Petition for Writ of Certiorari — Ryan Russell, Petitioner v. Alabama

Supreme Court briefFeb 15, 2018

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No. ___________

IN THE SUPREME COURT OF THE UNITED STATES

__________________________________________________

RYAN RUSSELL, Petitioner,

STATE OF ALABAMA, Respondent.

__________________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE ALABAMA COURT OF CRIMINAL APPEALS

__________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________

RANDALL S. SUSSKIND

122 Commerce Street

Montgomery, AL 36104

rsusskind@eji.org

(334) 269-1803

Counsel of Record for Petitioner

February 15, 2018

CAPITAL CASE

QUESTION PRESENTED

In this capital case, petitioner Ryan Russell was sentenced to death by a

trial judge finding the legally-necessary factors required to impose the death

penalty. After this Court remanded Mr. Russell’s case “for further consideration

in light of Hurst v. Florida, 136 S. Ct. 616 (2016),” Russell v. Alabama, 137 S.

Ct. 158 (2016) (mem.), the Alabama courts rejected his claims that his death

sentence had been imposed in violation of the Sixth, Eighth, and Fourteenth

Amendments.

Given that Alabama law at the time of Mr. Russell’s trial specified that

before a death sentence may be imposed in a capital case, the sentencer must

find both (1) that an aggravating circumstance exists and (2) that the existing

aggravating circumstances outweigh any mitigating circumstances, the question

presented is:

Does the imposition of a death sentence where the jury has

returned only non-binding advisory findings as to each of these

facts, after being explicitly instructed that its sentencing verdict

was merely a recommendation, violate the Sixth, Eighth, and

Fourteenth Amendments?

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

RELEVANT CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Alabama’s Death Penalty Sentencing Scheme . . . . . . . . . . . . . . . . . . . 3

Legal Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Factual and Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

This Court Should Determine Whether a Capital Defendant May

Be Sentenced to Death in a Case Where the Sentencing Jury

Returned Only an Advisory Recommendation as to the Critical

Facts Necessary to Impose a Death Sentence. . . . . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

APPENDIX A

APPENDIX B

APPENDIX C

Alabama Court of Criminal Appeals opinion affirming, Russell v.

State, No. CR-10-1910, 2015 WL 3448853 (Ala. Crim. App. May 29,

2015) (per curiam), and order denying rehearing

Alabama Supreme Court order denying writ of certiorari, Ex parte

Russell, No. 1150074 (Ala. Feb. 19, 2016)

United States Supreme Court order granting writ of certiorari,

vacating judgment, and remanding, Russell v. Alabama, 137 S. Ct.

158 (2016) (mem.)

APPENDIX D

APPENDIX E

APPENDIX F

Alabama Court of Criminal Appeals opinion affirming on remand,

Russell v. State, No. CR-10-1910, 2016 WL 7322331 (Ala. Crim.

App. Dec. 16, 2016), and order denying rehearing

Alabama Supreme Court order denying writ of certiorari, Ex parte

Russell, No. 1160647 (Ala. Nov. 17, 2017)

Alabama Code sections 13A-5-45, -46, & -47 as codified at trial

iii

TABLE OF CITED AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16

Ex parte Bohannon, 222 So. 3d 525 (Ala. 2016) . . . . . . . . . . . . . . . . . . . . . . . . passim

Caldwell v. Mississippi, 472 U.S. 320 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Ex parte Harrell, 470 So. 2d 1309 (Ala. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Harris v. Alabama, 513 U.S. 504 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Hurst v. Florida, 136 S. Ct. 616 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Hurst v. State, 202 So. 3d 40 (Fla. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 16, 18

Ex parte Kirksey, No. 1160522 (Ala. June 23, 2017) . . . . . . . . . . . . . . . . . . . . . . . . 11

Knotts v. State, 686 So. 2d 431 (Ala. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . 18

Martin v. State, 548 So. 2d 488 (Ala. Crim. App. 1988) . . . . . . . . . . . . . . . . . . . . . . 15

McGautha v. California, 402 U.S. 183 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

McLaughlin v. Steele, 173 F. Supp. 3d (E.D. Mo. 2016). . . . . . . . . . . . . . . . . . . . . . 18

Powell v. Delaware, 153 A.3d 69, 76 (Del. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rauf v. State, 145 A.3d 430 (Del. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16

Ring v. Arizona, 536 U.S. 584 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

State v. Ring, 65 P.3d 915 (Ariz. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Russell v. Alabama, 137 S. Ct. 158 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Ex parte Russell, No. 1160647 (Ala. Nov. 17, 2017) . . . . . . . . . . . . . . . . . . . . . 1, 3, 10

Russell v. State, No. CR-10-1910, 2015 WL 3448853 (Ala. Crim. App.

May 29, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Ex parte Russell, No. 1150074 (Ala. Feb. 19, 2016) . . . . . . . . . . . . . . . . . . . . . . 1, 2, 9

Russell v. State, No. CR-10-1910, 2016 WL 7322331 (Ala. Crim. App.

Dec. 16, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 10, 19

Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19

Woldt v. People, 64 P.3d 256 (Colo. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ex parte Woodard, 631 So. 2d 1065 (Ala. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . 4

STATUTES

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ala. Code § 13A-5-43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ala. Code § 13A-5-45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ala. Code § 13A-5-46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Ala. Code § 13A-5-47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Ala. Code § 13A-5-49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ind. Code § 35-50-2-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

OTHER AUTHORITIES

Del. Dep’t of Justice, Attorney General Will Not Appeal To U.S. Supreme Court

On Death Penalty (Aug. 15, 2016), available at:

http://news.delaware.gov/2016/08/15/cp/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

H.B. 7101, 2016 Leg. (Fla. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

S.B. 16, Reg. Sess. 2017 (Ala. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13, 15

__________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________

Ryan Russell respectfully petitions for a writ of certiorari to review the judgment

of the Alabama Court of Criminal Appeals.

OPINIONS BELOW

The Alabama Court of Criminal Appeals opinion affirming Mr. Russell’s

conviction and sentence, Russell v. State, No. CR-10-1910, 2015 WL 3448853 (Ala.

Crim. App. May 29, 2015) (per curiam), has not yet been reported and is attached as

Appendix A, along with that court’s order denying rehearing. The Alabama Supreme

Court order denying a writ of certiorari to the Court of Criminal Appeals, Ex parte

Russell, No. 1150074 (Ala. Feb. 19, 2016), is unreported and is attached as Appendix

B. This Court’s order granting a writ of certiorari to the Court of Criminal Appeals,

vacating the judgment of the lower court, and remanding, Russell v. Alabama, 137 S.

Ct. 158 (2016) (mem.), is attached as Appendix C. The Court of Criminal Appeals

opinion affirming Mr. Russell’s conviction and sentence on remand, Russell v. State,

No. CR-10-1910, 2016 WL 7322331 (Ala. Crim. App. Dec. 16, 2016), has not yet been

reported and is attached as Appendix D, along with that court’s order denying

rehearing. The Alabama Supreme Court order denying a writ of certiorari, Ex parte

Russell, No. 1160647 (Ala. Nov. 17, 2017), is unreported and is attached as Appendix

JURISDICTION

Petitioner invokes this Court’s jurisdiction pursuant to 28 U.S.C. § 1257(a). The

Alabama Court of Criminal Appeals issued its decision affirming Mr. Russell’s

convictions and death sentences on remand from this Court on December 16, 2016, and

overruled a timely application for rehearing on March 17, 2017. See Appendix D. Mr.

Russell timely petitioned the Alabama Supreme Court for a writ of certiorari, and on

November 17, 2017, that court denied certiorari review of the Alabama Court of

Criminal Appeals judgment over the dissent of two justices. See Appendix E.

RELEVANT CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the United States Constitution provides in pertinent

part:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed . . . .

The Eighth Amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution provides in

pertinent part:

No State shall . . . deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

This case presents important and unresolved questions regarding whether a

death sentence imposed following a jury trial in which the jury was instructed that its

sentencing verdict was merely a sentencing recommendation violates the requirements

of the Sixth, Eighth, and Fourteenth Amendments. In this case, Mr. Russell’s jury

returned special verdict forms indicating its unanimous advisory recommendation for

a death sentence, after being instructed that only the judge’s sentencing decision would

control.

Mr. Russell was ultimately sentenced to death by a trial judge who

independently made the necessary findings that one aggravating circumstance existed

and that that aggravating circumstance outweighed the mitigation. After Mr. Russell’s

conviction and death sentence was affirmed by the state courts, he petitioned this

Court for a writ of certiorari in part on the grounds that his sentence was

unconstitutional in light of Hurst v. Florida, 136 S. Ct. 616 (2016). This Court issued

an order in response granting certiorari, vacating the judgment of the Alabama Court

of Criminal Appeals, and remanding Mr. Russell’s case “for further consideration in

light of Hurst.” Russell v. Alabama, 136 S. Ct. 158 (2016) (mem.). On remand, the

Court of Criminal Appeals again affirmed Mr. Russell’s sentence, relying on Ex parte

Bohannon, 222 So. 3d. 525 (Ala. 2016) – a decision that put Alabama’s courts in conflict

with the supreme courts of the only two other states that had comparable death

penalty sentencing schemes, Delaware and Florida, both of which have held their own

laws unconstitutional pursuant to Hurst.

Alabama’s Death Penalty Sentencing Scheme

Under the death penalty sentencing scheme in effect in Alabama at the time of

Mr. Russell’s trial, if a criminal defendant was convicted of a capital offense, the trial

then moved on to a separate penalty phase, see Ala. Code § 13A-5-43(d), where

additional evidence could be presented regarding alleged aggravating and mitigating

circumstances, see Ala. Code §§ 13A-5-45 to -52.1 Afterward, the trial court was not

authorized to impose a sentence of death unless there had been a finding (1) of the

existence of at least one statutory aggravating circumstance and (2) that all of the

existing aggravation outweighed all of the existing mitigation. Ala. Code §§ 13A-546(e), -47(e); Ex parte Woodard, 631 So. 2d 1065, 1071 (Ala. Crim. App. 1993) (“A

greater punishment – death – may be imposed on a defendant convicted of a capital

offense, but only if one or more of the aggravating circumstances enumerated in § 13A5-49 is found to exist and that aggravating circumstance(s) outweighs any mitigating

circumstance(s) that may exist.”). Unless both findings were made in the affirmative,

the punishment was to be life without parole. See Ala. Code § 13A-5-46(e) (specifying

that jury “shall return an advisory verdict recommending to the trial court that the

penalty be life imprisonment without parole” where it found either no aggravating

circumstances or that aggravation did not outweigh mitigation).

Under Alabama law at the time of Mr. Russell’s trial, however, it was the trial

judge, not the jury, who was required to make the penalty-phase findings necessary for

the imposition of a death sentence. Ala. Code §§ 13A-5-46, -47. The jury, for its part,

The Alabama Legislature has since passed legislation prohibiting judicial override of

jury sentencing verdicts by modifying Alabama Code sections 13A-5-45, -46, and -47.

See S.B. 16, Reg. Sess. 2017 (Ala. 2017). For the purposes of these proceedings, Mr.

Russell refers solely to Alabama Code sections 13A-5-45 through -47 as they existed

at the time of his conviction and sentencing; they are attached here as Appendix F.

was required to report “an advisory verdict recommending a sentence” of either life

without parole or death, Ala. Code § 13A-5-46(e)-(f), which was not required to be

unanimous, Ala. Code § 13A-5-46(f) (“The decision of the jury to recommend a sentence

of death must be based on a vote of at least 10 jurors.”). By statute, that sentencing

recommendation (and, therefore, any of the jury’s penalty-phase findings on which it

was premised) was “not binding upon the court.” Ala. Code § 13A-5-47(e).

Legal Background

Until recently, Alabama was one of only three states – along with Florida and

Delaware – with this form of “hybrid system[], in which the jury renders an advisory

verdict but the judge makes the ultimate sentencing determinations.” Ring v. Arizona,

536 U.S. 584, 608 n.6 (2002).2 Two years ago, however, this Court struck down

Florida’s death penalty sentencing scheme as unconstitutional in Hurst v. Florida, 136

S. Ct. 616 (2016), because it gave the trial judge the final authority to make the

“findings necessary to impose the death penalty.” 136 S. Ct. at 621-22; see also id. at

619. Under Ring, capital defendants have a Sixth Amendment right to “a jury

determination of any fact on which the legislature conditions an increase in their

maximum punishment.” 536 U.S. at 589 (citing Apprendi v. New Jersey, 530 U.S. 466

This Court also identified Indiana’s scheme as a “hybrid system,” but that state has

since eliminated its provision allowing for judicial override in capital sentencing

proceedings. The relevant statute now specifies that “[f]or a defendant sentenced after

June 30, 2002 . . . , if the hearing is by jury, the jury shall recommend to the court

whether the death penalty or life imprisonment without parole, or neither, should be

imposed. . . . If the jury reaches a sentencing recommendation, the court shall sentence

the defendant accordingly.” Ind. Code § 35-50-2-9(e).

(2000)). Applying that principle to Florida’s law in Hurst, this Court found that the

Sixth Amendment “required Florida to base [the imposition of a] death sentence on a

jury’s verdict, not a judge’s factfinding.” 136 S. Ct. at 624. This decision outlined a

new Constitutional understanding of the jury’s required role in death penalty

sentencing, and ushered in critical changes to state death penalty statutes in Florida

and elsewhere.

Given the similarities between Florida’s laws and those of Delaware, the Hurst

decision prompted the Delaware Supreme Court to reevaluate its own death penalty

sentencing scheme. In Rauf v. State, 145 A.3d 430 (Del. 2016) (per curiam), the

Delaware Supreme Court struck down its law, finding that it “violates the Sixth

Amendment role of the jury as set forth in Hurst.”3 145 A.3d at 433. Specifically, it

held that the Sixth Amendment requires that the death sentence must be premised on

a required and necessary jury finding, beyond a reasonable doubt, regarding both the

existence of any aggravating circumstances relied on for imposition of a death sentence

and that those aggravating circumstances are found to exist outweigh the mitigating

circumstances in the case. Id. at 432-34. Because the Delaware law did not require

those findings to be made by a jury, unanimously and beyond a reasonable doubt, the

Rauf court concluded, it was unconstitutional. Id.; see also Powell v. Delaware, 153

A.3d 69, 76 (Del. 2016) (per curiam) (holding Rauf must be applied retroactively to

After the Delaware Supreme Court issued its opinion in Rauf, the Delaware Attorney

General elected not to seek an appeal. Press Release, Del. Dep’t of Justice, Attorney

General Will Not Appeal To U.S. Supreme Court On Death Penalty (Aug. 15, 2016),

available at: http://news.delaware.gov/2016/08/15/cp/ (viewed Feb. 14, 2018).

cases on collateral review).

Further, after this Court’s decision in Hurst, that case was remanded to the

Florida Supreme Court, which went on to find its own capital sentencing scheme to

violate the United States Constitution, the Florida Constitution, and Florida law in

Hurst v. State, 202 So. 3d 40 (Fla. 2016) (per curiam), cert. denied, 137 S. Ct. 2161

(2017) [“Hurst II”]. Noting that this Court’s decision in Hurst “requires that all the

critical findings necessary before the trial court may consider imposing a sentence of

death must be found unanimously by the jury,” the Florida court held that “[i]n capital

cases in Florida, these specific findings required to be made by the jury include the

existence of each aggravating factor that has been proven beyond a reasonable doubt,

the finding that the aggravating factors are sufficient, and the finding that the

aggravating factors outweigh the mitigating circumstances.” Hurst II, 202 So. 3d at

44.

In its own review, however, the Alabama Supreme Court found that this Court’s

decision in Hurst changed nothing at all about the constitutionality of its own death

penalty sentencing scheme. Ex parte Bohannon, 222 So. 3d. 525 (Ala. 2016).

