At that

time, the State explained that it had originally noticed the deposition "of

an individual who may have or who we believe does have significant

information about this case" for December 27, 2016. (R. 7.) But, the State

explained, it had learned that there was a scheduling conflict on that date

and proposed that the deposition take place on December 29, 2016.

Powell's counsel told the circuit court that he had "[n]o objection at this

point," but he qualified his lack of objection at that time "to reserve the

right to object in the event we come up with an objection between now

and then." (R. 7, 9.) So, the circuit court granted the State's motion "as

32

CR-20-0727

it relates to the deposition, the taking of the deposition of David Carson

Jackson as I do find an adequate factual basis recited in the motion and

that he is alleged to be an indispensable and critical witness in these

cases." (R. 8.)

On December 29, 2016, the parties appeared in court for Jackson's

deposition. Before taking Jackson's deposition, Powell's counsel objected

as follows:

"Just for the record, we do object to the deposition being

taken. I note for the record that I was appointed on this case

December the 16th of 2016. My co-counsel, Kitt Walker, was

appointed to this case December the 21st of 2016. We've gone

through the Christmas holidays and we are here on December

the 29th of 2016 and we have received some discovery,

although I note I don't believe that we've received all of the

discovery that would be due in this case in the end.

"My client, you know, these two cases are the

obstruction of justice case and tampering with evidence case.

We have a witness here, Mr. Davis Jackson -- David Jackson.

My client is Michael Powell who is also charged with a capital

murder case and, you know, he's subject to the death penalty

or life without the possibility of parole. This is a very serious

charge, very serious case. Death is different.

"....

"We just want to object for the record. ... We will say that

this deposition violates my client's Sixth Amendment right to

adequate counsel because we have recently been appointed to

this case as noted before.

33

CR-20-0727

"He is unable to adequately confront the witnesses as a

result of this deposition happening in a short period of time

when we've come onto these cases[.]"

(C. 377-79.) Powell's counsel added:

"And in order for it to be said that Mr. Powell has had

an adequate opportunity to confront the witness in this

particular case, we have not had an adequate opportunity to

investigate this particular witness so how can we, how can it

be said two years from now that Mr. Powell had an adequate

opportunity to confront this witness when we have not had an

opportunity to investigate this witness.

"We can't, we can't cross-examine this witness regarding

any of his background, regarding any of his history. He's

obviously a racist. There is a statement that was taken by the

District Attorney's Office. You know, he said some very

disparaging things about African Americans. There's a --

called them N words, called us N words and all those kinds of

things.

"We need an opportunity to investigate this man,

whether or not he's a member of the KKK or any other white

supremacist groups, whether or not --

"....

"His criminal history and a number of other things. It

can't be said that Mr. Powell has had an adequate opportunity

to confront this witness when we've not had an adequate

opportunity to investigate this witness."

(C. 384-85.)

In response, the State argued that it had given Powell "copies of all

of the interviews and we have provided all of the phone calls, videotapes,

34

CR-20-0727

and documents related to this. ... So they do have, as far as I can tell,

complete discovery in this." (C. 386.) Thereafter, the district-court judge

overruled Powell's objection to the taking of Jackson's deposition and the

parties deposed Jackson.

During Jackson's deposition, Powell's counsel took Jackson on voir

dire, questioning him about his availability for a future trial and asking

him if he had provided contact information to the State. (C. 390-92.)

Powell's counsel also thoroughly cross-examined Jackson about his

extensive criminal history (including his arrests in North Carolina, South

Carolina, Georgia, Alabama, and Florida), his history of alcohol and drug

abuse,4 his refusing to meet with Powell's counsel when they came to the

jail to talk to him, his circumstances as to how he ended up in the Shelby

County jail, and his meeting Powell in the jail. (C. 449-59.) Powell's

counsel also questioned Jackson as to why he had been "very

uncooperative" with Powell's counsel and asked him about his statement

in an interview that he "hate[s] black men." (C. 459-63.) Thereafter,

Powell's counsel had the following exchange with Jackson:

4Jackson told Powell's counsel that he had "tried every drug under

the sun just about." (C. 453.)

35

CR-20-0727

"[Powell's counsel]: All right. So as part of your

interview, you referred, you told the detective that I hate

black men. Isn't that correct, sir?

"[Jackson]: I don't hate nobody, sir.

"[Powell's counsel]: So you didn't tell, you didn't say that

in that interview that you hate black men? Get me to that,

please. Just a second, sir.

"[Jackson]: Okay. And, sir --

"[Powell's counsel]: Sir, your hatred is your cross to bear,

not mine.

"[Jackson]: Sir, you wouldn't hate somebody that did you

like that?

"[Powell's counsel]: Sir, I don't hate anybody. I don't live

with that.

"[Jackson]: I don't hate nobody either. You wouldn't hate

a son of a bitch do you like that? All y'all try to do is trick

some goddamn somebody, all you sons of bitches.

"The Deputy: Sit down.

"[Jackson]: See what we can fuck that white man out of.

I already know. I already know.

"(Video playing.)

"[Jackson]: Been in court all day here. Been in court all

day on top of that.

"(Video playing.)

"[Powell's counsel]: That was you, wasn't it?

36

CR-20-0727

"[Jackson]: Absolutely.

"[Powell's counsel]: You said you hate black men?

"[Jackson]: The way y'all do me, yes, sir.

"[Powell's counsel]: Well, earlier when I asked you that

--

"[Jackson]: The way that man done me, you goddamn

right.

"[Powell's counsel]: Earlier when I asked you that, sir,

you said you didn't hate anybody.

"[Jackson]: I don't hate nobody --

"[Powell's counsel]: You said you hate him, you hate

black men, did you not, sir?

"[Jackson]: He tried to make me look like a goddamn

fool. Yes, sir, I do hate you sons of bitches. I said it. There you

go.

"....

"[Jackson]: I hate that son of a bitch and I hate your ass,

too, because you up here trying to make me --"

(C. 463-65.) Powell's counsel then asked Jackson a series of questions

about whether he belonged to "any Neo-Nazi groups," "the Ku Klux

Klan," or "any white supremacist groups," and Jackson denied any

involvement with those groups. (C. 466.) Powell's counsel also

37

CR-20-0727

questioned Jackson about the circumstances surrounding the writing of

the letter. (R. 473-74.) The State did not do any redirect on Jackson.

During a pretrial hearing on the admissibility of Jackson's

deposition testimony, Powell's counsel made the following argument:

"Finally, the defendant argued that admitting into evidence

the deposition testimony of David Jackson would violate the

defendant's right under the confrontation clause of the Sixth

Amendment to the United States Constitution and Crawford

v. Washington, 541 U.S. 36 (2004), case. In support of the

defendant's assertion, the defendant offers the excerpts from

the written transcription of the video deposition of David

Carson Jackson, pages 89 through 104 attached as Exhibit 3

wherein the witness contradicted himself on numerous

occasions, expressed a negative racial attitude towards the

entire African American race, which does not afford the

defendant the guarantees of trustworthiness of his testimony.

The defendant respectfully moves that this Court deny the

admissibility of all the testimony of David Carson Jackson."

(R. 235-36.) Powell's counsel added:

"Another thing I wanted to point out this was a case

where I believe I was appointed on December 16th or so of

2016 and co-counsel was appointed December 21st of 2016,

and this is four years ago. Based on memory, we were like on

Christmas break. I don't even know if I was in the office and

I received a call saying that they wanted to take a deposition

on December 29th during the Christmas break, period. We

had no idea what this deposition was about. My client is

facing the death penalty in this particular case. So we

objected on the record, and we would like to renew that

objection to this entire deposition today. My client is facing

the death penalty. We prepared as best we could, got back

here after Christmas holidays, and I reviewed and co-counsel

38

CR-20-0727

reviewed the information that was provided to us from Mr.

Jackson, and we were still trying to figure it out and still

working on the fly on the 29th. And that is unfair to my client.

Your Honor. And it is our contention that this entire

deposition process was unfair to our client, the defendant Mr.

Michael Powell.

"So in addition to what Mr. Kitt Walker has argued, we

would like the Court to make note of how we were working on

the fly trying to get information, trying to make a

determination as to how to cross examine Mr. Jackson and try

to make a determination as to what he said and what was

going on concerning this entire matter."

(R. 236-37.)

As to Powell's argument that he was not able to adequately cross-

examine Jackson, the circuit court told the parties that it would "defer

ruling on the instant motion until I have read the entire deposition." (R.

253.) Ultimately, the circuit court allowed the State to present Jackson's

deposition testimony to the jury.

Powell argues on appeal that the circuit court erred when it

admitted Jackson's deposition testimony because, he says, his counsel

was not given an opportunity to effectively cross-examine Jackson.

Powell claims that, because of the timing of his counsel's appointment to

his case and the taking of Jackson's deposition, his counsel was "unable

to successfully cross-examine Mr. Jackson on his criminal history," did

39

CR-20-0727

not have "a chance to hire an investigator," and did not have an

opportunity "to review full discovery." (Powell's brief, pp. 23-24.)