Factual and Procedural Background

On June 16, 2008, officers from the Shelby County Sheriff’s Office responded to

the home of Ryan Russell, where they found the deceased body of his eleven-year-old

daughter Katherine Gillespie. (R. 960-61.)4 Forensic evidence showed that Katherine

“C.” refers to the clerk’s record from trial on appeal; “R.” refers to the reporter’s

transcript from trial.

died from a single, close-range gunshot to the back of her head. (C. 155.) During that

same search, sheriff’s officers found Mr. Russell unresponsive on the floor of his

shower, surrounded by pills. (R. 1131-33.)

On January 15, 2009, Mr. Russell was indicted for one count of capital murder,

per Alabama Code section 13A-5-40(a)(15), for Katherine’s death. (C. 18.) At trial, the

State’s theory was that Mr. Russell had intentionally killed Katherine, while the

defense maintained that the shooting was accidental. (See, e.g., R. 1634-35, 1646.)

The jury returned a guilty verdict. (C. 126.)

At the penalty phase of Mr. Russell’s trial, the defense presented evidence that

he was not an angry, aggressive, or violent man by nature (R. 1782), though he was

“alcohol dependent” (R. 1789) and predisposed to alcoholism and depression given his

family history (R. 1773-74). The defense also presented evidence that Mr. Russell was

“horrified” and very remorseful over Katherine’s death (R. 1779-80), and had “managed

properly” in jail afterward (R. 1781). The State did not challenge the existence of the

statutory mitigating circumstance that the defendant had no significant prior history

of criminal activity. (C. 152.) Instead, the State sought to prove the existence of just

one aggravating circumstance: that Katherine’s death was “heinous, atrocious, and

cruel” per Alabama Code section 13A-5-49(8). (C. 152.) Defense counsel objected to

this issue being submitted to the jury and moved for a directed sentence of life without

parole, but the trial judge overruled counsel’s objections and denied the motion. (R.

1801-02.) Prior to sending the jurors to their penalty-phase deliberation, the trial court

instructed them repeatedly that their resulting vote would be a “recommendation.” (R.

1823-27; see also C. 128; R. 1814-16, 1819, 1830-31.) The jury subsequently affirmed

the existence of the aggravating circumstance and voted to sentence Mr. Russell to

death. (C. 127-28; R. 1850.)

The trial judge sentenced Mr. Russell to death on December 16, 2010. (C. 145.)

In his subsequent amended sentencing order, the judge found that the murder in this

case was especially heinous atrocious and cruel in comparison to other capital cases.

(C. 156.) Considering the jury’s advisory vote on the same question, however, the judge

noted:

[J]urors are not generally in a position to compare one capital case with

other capital cases. The jury in this case was not in the position to know

whether Russell’s case, when compared to other capital cases, was

especially heinous, atrocious, or cruel. . . . The Court is in a significantly

better position to evaluate this case as it is compared to other capital

cases. This is based not only upon the Court’s personal experiences of

having tried and sentenced other capital offenses, but also from reading

those cases that are of record in the State of Alabama and in other

jurisdictions.

(C. 156.)

Mr. Russell filed a timely appeal in the Alabama Court of Criminal Appeals,

which affirmed his conviction and sentence. Russell v. State, No. CR-10-1910, 2015

WL 3448853 (Ala. Crim. App. May 29, 2015) (per curiam). Mr. Russell then filed a

timely application for rehearing at the Court of Criminal Appeals, which was denied,

and petitioned the Alabama Supreme Court for a writ of certiorari to review the

decision of the Court of Criminal Appeals, which was also denied. Ex parte Russell,

No. 1150074 (Ala. Feb. 19, 2016). Mr. Russell timely petitioned this Court for a writ

of certiorari to the Alabama Court of Criminal Appeals, arguing among other claims

that his sentences were imposed in violation of Hurst, which this Court had decided

shortly before, and Ring. On October 3, 2016, this Court granted a writ of certiorari,

vacated the judgment of the Court of Criminal Appeals, and remanded Mr. Russell’s

case “for further consideration in light of Hurst.” Russell v. Alabama, 137 S. Ct. 158

(2016) (mem.).

On remand before the Alabama Court of Criminal Appeals, Mr. Russell filed a

motion for leave to file supplemental briefing, but that motion was denied. The Court

of Criminal Appeals subsequently affirmed Mr. Russell’s sentence, see Russell v. State,

No. CR-10-1910, 2016 WL 7322331 (Ala. Crim. App. Dec. 16, 2016), relying heavily on

the Alabama Supreme Court’s decision affirming the state’s death penalty sentencing

scheme in Bohannon. It thereafter denied rehearing, as well. Mr. Russell then timely

filed a petition for a writ of certiorari with the Alabama Supreme Court, where he

renewed his arguments that his death sentence violates Ring, Hurst, and the Sixth,

Eighth, and Fourteenth Amendments, as well as that it was imposed in violation of

this Court’s decision in Caldwell v. Mississippi, 472 U.S. 320 (1985). The court denied

review over the dissent of two justices.5 Ex parte Russell, No. 1160647 (Ala. Nov. 17,

In another case with materially similar features, for the purposes of a Hurst analysis,

one of those dissenting justices authored a written explanation for his dissent from the

Alabama Supreme Court’s order denying review in that case:

I am concerned that the issue whether the aggravating circumstances

outweigh the mitigating circumstances in a capital case, as required for

the imposition of the death penalty under Alabama law, sufficiently

partakes of the nature of a factual inquiry so as to trigger the principles

articulated in Hurst. I also believe this Court should further consider the

petitioner’s argument that the jury’s verdict was constitutionally

2017).

REASONS FOR GRANTING THE WRIT

In Hurst v. Florida, 136 S. Ct. 616 (2016), this Court held that the Sixth

Amendment right to an impartial jury requires states “to base [a capital defendant’s]

death sentence on a jury’s verdict, not a judge’s factfinding.” 136 S. Ct. at 624. In

three subsequent decisions, the highest courts of Alabama, Delaware, and Florida

assessed the constitutionality of their respective death penalty sentencing schemes in

light of Hurst; both the Delaware Supreme Court and the Florida Supreme Court found

that it violates the Constitution to allow a criminal defendant to be sentenced to death

based on findings made solely by a judge, rather than a jury, while the Alabama

Supreme Court found that as long as the jury has unanimously found the existence of

a single aggravating circumstance – even if that jury has been instructed that its

sentencing decision will be a mere advisory recommendation – a death sentence may

later be imposed based on findings made independently by a judge. In this case, the

Alabama Court of Criminal Appeals relied on that decision to affirm Mr. Russell’s

death sentence despite the fact that it was premised on a trial judge’s, not a jury’s,

findings regarding the existence and weight of the aggravating circumstance.

The significant discrepancies between the Alabama courts’ interpretation of

Hurst and that of the highest courts of Delaware and Florida must be resolved in order

insufficient to support a death sentence because the jury was instructed

that its verdict would merely be a recommendation.

Ex parte Kirksey, No. 1160522, at *2-3 (Ala. June 23, 2017) (Murdock, J. dissenting).

to ensure the constitutional imposition of death sentences in those states and other

states across the country. Moreover, this Court’s decision in Hurst established a new

understanding of the Constitutional requirement that the jury must act as the ultimate

sentencer in death penalty cases – this understanding renders erroneous and

unconstitutional the contrary instructions given to Mr. Russell’s jury, and now taints

the outcome in this case. Mr. Russell was sentenced to death in violation of the Sixth,

Eighth, and Fourteenth Amendments, and the Alabama Court of Criminal Appeals’s

decision to uphold that death sentence was incorrect and should not stand.

This Court Should Determine Whether a Capital Defendant May Be Sentenced

to Death in a Case Where the Sentencing Jury Returned Only an Advisory

Recommendation as to the Critical Facts Necessary to Impose a Death

Sentence.

This Court should grant certiorari to resolve whether the Constitutional

requirements that the jury play the role of ultimate sentencer and be aware that it

holds that awesome responsibility permit a capital jury’s sentencing verdict to be

reduced to a mere advisory recommendation. In this case, Mr. Russell’s jury was

repeatedly instructed that its sentencing decision was advisory or a recommendation.

(See C. 128; R. 1814-16, 1819, 1823-27, 1829-30.) After that jury returned a vote

affirming the existence of a single aggravating circumstance and recommending a

death sentence in this case, the trial judge went on to independently find the sole

aggravating circumstance on which Mr. Russell’s death sentence is premised. See

Alabama Code § 13A-5-49(8);6 (C. 156-57). In subsequently making the ultimate

sentencing determination, the judge then made the necessary determination, through

his own independent analysis, that the aggravating circumstance outweighed the

mitigating circumstances. (C. 158.)

The independence of the sentencing determination in this case is established

both as a matter of law, per Alabama Code section 13A-5-47(e), and by the trial judge’s

independent evaluation of the aggravating circumstance and mitigating circumstances

(C. 155-58). In making the determination, the judge relied on evidence not presented

to the jury, including a presentence investigation report. (C. 153.) Moreover, in his

amended sentencing order, he went out of his way to emphasize that he was the only

factfinder in the case who was capable of finding the sole aggravating circumstance

that had been alleged by the State. (C. 156.) “The jury in this case was not in the

position to know whether Russell’s case, when compared to other capital cases,” he

explained, “was especially heinous, atrocious, or cruel.” (C. 156.) The trial court, he

went on,

is in a significantly better position to evaluate this case as it is compared

to other capital cases. This is based not only upon the Court’s personal

experiences of having tried and sentenced other capital offenses, but also

from reading those cases that are of record in the State of Alabama and

in other jurisdictions.

As explained in more detail in Footnote 1, supra, in the time since Mr. Russell’s trial,

the Alabama Legislature has passed legislation changing Alabama’s death penalty

sentencing scheme to eliminate judicial override. See S.B. 16, Reg. Sess. 2017 (Ala.

2017). For the purposes of this brief, Mr. Russell refers to Alabama’s law as it existed

at the time of his trial. See Appendix F.

(C. 156.) In this case, then, not only was the jury’s vote regarding the existence of the

sole aggravating circumstance technically advisory, it was dismissed by the trial judge

as unreliable even in that advisory capacity. (C. 156.)

This Court has already recognized this scenario as a violation of the Sixth

Amendment. Like Timothy Ring and Timothy Hurst, “the maximum punishment [Mr.

Russell] could have received without any judge-made findings was life in prison

without parole. . . . [A] judge increased [Mr. Russell’s] authorized punishment based

on [his] own factfinding.” Hurst v. Florida, 136 S. Ct. 616, 622 (2016). Despite its

unanimity, Mr. Russell’s jury’s recommendation remained advisory under Alabama law

and therefore constitutionally insufficient. In Hurst, this Court reiterated that the use

of an advisory jury verdict in the Florida capital sentencing process was “immaterial”

in distinguishing it from the sentencing provisions invalidated in Ring v. Arizona, 536

U.S. 584 (2002), and did nothing to shield Florida’s statutory scheme from

constitutional challenge. Id.

This Court has also held that “it is constitutionally impermissible to rest a death

sentence on a determination made by a sentencer who has been led to believe that the

responsibility for determining the appropriateness of the defendant’s death rests

elsewhere.” Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985). Jury involvement

in capital sentencing, this Court noted in Caldwell, is premised on a belief “‘that jurors

confronted with the truly awesome responsibility of decreeing death for a fellow human

will act with due regard for the consequences of their decision.’” Id. at 329-30 (quoting

McGautha v. California, 402 U.S. 183, 208 (1971)). Where the significance of that

responsibility has been diminished, “there are specific reasons to fear substantial

unreliability as well as bias in favor of death sentences,” id. at 330, including a concern

that “a sentencing jury [that] is unconvinced that death is the appropriate punishment

. . . might nevertheless wish to ‘send a message’ of extreme disapproval for the

defendant’s acts” through a non-final verdict in favor of death, id. at 331-32.

In addition to the reliability concerns that are created, instructing the jury that

its sentencing findings are solely advisory violates a defendant’s Sixth Amendment

right to a jury trial. Though the Alabama Legislature recently modified Alabama’s

death penalty sentencing scheme to eliminate judicial override, see S.B. 16, Reg. Sess.

2017 (Ala. 2017), at the time of Mr. Russell’s trial, jury sentencing verdicts were not

binding, and juries were routinely instructed on that fact, see, e.g., Martin v. State, 548

So. 2d 488, 494 (Ala. Crim. App. 1988) (“[T]he instructions of the trial court accurately

inform[ed] [the] jury of the extent of its sentencing authority and that its sentence

verdict was ‘advisory’ and a ‘recommendation’ . . . .”). Accordingly, the trial judge in

this case repeatedly instructed Mr. Russell’s jury that, under Alabama law, its

sentencing verdict would be a recommendation. (See, e.g., C. 128; R. 1814-16, 1819,

1823-27, 1829-30.) As this Court noted in Hurst, however, a capital jury’s “mere

recommendation” as to sentence is insufficient to meet the Sixth Amendment’s

requirement that a court base the imposition of a “death sentence on a jury’s verdict,

not a judge’s factfinding.” 136 S. Ct. at 619, 624; see also Ring, 536 U.S. at 589. By

this same logic, then, the sentencing vote returned by Mr. Russell’s jury at the end of

the penalty phase was also constitutionally insufficient.

Alabama stands alone in refusing to reevaluate and recognize the deficiencies

in its capital sentencing scheme. After this Court issued its decision in Hurst , both

the Delaware Supreme Court, in Rauf v. State, 145 A.3d 430 (Del. 2016) (per curiam),

and the Florida Supreme Court, in Hurst v. State, 202 So. 3d 40 (Fla. 2016) (per

curiam), cert. denied, 137 S. Ct. 2161 (2017) [“Hurst II”], interpreted Hurst as

rendering death sentences like this one unconstitutional. By contrast, the Alabama

courts have declined to conduct a new analysis of the state’s death penalty sentencing

scheme in light of Hurst. In Ex parte Bohannon, 222 So. 3d 525 (Ala. 2016), the

Alabama Supreme Court concluded that the “holding in Hurst was based on an

application, not an expansion, of Apprendi[ v. New Jersey, 530 U.S. 466 (2000),] and

Ring,” and essentially just reiterated its decision in Ex parte Waldrop, 859 So. 2d 1181

(Ala. 2002), wherein it found Alabama’s law constitutional under Ring. See Bohannon,

222 So. 3d at 532-533.

In Rauf, however, the Delaware Supreme Court found that the Sixth

Amendment prohibits a sentencing judge in a capital proceeding from finding,

“independent of the jury,” “the existence of ‘any aggravating circumstance,’ statutory

or non-statutory, that has been alleged by the State for weighing in the selection phase

of a capital sentencing proceeding.” 145 A.3d at 433. After Hurst, the court held, the

Sixth Amendment “require[s] a jury, not a sentencing judge, to find that the

aggravating circumstances found to exist outweigh the mitigating circumstances found

to exist because, under 11 Del. C. § 4209, this is the critical finding upon which the

sentencing judge ‘shall impose a sentence of death.’” 145 A.3d at 434. Because

Delaware’s capital sentencing scheme required a judge, and not a jury, to find the

existence of aggravating circumstances, the Delaware Supreme Court found its law

unconstitutional. Id.