Powell's argument is without merit.

Although the Sixth Amendment to the United States Constitution

provides, in part, that, "[i]n all criminal prosecutions, the accused shall

enjoy the right ... to be confronted with the witnesses against him," U.S.

Const., amend. VI, " ' "the Confrontation Clause guarantees only an

opportunity for effective cross-examination, not cross-examination that

is effective in whatever way, and to whatever extent, the defense might

wish." ' Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 96 L. Ed.

2d 631 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct.

292, 88 L. Ed. 2d 15 (1985))." Lane v. State, 327 So. 3d 691, 717 (Ala.

Crim. App. 2020). And Crawford sets forth no rule guaranteeing "some

minimal threshold of adequacy." Lane, 327 So. 3d at 717.

"As the United States Court of Appeals for the Fifth Circuit

has noted, 'the Supreme Court's watershed decision in

Crawford ... did not purport to set forth new standards

governing the effectiveness of cross-examination. To the

contrary, the Court reaffirmed its precedents holding that "an

adequate opportunity to cross-examine" a now-unavailable

witness would satisfy the Confrontation Clause.' United

States v. Richardson, 781 F.3d 237, 244 (5th Cir. 2015) (first

and third emphasis added)."

40

CR-20-0727

Lane, 327 So. 3d at 717. Here, contrary to his argument on appeal,

Powell's counsel was afforded an adequate opportunity to confront and

cross-examine Jackson. And, as set out above, counsel conducted a

thorough cross-examination, in which counsel highlighted Jackson's

extensive interactions with the criminal-justice system, his alcohol and

substance abuse, and his feelings about Powell, specifically, and black

people, generally.

Because Powell was given an adequate opportunity to cross-

examine Jackson, the circuit court did not err when it admitted Jackson's

deposition testimony over Powell's objections that it violated the

confrontation clause. It is also clear that, as suggested by the judge who

offered to preside over the deposition, Jackson's testimony is subject to

pretrial objections and could be "redacted" if redaction is considered to be

appropriate by the circuit court. Accordingly, Powell is due no relief on

this claim.

III.

Next, we turn to Powell's argument that the circuit court erred

when it admitted into evidence surveillance videos from the businesses

surrounding the gas station where Algar was murdered because, he says,

41

CR-20-0727

"the State failed to lay a proper foundation for the authentication and

admission of these videos, opening grave doubts regarding 'reliability and

trustworthiness' of this evidence." (Powell's brief, p. 34.)

It is well settled that

" ' "[t]he admission or exclusion of evidence is a matter within

the sound discretion of the trial court." Taylor v. State, 808

So. 2d 1148, 1191 (Ala. Crim. App. 2000), aff'd, 808 So. 2d

1215 (Ala. 2001). "The question of admissibility of evidence is

generally left to the discretion of the trial court, and the trial

court's determination on that question will not be reversed

except upon a clear showing of abuse of discretion." Ex parte

Loggins, 771 So. 2d 1093, 1103 (Ala. 2000).' "

Floyd v. State, 289 So. 3d 337, 395 (Ala. Crim. App. 2017) (quoting

Windsor v. State, 110 So. 3d 876, 880 (Ala. Crim. App. 2012)).

In the context of authenticating a video for admission as evidence

in a trial, this Court has explained:

"Rule 901(a), Ala. R. Evid., provides that '[t]he

requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its

proponent claims.' The authentication requirement is a

relatively low threshold to meet. '[A]ll that is required under

Rule 901' is that the proponent of the evidence make 'a prima

facie showing that the [evidence] ... is likely authentic'; the

proof of authenticity 'does not [have to] establish beyond a

shadow of a doubt the authenticity of the [evidence]' and

' "does not have to be conclusive or overwhelming." ' Royal Ins.

Co. of America v. Crowne Inv., Inc., 903 So. 2d 802, 809 (Ala.

2004) (quoting the Advisory Committee'[s] Notes to Rule 901).

42

CR-20-0727

See also United States v. McDaniel, 433 F. App'x 701, 704

(10th Cir. 2011) ('We have repeatedly instructed that Rule

901[, Fed. R. Evid.,] sets a low bar for admissibility.').

"With respect to the authentication of videos, the

Alabama Supreme Court has explained that '[t]here are two

theories upon which photographs, motion pictures,

videotapes, sound recordings, and the like are analyzed for

admission into evidence: the "pictorial communication" or

"pictorial testimony" theory and the "silent witness" theory.'

Ex parte Fuller, 620 So. 2d 675, 678 (Ala. 1993). These

theories are 'mutually exclusive,' and which theory is

applicable 'depends upon the particular circumstances.' Id.

"The pictorial-communication theory applies 'when a

qualified and competent witness can testify that the ...

recording ... accurately and reliably represents what the

witness sensed at the time in question.' Ex parte Fuller, 620

So. 2d at 678. In other words, the pictorial-communication

theory applies when a witness who observed what is depicted

on the video is available to testify at trial and can testify that

the video accurately reflects what the witness observed. See

Capote v. State, 323 So. 3d 104, 133 (Ala. Crim. App. 2020)

(holding that the pictorial-communication theory was

inapplicable because none of the witnesses who testified at

trial 'were present at the site while the cameras recorded [the

defendant's] activities' (citation omitted)).

"The silent-witness theory, on the other hand, applies

when 'there is no qualified and competent witness who can

testify that the [video] accurately and reliably represents

what he or she sensed at the time in question.' Ex parte

Fuller, 620 So. 2d at 678 (emphasis omitted). In such cases,

the silent-witness theory provides that a video

" 'is admissible, even in the absence of an observing

or sensing witness, because the process or

mechanism by which the [video] is made ensures

43

CR-20-0727

reliability and trustworthiness. In essence, the

process or mechanism substitutes for the witness's

senses, and because the process or mechanism is

explained before the [video] is admitted, the trust

placed in its truthfulness comes from the

proposition that, had a witness been there, the

witness would have sensed what the [video]

records.'

"Id. Thus,

" '[w]hen the "silent witness" theory is used, the

party seeking to have the [video] admitted into

evidence must meet the seven-prong Voudrie [v.

State, 387 So. 2d 248 (Ala. Crim. App. 1980),] test.

Rewritten to have more general application, the

Voudrie standard requires:

" '(1) a showing that the device or process or

mechanism that produced the item being offered

as evidence was capable of recording what a

witness would have seen or heard had a witness

been present at the scene or event recorded,

" '(2) a showing that the operator of the device

or process or mechanism was competent,

" '(3) establishment of the authenticity and

correctness of the resulting recording, photograph,

videotape, etc.,

" '(4) a showing that no changes, additions, or

deletions have been made,

" '(5) a showing of the manner in which the

recording, photograph, videotape, etc., was

preserved,

44

CR-20-0727

" '(6) identification of the speakers, or

persons pictured, and

" '(7) for criminal cases only, a showing that

any statement made in the recording, tape, etc.,

was voluntarily made without any kind of coercion

or improper inducement.'

"Ex parte Fuller, 620 So. 2d at 678.

"....

"Since Ex parte Fuller, supra, was decided, Alabama

cases discussing the authentication of videos under the

Voudrie test have dealt almost exclusively with surveillance-

camera videos. See Young v. State, 375 So. 3d 813 (Ala. Crim.

App. 2021); Capote, supra; Petersen v. State, 326 So. 3d 535

(Ala. Crim. App. 2019); Horton v. State, 217 So. 3d 27 (Ala.

Crim. App. 2016); Bohannon v. State, 222 So. 3d 457 (Ala.

Crim. App. 2015); Spradley v. State, 128 So. 3d 774 (Ala.

Crim. App. 2011); Woodward v. State, 123 So. 3d 989 (Ala.

Crim. App. 2011) (dashboard camera from a police officer's

patrol car); Straughn v. State, 876 So. 2d 492 (Ala. Crim. App.

2003); Lee v. State, 898 So. 2d 790 (Ala. Crim. App. 2001);

Pressley v. State, 770 So. 2d 115 (Ala. Crim. App. 1999); and

Ex parte Rieber, 663 So. 2d 999 (Ala. 1995)."

Harrison v. State, [Ms. CR-21-0423, Aug. 18, 2023] ___ So. 3d ___, ___

(Ala. Crim. App. 2023).

Here, the State admitted at trial surveillance videos from

businesses around the gas station where Algar was murdered. The State

alleged that the videos showed Powell traveling on foot from The View

apartment complex where he lived to the gas station and back to The

45

CR-20-0727

View apartment complex around the time that Algar was murdered. Det.

Josh Rauch testified that, as part of the investigation into Algar's death,

law enforcement obtained surveillance videos from Wayne's Auto Service,

Precision Tune Auto Care, Food Depot, Industrial BP, Faith

Consignment, Med Center Shell, Shelby Baptist Medical Center, and The

View Apartments. (R. 1412.) Det. Rauch said that he visited each

business, viewed the surveillance videos at each business, and saved the

videos on a "thumb drive." (R. 1413-16.)

On appeal, Powell raises several arguments about the admission of

the above-mentioned videos. We address Powell's arguments on a video-

by-video basis.

III.A. Wayne's Auto Service

As to the surveillance video recovered from Wayne's Auto Service,

Powell argues that the State failed to establish that Det. Rauch "was

competent to operate" the video-camera system -- i.e., the second Voudrie

requirement. (Powell's brief, p. 37.)

At trial, Det. Rauch said that he met with Rhonda Allinder, the

office manager for Wayne's Auto, who helped him access the surveillance

video. Det. Rauch said that the video showed that at 10:50 a.m. on the

46

CR-20-0727

day Algar was murdered "a male subject wearing a white shirt, black

pants, appeared to be a black male walking from the left to the right of

the screen. He was walking southbound on Highway 31 on the

northbound side of the Highway 31 towards Kirkland Chevron." (R.

1417.) Det. Rauch said that the video, which, he said, was "accurate with

respect to the actual true date and time," "first picked him up at 10:50

a.m. where this male enters the store at 10:52 a.m., and then four

minutes pass and I see the same individual wearing a white shirt, black

pants walk out of the Kirkland Chevron and continue southbound on

Highway 31 before he takes off into a full sprint." (R. 1417-19.) Det.

Rauch said that, after he viewed the video, he downloaded it to his

"thumb drive."

Allinder testified that she met with law enforcement about

"providing some video in relation to a crime that occurred on October 30th

of 2016." (R. 1509.) Allinder said she gave law enforcement access to

their camera system and that the officers were familiar with their

cameras because of prior thefts at their business. Allinder said that the

camera system is "capable of recording what a witness would have seen

if they had been present" and that she knows how to operate the system.

47

CR-20-0727

(R. 1508, 1510.) When the State moved to admit the Wayne's Auto Sales

video, Powell raised no objection. (R. 1510.)

Because Powell did not object to the admission of the Wayne's Auto

Sales video, Powell's argument on appeal is reviewed for plain error only.

After reviewing the testimony in this case, we find no plain error in the

circuit court's admission of the Wayne's Auto Sales video based on Det.

Rauch's "competence" to operate the surveillance-camera system.

III.B. Precision Tune Auto Care

As to the surveillance video recovered from Precision Tune Auto

Care, Powell argues that "the State introduced [the video] from Precision

Tune Auto Care through owner Jamie Martin even though Ms. Martin

was unable to verify that the time and date stamps on the video

recordings were accurate." (Powell's brief, p 41.)

At trial, Det. Rauch testified that he contacted the owner of

Precision Tune Auto Care, Jamie Martin, to view the video. Det. Rauch

said that he drove to Martin's house "where she allowed us to view the

video" on her laptop computer. (R. 1420-21.) Det. Rauch said that the

video showed a "male running out of Kirkland Chevron at 10:56[.] I also

see this same individual, black male wearing a white shirt, black pants

48

CR-20-0727

and I can tell he has a black fedora hat on walking out of the store going

southbound in the same direction that I saw him on the Wayne's [Auto

Sales] video" and that the male was walking toward the hospital. (R.

1421.) After viewing the video, Det. Rauch "immediately saved it to [his]

thumb drive and secured it on [his] person." (R. 1422.)

Martin said that, on October 30, 2016, she telephoned law

enforcement after she watched the Precision Tune Auto Care

surveillance video "to see what may or may not be" on the cameras.

Martin said that the system is "capable of recording what a witness would

have seen if they had been present," that she knows how to operate the

system, that the video given to Det. Rauch is an "authentic and correct"

recording from the system, and that there had been no alterations or

changes to that recording. (R. 1493.) Martin testified that she checked

the time stamps on the system two or three times per day. (R. 1494.)

When the circuit court first admitted the Precision Tune Auto Care

surveillance video, Powell did not object. (R. 1499.) After the court

admitted the video, however, Powell argued that Martin "was unable to

authenticate the actual time and calibration of the time and when the

video was recorded and that type of thing based on [Martin's] testimony."

49

CR-20-0727

(R. 1500.) The circuit court overruled Powell's late objection, finding that

his argument "goes to the weight of the evidence, not the admissibility."

(R. 1500.)

Although Powell objected to the Precision Tune Auto Care video on

the basis that Martin was unable to "authenticate the actual time and

calibration of the time," Powell's objection was untimely because it was

raised after the circuit court had already admitted the surveillance video.

See Jelks v. State, 411 So. 2d 844, 847 (Ala. Crim. App. 1981) ("It has

long been the law in this state that objections to the admission of evidence

must be made at the time the evidence is offered, and must state the

specific grounds so that the trial court may rule on the matter."). Thus,

Powell's argument is reviewed for plain error, and we find none.

Even so, Powell's argument that the State failed to authenticate the

time on the Precision Tune Auto Care video is clearly refuted by the

testimony presented at trial. Indeed, Det. Rauch testified at trial as

follows:

"[Prosecutor]: Detective Rauch, I wanted to clarify one

thing if I could based on your testimony yesterday as I

understood it. I believe yesterday afternoon you testified

concerning some video footage from Precision Tune Auto. I

wanted to ask you was it your testimony that you watched the

footage of the person walking in front of Precision Tune Auto

50

CR-20-0727

dressed in the dark pants, white shirt and a dark colored hat,

that he was heading south?

"[Det. Rauch]: Yes. That's correct.

"[Prosecutor]: And was the time stamp correct on

Precision Tune's video camera system?

"[Det. Rauch]: Yes, it was.

"[Prosecutor]: And what time did Precision Tune's video

show for when that person walked in front of their business

there?

"[Det. Rauch]: 10:55 a.m."

(R. 1436 (emphasis added).) What is more, contrary to Powell's argument

on appeal and his untimely objection at trial, Martin also testified that

she regularly checked the time stamp on the video and that it was

accurate. (R. 1494.)

Because the State presented testimony authenticating the time on

the Precision Tune Auto Care video, Powell's argument that it failed to

do so is incorrect. Thus, Powell is not entitled to any relief on this claim.

III.C. Food Depot

As to the surveillance video recovered from Food Depot, Powell

argues on appeal that the State failed to establish that Det. Rauch "was

51

CR-20-0727

'competent' to operate" the camera system at Food Depot -- i.e., the second

Voudrie requirement. (Powell's brief, p. 36.)

At trial, Det. Rauch said that he "spoke to a Mr. Robert. He was

the manager that was on duty there at the store. Identified who we were

and what we needed. He granted us access as to the security system."

(R. 1423.) Det. Rauch said that the Food Depot surveillance system was

not accurate as to time of day. But to determine the accuracy of the time

shown on the surveillance video, Det. Rauch said that they "pulled up the

system and looked at what time the computer was telling us, the security

system was telling us it was, looked at our phones and verified that it

was fifty-four minutes slow." (R. 1423.) Once they determined how far

off the system's time was, that allowed them to locate the portion of the

video that would show what was happening outside the Food Depot

around the time when Algar was murdered. Det. Rauch said that, when

they located that time on the system, they watched the video, which

showed "the same black male that I have seen from previous videos, black

male, white shirt, black pants, black fedora hat walking through the

parking lot of Food Depot from the time of 10:47 a.m. until the time of

10:49 walking in the middle of Food Depot parking lot walking towards

52

CR-20-0727

Highway 31." (R. 1424.) After viewing the video, Det. Rauch downloaded

it to his "thumb drive and secured it on [his] person where [he] later put

it into evidence." (R. 1425.)

Robert Schneckenberger, the manager of the Food Depot in October

2016, testified at trial that he met with officers and gave them access to

Food Depot's video surveillance system and showed them how to work it

but after that he was not involved. Schneckenberger said that the system

was capable of seeing what a witness would have seen and that he knows

how it was installed, how it functioned, and how to operate the system.

(R. 1515, 1517.) Schneckenberger said that the system "had a thirty day

lap." (R. 1518.) He "looked at [the video] briefly when [the police] were

going through it, but [he] did not spend [any] time on it." (R. 1518.) He

allowed the police to use the system and download something, but he

could not say that the video admitted into evidence was the item they

downloaded and took with them. (R. 1519.)

When the State moved to admit the Food Depot video, Powell

argued only, "Objection. Subject to cross." (R. 1516.) The court admitted

the video "subject to cross." (R. 1516.) After his cross-examination of

Schneckenberger, Powell argued:

53

CR-20-0727

"We would like to renew our objection for [the Food

Depot video]. [Schneckenberger] doesn't know anything

about the recording. He allowed the police to come in and

make a recording of something and he doesn't know what

happened and didn't deal with the timing of the system, and

I don't know that he testified he pushed a button or was in

control of the recording."

(R. 1519-20.) The circuit court overruled Powell's objection finding, in

part, that Powell's argument "goes to the weight of the evidence, not to

its admissibility." (R. 1520.)

In sum, Powell objected to the admission of the Food Depot video

on the basis that Schneckenberger lacked knowledge of how law

enforcement -- i.e., Det. Rauch -- made the recording of the Food Depot

surveillance system video. Powell did not object to Det. Rauch's lack of

"competence" to operate the surveillance system. Thus, Powell's

argument is reviewed for plain error only. We find no plain error in the

admission of the Food Depot video.