In Hurst II, the Florida Supreme Court similarly found that, in light of Hurst,

the Sixth Amendment compels that all “findings necessary for the jury to essentially

convict a defendant of capital murder – thus allowing imposition of the death penalty

– are also elements that must be found unanimously by the jury.” Hurst II, 202 So. 3d

at 53-54. After conducting “[a] close review of Florida’s sentencing statutes” as they

existed at the time of Mr. Hurst’s sentencing7 in order “to identify those critical

findings that underlie imposition of a death sentence,” id. at 51-52, the Florida

Supreme Court held that the Sixth Amendment requires a jury to “unanimously find[]

the existence of any aggravating factor” relied on for the imposition of a death

sentence. Id. at 54 (emphasis omitted and added). Hurst II further held that the

weighing finding required by that state’s law in fact functioned as one of the “elements”

“allowing imposition of the death penalty,” Hurst II, 202 So. 3d at 53-54, and

accordingly concluded that the jury’s findings must be necessary and not just advisory

for a judge-imposed death sentence: “in addition to unanimously finding the existence

of any aggravating factor, the jury must also unanimously find that the aggravating

factors are sufficient for the imposition of death and unanimously find that the

aggravating factors outweigh the mitigation before a sentence of death may be

The Florida Legislature revised its death penalty sentencing statute after this Court

decided Hurst. See H.B. 7101, 2016 Leg. (Fla. 2016).

considered by the judge.” 202 So. 3d at 54; see also id. at 44, 57.8

The Alabama courts’ divergence in reconciling its death penalty scheme to this

Court’s decision in Hurst cannot be traced to differences between the laws of Alabama,

Florida, and Delaware. Indeed, Alabama’s law was patterned after the Florida statute

that this Court struck down in Hurst. See Harris v. Alabama, 513 U.S. 504, 508 (1995)

(“Alabama’s death penalty statute is based on Florida’s sentencing scheme . . . .”);

Knotts v. State, 686 So. 2d 431, 448 (Ala. Crim. App. 1995) (“[W]e find persuasive those

cases interpreting the Florida statutes because Alabama’s death penalty statute is

based on Florida’s sentencing scheme.”). The resulting similarities between the two

laws have been noted by this Court as well as by the courts of Alabama. See Ring, 536

U.S. at 608 n.6 (categorizing Florida, Alabama, and Delaware laws as “hybrid systems,

in which the jury renders an advisory verdict but the judge makes the ultimate

sentencing determinations”); Waldrop, 859 So. 2d at 1189-90 (treating Florida’s statute

as analogous to Alabama’s for purposes of Sixth Amendment analysis); Ex parte

Harrell, 470 So. 2d 1309, 1317 (Ala. 1985) (“Alabama’s procedure permitting judicial

A range of additional courts, both federal and state, have also held that analogous

weighing determinations are factual findings that must be made by a jury in the

capital sentencing context. See McLaughlin v. Steele, 173 F. Supp. 3d 855, 896 (E.D.

Mo. 2016) (finding Sixth Amendment violation where death sentence imposed after

“finding of fact” by judge, not jury, regarding “the weighing of mitigating and

aggravating circumstances”); State v. Ring, 65 P. 3d 915, 942-43 (Ariz. 2003) (en banc)

(on remand from this Court, finding Sixth Amendment required that jury “find[]

mitigating circumstances and balanc[e] them against the aggravator”); Woldt v. People,

64 P.3d 256, 265-66 (Colo. 2003) (en banc) (finding Colorado requirement that

sentencer decide “whether the mitigating factors outweighed the aggravating factors”

was “fact-finding” to be made by jury).

override is almost identical to the scheme used in Florida.”).

Despite addressing nearly identical questions to those considered in both

Delaware and Florida, in a nearly identical statutory landscape, the Alabama courts

alone guard their conclusion that, under the Constitution, the sole finding necessary

to impose the death penalty is “‘the existence of the aggravating factor that makes a

defendant eligible for the death penalty.’” Russell v. State, No. CR-10-1910, 2016 WL

7322331, at *2 (Ala. Crim. App. Dec. 16, 2016) (quoting Bohannon, 222 So. 3d at 532).

As a result, Mr. Russell’s death sentence was upheld on remand from this Court

despite the fact that the sole aggravating factor on which it is premised was found

independently by the trial judge (C. 151-58), who had repeatedly instructed the jury

that its own sentencing decision was only an advisory recommendation (see R. 1823-27)

and later announced explicitly that the jury was “not in a position” to make one of the

two critical findings at issue (C. 156).

In affirming Mr. Russell’s death sentence, the Court of Criminal Appeals failed

to acknowledge the serious concern that a sentencing jury such as Mr. Russell’s, whose

“sense of responsibility for determining the appropriateness of death” has been

minimized, Caldwell, 472 U.S. at 341, will return a sentencing verdict compromised

by “substantial unreliability as well as bias in favor of death sentences,” id. at 330.

Instructions precisely like those used at Mr. Russell’s trial lead a jury “to believe that

the responsibility for determining the appropriateness of the defendant’s death rests

elsewhere,” and here it rendered Mr. Russell’s jury incapable of producing findings or

a verdict sufficiently reliable to support a sentence of death. Caldwell, 472 U.S. at 32819

29; see also Hurst, 136 S. Ct. at 622.

Notably, this case is unlike many Alabama capital cases, including Bohannon,

in ways that make the Hurst and Ring violations even more significant. In Bohannon,

the jury’s verdict finding the defendant guilty of murdering two or more people also

necessarily included a binding guilt/innocence-phase finding of the facts needed to

prove the aggravating circumstance of intentionally causing the death of two or more

persons. Bohannon, 222 So. 3d at 533. In contrast, in Mr. Russell’s case, the capital

murder conviction reached in the guilt/innocence phase did not establish any factual

findings regarding the “heinous, atrocious, and cruel” aggravator – or any other

statutory aggravating factor set forth by Alabama law. (See C. 126.) It cannot be said,

then, that Mr. Russell’s jury “made” any binding finding of aggravation or that the

judge “used” such a finding in the same way the Alabama Supreme Court concluded

took place in Bohannon and other cases with guilt/innocence-phase jury findings of

aggravation. See Bohannon, 222 So. 3d at 534.

In Hurst, this Court explicitly overruled prior decisions that permitted “a

sentencing judge to find an aggravating circumstance, independent of a jury’s

factfinding, that is necessary for imposition of the death penalty.” 136 S.Ct. at 624.

In Mr. Russell’s case, the jury’s only involvement in the ultimate death sentence was

in the form of a penalty phase determination it was instructed was merely an advisory

recommendation and, as a result, the death sentence in this case cannot be reconciled

with either Hurst or Caldwell. Accordingly, this Court should grant certiorari to

resolve the question of whether it violates the Sixth, Eighth, and Fourteenth

Amendments to sentence a defendant to death after his jury was instructed that its

sentencing verdict would be merely advisory or a recommendation.

CONCLUSION

For the foregoing reasons, Petitioner prays that this Court grant a writ of

certiorari to the Alabama Court of Criminal Appeals.

Respectfully submitted,

/s/ Randall S. Susskind

RANDALL S. SUSSKIND

122 Commerce Street

Montgomery, AL 36104

rsusskind@eji.org

(334) 269-1803

Counsel of Record for Petitioner

APPENDIX A

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

Only the Westlaw citation is currently available.

Court of Criminal Appeals of Alabama.

Ryan Gerald RUSSELL

STATE of Alabama.

CR–10–1910.

May 29, 2015.

Rehearing Denied Oct. 16, 2015.

Certiorari Denied Feb. 19, 2016

Alabama Supreme Court 1150074.

Synopsis

Background: Defendant was convicted in the Circuit

Court, Shelby County, No. CC–09–67, G. Daniel Reeves,

J., of capital murder and was sentenced to death.

Holdings: The Court of Criminal Appeals held that:

[1] chief investigator was properly permitted to remain in

the courtroom during testimony of other witnesses;

[2] defendant failed to establish Batson violation;

[3] police officers' warrantless entry into home was lawful

pursuant to the “emergency aid exception” to warrant

requirement;

[4] testimony regarding defendant's alcoholism and

excessive drinking was properly admitted under the

doctrine of curative admissibility;

[5] defendant failed to establish prosecutorial misconduct;

[6] evidence supported capital murder conviction;

[7] victim-impact testimony from one of child victim's

camp counselors was not plain error in penalty phase; and

[8] evidence supported finding that 11-year-old victim's

murder was especially heinous, atrocious, or cruel.

Affirmed.

Windom, P.J., concurred in result.

Welch, J., filed dissenting opinion.

Attorneys and Law Firms

Glennon F. Threatt (withdrew (06/29/2012); Richard

Warren Bell, Birmingham; and Heather Dawn Collier,

Spanish Fort, for appellant.

Luther Strange, atty. gen., and James C. Crenshaw and

Kristi Deason Hagood, asst. attys. gen., for appellee.

Opinion

PER CURIAM.

*1 The appellant, Ryan Gerald Russell, was convicted

of murdering 11–year–old Katherine Helen Gillespie, an

offense defined as capital by § 13A–5–40(a)(15), Ala.Code

1975, because Katherine was under the age of 14. 1 The

jury unanimously voted that Russell be sentenced to

death after finding that the capital offense was especially

heinous, atrocious, or cruel as compared to other capital

murders, § 13A–5–49(8), Ala.Code 1975. The circuit

court sentenced Russell to death. This appeal, which is

automatic in a case involving the death penalty, followed.

See § 13A–5–55, Ala.Code 1975. 2

The State's evidence tended to show that on June

16, 2008, at around 9:00 p.m., Shelby County sheriff

deputies were dispatched to Russell's house in response

to a 911 emergency call. Deputies Melvin Janisek, Jay

Fondren, and Paul George entered the home through

an entry door near the garage. Deputy Janisek and

Deputy Fondren proceeded upstairs, and Deputy George

checked the vehicles in the garage. One of the vehicles, a

Cadillac Escalade sport-utility vehicle, had been involved

in an vehicular accident earlier that day. Deputy George

testified that he discovered Katherine's body in the

backseat of the Escalade, that her body had been partially

stuffed into a garbage can, that her body was visible

only from the waist down, and that she was covered in

bloody towels and clothes. (R. 1155.) The State's medical

examiner, Dr. Adel Shaker, testified that Katherine died

as a result of a gunshot wound to her head, that the

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

wound was a “contact wound,” meaning that there was

no distance between the gun and her head when the fatal

shot had been fired, and that the bullet caused Katherine's

skull to “blow[ ] up.” (R. 1444–46.)

Police searched the house and discovered Russell lying in

a fetal position on the floor of the bathroom shower. The

water was running, and Russell was wearing only a pair of

black shorts. (R. 1133.) “[L]ittle oblong pills [were lying]

laying on the ground in the shower with [Russell].” (R.

1133.) The washing machine, near the Escalade, was filled

with bloody water. There were “a number of clothes

and cell phones” in the water and a .40 caliber shell

casing. This casing was later determined to have been fired

from a .40–caliber Glock brand semi-automatic pistol

belonging to Russell. This weapon was discovered on the

garage floor under a sofa several weeks after the shooting

when Russell's family was cleaning the house.

Andrew Stone testified that around 6:00 p.m. on June

16, 2008, he, Robert “Bo” Montiel, and Andrew's 14–

year–old sister, Mallie Stone, were traveling in a truck on

Inverness Parkway. Andrew slowed his vehicle to allow

an oncoming car to pass his truck, and his truck was hit

from behind by a Cadillac Escalade. (R. 995.) After the

collision, the Escalade sped off and the boys followed the

car to Russell's address—5048 Carrie Downs Road. Stone

and Montiel got out of their vehicle and approached the

driver's side of the Escalade. Montiel testified that the

back door of the Escalade opened, that Katherine got out

of the car, that she was crying, and that Katherine begged

them: “ ‘Please don't call the police on my daddy. He

didn't mean to do anything wrong.’ ” (R. 999.) Stone told

Katherine that police had to be called because it was a “hit

and run” accident. (R. 1023.) Stone and Montiel tried to

talk to Russell through the car window but Russell refused

to say anything to them. Both Montiel and Stone testified

that Russell showed no emotion.

*2 While the boys attempted to speak with Russell,

Katherine walked to the street and rolled a trash can down

the driveway and placed it next to the house. Montiel

stated that Katherine then entered a back door leading

into the garage. 3 When Katherine went inside the garage,

the garage door opened and Russell backed the Escalade

into the garage and lowered the garage door.

Stone said that after the garage door closed, he telephoned

his parents, and his parents arrived at Russell's residence

within “seven or eight” minutes. (R. 1012.) His parents

had telephoned the police en route to Russell's house and

the police arrived at Russell's shortly after his parents.

Police arrived at Russell's home at approximately 6:30

p.m. They knocked on Russell's door, but Russell would

not answer. Ultimately, the police informed the Stones

that because no one had been injured in the accident and

no one would answer the door—there was nothing they

could do at that time. After about 20 or 30 minutes,

everybody left Russell's residence.

Emily Webber testified that she was Russell's former

girlfriend and that she had lived with Russell on and

off for years. She testified that Russell drank too much

and that she left him in November 2006 but returned in

July 2007 when she learned that Katherine was moving

to Birmingham to live with Russell. Because of Russell's

drinking, Webber said, she moved out again in January

2008. Webber also testified that Russell had inherited

several guns from his father and that he kept them locked

up in the basement.

Webber further testified that on June 16, 2008, at

approximately 4:30 p.m. she received a telephone call from

Susanna Russell, Russell's sister. Susanna told her that she

had been trying to reach Russell all day to inform him that

their grandfather was about to the and that she needed

Russell “to take care of some family matters and to make

arrangements for their grandfather” but that she had been

unable to contact Russell. (R. 1049.) Because Susanna

lived in Panama City, Florida, she asked Webber to go

to Russell's house to inform him about their grandfather.

Webber went to Russell's home, but no one answered the

door.

At approximately 8:00 p.m. that same evening, Webber

spoke with Carlyn Russell, Russell's stepmother. Carlyn

told her that Russell's grandfather had died, and she asked

Webber to go to Russell's house and inform him of his

grandfather's death. At around 8:30 p.m. Webber and a

friend, Nick Barnes, returned to Russell's house. Webber

said that as she walked down the driveway, she saw

“flickering from a television in the master bedroom.” (R.

1100.) She looked through a window on the garage door

and she saw “the shadow of a person with [Russell's]

stature in between [two] vehicles” parked inside the

garage. (R. 1054.) Webber began beating on the garage

door but was unable to get Russell to respond. Webber

informed Carlyn, and Carlyn asked Webber to try to

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

get into the house. Webber testified that she entered the

house through an unlocked door near the garage, that she

looked inside the Escalade and saw that the two front air

bags had deployed, and that she became very concerned

for Katherine's safety. (R. 1063.) Webber left the house,

and she and Barnes telephoned emergency 911 which

ultimately lead to the discovery of Katherine's body inside

the Escalade.

*3 Experts testified that when the fatal shot was fired the

gun was in direct contact with the right side of Katherine's

head causing a “stellate, or star shaped, entrance wound.”

The bullet caused “extensive intracerebral hemorrhages

and subarachnoid hemorrhages” by “pulverizing and

contusing the whole right and left side hemisphere of the

brain and the brain stem fracturing the cranial cavity

completely, the vault of the cranial cavity and the base of

the skull.” (R. 1445.) Katherine died instantly. Fragments

of the bullet removed from Katherine were “consistent

with a .40 caliber class bullet jacket.” (R. 1375–76.)

A blood-splatter expert, Angelo Della Manna, testified

that based on his examination of the crime scene it was

his opinion that Katherine had been shot in the laundry

room while she was “crouching” in a 12–inch–wide space

between the clothes dryer and a wall. 4 Using a doll

approximating Katherine's size and height, Della Manna

showed the jury the position Katherine was in when she

was shot. Della Manna further testified that, based on the

configuration of bloodstains in the laundry room, at the

time of the shooting Katherine's head had been between

18 and 36 inches above the floor. At a height of 36 inches

from the floor, Katherine's head would have been lower

than the top of the dryer.

The jury convicted Russell of capital murder. A separate

sentencing hearing was held. The jury unanimously

recommended that Russell be sentenced to death. The

circuit court followed the jury's recommendation.

Standard of Review

Because Russell has been sentenced to death, this Court

must search the record of the trial-court proceedings for

plain error. See Rule 45A, Ala. R.App. P. Rule 45A

provides:

“In all cases in which the death

penalty has been imposed, the

Court of Criminal Appeals shall

notice any plain error or defect

in the proceedings under review,

whether or not brought to the

attention of the trial court, and

take appropriate appellate action

by reason thereof, whenever such

error has or probably has adversely

affected the substantial right of the

appellant.”