III.D. Industrial BP

As to the surveillance video recovered from Industrial BP, Powell

argues that the State failed to establish that Det. Rauch "was competent

to operate" the video-surveillance system at the Industrial BP gas

station. (Powell's brief, p. 36.)

54

CR-20-0727

At trial, Det. Rauch said that a man named Cuong Nguyen helped

him access the surveillance video. (R. 1426.) Det. Rauch said that the

system's date and time stamp was accurate and that he watched the

video around the time Algar was murdered, which showed "the same

person that we have been tracking through all the other videos, white

shirt, black pants moving from left of the screen to right of the screen still

walking southbound on the side of 31." (R. 1426.) Thereafter, Det. Rauch

said that he "retrieved it from that system and put it on [his] thumb drive

where [he] secured it on my person and went back to the police

department and secured it there." (R. 1427.)

Nguyen testified that he knew how to operate the security system

at the Industrial BP and that the system was capable of recording what

a witness would have seen if they had been present. Nguyen said that

he gave officers access to the system so that they could retrieve video

from the time of Algar's murder, and that, after showing the officers how

to search the video system for what they were looking for, he did not have

anything else to do with it. (R. 1522.) He did not view the video with the

police. He does "monitor" the system "roughly every other month" and

makes sure the "date and time matches with [their] register." (R. 1525.)

55

CR-20-0727

When the State moved to admit the Industrial BP video, Powell did

not object, and the circuit court admitted the video "subject to cross." (R.

1522.) After he cross-examined Nguyen, Powell argued generally: "We

object. It is not authenticated and the foundation wasn't laid." (R. 1528.)

The court overruled Powell's objection.

Contrary to Powell's assertion on appeal that there was insufficient

evidence to establish Nguyen's "competence" to operate the Industrial BP

video-surveillance system, Nguyen did testify that he was the manager

of the Industrial BP gas station, that he had worked there for 12 years,

that he has "worked on the security system there," that he knew how to

operate the system, and that he showed the officers how to search the

video system. This was sufficient to establish the second Voudrie

requirement that the operator of the recording devise must be

"competent."

III.E. Faith Consignment

As to the surveillance video recovered from Faith Consignment,

Powell argues that the video was inaccurate as to time of day and that

Det. Rauch "was incapable of establishing the authenticity and

correctness of the ... extremely critical time stamps." (Powell's brief, p.

56

CR-20-0727

38.) Powell also asserts that there was no testimony establishing "that

the recording system at Faith Consignment was capable of recording

what a witness would have seen if they had been present." (Powell's brief,

p. 39.)

At trial, Det. Rauch said that he met with a person at Faith

Consignment who gave him access to the video-surveillance system. Det.

Rauch said that the system was not accurate as to date and time, so he

had to go through the same process he went through with the Food Depot

system. Using that same method, Det. Rauch determined that the Faith

Consignment video-surveillance system was off by 1 hour and 26

minutes. Once Det. Rauch figured out this difference, he was able to

locate the portion of the surveillance video that showed what was going

on outside of Faith Consignment around the time Algar was murdered.

Det. Rauch said that the video showed "what appears to be the same

individual, white shirt, black pants, black male walking southbound on

Highway 31 in the northbound lane. He is only on video for

approximately a minute before he turns left and goes up into the parking

lot of [Shelby Baptist Medical Center] Hospital parking lot." (R. 1428.)

Det. Rauch then downloaded the video to his "thumb drive and secured

57

CR-20-0727

it on [his] person and took it back to the police department and placed it

in evidence." (R. 1430.)

Jill Leath, the owner of Faith Consignment, testified at trial that

the business had a video-surveillance system, that she knows how to

operate the system, and that around October 30, 2016, police officers

came to her business to view the surveillance video from her store. (R.

1501.) Leath said that the video given to Det. Rauch on a thumb drive

was "authentic and correct" and that there had been no alterations or

changes to that recording. She viewed the thumb-drive video before

giving it to the police to make sure it was what they asked for. (1503,

1506.) Leath also explained that the recording was saved on a "backup

system for seven days." (R. 1502.)

When the State moved to admit the Faith Consignment video at

trial, Powell made the following general objection: "We will object to it at

this point. He has not laid the proper predicate." (R. 1503.) The court

told Powell that it "will admit" the Faith Consignment video "[s]ubject to

cross." (R. 1503.) After Powell's counsel cross-examined Leath, his

counsel merely said, "We note the objection." (R. 1507.) The circuit court

58

CR-20-0727

made no further rulings concerning the admission of the Faith

Consignment video.

First, we question whether Powell's general objection that the State

failed to lay the proper predicate for the admission of the Faith

Consignment video properly preserved for appellate review the specific

argument he raises on appeal that the State failed to show the accuracy

of the time stamp of the video and that the video surveillance system was

capable of recording what a witness would have seen. See, e.g., Foster v.

State, 705 So. 2d 534, 539 (Ala. Crim. App. 1997) (holding that "[a]

general objection is insufficient to preserve error"), and Todd v. State, 380

So. 2d 370, 372 (Ala. Crim. App. 1980) ("Unless the evidence objected to

is patently illegal or irrelevant, an overruled general objection is

insufficient to predicate error on appeal."). A review of the record

indicates that Powell is correct in asserting that there was no testimony

to establish that the recording device used at Faith Consignment was

"capable of recording what a witness would have seen" had the witness

been present at the time. Because we reverse Powell's conviction on other

grounds, we do not have to determine whether this deficiency rises to the

level of reversible error.

59

CR-20-0727

III.F. Med Center Shell

As to the surveillance video recovered from Med Center Shell,

Powell argues that "no testimony established" that Det. Rauch "was

competent to operate this system" (Powell's brief, p. 37), that the Med

Center Shell video was inaccurate as to time of day, and that Det. Rauch

"was incapable of establishing the authenticity and correctness of the ...

extremely critical time stamps." (Powell's brief, p. 38.)

At trial, Det. Rauch said that he met with Maria Canela, a cashier

at the Med Center Shell gas station who assisted him in accessing the

Med Center Shell video-surveillance system. (R. 1430.) Using the same

method that he used for the Food Depot and Faith Consignment videos,

Det. Rauch determined that the Med Center Shell video-surveillance

system was 1 hour and 31 minutes fast. After figuring out the

discrepancy between the system's time and the actual time, Det. Rauch

was "able to cue up an appropriate time frame to look for video footage"

and saw what "appeared to be the same individual that we had been

watching still walking southbound on 31." (R. 1431.) Det. Rauch then

downloaded the video to his "thumb drive and secured it on [his] person

and took it back for evidence." (R. 1432.)

60

CR-20-0727

Canela testified that officers came to the gas station and asked if

they could access the video-surveillance system. Canela said that the

system was capable of recording what a witness would have seen if they

had been present, that she knows how to operate the system, and that

she provided the officers access to the system. (R. 1529.) On cross-

examination, she testified that she looked at the video and saw the police

make a copy of it. (R. 1531.)

When the circuit court admitted the Med Center Shell video, Powell

did not object. (R. 1529-30.) After Powell cross-examined Canela, he told

the circuit court that he "would like to renew [his] objection as to

foundation." (R. 1533.) The court overruled his "renewed" objection. (R.

1533.)

Powell did not object when the circuit court admitted the Med

Center Shell video into evidence. Powell waited until after he cross-

examined Canela to raise any objection to the Med Center Shell video,

but, unlike other video-surveillance evidence previously admitted during

Powell's trial, this exhibit was not admitted "subject to cross." Therefore,

Powell's objection was untimely because it was raised after the circuit

court had already admitted the surveillance video from Med Center Shell.

61

CR-20-0727

See Jelks, 411 So. 2d at 847 ("It has long been the law in this state that

objections to the admission of evidence must be made at the time the

evidence is offered, and must state the specific grounds so that the trial

court may rule on the matter."). Thus, Powell's argument on appeal is

not properly preserved and is reviewed for plain error only. We find no

plain error in the admission of the Med Center Shell video.

III.G. Shelby Baptist Medical Center

As to the surveillance video recovered from Shelby Baptist Medical

Center, Powell argues that videos obtained from Shelby Baptist Medical

Center were inaccurate as to time of day and that Det. Rauch "was

incapable of establishing the authenticity and correctness of the resulting

recordings and the extremely critical time stamps." (Powell's brief, p. 38.)

At trial, Det. Rauch testified that he met with Timothy Jones, "who

is head of the security" at Shelby Baptist Medical Center. (R. 1439.)

After meeting with Jones, Det. Rauch was able to watch the surveillance

videos. Det. Rauch explained that the Medical Center's camera "was on

three different systems. Basically they had numerous cameras, but they

had three different systems and it would operate certain cameras." (R.