In discussing the scope of the plain-error standard of

review, the Alabama Supreme Court has stated:

“ ‘ “To rise to the level of plain error, the claimed error

must not only seriously affect a defendant's ‘substantial

rights,’ but it must also have an unfair prejudicial

impact on the jury's deliberations.” ' Ex parte Bryant,

951 So.2d 724, 727 (Ala.2002) (quoting Hyde v. State,

778 So.2d 199, 209 (Ala.Crim.App.1998)). In United

States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84

L.Ed.2d 1 (1985), the United States Supreme Court,

construing the federal plain-error rule, stated:

“ ‘The Rule authorizes the Courts of Appeals to

correct only “particularly egregious errors,” United

States v. Frady, 456 U.S. 152, 163 [102 S.Ct. 1584,

71 L.Ed.2d 816] (1982), those errors that “seriously

affect the fairness, integrity or public reputation

of judicial proceedings,” United States v. Atkinson,

297 U.S. [157], at 160 [56 S.Ct. 391, 80 L.Ed. 555

(1936) ]. In other words, the plain-error exception to

the contemporaneous-objection rule is to be “used

sparingly, solely in those circumstances in which a

miscarriage of justice would otherwise result.” United

States v. Frady, 456 U.S., at 163, n. 14.’

*4 “See also Ex parte Hodges, 856 So.2d 936, 947–

48 (Ala.2003) (recognizing that plain error exists only

if failure to recognize the error would ‘seriously affect

the fairness or integrity of the judicial proceedings,’ and

that the plain-error doctrine is to be ‘used sparingly,

solely in those circumstances in which a miscarriage

of justice would otherwise result’ (internal quotation

marks omitted)).”

Ex parte Brown, 11 So.3d 933, 938 (Ala.2008). 5

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

Guilt Phase Issues

[1] Russell argues that the circuit court erred in allowing

the chief investigator, Shelby O'Connor, to be excused

from the operation of “the Rule,” which provides that

witnesses shall not be present in the courtroom for the

testimony of other witnesses, so that he could be present in

“Alabama appellate courts have time and again refused to

hold it an abuse of discretion on the part of a trial court

to allow a sheriff, police chief, or similarly situated person

who will later testify to remain in the courtroom during

trial.” Ex parte Lawhorn, 581 So.2d 1179, 1181 (Ala.1991).

The circuit court did not abuse its discretion in not

invoking the Rule and allowing the chief investigator to

remain in the courtroom. Russell is due no relief on this

claim.

the courtroom for the testimony of the other witnesses. 6

The record shows that the following occurred immediately

before the first witness testified:

“The Court: All right. We are about ready to call our

first witness. Does either party wish to invoke the Rule?

“[Defense counsel]: We do, Your Honor.

“The Court: The Rule will be invoked so for the State—

of course, [Russell] will always be present. For the State

with the exception being your chief investigator—

“[Prosecutor]: Shelby O'Connor.

“The Court: Shelby O'Connor. All right.”

(R. 888.) Russell did not object to O'Connor's being

excluded from the Rule; therefore, we review this claim for

plain error. See Rule 45A, Ala. R.App. P.

[2]

Rule 615, Ala. R. Evid., provides:

“At the request of a party the court may order witnesses

excluded so that they cannot hear the testimony of other

witnesses and it may make the order of its own motion.

This rule does not authorize exclusion of (1) a party

who is a natural person, (2) an officer or employee of

a party which is not a natural person designated as

its representative by its attorney, (3) a person whose

presence is shown by a party to be essential to the

presentation of the party's cause, or (4) a victim of a

criminal offense or the representative of a victim who

is unable to attend, when the representative has been

selected by the victim, the victim's guardian, or the

victim's family.” 7

II.

[3] Russell argues that the circuit court erred in allowing

the jurors to be “death qualified” because, he says, doing

so resulted in a conviction-prone jury. 8

[4] There was no objection to the prospective jurors being

“death qualified”; therefore, we review this claim for plain

error. See Rule 45A, Ala. R.App. P.

*5 “A jury composed exclusively

of jurors who have been deathqualified in accordance with the test

established in Wainwright v. Witt,

469 U.S. 412, 105 S.Ct. 844, 83

L.Ed.2d 841 (1985), is considered

to be impartial even though it

may be more conviction prone

than a non-death-qualified jury.

Williams v. State, 710 So.2d 1276

(Ala.Cr.App.1996). See Lockhart

v. McCree, 476 U.S. 162, 106

S.Ct. 1758, 90 L.Ed.2d 137 (1986).

Neither the federal nor the state

constitution prohibits the state

from ... death-qualifying jurors in

capital cases. Id.; Williams; Haney

v. State, 603 So.2d 368, 391–92

(Ala.Cr.App.1991), aff'd, 603 So.2d

412 (Ala.1992), cert. denied, 507

U.S. 925, 113 S.Ct. 1297, 122

L.Ed.2d 687 (1993).”

Davis v. State, 718 So.2d 1148, 1157 (Ala.Crim.App.1995).

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

The circuit court did not error in allowing the jurors to

be questioned about their views toward the death penalty.

Russell is due no relief on this claim.

III.

Russell next argues that the State violated Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69

(1986), by using its peremptory strikes to remove black

prospective jurors from the venire solely on the basis of

their race.

The United States Supreme Court in Batson held that

it was a violation of the Equal Protection Clause of

the United States Constitution for a State prosecutor to

remove a black prospective juror from a black defendant's

jury solely based on their race. This holding was extended

to white defendants in Powers v. Ohio, 499 U.S. 400, 111

S.Ct. 1364, 113 L.Ed.2d 411 (1991); to defense counsel in

criminal cases in Georgia v. McCollum, 505 U.S. 42, 112

S.Ct. 2348, 120 L.Ed.2d 33 (1992); and to gender-based

strikes in J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419,

128 L.Ed.2d 89 (1994). The Alabama Supreme Court in

White Consolidated Industries, Inc. v. American Liberty

Insurance Co., 617 So.2d 657 (Ala.1993), extended this

protection to white prospective jurors.

raises an inference of purposeful discrimination by the

State in the exercise of peremptory challenges.’).''

Kelley v. State, [Ms. CR–10–0642, September 5, 2014] –––

So.3d ––––, –––– (Ala.Crim.App.2014).

*6 “In many cases the appellate

courts in this state have refused

to find plain error grounded on

Batson v. Kentucky, 476 U.S. 79, 106

S.Ct. 1712, 90 L.Ed.2d 69 (1986),

when no prima facie showing of

discrimination appears on the face

of the record. Ex parte Watkins, 509

So.2d 1074 (Ala.1987), cert. denied,

484 U.S. 918, 108 S.Ct. 269, 98

L.Ed.2d 226 (1987); Jenkins v. State,

627 So.2d 1034 (Ala.Cr.App.1992),

aff'd, 627 So.2d 1054 (Ala.1993);

Kuenzel v. State, 577 So.2d 474, 489

(Ala.Cr.App.1990), aff'd, 577 So.2d

531 (Ala.), cert. denied, 502 U.S.

886, 112 S.Ct. 242, 116 L.Ed.2d 197

(1991).”

Dobyne

State,

(Ala.Crim.App.1994).

672

So.2d

1319,

1327

“With respect to the first step of the process—the step

at issue here—‘[t]he party alleging discriminatory use

Russell did not make a Batson objection after the jury was

of a peremptory strike bears the burden of establishing

struck; therefore, we review this issue only for plain error.

a prima facie case of discrimination.’ Ex parte Brooks,

See Rule 45A, Ala. R.App. P.

695 So.2d 184, 190 (Ala.1997) (citing Ex parte Branch,

[5] [6] [7] [8] [9] Here, the record reflects that, after 526 So.2d 609, 622 (Ala.1987)). ‘A defendant makes

out a prima facie case of discriminatory jury selection

jurors were removed for cause, 66 jurors remained in the

by “the totality of the relevant facts” surrounding

venire. The State and the defendant both had 27 strikes,

a prosecutor's conduct during the defendant's trial.’

the last 2 of which were alternate jurors. 9 The State used

Lewis v. State, 24 So.3d 480, 489 (Ala.Crim.App.2006)

5 of its 27 peremptory strikes to remove all but one black

(quoting Batson, 476 U.S. at 94, 106 S.Ct. 1712), aff'd,

prospective juror from the venire.

24 So.3d 540 (Ala.2009). ‘In determining whether there

is a prima facie case, the court is to consider “all relevant

“ ‘To find plain error in the context of a Batson ...

circumstances” which could lead to an inference of

violation, the record must supply an inference that the

discrimination.’ Ex parte Branch, 526 So.2d at 622

prosecutor was “engaged in the practice of purposeful

(citing Batson, 476 U.S. at 93, 106 S.Ct. 1712, citing

discrimination.” ’ Blackmon v. State, 7 So.3d 397, 425

in turn Washington v. Davis, 426 U.S. 229, 96 S.Ct.

(Ala.Crim.App.2005) (quoting Ex parte Watkins, 509

2040, 48 L.Ed.2d 597 (1976)). In Ex parte Branch, the

So.2d 1074, 1076 (Ala.1987)). See also Saunders v.

Alabama Supreme Court specifically set forth a number

State, 10 So.3d 53, 78 (Ala.Crim.App.2007) (‘For an

of ‘relevant circumstances' to consider in determining

appellate court to find plain error in the Batson [or

whether a prima facie case of race discrimination has

J.E.B.] context, the court must find that the record

been established:

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

“ ‘The following are illustrative of the types of

evidence that can be used to raise the inference of

discrimination:

“ ‘1. Evidence that the “jurors in question share[d]

only this one characteristic—their membership in the

group—and that in all other respects they [were]

as heterogeneous as the community as a whole.”

[People v.] Wheeler, 22 Cal.3d [258] at 280, 583 P.2d

[748] at 764, 148 Cal.Rptr. [890] at 905 [ (1978) ].

For instance “it may be significant that the persons

challenged, although all black, include both men and

women and are a variety of ages, occupations, and

social or economic conditions,’ Wheeler, 22 Cal.3d

at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905, n. 27,

indicating that race was the deciding factor.

“ ‘2. A pattern of strikes against black jurors

on the particular venire; e.g., 4 of 6 peremptory

challenges were used to strike black jurors. Batson [v.

Kentucky], 476 U.S. [79] 97, 106 S.Ct. [1712] 1723

[ (1986) ].

“ ‘3. The past conduct of the state's attorney in using

peremptory challenges to strike all blacks from the

jury venire. Swain[ v. Alabama, 380 U.S. 202, 85 S.Ct.

824, 13 L.Ed.2d 759 (1965) ].

*7 “ ‘4. The type and manner of the state's attorney's

questions and statements during voir dire, including

nothing more than desultory voir dire. Batson, 476

U.S. at 97, 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at

281, 583 P.2d at 764, 148 Cal.Rptr. at 905.

“ ‘5. The type and manner of questions directed to

the challenged juror, including a lack of questions,

or a lack of meaningful questions. Slappy v. State,

503 So.2d 350, 355 (Fla.Dist.Ct.App.1987); People v.

Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr.

656 (1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d

748, 764, 148 Cal.Rptr. 890 (1978).

“ ‘6. Disparate treatment of members of the jury

venire with the same characteristics, or who answer

a question in the same or similar manner; e.g.,

in Slappy, a black elementary school teacher was

struck as being potentially too liberal because of his

job, but a white elementary school teacher was not

challenged. Slappy, 503 So.2d at 352 and 355.

“ ‘7. Disparate examination of members of the venire;

e.g., in Slappy, a question designed to provoke a

certain response that is likely to disqualify a juror was

asked to black jurors, but not to white jurors. Slappy,

503 So.2d at 355.

“ ‘8. Circumstantial evidence of intent may be

proven by disparate impact where all or most of the

challenges were used to strike blacks from the jury.

Batson, 476 U.S. at 93, 106 S.Ct. at 1721; Washington

v. Davis, 426 U.S. [229] at 242, 96 S.Ct. [2040] at 2049

[ (1976) ].

“ ‘9. The state used peremptory challenges to dismiss

all or most black jurors. See Slappy, 503 So.2d at 354,

Turner, supra.’

“[526 So.2d at 622–23.]' ”

Kelley v. State, ––– So.3d at ––––.

[10] [11] [12] [13] [14] We have reviewed the voir

dire examination of the prospective jurors, which consists

of over 700 pages of the record and the 14–page juror

questionnaires. After reviewing the questionnaires and the

extensive voir dire examination, we can easily discern why

the State struck prospective jurors C.P., C.A., A.H., K.L.,

and E.B. Juror C.P. indicated that she had a nephew

who had been prosecuted in the same county for murder;

prospective juror A.H. stated during voir dire that he

had been arrested and prosecuted but acquitted by a jury

of the offense of animal cruelty; prospective juror C.A.

stated that he was a full-time college student and had a

job that paid an hourly wage and that he did not wish

to serve as a juror; prospective juror E.B. stated that he

was neutral toward the death penalty and that he was not

sure if the State should be allowed to impose the death

penalty; and prospective juror K.L. said that she was in the

medical field and was a member of the American Society

of Clinical Pathologists.

[15]

[16]

[17]

[18]

All the above reasons

are race-neutral reasons for removing a prospective

juror. “[S]trikes based on previous criminal charges,

prosecution, or convictions of the veniremember or a

family member of the veniremember are not racially

discriminatory....” Thomas v. State, 611 So.2d 416, 418

(Ala.Crim.App.1992). “A juror's indication that he or she

does not wish to serve is a valid race-neutral reason.”

Gobble v. State, 104 So.3d 920, 949 (Ala.Crim.App.2010).

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

“[M]ixed views on or reservations concerning the death

penalty are a race-neutral reason for a strike of a

prospective juror.” Woolf v. State, [Ms. CR–10–1082,

May 2, 2014] ––– So.3d ––––, –––– (Ala.Crim.App.2014).

“Occupation is a permissible reason to defend against a

Batson challenge....” Hall v. Luebbers, 341 F.3d 706, 713

(8th Cir.2003).

*8 The record fails to raise an inference of discrimination

in the jury-selection process; therefore, we find no plain

error in regard to this Batson claim. Russell is due no relief

on this claim.

IV.

Russell next argues that the circuit court erred in allowing

to be admitted all the evidence seized as a result of a

warrantless search of his house. There was no objection to

the introduction of any evidence secured as a result of the

search of Russell's house; therefore, we review this claim

for plain error. See Rule 45A, Ala. R.App. P.

The State asserts that the police were validly in Russell's

home to perform a welfare check on its occupants and that

the items seized from the house were lawfully admitted

into evidence.

As stated above, police entered Russell's house after

receiving a 911 emergency call from Webber and Barnes.

Before calling 911, Webber had entered the garage and

had noticed that the air bags on Russell's Cadillac

Escalade had deployed. Russell's family had tried to reach

him for hours. Police had been to the residence earlier that

day after the Escalade had been in an accident, and they

had been unable to get the occupants to answer the door.

Webber had twice been to Russell's residence that day and

could get no one in the house to acknowledge her presence.

Webber testified that she and Barnes called emergency 911

because she was concerned for Katherine's safety.

[19]

[20]

[21] “[O]fficers may conduct a warrantless

search if they believe that their lives or the lives of

others are at risk.” A.A.G. v. State, 668 So.2d 122, 128

(Ala.Crim.App.1995).

“One exigency obviating the requirement of a warrant

is the need to assist persons who are seriously injured or

threatened with such injury. ‘ “The need to protect or

preserve life or avoid serious injury is justification for

what would be otherwise illegal absent an exigency or

emergency.” ’ [Mincey v. Arizona, 437 U.S. 385] at 392

[ (1978) ] (quoting Wayne v. United States, 318 F.2d 205,

212 (C.A.D.C.1963) (Burger, J.)); see also [Michigan v.]

Tyler, [436 U.S. 499] at 509 [98 S.Ct. 1942, 56 L.Ed.2d

486 (1978) ]. Accordingly, law enforcement officers may

enter a home without a warrant to render emergency

assistance to an injured occupant or to protect an

occupant from imminent injury. Mincey, supra, at 392;

see also Georgia v. Randolph, [547 U.S. 103] at 118 [126

S.Ct. 1515, 164 L.Ed.2d 208 (2006) ] (‘[I]t would be

silly to suggest that the police would commit a tort by

entering ... to determine whether violence (or threat of

violence) has just occurred or is about to (or soon will)

occur’).''

Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126

S.Ct. 1943, 164 L.Ed.2d 650 (2006). The United States

Supreme Court has referred to this as the “emergency aid

exception” to the warrant requirement. See Michigan v.

Fisher, 558 U.S. 45, 47, 130 S.Ct. 546, 175 L.Ed.2d 410

(2009).

The United States Court of Appeals for the Eleventh

Circuit has stated:

“Following the reasoning of the Supreme Court,

numerous federal and state courts have upheld

warrantless emergency entries and searches based on

endangerment to life. See, e.g., United States v. Hughes,

993 F.2d 1313 (7th Cir.1993) (report of woman and

child in danger in crack house); United States v.

Gillenwaters, 890 F.2d 679 (4th Cir.1989) (stabbing

victim); United States v. Martin, 781 F.2d 671 (9th

Cir.1985) (explosion in apartment); Mann v. Cannon,

731 F.2d 54 (1st Cir.1984) (open access to controlled

substances by children); United States v. Riccio, 726

F.2d 638 (10th Cir.1984) (medical aid to defendant

shot by police); United States v. Jones, 635 F.2d

1357 (8th Cir.1980) (report of gunshots); United States

v. Barone, 330 F.2d 543 (2d Cir.1964) (screams in

the night); United States v. Searle, 974 F.Supp. 1433

(M.D.Fla.1997) (report of gunshots); United States v.

Herndon, 390 F.Supp. 1017 (S.D.Fla.1975) (report of

gunshots); United States v. Hogue, 283 F.Supp. 846

(N.D.Ga.1968) (report of dead body); Johnson v. State,

386 So.2d 302 (Fla.App.1980) (report of dead body);

State v. Carlson, 548 N.W.2d 138 (Iowa 1996) (missing

person); State v. Butler, 676 S.W.2d 809 (Mo.1984) (en

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

banc) (gunshot victim); State v. Mackins, 47 N.C.App.

168, 266 S.E.2d 694 (1980) (gunshots); State v. Max, 263

N.W.2d 685 (S.D.1978) (gunshots).

*9 “Although this Court has not directly addressed

emergency searches based on endangerment to life,

we have on at least two occasions generally endorsed

the validity of such searches. See United States

v. Brand, 556 F.2d 1312 (5th Cir.1977) (noting

defendant's concession that police officer who assisted

ambulance attendants with medical emergency legally

entered home); United States v. Green, 474 F.2d 1385

(5th Cir.1973) (indicating deputy fire marshal could

validly search apartment to determine cause of fire

where ascertaining cause was necessary to assure fire

was completely extinguished). Furthermore, upholding

warrantless searches in such situations is consistent with

our jurisprudence concerning the exigent circumstances

exception.

“Based on the foregoing, we conclude emergency

situations involving endangerment to life fall squarely

within the exigent circumstances exception. It is difficult

to imagine a scenario in which immediate police action

is more justified than when a human life hangs in

the balance. Although the Fourth Amendment protects

the sanctity of the home, its proscription against

warrantless searches must give way to the sanctity of

human life. When the police reasonably believe an

emergency exists which calls for an immediate response

to protect citizens from imminent danger, their actions

are no less constitutional merely because the exigency

arises on the wooden doorsteps of a home rather than

marble stairs of a public forum.”

United States v. Holloway, 290 F.3d 1331, 1337 (11th

Cir.2002).

The Alabama Supreme Court has recognized this

exception to the warrant requirement.

“The United States Supreme Court has held that ‘

“[t]he need to protect or preserve life or avoid serious

injury is justification for what would be otherwise illegal

absent an exigency or emergency.” ’ Mincey v. Arizona,

437 U.S. 385, 392–93, 98 S.Ct. 2408, 57 L.Ed.2d 290

(1978) (quoting Wayne v. United States, 318 F.2d 205,

212 (D.C.Cir.1963)). For example, law-enforcement

officers can enter a residence without a warrant to

render emergency assistance to an injured person or to

protect a person from immediate injury. Mincey, 437

U.S. at 392, 98 S.Ct. 2408. Moreover, the state of mind

of the law-enforcement officer is immaterial ‘as long

as the circumstances, viewed objectively, justify [the

officer's] action.’ Scott v. United States, 436 U.S. 128,

138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).''

State v. Clayton, 155 So.3d 290, 298 (Ala.2014).

In State v. Clayton, the Alabama Supreme Court

adopted a three-pronged test when evaluating whether a

warrantless entry of a home is lawful based on an officer's

belief that an occupant's life is in danger.

“In United States v. Rhiger, 315 F.3d 1283, 1288 (10th

Cir.2003), the United States Court of Appeals for the

Tenth Circuit noted that it had, in an earlier decision,

determined that the

“ ‘ “basic aspects of the ‘exigent circumstances'

exception [with regard to the manufacturing of

methamphetamine] are that (1) law enforcement

officers must have reasonable grounds to believe

that there is immediate need to protect their lives

or others or their property or that of others, (2) the

search must not be motivated by an intent to arrest

and seize the evidence, and (3) there must be some

reasonable basis, approaching probable cause to

associate an emergency with the area or place to be

searched.” ’

*10 “(Quoting United States v. Wicks, 995 F.2d 964,

970 (10th Cir.1993).) See also People v. Doll, 21 N.Y.3d

665, 998 N.E.2d 384, 975 N.Y.S.2d 721 (2013).”

155 So.3d at 301. “ ‘The need to protect or preserve life

or avoid serious injury is justification for what would

be otherwise illegal absent an exigency or emergency.’ ”

Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57

L.Ed.2d 290 (1978), quoting Wayne v. United States, 115

U.S.App. D.C. 234, 241, 318 F.2d 205, 212 (1963). See

also State v. Matthews, 665 N.W.2d 28, 34 (N.D.2003) (“A

911 call reporting an emergency can be enough to support

a warrantless search under the exigent circumstances

exception, particularly when the caller identifies himself or

herself.”); United States v. Quezada, 448 F.3d 1005, 1007

(8th Cir.2006) (“A police officer may enter a residence

without a warrant as a community caretaker where the

officer has a reasonable belief that an emergency exists

requiring his or her attention.”).

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

[22] Here, the three factors discussed in State v. Clayton

were satisfied. Police had reasonable grounds to believe

that the residents in Russell's house were in danger, police

did not act with any motivation to arrest or seize any

evidence, and police knew that Russell's vehicle had been

involved in an accident earlier that day, that the vehicle's

air bags had deployed, and that there was a good deal of

damage to the vehicle. Here, the warrantless entry into

Russell's house was lawful pursuant to the “emergency

aid exception” to the warrant requirement. See State v.

Clayton, supra. Therefore, all the evidence seized from

Russell's home was lawfully admitted. Russell is due no

relief on this claim.

[23] Russell next argues that the circuit court erred when

it allowed Dr. Adel Shaker, the medical examiner who

performed Katherine's autopsy, to testify to the condition

of Katherine's entire body at the time she performed the

autopsy.

The record shows that Russell made a motion in limine

seeking to exclude autopsy photographs of Katherine's

genitalia because, he said, they implied that Katherine

had been a victim of sexual abuse, an issue never argued

at trial. The circuit court excluded the photographs but

held that Dr. Shaker could testify concerning her complete

physical findings from her autopsy.

Dr. Shaker testified that as part of her external

examination of Katherine's body she documented the

following injuries excluding the head injury: a contusion

on Katherine's chest, a contusion on her left thigh, and

two healed wounds, or scars, on Katherine's hymen. Dr.

Shaker testified that the contusion on Katherine's chest

would be consistent with a “blunt force trauma like an

air bag” deploying and that the “red purple contusion”

on Katherine's left thigh was “difficult to age.” Dr.

Shaker was asked no questions concerning the scars to

Katherine's hymen.

[24] “A trial court has wide discretion in determining

whether to exclude or to admit evidence, and the trial

court's determination on the admissibility of evidence

will not be reversed in the absence of an abuse of that

discretion.” Woodward v. State, 123 So.3d 989, 1014

(Ala.Crim.App.2011). See also Ex parte Loggins, 771

So.2d 1093, 1103 (Ala.2000); Barrett v. State, 918 So.2d

942, 946 (Ala.Crim.App.2005); Taylor v. State, 808 So.2d

1148, 1191 (Ala.Crim.App.2000). We cannot say that

the circuit court abused its discretion in admitting Dr.

Shaker's testimony.

*11 Morever, Rule 45, Ala. R.App. P., provides:

“No judgment may be reversed

or set aside ... on the ground

of misdirection of the jury, the

giving or refusal of special charges

or the improper admission or

rejection of evidence, nor for error

as to any matter of pleading or

procedure, unless in the opinion

of the court to which the

appeal is taken or application is

made, after examination of the

entire cause, it should appear

that the error complained of

has probably injuriously affected

substantial rights of the parties.”

In explaining the application of Rule 45, Ala. R.App.

P., this Court in Trimble v. State, 157 So.3d 1001, 1005

(Ala.Crim.App.2014), stated:

“In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967), the United States Supreme Court

held that before a court's error in violating certain

constitutional rights can be held harmless, the appellate

court must be able to declare that the error was harmless

beyond a reasonable doubt. In Ex parte Crymes, 630

So.2d 125 (Ala.1993), the Alabama Supreme Court

explained:

“ ‘In determining whether the admission of improper

testimony is reversible error, this Court has stated

that the reviewing court must determine whether the

“improper admission of the evidence ... might have

adversely affected the defendant's right to a fair trial,”

and before the reviewing court can affirm a judgment

based upon the “harmless error” rule, that court must

find conclusively that the trial court's error did not

affect the outcome of the trial or otherwise prejudice

a substantial right of the defendant.’

“630 So.2d at 126. See also Ex parte Greathouse, 624

So.2d 208, 210 (Ala.1993) (holding that the proper

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

harmless-error inquiry asks, absent the improperly

introduced evidence, ‘is it clear beyond reasonable

doubt that the jury would have returned a verdict of

guilty’).”

157 So.3d at 1005.

Dr. Shaker testified to her complete findings on the

condition of Katherine's body but there was no further

concerning any scars to Katherine's hymen. This was an

isolated reference. Thus, even if we were to conclude

that the circuit court clearly abused its discretion in

admitting Dr. Shaker's testimony, which we do not, any

possible error was harmless beyond a reasonable doubt.

See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967). Russell is due no relief on this claim.

VI.

Russell next argues that the circuit court erred in allowing

prior-bad-acts evidence to be admitted during the

testimony of Emily Webber, Russell's former girlfriend,

and, he says, the circuit court compounded that error

by not giving any limiting instruction on the use of that

evidence. 10

The record shows that on direct examination Webber

testified that Russell drank excessively and that she had

left him because of his drinking but that she moved back

in with him to help raise Katherine. She said that she only

stayed for six months at that time and left again because

of Russell's drinking. On cross-examination, the following

occurred:

*12 “[Defense counsel]: Did you believe when

you were there and do you assert today that the

environment in which young Katherine lived was a

good environment as far as the accommodations are

concerned?

“[Webber]: The accommodations were suitable for

Katherine, yes.

“[Defense counsel]: And during the time that you were

there in that year and a half, were you—or during the

time that Katherine was there and the three of you lived

under the same roof, did you notice the things that

Mr. Russell would do with Katherine in terms of her

education, for example?”

(R. 1094–95.)

On redirect, the State was allowed to expound on Russell's

struggle with alcohol and Webber testified that Russell

had driven while intoxicated “on several occasions” with

Katherine in the car, that Webber had found vodka in

Russell's car, that she had asked Russell's family for

help regarding Russell's alcoholism, that drinking alcohol

in excess lowered Russell's inhibitions, causing him to

walk around nude inside the house, and that Russell's

alcoholism caused Webber and Russell's relationship to be

very volatile. (R. 1111.) Webber also testified that Russell

was admitted but failed to complete a detox program for

alcoholics and an outpatient program for alcoholics. (R.

1113.)

The State argues in its brief to this Court that Webber's

testimony concerning Russell's drinking and its effect was

admissible under the doctrine of curative admissibility.

We agree.

In Ex parte D.L.H., 806 So.2d 1190 (Ala.2001), the

Alabama Supreme Court discussed the concept of

“curative admissibility:”

“When one party opens the door to otherwise

inadmissible evidence, the doctrine of ‘curative

admissibility’ provides the opposing party with ‘the

right to rebut such evidence with other illegal evidence.’

McElroy's Alabama Evidence, § 14.01, p. 49 (5th

ed.1996). ‘[T]he law [is] that even though a party

introduces evidence that may be immaterial or illegal,

his opponent has the right to rebut such evidence and

this right is unconditional.’ Clark v. State, 54 Ala.App.

183, 186, 306 So.2d 51, 54 (1974). ‘ “A party who

has brought out evidence on a certain subject has no

valid complaint as to the trial court's action in allowing

his opponent or adversary to introduce evidence on

the same subject.” ’ Hubbard v. State, 471 So.2d 497,

499 (Ala.Crim.App.1984) (quoting Brown v. State, 392

So.2d 1248, 1260 (Ala.Crim.App.1980), cert. denied,

392 So.2d 1266 (Ala.1981)).''

806 So.2d at 1193. “The prosecution was entitled, on

redirect, to further explore matters elicited during crossexamination by defense counsel.” Mangione v. State, 740

So.2d 444, 455 (Ala.Crim.App.1998). This evidence was

properly admitted during Webber's testimony.

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

[25]

[26] Moreover, even if the evidence was not [28] [29] [30] [31] [32] [33] [34] Russell next argues

admissible, its admission was harmless beyond a

that alleged prosecutorial misconduct during opening and

reasonable doubt.

closing arguments undermined the reliability of the jury's

verdict and warrants a new trial. Russell makes several

“ ‘Whether the improper admission of evidence of

different claims in support of this contention. Russell did

collateral bad acts amounts to prejudicial error or

not object to the now challenged instances of prosecutorial

harmless error must be decided on the facts of the

misconduct. Therefore, we review these claims for plain

particular case.’ R.D.H. v. State, 775 So.2d 248, 254

error. See Rule 45A, Ala. R.App. P.

(Ala.Crim.App.1997); Hobbs v. State, 669 So.2d 1030

(Ala.Crim.App.1995). The standard for determining

“ ‘During closing argument, the prosecutor, as well as

whether error is harmless is whether the evidence in

defense counsel, has a right to present his impressions

error was ‘harmless beyond a reasonable doubt.’ Schaut

from the evidence, if reasonable, and may argue every

v. State, 551 So.2d 1135, 1137 (Ala.Crim.App.1989),

legitimate inference.’ Rutledge v. State, 523 So.2d

citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

1087, 1100 (Ala.Cr.App.1987), rev'd on other grounds,

17 L.Ed.2d 705 (1967).”

523 So.2d 1118 (Ala.1988) (citation omitted). Wide

discretion is allowed the trial court in regulating the

*13 McAdory v. State, 895 So.2d 1029, 1036

arguments of counsel. Racine v. State, 290 Ala. 225, 275

(Ala.Crim.App.2004). See Ex parte Vaughn, 869 So.2d

So.2d 655 (1973). ‘In evaluating allegedly prejudicial

1090, 1098 (Ala.2002).

remarks by the prosecutor in closing argument, ...

each case must be judged on its own merits,’ Hooks

[27] In its guilt-phase opening statement, Russell's

v. State, 534 So.2d 329, 354 (Ala.Cr.App.1987), aff'd,

counsel basically conceded that the State could prove that

534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050,

Russell fired the shot that killed Katherine, but he argued

109 S.Ct. 883, 102 L.Ed.2d 1005 (1989) (citations

that the issue for the jury was whether Russell had any

omitted) (quoting Barnett v. State, 52 Ala.App. 260,

intent to kill Katherine. The gunshot that killed Katherine

264, 291 So.2d 353, 357 (1974)), and the remarks must

was fired while the muzzle of the gun was pressed against

be evaluated in the context of the whole trial, Duren

her head. Russell's bloody footprints were on the laundryv. State, 590 So.2d 360 (Ala.Cr.App.1990), aff'd, 590

room floor and Russell had moved Katherine's body to his

So.2d 369 (Ala.1991). ‘In order to constitute reversible

Escalade automobile. There was no testimony indicating

error, improper argument must be pertinent to the

that Russell was intoxicated when Katherine was shot.

issues at trial or its natural tendency must be to

The only testimony regarding Russell's sobriety on the

influence the finding of the jury.’ Mitchell v. State,

day Katherine was shot came from Katherine's day-camp

480 So.2d 1254, 1257–58 (Ala.Cr.App.1985) (citations

counselor who testified that she was certain that Russell

omitted). ‘To justify reversal because of an attorney's

was sober at 6:00 p.m. before the shooting that took place

argument to the jury, this court must conclude that

at some point between 6:30 p.m. and 8:30 p.m. Nothing

substantial prejudice has resulted.’ Twilley v. State,

in the record suggests that alcohol was a factor in the

472 So.2d 1130, 1139 (Ala.Cr.App.1985) (citations

shooting.

omitted).”