1439.) Det. Rauch said that the system was not accurate as to date and

62

CR-20-0727

time, and that he had to engage in the same process he used with the

Food Depot system. Det. Rauch said that "[c]amera 12 was one hour and

thirty-one minutes fast. Camera six was in real-time and the ER camera

was one hour and thirty-one minutes fast." (R. 1439.) After figuring out

these discrepancies in time, Det. Rauch watched the videos from around

the time that Algar was murdered. Det. Rauch said that the "first camera

that [he] viewed, [he] saw this individual come up from Highway 31 still

walking southbound and walked into the parking lot of the hospital. " (R.

1441.) Det. Rauch said that the person is seen on another camera

walking "up the parking deck and then takes a right and walks through

the top half or top portion of the parking deck, the parking lot and walks

from left to right if you are looking at the hospital walking towards 7th

Avenue Northeast." (R. 1442.) Finally, the ER camera showed the

person "turn from the hospital and walking up 7th Avenue Northeast."

(R. 1443.)

Jones testified at trial that officers came to the hospital requesting

access to the video-surveillance system. Jones said that the cameras

were capable of recording what a witness would see if a witness had been

present and that he knew how to operate the cameras. (R. 1534.) Jones

63

CR-20-0727

said that he viewed the videos with the police, that the videos are

"authentic and correct" recordings from the cameras, and that there did

not appear to be any alterations or changes to the recordings. (R. 1535-

36.)

When the State moved to admit the Shelby Baptist Medical Center

video, Powell made no objection, and the court admitted the video

"subject to cross." (R. 1536.) After his cross-examination of Jones, Powell

argued "same objection." (R. 1539.) The court responded, "I will note the

objection."

Because Powell did not object when the circuit court admitted the

video from Shelby Baptist Medical Center, Powell's objection to the

admission of the video after his cross-examination was untimely. See

Jelks, 411 So. 2d at 847 ("It has long been the law in this state that

objections to the admission of evidence must be made at the time the

evidence is offered, and must state the specific grounds so that the trial

court may rule on the matter."). Even so, the objection Powell raised after

cross-examination was only a general objection. Thus, Powell's argument

on appeal was not preserved and is reviewed for plain error only. We find

64

CR-20-0727

no plain error in the admission of the Shelby Baptist Medical Center

video.

III.H. The View Apartments

As to the surveillance video recovered from The View Apartments,

Powell argues that the State failed to present testimony that "established

the authenticity and correctness of the resulting recording or that no

changes, alterations, or deletions had been made to this critical video"

(Powell's brief, p. 40) and that the circuit court improperly admitted "a

video purportedly depicting the path that a person would walk from Mr.

Powell's apartment to one of The View Apartment's security cameras"

under the pictorial-communication theory. (Powell's brief, pp. 40-41.)

At trial, Det. Rauch said that he met with the owner of The View,

Dixie Walker, and the manager of The View, Jennifer Jones, who gave

him access to the video-surveillance system. (R. 1446.) Det. Rauch said

that The View's system was seven minutes fast, which he determined by

using the same method described above. Det. Rauch said that the video

showed "the same black male that I had been watching in all the previous

videos, white shirt, black pants walk from the right-hand side of the

screen to the left." (R. 1446.) Det. Rauch said the person on the video

65

CR-20-0727

would be "heading away from the hospital" and toward The View

Apartments. (R. 1448.) Det. Rauch said that both Walker and Jennifer

Jones identified the person in the video as Powell. Det. Rauch said that

he made a copy of the video from The View Apartments and "secured it

into evidence." (R. 1448.)

Walker testified that in 2016 she was the chief operating officer for

The View Apartments. (R. 1566.) As chief operating officer of The View,

she rented apartment 509 to Debbie Harrell, and on June 16, 2016,

Powell filled out a rental application and moved into apartment 509 with

Harrell. (R. 1566-70.) Walker said that apartment 509 is "downstairs

from our office" and that she is familiar with the "path that [Powell]

would have taken from [apartment] 509 to get to that dumpster." (R.

1571-72.) Walker said that Powell walked a lot of places and that, the

building in which he lived, "when you come out, you go by a little road

that has a dumpster on it." (R. 1572.) Walker testified that The View

has a "security camera that is across the street from the dumpster" and

that "it basically looks at the dumpster and then at the north end of the

building at both our office and [the apartment] Michael Powell lived in."

(R. 1572-73.)

66

CR-20-0727

During Walker's testimony, the State introduced, and the circuit

court admitted, as State's Exhibit 60, a video recording showing the path

a person would have had to walk to go from apartment 509 to the

dumpster located in front of the office to be in view of the security

cameras. Walker said that she had viewed the video and that it fairly

and accurately depicts the route that Powell would have had to take to

get from apartment 509 to the dumpster. (R. 1573.) But Walker said she

did not make the video recording that she viewed. (R. 1573.) When the

State moved to admit State's Exhibit 60, Powell objected and the

following exchange occurred:

"[Powell's counsel]: We would say the proper predicate

has not been laid for admission of this particular exhibit.

"[The State]: Judge, I believe it comes in under the

pictorial theory of a video. [Walker] has been able to

accurately identify that she knows the path from that

apartment to the dumpster, that she has viewed the file and

that it does correctly and fairly depict that path.

"The Court: I will overrule the objection. State's 60 is

admitted and you may publish."

(R. 1574.)

During Walker's testimony, the State also introduced, and the

circuit court admitted, as State's Exhibit 61, four surveillance videos

67

CR-20-0727

from The View Apartments: one video shows Powell walking away from

apartment 509 and walking in front of a dumpster at approximately 7:22

a.m. on October 30, 2016, one video shows Powell walking toward

apartment 509 and walking in front of a dumpster at approximately 7:29

a.m. on October 30, 2016, one video shows Powell walking away from

apartment 509 and walking in front of a dumpster at approximately

10:27 a.m. on October 30, 2016, and one video shows Powell walking

toward apartment 509 and walking in front of a dumpster at

approximately 11:19 a.m. on October 30, 2016. (R. 1579-81.)

Walker testified that the video-surveillance system at The View

was "capable of recording what a witness would have seen had they been

present" and that she knows how to operate the video-surveillance

system. (R. 1574-75.) Walker said that, when she watched the four

surveillance videos from October 30, 2016, she believed that the person

seen walking in each video is Powell. (R. 1577-78.) When the State

moved to admit State's Exhibit 61, Powell's counsel said, "We would

renew our objection." (R. 1579.)

As noted above, on appeal, Powell argues that the circuit court

erred when it admitted both State's Exhibit 60 and State's Exhibit 61.

68

CR-20-0727

As to State's Exhibit 61 (the four surveillance videos), Powell

argues that the State failed to establish "the authenticity and correctness

of the resulting recording or that no changes, alterations, or deletions had

been made to this critical video" (Powell's brief, p. 40) But, as set out

above, Powell did not raise this specific objection in the circuit court.

Instead, Powell made a general objection that he was "renewing" his

objection. It is not clear from the transcript of the proceedings what his

"renewed" objection related to. Powell's general objection is not sufficient

to preserve for appellate review the specific argument he makes on

appeal. Thus, Powell's argument as to State's Exhibit 61 is reviewed for

plain error only, and, although we agree with Powell that the State failed

to satisfy the third and fourth Voudrie requirements as to the

surveillance videos from The View, we do not find that these omissions

rise to the level of plain error.

As to State's Exhibit 60, Powell argues that the circuit court

improperly admitted the video under the pictorial-communication theory.

We agree with Powell.

In Spradley v. State, 128 So. 3d 774, 780-82 (Ala. Crim. App. 2011)

(quoting Ex parte Fuller, 620 So. 2d 675, 678 (Ala. 1993)), this Court

69

CR-20-0727

noted that the key difference between the "silent-witness" theory and the

"pictorial-communication" theory for admitting a photograph or video

recording is that, to admit a recording under the pictorial-communication

theory, the admitting party must present a "qualified and competent

witness who can testify that the ... medium accurately and reliably

represents what he or she sensed at the time in question." In other

words, the witness who lays the foundation for the admission of a

recording under the pictorial-communication theory has to have been

present at the time the recording or photograph was made. If there is no

such qualified witness, the admitting party must rely on the silent-

witness theory to have the recording or photograph admitted into

evidence. Indeed, the two "theories are mutually exclusive, rather than

alternative theories." Spradley, 128 So. 3d at 781. Recently, this Court

explained:

"The pictorial-communication theory applies 'when a

qualified and competent witness can testify that the ...

recording ... accurately and reliably represents what the

witness sensed at the time in question.' Ex parte Fuller, 620

So. 2d at 678. In other words, the pictorial-communication

theory applies when a witness who observed what is depicted

on the video is available to testify at trial and can testify that

the video accurately reflects what the witness observed. See

Capote v. State, 323 So. 3d 104, 133 (Ala. Crim. App. 2020)

(holding that the pictorial-communication theory was

70

CR-20-0727

inapplicable because none of the witnesses who testified at

trial 'were present at the site while the cameras recorded [the

defendant's] activities' (citation omitted))."

Harrison v. State, [Ms. CR-21-0423, Aug. 18, 2023] ___ So. 3d ___, ___

(Ala. Crim. App. 2023).

Here, although Walker testified that she was familiar with what

was depicted in the video that was admitted as State's Exhibit 60, Walker

testified that she did not make the video. What is more, Walker did not

testify that that she was present when the video recording was made.