This Court is confident that the admission of the above

testimony concerning Russell's problems with alcohol

was harmless beyond a reasonable doubt, Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967), and that the circuit court's failure to sua sponte

give a limiting instruction on the use of that evidence was

harmless. See R.C.W. v. State, 168 So.3d 102 (Ala.2014).

Russell is due no relief on this claim.

VII.

*14

Coral v. State, 628 So.2d 954, 985

(Ala.Crim.App.1992). “A prosecutor may argue every

legitimate inference from the evidence ‘and may

examine, collate, shift and treat the evidence in his

own way.’ ” Woodward v. State, 123 So.3d 989,

1028 (Ala.Crim.App.2011). When considering whether a

prosecutor's argument constituted error: “The relevant

question is whether the prosecutors' comments ‘so infected

the trial with unfairness as to make the resulting

conviction a denial of due process.’ ” Darden v.

Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d

144 (1986).

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

As stated above, Russell did not object to any of the now

challenged instances of prosecutorial misconduct. When

considering whether an argument constitutes plain error,

the Alabama Supreme Court in Ex parte Windsor, 683

So.2d 1042 (Ala.1996), stated:

“ ‘ “While this failure to object does not preclude

review in a capital case, it does weigh against any claim

of prejudice.” Ex parte Kennedy, 472 So.2d [1106,] at

1111 [ (Ala.1985) ] (emphasis in original). “This court

has concluded that the failure to object to improper

prosecutorial arguments ... should be weighed as part

of our evaluation of the claim on the merits because

of its suggestion that the defense did not consider the

comments in question to be particularly harmful.”

Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th

Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201,

98 L.Ed.2d 152 (1987).’ ”

Ex parte Windsor, 683 So.2d 1042, 1061 (Ala.1996),

quoting Kuenzel v. State, 577 So.2d 474, 489

(Ala.Crim.App.1990).

The circuit court instructed the jury that arguments of

counsel were not evidence. (R. 1670.)

[35] First, Russell argues that it was error for the

prosecutor to argue that Russell chased Katherine and

trapped her behind the dryer because, he says, there was

no direct evidence to support this argument.

even though far-fetched.... So long as counsel does

not travel out of his case and confines statements to

reasonable inferences deducible from the evidence, he

should not be controlled.’ Roberts [v. State], 346 So.2d

[473] at 477 [ (Ala.Crim.App.1977) ]. “[I]t would be

dangerous to accord to the presiding judge the right and

power to intervene, and declare authoritatively when an

inference of counsel is or is not legitimately drawn. This

is for the jury to determine, if there be any testimony

on which to base it.” Cross v. State, 68 Ala. 476, 483

(1881).”

*15 Kuenzel v. State,

(Ala.Crim.App.1990).

577

So.2d

474,

493–94

[41]

[42] “ ‘Counsel in the trial of any lawsuit has

the unbridled right (to be sure, the duty) to argue the

reasonable inferences from the evidence most favorable

to his client.’ ” Johnson v. State, 553 So.2d 645, 647

(Ala.Crim.App.1989), quoting Ex parte Ainsworth, 501

So.2d 1269, 1270 (Ala.1986).

“In

order

for

unsupported

prosecutorial statements of fact to

require reversal, the objectionable

statements must be (1) made as of

fact, (2) without support by any

evidence, (3) pertinent to the issues,

and (4) have a natural tendency to

influence the finding of the jury.”

Jones v. State, 456 So.2d 366, 375 (Ala.Crim.App.1983).

See also Johnson v. State, [Ms. CR–10–1606, May 20,

2014] ––– So.3d –––– (Ala.Crim.App.2014); Ballard v.

State, 767 So.2d 1123 (Ala.Crim.App.1999).

[36]

[37]

[38]

[39]

[40] “Liberal rules are allowed

Here, forensic evidence showed that Katherine was shot

counsel in drawing inferences from the evidence in

as she was crouched behind the dryer and the wall in a

their argument to the jury, whether they are truly

12–inch “cubby area.” The prosecutor's argument was a

drawn or not.” Sasser v. State, 494 So.2d 857, 860

reasonable inference that could have been drawn from the

(Ala.Crim.App.1986). “[P]rosecutors are to be allowed

forensic evidence presented at trial and did not constitute

wide latitude in their exhortations to the jury.” Armstrong

error, much less plain error. Russell is due no relief on this

v. State, 516 So.2d 806, 809 (Ala.Crim.App.1986).

claim.

“Counsel may draw remote deductions and inferences

from the evidence and there is no basis for objection

even if the deductions and inferences are illogical or

unreasonable.” Callahan v. State, 179 Ga.App. 556, 563,

347 S.E.2d 269, 278 (1986).

Russell argues that the prosecutor made two arguments

“ ‘Trial judges ordinarily are loath to limit inferential

that, he says, inflamed the passions of the jury and resulted

argument which has any connection with the evidence

in reversible error.

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

[43] Russell argues that the prosecutor improperly

argued victim-impact evidence in the guilt phase of his

trial. Specifically, he challenges the following statement

made at the beginning of the prosecutor's closing

arguments: “Eleven year old Katherine Helen Gillespie,

a beautiful, bright, precious little girl with a future full

of promise, loved by everyone, young and old alike.” (R.

1611.)

*16 [45] Russell next argues that the prosecutor further

inflamed the jury by stating: “That's what's great about

our justice system here in the United States established by

the Constitution, ordained by God.” (R. 1630.) (Emphasis

added.) This comment was made in the prosecutor's

rebuttal closing argument, and Russell did not object.

[44] The Alabama Supreme Court in Ex parte Rieber,

663 So.2d 999 (Ala.1995), addressed whether it was

error to allow victim-impact testimony in the guilt phase

of a capital-murder trial. The court, finding any error

harmless, stated:

“It is presumed that jurors do not

leave their common sense at the

courthouse door. It would elevate

form over substance for us to

hold, based on the record before

us, that Rieber did not receive a

fair trial simply because the jurors

were told what they probably had

already suspected—that [the victim]

was not a ‘human island,’ but a

unique individual whose murder

had inevitably had a profound

impact on her children, spouse,

parents, friends, or dependents

(paraphrasing a portion of Justice

Souter's opinion concurring in the

judgment in Payne v. Tennessee, 501

U.S. 808, 838, 111 S.Ct. 2597, 2615,

115 L.Ed.2d 720 (1991)).”

663 So.2d at 1005–06. “[T]he admission of victim-impact

evidence and argument regarding that evidence does not

necessarily require reversal of a conviction, but may be

harmless under Rule 45, Ala. R.App. P.” McCray v. State,

88 So.3d 1, 37 (Ala.Crim.App.2010).

In this case, the prosecutor's statements were harmless.

See Ex parte Rieber, supra. Neither did the comments “so

infect the trial with unfairness” that Russell was denied

due process. See Darden v. Wainwright, supra. Russell is

due no relief on this claim.

Although Alabama has not specifically addressed the

validity of similar arguments, the State of North Carolina

has addressed this issue:

“Arguments of counsel are left largely to the control

and discretion of the trial judge. [State v.] Davis, 349

N.C. [1] at 44, 506 S.E.2d [455] at 479 [ (1998) ]. Counsel

is permitted ‘wide latitude in the argument of hotly

contested cases.’ Id. Improper biblical remarks occur

when the prosecutor argues that the law of this State

is divinely inspired or that law officers are ordained by

God. Id. at 47, 506 S.E.2d at 480 (citations omitted).”

State v. Pulley, 180 N.C.App. 54, 69, 636 S.E.2d 231, 242

(2006).

Nonetheless, there is no error when a circuit court

instructs the jury that it is to apply the law as instructed

by the court:

“Although we may believe that parts

of our law are divinely inspired, it

is the secular law of North Carolina

which is to be applied in our

courtrooms. Our trial courts must

vigilantly ensure that counsel for

the State and for defendant do not

distract the jury from their sole and

exclusive duty to apply secular law.

Nevertheless, particularly in light of

the trial court's final instructions

directing the jury in the present case

to apply the law as given them by the

trial court and not by counsel, we do

not find the argument complained

of here to be so grossly improper as

to have required the trial court to

intervene ex mero motu.”

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

State v. Williams, 350 N.C. 1, 27, 510 S.E.2d 626, 643

(1999).

You saw the truth of how Katherine died and it was too

much.”

(R. 1648–49.)

Here, the circuit court instructed the jury that arguments

of counsel were not evidence and that its verdict must

be based on the law and the facts of the case. (R. 1670.)

For these reasons, we find no reversible error in the

prosecutor's argument.

[46] Russell argues that the prosecutor improperly

bolstered the testimony of the State's witnesses when he

made the following argument:

“We are very fortunate here in Shelby County that we

have the men and women of our sheriff's office, the men

and women of the Department of Forensic Sciences

who have dedicated their lives to allowing truth to come

out in the courtrooms of this county. Very appreciative

of that because it allows the truth to be told....

“I had a rare privilege yesterday. When Angelo

Della Mann was testifying when we had the model

constructed, I needed to be able to see what you see and

I couldn't because I was back there. So as he testified, I

came and sat here on this floor so that I could see what

Angelo was demonstrating. I know what he showed

you, because as I sat on that—y'all remember it was

plexiglass across the front of that?

*17 “As I watched Angelo tell you how Katherine was

positioned when the defendant executed her, I could

not only see what Angelo was telling you—which was

probably the best I have ever felt in a courtroom because

it's the truth coming out. It's the truth coming out.

“But what made that moment the proudest moment

of my life was that in that reflected plexiglass I could

see your faces. I watched your faces as you saw what

happened to Katherine. I could see the horror. I could

see the truth in your faces because you knew it. You

may have known it before then but you certainly knew

it then.

“And it was almost more than I could bear, because

as we saw that testimony especially at the end of the

week combined with everything else, we saw the truth.

[47] “ ‘Ordinarily, it is improper for a prosecutor to

bolster a witness's testimony by vouching for that witness's

credibility.’ United States v. Bernal–Benitez, 594 F.3d

1303, 1313 (11th Cir.2010).” United States v. Sosa, 777

F.3d 1279, 1295 (11th Cir.2015). However, in this case,

“[t]he prosecutor was merely commenting on the

investigation conducted by the police officers. That they

did a good job in their investigation is a reasonable

inference which was properly drawn from the evidence

presented at trial. Moreover, the prosecutor was not

injecting his own knowledge or experience into the

argument, nor was he indicating a personal belief in the

veracity of the witnesses' statements. ‘During closing

argument, the prosecutor as well as defense counsel has

a right to present his impressions from the evidence, if

reasonable, and may argue every legitimate inference.’ ”

Ex parte Waldrop, 459 So.2d 959, 961 (Ala.1984).

Here, like Waldrop, the prosecutor was commenting on

the thorough investigation that had been conducted by

law enforcement—a permissible argument. Moreover, the

argument did not so infect the trial with unfairness that

Russell was denied due process. See Darden v. Wainwright,

supra. Russell is due no relief on this claim.

[48] Russell further argues that the prosecutor misled the

jury as to who had the burden of proving an element of

the crime when he made the following argument:

“Folks, [Russell] had an awesome

escape plan after he murdered her.

He just got interrupted in the middle

of executing it. What would he have

done with her body if Emily hadn't

caught him, hadn't stopped it? Okay.

So it may sound like an imperfect

plan. I will tell you how perfect it was

and it's something they don't want to

talk about. They didn't mention it.”

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

(R. 1638.) This comment was made in the prosecutor's

rebuttal argument, and Russell did not object.

Here, “[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 of the evidence in the case. The comment did not shift

the burden of proof.” Woodward v. State, 123 So.3d 989,

1028 (Ala.Crim.App.2011). The prosecutor's argument

was permissible. There was no error, much less plain error,

in regard to this claim, and Russell is due no relief.

*18 Russell last argues that the cumulative effect of the

prosecutor's misconduct requires that he be given a new

trial.

[49] The Alabama Supreme Court recognized in Ex parte

Tomlin, 540 So.2d 668, 672 (Ala.1988), that the cumulative

effect of prosecutorial misconduct may require a new trial.

“To the extent that [the appellant] argues that these

alleged individual errors resulted in cumulative error

that required a reversal of his conviction, ‘ “ ‘[b]ecause

we find no error in the specific instances alleged by the

appellant, we find no cumulative error.’ Lane v. State,

673 So.2d 825 (Ala.Crim.App.1995). See also McGriff v.

State, 908 So.2d 961 (Ala.Crim.App.2000).” Calhoun v.

State, 932 So.2d 923, 974 (Ala.Crim.App.2005).' Harris

v. State, 2 So.3d 880, 928 (Ala.Crim.App.2007), cert.

denied, 555 U.S. 1155, 129 S.Ct. 1039, 173 L.Ed.2d 472

(2009).”

Revis v. State, 101 So.3d 247, 325 (Ala.Crim.App.2011).

We likewise find no cumulative error in this case that

would entitle Russell to any relief.

VIII.

Russell next contends that the circuit court erred when

it denied his motion for a judgment of acquittal because,

he says, the State failed to establish sufficient evidence to

prove that he “intentionally killed or even killed Katherine

Gillespie.” (Russell's brief, p. 70.)

Russell was charged with, and convicted of, capital

murder under § 13A–5–40(a)(15), by murdering

Katherine, a child less than 14 years of age. Thus, the State

had to prove an intentional murder, as defined in § 13A–6–

2(a)(1), Ala.Code 1975, and that Katherine was less than

14 years of age at the time she was murdered.

“ ‘ “In determining the sufficiency of the evidence to

sustain a conviction, a reviewing court must accept

as true all evidence introduced by the State, accord

the State all legitimate inferences therefrom, and

consider all evidence in a light most favorable to the

prosecution.’ ” Ballenger v. State, 720 So.2d 1033,

1034 (Ala.Crim.App.1998), quoting Faircloth v. State,

471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471

So.2d 493 (Ala.1985). “ ‘The test used in determining

the sufficiency of evidence to sustain a conviction

is whether, viewing the evidence in the light most

favorable to the prosecution, a rational finder of

fact could have found the defendant guilty beyond a

reasonable doubt.’ ” Nunn v. State, 697 So.2d 497,

498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602

So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there

is legal evidence from which the jury could, by fair

inference, find the defendant guilty, the trial court

should submit [the case] to the jury, and, in such

a case, this court will not disturb the trial court's

decision.’ ” Farrior v. State, 728 So.2d 691, 696

(Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d

848, 850 (Ala.Crim.App.1990). ‘The role of appellate

courts is not to say what the facts are. Our role ... is to

judge whether the evidence is legally sufficient to allow

submission of an issue for decision [by] the jury.’ Ex

parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

*19 “ ‘The trial court's denial of a motion

for judgment of acquittal must be reviewed by

determining whether there was legal evidence before

the jury at the time the motion was made from

which the jury by fair inference could find the

defendant guilty. Thomas v. State, 363 So.2d 1020

(Ala.Cr.App.1978). In applying this standard, this

court will determine only if legal evidence was

presented from which the jury could have found the

defendant guilty beyond a reasonable doubt. Willis

v. State, 447 So.2d 199 (Ala.Cr.App.1983). When

the evidence raises questions of fact for the jury

and such evidence, if believed, is sufficient to sustain

a conviction, the denial of a motion for judgment

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

of acquittal does not constitute error. McConnell v.

State, 429 So.2d 662 (Ala.Cr.App.1983).’

“Ward

State,

610

(Ala.Crim.App.1992).”

So.2d

1190,

1191

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003).

“Where a defendant's conviction is based solely on

circumstantial evidence, ‘if the circumstances can be

reconciled with the theory that someone else may have

done the act, then the conviction is due to be reversed.’

Ex parte Brown, 499 So.2d 787, 788 (Ala.1986)

(emphasis in original). ‘Circumstantial evidence alone is

enough to support a guilty verdict of the most heinous

crime, provided the jury believes beyond a reasonable

doubt that the accused is guilty.’ White v. State, 294

Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951,

96 S.Ct. 373, 46 L.Ed.2d 288 (1975). ‘Circumstantial

evidence is in nowise considered inferior evidence and is

entitled to the same weight as direct evidence provided

it points to the guilt of the accused.’ Cochran v. State,

500 So.2d 1161, 1177 (Ala.Crim.App.1984), affirmed

in pertinent part, reversed in part on other grounds,

Ex parte Cochran, 500 So.2d 1179 (Ala.1985). ‘It is

not necessary for a conviction that the defendant be

proved guilty to the “exclusion of every possibility

of innocence.” ’ Burks v. State, 117 Ala. 148, 23 So.

530 (1898). ‘The facts and circumstances in evidence,

if dissevered and disconnected, may be weak and

inconclusive; but their probative force, when combined,

as it was the province of the jury to combine them, under

proper instructions from the court, may have satisfied

them of the guilt of the defendant.’ Howard v. State, 108

Ala. 571, 18 So. 813, 815 (1895).''

White

State,

(Ala.Crim.App.1989).

546

So.2d

1014,

1017

[50] Russell first argues that the State failed to prove

that he had the intent to kill Katherine. Specifically, he

argues that the State presented no witness to the murder,

that the alleged murder weapon did not have Russell's

fingerprints on it, and that the evidence concerning

the murder weapon was “conflicting, inconclusive, and

insignificant.” (Russell's brief, at p. 64.)

[51]

[52]

[53]

“Alabama appellate courts have

repeatedly held that, to be convicted of [a] capital offense

and sentenced to death, a defendant must have had a

particularized intent to kill.” Ziegler v. State, 886 So.2d

127, 140 (Ala.Crim.App.2003).

*20 “[I]ntent to kill may be ‘inferred from

the use of a deadly weapon or other attendant

circumstances.’ [Garrison v. State, 521 So.2d 997, 1005

(Ala.Cr.App.1986).] ‘ “Because the element of intent,

being state of mind or mental purpose, is usually

incapable of direct proof, it may be inferred from the

character of the assault, the use of a deadly weapon and

other attendant circumstances.” ’ Benton v. State, 536

So.2d 162, 164 (Ala.Cr.App.1988), quoting Johnson v.

State, 390 So.2d 1160, 1167 (Ala.Cr.App.1980).''

Lorance

State,

(Ala.Crim.App.1999).

770

So.2d

644,

649

[54] “ ‘Intent, ... being a state or condition of the mind,

is rarely, if ever, susceptible of direct or positive proof,

and must usually be inferred from the facts testified

to by witnesses and the circumstances as developed by

the evidence.’ Pumphrey v. State, 156 Ala. 103, 47 So.

156 (1908).” McCord v. State, 501 So.2d 520, 528–29

(Ala.Crim.App.1986). “ ‘The intent of a defendant at the

time of the offense is a jury question.’ ” C.G. v. State, 841

So.2d 281, 291 (Ala.Crim.App.2001), quoting Downing v.

State, 620 So.2d 983, 985 (Ala.Crim.App.1993).

In this case, there was ample evidence presented by the

State from which a jury could have reasonably concluded

that Katherine's murder was an intentional act. Katherine

was shot in the head, with the muzzle of the gun in

direct contact with her head. The evidence showed that

Katherine was wearing a cap at the time she was shot.

When she was shot, Katherine was in the laundry room

in a 12–inch “cubby area” between a clothes dryer and a

wall in a crouched position with her head and body below

the top of the dryer. There was no evidence indicating

that Russell telephoned emergency 911 or that he sought

any aid following the shooting. Bloody clothes were found

in the tub of the washing machine, and the tub was full

of water. Katherine's body had been placed in a plastic

garbage can so that her bloody head rested at the bottom

of the container and her body was placed on the backseat

floorboard of Russell's Escalade automobile. It is clear

from the “character of the assault, the use of a deadly

weapon and other attendant circumstances,” Lorance v.

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

State, 770 So.2d at 649, that the trial court did not

err in submitting the question of Russell's intent to the

jury. There was more than sufficient evidence from which

the jury could conclude that Russell intentionally killed

Katherine by holding a gun against her head and pulling

the trigger.

Contrary to Russell's assertions, the circuit court did not

err in submitting the case to the jury to determine whether

Russell had the intent to kill Katherine.

Clearly, there was sufficient evidence from which the jury

could conclude that Russell intentionally killed Katherine.

The circuit court did not err in denying Russell's motion

for a judgment of acquittal. “There is no reason to disturb

the jury's verdict in this case.” Doster v. State, 72 So.3d 50,

98 (Ala.Crim.App.2010). Russell is due no relief on this

claim.

IX.

[55]

Second, Russell contends that the State did

not prove beyond a reasonable doubt that he caused

Katherine's death. 11 Specifically, he argues that the bullet

fragments taken from Katherine's brain could not be

positively identified as having been fired from any pistol

belonging to Russell, that his fingerprints were not found

on any gun authorities believed might have been the

murder weapon, and that there was no blood on the

pistol from which the fatal shot is believed to have been

fired despite the fact that the muzzle was pressed against

Katherine's head.

*21 The State's evidence showed that Russell and

Katherine were at home alone when the shooting

occurred. Forensic evidence showed that Katherine was

shot in her head with a .40–caliber bullet. A .40–caliber

shell casing was found in the laundry room in the tub of a

washing machine located a few feet from where Katherine

was shot. Ballistic evidence showed that this shell casing

had been fired from a .40–caliber pistol that belonged

to Russell. The pistol that fired this shot was discovered

hidden underneath a sofa in Russell's garage. Katherine

was shot in the laundry room, and Russell's bloody

footprints were on the laundry room floor. Katherine's

body was moved from the laundry room and placed in

the backseat floorboard of Russell's Escalade automobile.

Emily Webber testified that as she was driving past

Russell's house, at approximately 8:30 p.m., she saw a

figure inside the house using a flashlight. Webber also

testified that she saw someone she believed to be Russell

standing in the dark inside the garage next to the Escalade

that contained Katherine's body but that he would not

respond to her calls from outside the garage. Russell

locked himself in his bathroom, where he apparently tried

to commit suicide before being rescued by police.

[56] [57] Russell next argues that the circuit court erred

in its jury instructions in the guilt phase. He makes several

different arguments in support of this contention.

“A trial court has broad discretion when formulating

its jury instructions. See Williams v. State, 611 So.2d

1119, 1123 (Ala.Cr.App.1992). When reviewing a trial

court's instructions, ‘ “the court's charge must be taken

as a whole, and the portions challenged are not to be

isolated therefrom or taken out of context, but rather

considered together.” ’ Self v. State, 620 So.2d 110, 113

(Ala.Cr.App.1992) (quoting Porter v. State, 520 So.2d

235, 237 (Ala.Cr.App.1987)); see also Beard v. State,

612 So.2d 1335 (Ala.Cr.App.1992); Alexander v. State,

601 So.2d 1130 (Ala.Cr.App.1992).''

795

Williams

State,

(Ala.Crim.App.1999).

So.2d

753,

780

[58]

[59]

[60] Russell contends that the trial court

erred in overruling his objection to the jury instructions

regarding flight. During the guilt phase charge conference,

the State requested a jury charge on flight or attempted

flight. Russell argued that it would be error to charge

the jury on flight because there were no facts to support

such a charge. Defense counsel argued: “it would be a

strain ... in this case to say that there was an attempted

flight.” (R. 1566.) The circuit court stated that it intended

to instruct the jury that it was up to it to determine whether

evidence of flight had been presented. (R. 1573.) Russell

again objected.

*22 “ ‘ “ ‘In a criminal prosecution the state may

prove that the accused engaged in flight to avoid

prosecution ... as tending to show the accused's

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

consciousness of guilt.... The state is generally given

wide latitude or freedom in proving things that

occurred during the accused's flight.’ C. Gamble,

McElroy's Alabama Evidence 190.01(1) (3rd ed.1977).

‘Evidence of flight is admissible even though it is

weak or inconclusive....’ Tate v. State, 346 So.2d

515, 520 (Ala.Cr.App.1977).... [E]vidence that the

accused resisted or attempted to avoid arrest is

admissible. Crenshaw v. State, 225 Ala. 346, 348,

142 So. 669 (1932).... Any act proving or tending

to prove the accused's effort or desire to obliterate,

destroy, or suppress evidence of a crime is relevant

and admissible even if it involves evidence of a

separate offense. Watwood v. State, 389 So.2d 549,

551 (Ala.Cr.App.), cert. denied, Ex parte Watwood,

389 So.2d 552 (Ala.1980).” '

“See also Ex parte Weaver, 678 So.2d 284 (Ala.), on

remand, 678 So.2d 292 (Ala.Cr.App.1996) (quoting

[Ex parte ] Jones, [541 So.2d 1052, 1053–57 (Ala.1989)

], in depth).”

Smith

State,

795

So.2d

788,

827–29

(Ala.Crim.App.2000), quoting Beaver v. State, 455 So.2d

253, 257 (Ala.Crim.App.1984).

[61]

[62] In this case, the State asserted that Russell

began his effort to cover up his crime when he placed

Katherine's body in a trash can and put that can in his

Escalade; that Webber arrived and interrupted his plan to

dispose of Katherine's body; that the second shell casing,

rubber gloves, and other contents of the book bag found

near Katherine's body were items Russell intended to

use to stage his own death; that Russell tried to destroy

evidence by hiding a .40–caliber pistol under a sofa;

and that Russell tried to destroy evidence by attempting

to wash his and Katherine's clothes to get rid of the

bloodstains.

The jury was charged as follows regarding flight:

“In weighing the facts of this case, any flight or

attempted flight by the defendant that you may find

may be considered by you in regard to the consciousness

of guilt of the defendant in this case.

“All evasions or attempt to evade justice by

the defendant are circumstances from which a

consciousness of guilt may be inferred if connected with

other incriminating facts including but not limited to

any evidence that you may find proving or tending

to prove the defendant's effort or desire to obliterate,

destroy or suppress evidence of a crime.

“You may however find that any evidence of flight or

efforts to obliterate, destroy or suppress evidence of a

crime is for some reason other than consciousness of

guilt for either the crime charged or any one or the

lesser-included crimes as previously charged. That is for

you to decide. That is a matter of fact for you to decide.

The State is not required to prove motive as an element

in this case.”

(R. 1661–62.)

The facts of this case provided sufficient evidence to place

before the jury the question whether Russell engaged in

flight or in any efforts to destroy or conceal evidence

of his crime. The circuit court's instruction did not

characterize Russell's conduct as flight, but instead left

that determination to the jury. The circuit court properly

granted the State's request to instruct the jury on flight.

Russell is due no relief on this claim.

*23 Russell argues that the jury instruction on

reasonable doubt was erroneous because, he says, it

lessened the State's burden of proof and implied that

Russell had a burden of proof.

Russell did not object to the circuit court's instruction on

reasonable doubt; therefore, we review this claim for plain

error. See Rule 45A, Ala. R.App. P.

[63] The circuit court gave the following instruction on

reasonable doubt:

“You have heard me use the term reasonable doubt,

beyond a reasonable doubt and that's the State's

burden. What do I mean by that term? The burden of

proving the defendant is guilty as charged rests upon the

State, and before a conviction can be had in this case,

as in every case, the State must satisfy each and every

member of the jury of the defendant's guilt, and unless

the State does so, then he is entitled to an acquittal.

“The phrase reasonable doubt is self-explanatory.

Efforts to define it do not always clarify the term. It may

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

help you some—excuse me. It may help you some to say

that the doubt which would justify an acquittal must be

a doubt which reasonable men and women can seriously

entertain.

“If after considering all the evidence in this case you

have an abiding conviction of the truth of the charge,

that you are convinced beyond a reasonable doubt and

it would be your duty to convict the defendant.

“The reasonable doubt which entitles an accused to an

acquittal is not a mere fanciful, vague or conjectural or

speculative doubt but it is a reasonable doubt arising

from all or some part of the evidence or from the

lack of evidence remaining after a careful consideration

of the testimony such as reasonable, fair minded and

conscientious men and women would entertain under

all circumstances.

“You will observe that the State is not required

to convince you of the defendant's guilt beyond all

doubt but rather beyond all reasonable doubt. The

State's burden is not to prove the defendant's guilt as

to an absolute or mathematical certainty but to an

evidentiary certainty.

“If after comparing and considering all the evidence as

to each count or as to the count of capital murder and

then if you move to the lesser crimes your minds are left

in such a condition that you cannot say that you have

an abiding conviction of the defendant's guilt, then you

are not convinced beyond a reasonable doubt and the

defendant would be entitled to an acquittal.”

(R. 1663–64; emphasis added.)

“The instruction on reasonable doubt that the

trial court provided to the jury here incorporated

the language found in the Alabama Pattern Jury

Instructions on reasonable doubt. The pattern jury

instructions inform jurors that their doubt cannot

be based on ‘a mere guess or surmise’.... It also

informs jurors that reasonable doubt that ‘entitles an

accused to an acquittal is not a mere fanciful, vague,

conjectural or speculative doubt.’ Alabama Pattern Jury

Instructions: Criminal, Instructions 1.4 and 1.5 (3d

ed.1994). ‘ “ ‘A trial court's following of an accepted

pattern jury instruction weighs heavily against any

finding of plain error.’ ” Wilson v. State, 777 So.2d 856

(Ala.Crim.App.1999), quoting Price v. State, 725 So.2d

1003, 1058 (Ala.Crim.App.1997), aff'd, 725 So.2d 1063

(Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809,

143 L.Ed.2d 1012 (1999).' Snyder v. State, 893 So.2d

488, 550 (Ala.Crim.App.2003).”

*24

Harris v. State,

(Ala.Crim.App.2007).

So.3d

880,

913

The phrase that Russell objects to is contained in the

pattern jury instructions on reasonable doubt. We have

approved of a trial court's use of very similar jury

instructions. See Vanpelt v. State, 74 So.3d 32, 83

(Ala.Crim.App.2009). The circuit court's instructions on

reasonable doubt did not constitute error, much less plain

error. Russell is due no relief on this claim.

Russell next argues that the cumulative effect of the errors

committed at trial entitle him to a new trial.

[64]

It is well settled that

“while, under the facts of a particular case, no

single error among multiple errors may be sufficiently

prejudicial to require reversal under Rule 45, [Ala.

R.App. P.,] if the accumulated errors have ‘probably

injuriously affected substantial rights of the parties,’

then the cumulative effect of the errors may require

reversal.”

Ex parte Woods, 789 So.2d 941, 942–43 n. 1 (Ala.2001).

Applying the standard set out in Ex parte Woods, this

Court is convinced that individually or cumulatively

no error or errors occurred that would entitle Russell

to relief. See Brownfield v. State, 44 So.3d 1, 33

(Ala.Crim.App.2007).