Thus, the circuit court erred when it admitted State's Exhibit 60 under

the pictorial-communication theory.

Of course, our finding of error here does not bar the State from

seeking to admit State's Exhibit 60 at Powell's retrial for Algar's murder.

Indeed, the State may still admit that exhibit under the silent-witness

theory or, if it chooses to, under the pictorial-communication theory by

presenting a qualified witness who was present when the video was

recorded. We also note that, although the circuit court's error is subject

to harmless-error review, such a review is unnecessary here because we

are reversing Powell's conviction and death sentence on other grounds.

IV.

71

CR-20-0727

Finally, we address Powell's argument that the circuit court erred

when it "admitted unsigned and unauthenticated letters provided by

[Kelvin Hines] in violation of State and Federal law." (Powell's brief, p.

76.) According to Powell, "[t]he State introduced an unsigned letter

allegedly written by Mr. Powell that was provided by a jailhouse snitch

named Kelvin Hines, who admitted that if he saw an opportunity to get

less time for his life sentence he would 'take advantage of it.' " (Powell's

brief, p. 77.) Powell claims that the State "failed to establish direct proof

that the letter contained Mr. Powell's handwriting: they did not introduce

any exemplars of [his] writing for the jury to compare, call a witness who

could testify that this was [his] handwriting, or engage a handwriting

expert who could provide expert testimony establishing that Mr. Powell

wrote this letter or that it was in reply to a previous letter." (Powell's

brief, p. 77.) Powell's argument is without merit.

In Capote v. State, this Court addressed the standard used to

determine whether a circuit court properly admits a letter allegedly

written by the defendant at a trial:

" ' " 'The admission or exclusion of

evidence is a matter within the sound

discretion of the trial court.' Taylor v.

State, 808 So. 2d 1148, 1191 (Ala. Crim.

72

CR-20-0727

App. 2000), aff'd, 808 So. 2d 1215 (Ala.

2001). 'The question of admissibility of

evidence is generally left to the

discretion of the trial court, and the

trial court's determination on that

question will not be reversed except

upon a clear showing of abuse of

discretion.' Ex parte Loggins, 771 So.

2d 1093, 1103 (Ala. 2000). In addition,

'[t]rial courts are vested with

considerable discretion in determining

whether evidence is relevant, and such

a determination will not be reversed

absent plain error or an abuse of

discretion.' Hayes v. State, 717 So. 2d

30, 36 (Ala. Crim. App. 1997)."

" 'Gavin v. State, 891 So. 2d 907, 963 (Ala. Crim.

App. 2003).'

"Woods v. State, 13 So. 3d 1, 23 (Ala. Crim. App. 2007).

"Rule 901(a), Ala. R. Evid., provides: 'The requirement

of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent

claims.' 'A writing may be authenticated by evidence of the

contents or substance of the writing when taken in

conjunction with the circumstances out of which it was

written.' Charles W. Gamble and Robert J. Goodwin,

McElroy's Alabama Evidence § 111.01(1) (6th ed. 2009). See

also Rule 901(b)(4), Ala. R. Evid. (providing that a piece of

evidence may be properly authenticated by its '[a]ppearance,

contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances').

"In Washington v. State, 539 So. 2d 1089 (Ala. Crim.

App. 1988), this Court held:

73

CR-20-0727

" ' "Before a letter is received in evidence, it is

necessary to lay a foundation establishing its

identity and authenticity, as by introducing proof

as to the source of the letter or proof of the

handwriting or signature of the sender." Howard

v. State, 347 So. 2d 574, 575 (Ala. Crim. App.

1977). Here, there was no proof regarding the

defendant's handwriting and the letters bore no

signature. Nevertheless, even "unsigned letters

may be received in evidence if properly connected

with a person as being his actual letter, by the

introduction of competent evidence showing it to

be so." Silva v. Exchange Nat'l Bank, 56 So. 2d

332, 335-36 (Fla. 1951).

" 'The question before us is whether the

letters were "properly connected" with the

defendant even though no witness saw him write

the letters or place them in his truck for delivery.

"The authenticity of a letter may be established in

more than one way. It may be established directly

by proof of handwriting or by indirect or

circumstantial evidence." Casto v. Martin, 159

W.Va. 761, 230 S.E.2d 722, 727 (1976); Maynard v.

Bailey, 85 W.Va. 679, 102 S.E. 480 (1920);

Deaderick v. Deaderick, 182 Ga. 96, 185 S.E. 89

(1936).

" '....

" 'Finally, although "the mere contents of a

written communication ... are of themselves

usually not sufficient evidence of genuineness," 7

Wigmore, Evidence § 2148 at 746, "[t]he contents

of a writing may be critical in establishing

admissibility. When the contents of a letter are of

such nature that the letter could not have passed

74

CR-20-0727

between any parties except the purported writer

and the person to whom it was delivered, the letter

is admissible." Casto v. Martin, 230 S.E.2d at 727

(footnotes omitted). See also People v. Adams, 162

Mich. 371, 127 N.W. 354, 360 (1910) (letters

purporting to come from defendant to witness,

referring to a subject previously discussed by

them, were admissible although it was not shown

that he signed or sent them).

" '....

" 'The sufficiency of the predicate required for

the authentication of letters is largely within the

discretion of the trial judge, and will be reviewed

only for an abuse of discretion. Casto v. Martin,

230 S.E.2d at 727; State v. Huffman, [141 W.Va.

55,] 87 S.E.2d [541] at 554 [(1955)]. We find no

abuse of discretion here. The letters were properly

admitted for the jury to determine their actual

authorship. Maynard v. Bailey, 102 S.E. at 482.'

"539 So. 2d at 1097-99."

Capote, 323 So. 3d at 121-22. Here, the State presented sufficient

evidence tending to connect Powell to the letter provided by Hines.

At trial, Hines testified that, while he was in the Shelby County

jail, he spoke with Powell about Powell's case. Powell told Hines that

there was a picture of him "floating around and it had a picture of a hat,"

but "you couldn't see his face because the hat was pulled down over his

eyes." (R. 2176-77.) Powell also told Hines that there was no way the

75

CR-20-0727

eyewitness who said that she saw him running down the road "could have

identified him driving that fast, the speed limit you had to drive and it

was busy." (R. 2177.) Hines said that Powell talked to him about a box

that he had that contained .380 ammunition that matched the

ammunition found at the crime scene but that Powell said that he had a

nephew who was going to tell people that the box and ammunition

belonged to the nephew. (R. 2178.) Hines testified that Powell told him

that the Chevron gas station where Algar worked had only one camera.

(R. 2178-79.) Hines further testified that Powell

"never specifically said that he shot the lady, but he did say

-- he talked about brains. He was talking about her brains or

something along the lines of that. And he just -- like I had

said, he went on to say there was no way that the blood could

have got on him from the way he had the door closed, the way

he had the gun stuck in; it was no way."

(R. 2179-80.)

Hines also explained that, in addition to talking to each other about

their cases, Powell wrote him letters that were "passed back and forth

through the door." (R. 2181.) Hines then identified a letter that, he said,

Powell wrote to him while they were in the Shelby County jail, which was

admitted as State's Exhibit 292. (R. 2183.) The letter provided:

"Sorry it took me so long to respond been busy.

76

CR-20-0727

"Didn't give the devils in the D.A.'s Office my DNA.

They've got to use what's already on file and that's what my

lawyer told them.

"I'm just sitting & waiting on trial so I can expose the

prosecution and detectives as liars with the video footage of

me down south. I would like to know the cases you've got that

are like mine.

"Glad you got the cases off you (the crack charges)

"Now the point is what are you gonna do? Cop out or go

to trial?

"This is a number to stay in contact with me (***) ***-

**** My wife # Lady J. My lawsuit has been filed and should

be getting served on them soon.

"These inmates need to start filing lawsuits on this jail.

The beds are a safety hazard and the new memo on the door

is making them have to use the toilet & sink to get on the top

bunks which is dangerous.

"Hope you get your biz straight with your snow bunny.

"The Fed inmate over here made the jail give him a free

indigent writing package. It had 6 stamps, pen, and paper.

Filed a grievance & stated how they're obligated to do that

each week for a Fed inmate.

"Whatever decision you make on your case whether to

cop out or go to trial. Look at the evidence they claim to have.

"[Illegible]."

77

CR-20-0727

(Supp. C. 332-33.) Powell objected to the admission of the Shelby County

jail letter, arguing only that "[i]t is not signed by Michael Powell." (R.

2181.)

On appeal, Powell maintains that the letter was improperly

admitted because it was "unsigned." He also argues that the State failed

to provide any "direct proof that the letter contained Mr. Powell's

handwriting" and that the State "failed to establish circumstantial

evidence that the letter was written by Mr. Powell." (Powell's brief, pp.

77-78.) Contrary to Powell's arguments, the State presented sufficient

evidence connecting Powell to the letter. First, Hines testified that

Powell gave him the letter. Further, as quoted above, the letter included

the telephone number for "Lady J," who Powell described in the letter as

"my wife." During trial, the State presented testimony from Elise

Johnson, who testified that she was Powell's girlfriend and that she

would talk to Powell on the telephone and communicate with him via text

message. Johnson said that, at that time, her telephone number was the

telephone number the author of the letter provided to Hines as a means

to stay "in contact" with the author. The information related to the

telephone number, by itself, was sufficient to connect Powell to the

78

CR-20-0727

unsigned letter and, thus, was sufficient to authenticate that letter for

its admission at trial. Of course, whether Powell actually authored the

letter was a question for the jury to resolve, not a question of the

admissibility of the letter. Thus, the circuit court did not abuse its

discretion in admitting the letter Hines said was authored by Powell.

Conclusion

Because the State directly commented on Powell's right not to

testify during its rebuttal closing argument, this Court must reverse

Powell's capital-murder conviction and his death sentence and remand

this case to the circuit court for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

Kellum and Minor, JJ., concur in the result. McCool, J., dissents,

with opinion, which Windom, P.J., joins.

79

CR-20-0727

McCOOL, Judge, dissenting.

I respectfully dissent from the decision to reverse Michael Anthony

Powell's capital-murder conviction and death sentence based on Powell's

argument that the State directly commented on his failure to testify. I

do not believe that the prosecutor's comment was an improper comment

on Powell's failure to testify. Instead -- in the context in which it was

delivered in this case -- the comment was a proper comment on the

evidence, as well as a proper "argument in-kind" by which to rebut

defense counsel's comment that the State had failed to produce the

murder weapon.

I. Analysis

Before analyzing the issues in this case, I believe it prudent to set

forth the law regarding improper commentary on a defendant's failure to

testify. Our jurisprudence in this regard is, and indeed ought to be,

extremely fact- and case-specific. Prosecutors are given wide latitude

under the law to comment on all reasonable inferences from the evidence,

as well as to "argue in-kind" to arguments made by defense counsel.

Concerning a prosecutor's comments about the evidence, this Court has

stated:

80

CR-20-0727

"Questions about the propriety of counsel's statements

in closing argument are matters for the broad discretion of the

trial court. See, e.g., Gobble v. State, 104 So. 3d 920, 947 (Ala.

Crim. App. 2010) (quoting Acklin v. State, 790 So. 2d 975,

1002 (Ala. Crim. App. 2000)). A prosecutor may argue every

legitimate inference from the evidence 'and may examine,

collate, shift and treat the evidence in his own way.' Taylor v.

State, 666 So. 2d 36, 64 (Ala. Crim. App. 1994). A prosecutor's

arguments are to be examined in the context of the complete

closing arguments and in the context of the evidence as a

whole. The standard of review is not whether the defendant

was prejudiced by a comment, but whether the comment 'so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.' Darden v. Wainwright, 477

U.S. 168, 169, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986)."

Woodward v. State, 123 So. 3d 989, 1028 (Ala. Crim. App. 2011). When

examining the complained-of comment, the main inquiry is whether the

comment was "(1) manifestly intended to be a comment on [the

defendant's] failure to testify or (2) … it was of such a character that the

jury would have naturally and necessarily taken it to be a comment on

[the defendant's] failure to testify." Smith v. State, [Ms. CR-17-1014,

Sept. 2, 2022] ___ So. 3d ___, ___ (Ala. Crim. App. 2022).

Furthermore, in our analyses of the comments made in such cases,

context is always key. It is a well-known principle of biblical exegesis

that "a text without a context is usually a pretext." See e.g., R. Scott

Clark, Any Text Without A Context is Pretext for a Prooftext,

81

CR-20-0727

https://heidelblog.net/2010/11/any-text-without-a-context-is-pretext-for-

a-prooftext/ (November 30, 2010). 5 Although this principle is theological

in origin, the present case is ripe for application of this principle of

contextual analysis as well. Indeed, the main opinion purports "to

provide context to Powell's argument," ___ So. 3d at ___; however, I

believe they ultimately ignore the context, although not for pretextual

reasons, and reach the wrong conclusion in doing so. As I will discuss

later, I believe the main opinion errs by simply examining the bare

statements and comparing them to the bare statements in prior cases,

ultimately failing to properly evaluate and weigh the context in which

these statements are made. Indeed, as I will argue, our jurisprudence

demands that we take a "deep dive" into the context (when available, as

in the present case) in which a prosecutor's comments are made in order

to determine whether these comments cross the line into improper

commentary on the defendant's failure to testify.

A. Statements Were Proper Commentary on the Reasonable

Inferences from the Evidence.

5On the date this opinion was released, this document was available

online at this web address.

82

CR-20-0727

First of all, I believe the context in which these comments were

made shows that they were proper commentary on the reasonable

inferences from the evidence. In the present case, as set forth in the main

opinion, the allegedly improper comments by the prosecutor are: "You

know there is only one person in this room who knows where the gun is.

One person, he is sitting over there. That guy knows where the gun is.

…. There is one man in this courtroom who knows where that gun is, one

man and he is sitting right over there next to that jury box." (R. 2395.)

When taken in proper context, the prosecutor's comment was clearly a

fair comment on the evidence that was presented at trial. See Woodward,

123 So. 3d at 1028 (holding that the prosecutor's argument was not a

comment on the defendant's failure to testify because "[t]he prosecutor's

comment was directed to the strength of the State's case and to the

corresponding weakness in the defense's theory of the case, and it was a

fair comment based on the prosecutor's inferences from all the evidence

in the case"). Specifically, as set forth in the main opinion, the State

presented evidence indicating that Powell convinced another inmate --

David Jackson -- to author a letter confessing to the murder. Part of that

letter stated that Powell knew where the gun is. The letter stated: "I

83

CR-20-0727

apologized to Mr[.] Powell for him being wrongly accused for something

that I was involved in. I also told him where to find Mr[.] James Moore's

gun." The comment by the prosecutor that Powell knew where the gun

was hidden appears to me to be a clear reference to this letter that was

admitted into evidence.

Although the main opinion ultimately reaches the wrong

conclusion, it does set forth the context surrounding the prosecutor's

statements, as follows:

"At the end of the guilt phase of Powell's trial, the

parties presented closing arguments to the jury. The State,

in its closing argument, addressed evidence that, it said,

showed that Powell had murdered Algar, including clips from

the surveillance videos. It also addressed evidence that

Powell presented in his defense case and the importance of

the David Jackson "confession" letter, which, it alleged,

Powell had had Jackson write. (R. 2359-65.) The State also

addressed Powell's missing .380 handgun -- the weapon the

State alleged was used to shoot Algar -- as follows:

" 'Now, the gun disappeared. The silver box

hidden under [Powell's girlfriend's] house, bullets

in it matching the description of the bullets that

were found and used to kill Tracy Algar. When he

was caught, he began running to alibi after alibi.

When that didn't seem to be working, he ran to

David Jackson, scheming to move this and shift

the blame.'

"(R. 2365-66.)

84

CR-20-0727

"In his closing argument, Powell's counsel argued:

" 'Now, the judge has charged you that a

defendant has a right to remain silent. Michael

exercised his right to remain silent in this

particular case. You swore that you would not hold

that against him. That is what we are going to ask

you to do right now. You heard the evidence. You

heard things that are going on in this case, but we

are going to ask you to not hold it against Michael

Powell because he exercised his right to remain

silent that we all have.'

"(R. 2369-70.) Powell's counsel then addressed the

weaknesses in the State's evidence and questioned the

usefulness of the surveillance videos that the State had

presented to the jury. Powell's counsel also addressed the

.380 ammunition and the lack of evidence linking Powell to

the murder as follows:

" 'There is a .380 caliber Winchester spent

shell found in the store after individuals went in

the store and before the store was roped off, but

they even checked that. No fingerprints, no DNA

belonging to Michael Powell. They lifted

fingerprints off of the silver box, no DNA, no

fingerprint lifts belonging to Michael Powell. They

lifted DNA and fingerprint lifts off of the live

rounds that were in the box, no DNA, no

fingerprint lifts connecting Michael Powell.

" 'There is doubt all over the place, DNA,

ballistics, no gun. Misidentification problems.'

"(R. 2386-87.)

"The State, in its rebuttal argument, addressed the

missing gun, telling the jury: 'You know there is only one

85

CR-20-0727

person in this room who knows where the gun is. One person,

he is sitting over there. That guy knows where the gun is.'

(R. 2393-94.) Powell's counsel objected to the State's

argument, and the following exchange occurred outside the

presence of the jury:

" '[Prosecutor]: If I could. Your Honor --

" 'The Court: Can you finish the thought?

" '[Prosecutor]: It is within the David Jackson

letter that David Jackson told him where the gun

is.

" 'The Court: You are afraid he is headed for

comment on --

" '[Powell's counsel]: It is not in the

possession of --

" 'The Court: I think that is what the

objection is, yes?

" '[Powell's counsel]: Yes, sir.

" 'The Court: He hadn't finished his --

" '[Powell's counsel]: I didn't want him to

finish. I thought it was improper.

" 'The Court: Tell them what you are fixing to

say.

" '[Prosecutor]: The David Jackson letter says

that David Jackson told him where the gun is.

That is it, I am not going to say he didn't tell us or

anything like that. I am not a first-year

prosecutor, but I appreciate the instruction.

86

CR-20-0727

" 'The Court: That bell hasn't been rung yet.

I don't find that to be improper depending on what

comes next of course. We will resume.

" '(End of side-bar.)

" 'The Court: [Prosecutor], you may continue.

" '[Prosecutor]: Thank you, Your Honor.

There is one man in this courtroom who knows

where that gun is, one man and he is sitting right

over there next to that jury box. You remember

that letter from David Jackson? I have one copy

here. State's 1001. You have the original, State's

Exhibit 223.

" '[Powell's counsel]: I still renew my

objection.

" 'The Court: Noted, overruled.

" '[Prosecutor]: This letter, I am on page three

for reference, 'I apologize to Mr. Powell for him

wrongly -- for him being wrongly accused for

something that I was involved in, I also told him

where to find Mr. James Moore's gun.' That is

what David Jackson said. That is what David

Jackson copied from the defendant's letter. Do you

remember him telling us about that?"

"(R. 2394-96 (emphasis added).)"

Powell, ___ So. 3d at ___ (footnote omitted).

This context demonstrates that the State was not commenting on

the failure of the defendant to testify; rather, the State was arguing the

87

CR-20-0727

reasonable inferences from the evidence. Powell cannot arrange for

someone to write a bogus confession letter that states that Powell knows

where the gun is and then prohibit the State from commenting on that

evidence during closing argument. The context here establishes that the

prosecutor's argument was a fair comment on the evidence; therefore, it

was not manifestly intended to be a comment on Powell's failure to testify

and the jury would not have naturally and necessarily taken it to be a

comment on Powell's failure to testify.

B. Statements Were Proper "Argument In-Kind."

Secondly, I believe the context shows that the prosecutor's

comments were "argument in-kind," responding properly to the defense

attorney's arguments. Specifically, Powell's counsel stated: "There is

doubt all over the place, DNA, ballistics, no gun. Misidentification

problems." (R. 2387) (emphasis added). I believe the prosecutor had the

right to "argue in-kind" by responding that Powell knows where the gun

is, much like the prosecution in Mitchell v. State, 84 So. 3d 968 (Ala.

Crim. App. 2010). In Mitchell, the defendant, who had been convicted of

capital murder and sentenced to death, argued that the prosecutor

improperly commented on his failure to testify during the guilt

88

CR-20-0727

phase. Specifically, the defendant alleged that the following comments

were improper: "No gun. We don't have a gun. Where is the gun? I don't

know. He knows. He knows where the gun is." Mitchell, 84 So. 3d at

979. In substance, the prosecutor's comments in the present case and the

prosecutor's comments in Mitchell are exactly the same. However, in

Mitchell, this Court held that the comments did not constitute an

impermissible reference to the defendant's failure to testify, specifically

holding:

"To the extent Mitchell asserts that the prosecutor

commented on his failure to testify when the prosecutor

stated that Mitchell knew where the murder weapon was

located, this argument is without merit. Contrary to

Mitchell's assertion, the prosecutor's comments were not

made in an attempt to draw attention to the fact that Mitchell

had not testified. Instead, the prosecutor was simply

responding to defense counsel's argument that the State had

failed to meet its burden of proof because it had not produced

the murder weapons. Cf. Ballard v. State, 767 So. 2d 1123,

1135 (Ala. Crim. App. 1999) ('A prosecutor has a right to reply

in kind to the argument of defense counsel. This "reply-

inkind" doctrine is based on fundamental fairness.'); Harris v.

State, 2 So. 3d 880, 920 (Ala. Crim. App. 2007) (same); Brown

v. State, 11 So. 3d 866, 903 (Ala. Crim. App. 2007) ('Where a

matter has been gone into by one party to a cause, the other

party has the right to explain away anything, if he can, that

may have been brought out to his detriment.') (citations and

quotations omitted). Reviewed in context, this statement was

'not manifestly intended or was of such a character that a jury

would naturally and necessarily take it to be a comment on

the failure of the accused to testify.' Gavin [v. State], 891 So.

89

CR-20-0727

2d [907,] 981 [(Ala. Crim. App. 2003)]. On the contrary, this

comment simply relayed the message that law enforcement

had not recovered the murder weapons because Mitchell had

disposed of them. Consequently, the prosecutor did not

improperly comment on Mitchell's failure to testify."

Mitchell, 84 So. 3d at 980.

The main opinion in the present case, on the other hand, relies on

Whitt v. State, 370 So. 2d 736 (Ala. 1979), in which the Alabama Supreme

Court held that the prosecutor's comment was an impermissible direct

comment on the defendant's failure to testify. The main opinion finds

that the comments in the present case "are nearly identical to the

comment made by the prosecutor in Whitt." ___ So. 3d at ___. The main

opinion then states that the comment in the present case, like the

comment in Whitt, "is clearly a direct comment on Powell's failure to

testify at trial." ___ So. 3d at ___.

I disagree, however, with the main opinion's assertion that the

comments in the present case are "nearly identical" to the comments in

Whitt. The comment in Whitt that was held to be an improper comment

regarding the defendant's failure to testify was "[t]he only person alive

today that knows what happened out there that night is sitting right

there." Whitt, 370 So. 2d at 737. Unlike the comments in the present

90

CR-20-0727

case, the comment in Whitt did not talk about a gun or any other specific

piece of evidence but instead referenced generally the fact that there was

no living witness besides the defendant. Thus, contrary to the assertion

in the main opinion, the comments in the present case are not "nearly

identical to the comment made by the prosecutor in Whitt." More

importantly, the Supreme Court in Whitt did not have any context for

the prosecutor's comments, and for this reason especially I question the

main opinion's heavy reliance on Whitt in its analysis of the prosecutor's

comments in this case. In fact, the Whitt Court stated that the record

was completely devoid of context, as follows: "It seems self-evident that

it cannot be 'argument in kind' when we do not have the defense counsel's

argument to which this comment is said to reply. The record does not

contain the closing arguments in this case." Whitt, 370 So. 2d at 738. The

clear implication of that statement is that if the Court had had context

in that case, the result might have been different.

I believe that we should view Mitchell, rather than Whitt, as more

determinative to the outcome of the present case. In the present case,

"[t]he prosecutor's comments were not made in an attempt to draw

attention to the fact that [Powell] had not testified. Instead, the

91

CR-20-0727

prosecutor was simply responding to defense counsel's argument that the

State had failed to meet its burden of proof because it had not produced

the murder weapon[]." See Mitchell, supra. Furthermore, "reviewed in

context, this statement was 'not manifestly intended or was of such a

character that a jury would naturally and necessarily take it to be a

comment on the failure of the accused to testify.' Gavin, 891 So. 2d at 981.

On the contrary, this comment simply relayed the message that law

enforcement had not recovered the murder weapon[] because [Powell]

had disposed of [it]. Consequently, the prosecutor did not improperly

comment on [Powell]'s failure to testify." See Mitchell, supra. 6

II. Conclusion

Finally, let me reemphasize my belief that context is crucial to any

analysis of allegedly improper comments on the defendant's failure to

testify. As I have already stated, any such analysis must necessarily be

6I note that there was no objection in Mitchell, so plain error would

have been applicable, but this Court did not simply hold that the

prosecutor's comments did not rise to the level of plain error. Instead,

this Court held that the defendant's argument was "without merit," and

this Court unequivocally stated that "the prosecutor did not improperly

comment on Mitchell's failure to testify." Thus, the lack of an objection

in Mitchell is not relevant to the present case.

92

CR-20-0727

fact- and case-specific. Unfortunately, at least from my perspective,

rather than engaging in an in-depth analysis of context, the main opinion

merely compares the bare statements in the present case to the bare

statements in Whitt and pronounces that the comments in the present

case are impermissible commentary on the defendant’s failure to testify

simply because they are "nearly identical." To put it another way, rather

than delve into a deeper contextual analysis in the present case, where

we do have the context of the prosecutor's comments, the main opinion

simply compares statement to statement, and I believe in doing so gets it

wrong. I believe this approach ignores the context-driven holding of

Whitt and leads to an improper result in this case.

Because I believe that, in the context of this case, the prosecutor's

comment is not an improper comment on Powell's failure to testify but

instead is a proper comment on the evidence and a proper "argument in-

kind" to rebut defense counsel's comment that the State had failed to

produce the murder weapon, I must respectfully disagree with the main

opinion. I do not believe that these statements were "(1) manifestly

intended to be a comment on [the defendant's] failure to testify or (2) of

such a character that the jury would have naturally and necessarily

93

CR-20-0727

taken [them] to be a comment on [the defendant's] failure to testify."

Smith v. State, [Ms. CR-17-1014, Sept. 2, 2022] ___ So. 3d ___, ___ (Ala.

Crim. App. 2022).

Based on the foregoing, I respectfully dissent.

Windom, P.J., concurs.

94