Penalty–Phase Issues

XI.

[65] Russell further argues that Alabama's method of

execution—lethal injection—is unconstitutional because,

he says, it is cruel and unusual punishment in violation

of the Eighth and Fourteenth Amendments to the United

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

States Constitution. Russell's entire argument consists of

merely one paragraph in his brief to this Court.

[66]

“[C]apital punishment is constitutional. It

necessarily follows that there must be a means of carrying

it out.” Baze v. Rees, 553 U.S. 35, 47, 128 S.Ct. 1520, 170

L.Ed.2d 420 (2008).

“In Baze, two death-row inmates challenged Kentucky's

use of the three-drug protocol, arguing ‘that there

is a significant risk that the procedures will not

be properly followed—in particular, that the sodium

thiopental will not be properly administered to achieve

its intended effect—resulting in severe pain when the

other chemicals are administered.’ 553 U.S. at 49, 128

S.Ct. at 1530. Belisle's claim, like the claims made by the

inmates in Baze, ‘hinges on the improper administration

of the first drug, sodium thiopental.’ Baze, 553 U.S. at

53, 128 S.Ct. at 1533.

“The Supreme Court upheld the constitutionality of

Kentucky's method of execution, Baze, 553 U.S. at 62,

128 S.Ct. at 1538, and noted that ‘[a] State with a lethal

injection protocol substantially similar to the protocol

we uphold today would not create a risk that meets

this standard.’ Baze, 553 U.S. at 61, 128 S.Ct. at 1537.

Justice Ginsburg and Justice Souter dissented from the

main opinion, arguing that ‘Kentucky's protocol lacks

basic safeguards used by other States to confirm that

an inmate is unconscious before injection of the second

and third drugs.’ Baze, 553 U.S. at 114, 128 S.Ct. at

1567 (Ginsburg, J., dissenting). The dissenting Justices

recognized, however, that Alabama's procedures, along

with procedures used in Missouri, California, and

Indiana ‘provide a degree of assurance—missing from

Kentucky's protocol—that the first drug had been

properly administered.’ Baze, 553 U.S. at 121, 128 S.Ct.

at 1571 (Ginsburg, J., dissenting).

*25 “The State argues, and we agree, that Belisle,

like the inmates in Baze, cannot meet his burden of

demonstrating that Alabama's lethal-injection protocol

poses a substantial risk of harm by asserting the mere

possibility that something may go wrong. ‘Simply

because an execution method may result in pain, either

by accident or as an inescapable consequence of death,

does not establish the sort of “objectively intolerable

risk of harm” that qualifies as cruel and unusual.’ Baze,

553 U.S. at 50, 128 S.Ct. at 1531. Thus, we conclude

that Alabama's use of lethal injection as a method of

execution does not violate the Eighth Amendment to

the United States Constitution.”

Ex parte Belisle, 11 So.3d 323, 339 (Ala.2008).

“Because Alabama's method of performing lethal

injection is ‘substantially similar’ to the one considered

by the United States Supreme Court in Baze v. Rees, 553

U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), it is

not ‘cruel and unusual,’ and, consequently, [the appellant]

is not entitled to relief on this claim.” Shanklin v. State,

187 So.3d 734, –––– (Ala.Crim.App.2014). Compare

Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir.2013)

(“Baze addressed Kentucky's three-drug protocol, but ‘a

one drug protocol [is] also acceptable under the flexible

Baze standard....’ ”).

[67] Pursuant to § 12–3–16, Ala.Code 1975, 12 this Court

is bound by the decisions of the Alabama Supreme Court.

Accordingly, we must conclude that pursuant to Ex parte

Belisle, Russell is entitled to no relief on this claim.

XII.

[68] Russell next argues that prosecutorial misconduct

in the penalty phase denied him a fair trial. He makes

several arguments in support of this contention. Russell

failed to object to any of the now challenged instances

of prosecutorial misconduct; therefore, we review these

claims for plain error. See Rule 45A, Ala. R.App. P.

“ ‘During closing argument, the prosecutor, as well as

defense counsel, has a right to present his impressions

from the evidence, if reasonable, and may argue every

legitimate inference.’ Rutledge v. State, 523 So.2d

1087, 1100 (Ala.Cr.App.1987), rev'd on other grounds,

523 So.2d 1118 (Ala.1988) (citation omitted). Wide

discretion is allowed the trial court in regulating the

arguments of counsel. Racine v. State, 290 Ala. 225, 275

So.2d 655 (1973). ‘In evaluating allegedly prejudicial

remarks by the prosecutor in closing argument, ...

each case must be judged on its own merits,’ Hooks

v. State, 534 So.2d 329, 354 (Ala.Cr.App.1987), aff'd,

534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050,

109 S.Ct. 883, 102 L.Ed.2d 1005 (1989) (citations

omitted) (quoting Barnett v. State, 52 Ala.App. 260,

264, 291 So.2d 353, 357 (1974)), and the remarks must

be evaluated in the context of the whole trial, Duren

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

v. State, 590 So.2d 360 (Ala.Cr.App.1990), aff'd, 590

So.2d 369 (Ala.1991). ‘In order to constitute reversible

error, improper argument must be pertinent to the

issues at trial or its natural tendency must be to

influence the finding of the jury.’ Mitchell v. State,

480 So.2d 1254, 1257–58 (Ala.Cr.App.1985) (citations

omitted). ‘To justify reversal because of an attorney's

argument to the jury, this court must conclude that

substantial prejudice has resulted.’ Twilley v. State,

472 So.2d 1130, 1139 (Ala.Cr.App.1985) (citations

omitted).”

*26

Coral v. State,

(Ala.Crim.App.1992)

628

So.2d

954,

985

[69] In reviewing prosecutorial argument for plain error,

we have stated:

“ ‘While this failure to object does not preclude review

in a capital case, it does weigh against any claim

of prejudice.’ Ex parte Kennedy, 472 So.2d [1106] at

1111 [ (Ala.1985) ] (emphasis in original). ‘This court

has concluded that the failure to object to improper

prosecutorial arguments ... should be weighed as part

of our evaluation of the claim on the merits because

of its suggestion that the defense did not consider

the comments in question to be particularly harmful.’

Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th

Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201,

98 L.Ed.2d 152 (1987). ‘Plain error is error which,

when examined in the context of the entire case, is so

obvious that failure to notice it would seriously affect

the fairness, integrity, and public reputation of the

judicial proceedings.’ United States v. Butler, 792 F.2d

1528, 1535 (11th Cir.), cert. denied, 479 U.S. 933, 107

S.Ct. 407, 93 L.Ed.2d 359 (1986).”

Kuenzel v. State, 577 So.2d 474, 489 (Ala.Crim.App.1990).

“The line separating acceptable from improper advocacy

is not easily drawn; there is often a gray zone.” United

States v. Young, 470 U.S. 1, 7, 105 S.Ct. 1038, 84 L.Ed.2d

1 (1985).

“Prosecutorial misconduct can be a basis for relief if

it ‘so infected the trial with unfairness as to make

the resulting conviction a denial of due process.’

Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct.

2464, 91 L.Ed.2d 144 (1986) (quotations omitted).

In determining whether arguments are sufficiently

egregious to result in the denial of due process, we have

considered the statements in the context of the entire

proceeding, including factors such as: (1) whether the

remarks were isolated, ambiguous, or unintentional;

(2) whether there was a contemporaneous objection

by defense counsel; (3) the trial court's instructions;

and (4) the weight of aggravating and mitigating

factors. Romine v. Head, 253 F.3d 1349, 1369–70 (11th

Cir.2001).”

Land v. Allen, 573 F.3d 1211, 1219–20 (11th Cir.2009).

[70]

“Closing arguments are rarely scripted with

precision.” People v. Tillery, 231 P.3d 36, 44

(Colo.App.2009). “Prosecutorial misconduct in closing

argument rarely constitutes plain error.” People v.

Weinreich, 98 P.3d 920, 924 (Colo.App.2004). See also

Gonzales v. State, 685 S.W.2d 47, 49 (Tex.Crim.App.1985)

(“Appellate courts rarely reverse a conviction due to an

improper prosecutorial question.”).

Russell argues that it was reversible error for the

prosecutor to make the following argument in his opening

statement in the penalty phase:

“The image that I have—I don't think you can

escape having this image emblazoned in your mind is

Katherine Gillespie stuffed into a trash can in the back

of that Escalade. How can you escape that? I take it

home with me every night. I'm sure you do too at this

point.

*27 “And now it's about Ryan Russell but, you know,

unlike what he did, as a society, we don't just dispose of

people. We don't throw them away.

“In court, we have a process we go through. We have

a system. We have laws. We have evidence. We have

reason and we have, I hope, justice and that's what we

are looking for.”

(R. 1740.)

[71] “[P]rosecutors may use ‘hard language’ when it is

supported by evidence and are not required to phrase

arguments in the blandest of all possible terms.” People

v. Ullah, 216 Mich.App. 669, 679, 550 N.W.2d 568, 574

(1996). This argument did not so infect Russell's penalty

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

[74] Russell argues that the circuit court erred in allowing

certain victim-impact testimony to be admitted at the

penalty phase of his trial. Specifically, he argues that it

was error to allow Ellen Moman, one of Katherine's camp

counselors, to testify concerning the impact of Katherine's

death on other children at the camp because, he says,

Moman was not related to Katherine and because her

[72]

[73] Russell next argues that the prosecutor testimony violated § 15–23–73, Ala.Code 1975.

improperly used religion to stir the passions of the jury.

Russell made no objection to Moman's testimony;

Specifically, he challenges the following argument made

therefore, we review this claim for plain error only. See

at the very beginning of the prosecutor's closing: “Tiny

Rule 45A, Ala. R.App. P.

Angel, rest your wings and sit with me a while.” (R.

phase with unfairness that Russell was denied due process.

See Darden v. Wainwright, supra. Russell is due no relief

on this claim.

1804.) 13

Section 15–23–73(a), Ala.Code 1975, states:

“Criminal trials are adversary

proceedings, and as stated in other

opinions, are not social affairs.

Argument of counsel should not be

so restricted as to prevent reference,

by way of illustration, to historical

facts and public characters, or to

principles of divine law or biblical

teachings.”

Wright v. State, 279 Ala. 543, 550–51, 188 So.2d 272, 279

(1966).

“[A]lthough some states forbid any biblical references

in closing arguments—State v. Berry, 141 S.W.3d

549 (Tenn.2004), and Fontenot v. State, 881 P.2d 69

(Okla.Crim.App.1994)—Alabama has recognized that

‘counsel's argument should not be so restricted as to

prevent reference, by way of illustration, ... to principles

of divine law or biblical teachings,’ [Ex parte] Waldrop,

459 So.2d [959] at 963 [ (Ala.1984) ]. However, we have

also held that the discretion to argue biblical references

is not unlimited.”

Gobble v. State, 104 So.3d 920, 978 (Ala.Crim.App.2010).

See also State v. Wilson, 16 Wash.App. 348, 357, 555 P.2d

1375, 1380 (1976) (appellate court upheld argument where

prosecutor referred to victim as “that little angel”).

This argument did not constitute error, much less plain

error, and Russell is due no relief on this claim.

XIII.

“The victim may submit a written

impact statement or make an oral

impact statement to the probation

officer for use in preparing a

pre-sentence report. The probation

officer shall consider the economic,

physical, and psychological impact

that the criminal offense has had on

the victim and the immediate family

of the victim.”

*28 (Emphasis added.)

[75] What Russell fails to consider is that the admission

of evidence at the penalty phase of a capital-murder trial is

not governed by § 15–23–73, Ala.Code 1975, but by § 13A–

5–45(d), Ala.Code 1975, which provides: “Any evidence

which has probative value and is relevant to sentence

shall be received at the sentencing hearing regardless of its

admissibility under the exclusionary rules of evidence....”

The United States Court of Appeals for the Tenth Circuit

addressed a similar issue as it relates to 18 U.S.C. §

3593(a). 14 In finding that this statute did not restrict

the victim-impact testimony to only family members, the

federal court stated:

“[United States v.] Barrett[, 496 F.3d 1079 (10th

Cir.2007),] involved a challenge to victim-impact

testimony from two friends of the victim regarding the

effect his life and death had on them. The defendant

objected to this testimony, arguing ‘that Congress

has expressly limited impact evidence in federal death

penalty cases to evidence concerning the effect of the

offense on the victim and the victim's family.’ 496 F.3d

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

at 1098. We recognized the FDPA's [Federal Death

Penalty Act] specific reference to ‘the effect of the

offense on’ and ‘loss suffered by’ ‘the victim's family.’

Id. at 1098–99 (quoting 18 U.S.C. § 3593(a)). But,

citing (1) the statute's additional inclusive reference to

‘any other relevant information,’ id. at 1099 (same),

and (2) case law permitting evidence ‘giving the jury a

glimpse of the victim's personality and the life he led,’

id., we rejected the defendant's rigid view of victimimpact evidence. We approved the challenged evidence,

including testimony by ‘a longtime friend of [the victim],

describing ... the impact [the victim] had on his life,’

and by ‘a fellow Oklahoma Highway Patrol trooper, ...

describing the impact [the victim's] death had on him.’

Id. Similar evidence from friends in this case was

likewise admissible.”

United States v. Fields, 516 F.3d 923, 946–47 (10th

Cir.2008).

“In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597,

115 L.Ed.2d 720 (1991), the United States Supreme Court

partially overruled Booth to allow the sentencing authority

to consider evidence of the effect of the victim's death upon

family and friends.” Ex parte Washington, 106 So.3d 441,

445 (Ala.2011) (emphasis added).

Victim-impact testimony from friends and coworkers is

routinely admitted at the penalty phase of a capitalmurder trial.

“Other circuits allow testimony from friends (including

friends who are co-workers) regarding the impact

of a victim's death, rejecting challenges similar to

Wilson's. [United States v.] Barrett, 496 F.3d [1079]

at 1098 [ (10th Cir.2007) ] (allowing testimony from

police colleagues of victim, and rejecting argument

that Congress limited victim impact evidence in

federal death penalty cases to evidence ‘concerning

the effect of the offense on the victim and the

victim's family’ (internal quotation marks and citation

omitted)); see also [United States v.] Fields, 516 F.3d

[923] at 946 [ (10th Cir.2008) ] (allowing victim impact

testimony from non-family members); [United States

v.] Nelson, 347 F.3d [701] at 712–13 [ (8th Cir.2003) ]

(same); [United States v.] Bernard, 299 F.3d [467] at 478

[ (5th Cir.2002) ] (same).”

*29 United States v. Whitten, 610 F.3d 168, 188–89 (2d

Cir.2010). See also United States v. Runyon, 667 F.Supp.2d

648, 650 (E.D.Va.2009) (“[T]he evidence presented from

the victim's friends and shipmates provided the jury with

information upon which it could make an individualized

assessment of the defendant and the circumstances of the

offense in determining the appropriate sentence.”); State

v. Raines, 362 N.C. 1, 15, 653 S.E.2d 126, 135 (2007)

( “Victim impact testimony is admissible to show the effect

the victim's death had on friends and family members....”).

[76] Contrary to Russell's argument, this Court has

not restricted the admission of victim-impact evidence

at the penalty phase of a capital-murder trial to only

family members of the victim. Indeed, such a narrow

interpretation would be inconsistent with § 13A–5–45(d),

Ala.Code 1975. The circuit court committed no error,

much less plain error, in allowing Moman's testimony, and

Russell is due no relief on this claim.

XIV.

[77] [78] Russell argues that several of the circuit court's

jury instructions in the penalty phase were erroneous.

Russell did not object to the now challenged jury

instructions; therefore, we apply the plain-error standard

of review. See Rule 45A, Ala. R.App. P.

“ ‘ “The trial court is vested with broad discretion

in formulating its charge, so long as it accurately

reflects the law.” ’ Powers v. State, 963 So.2d 679,

691 (Ala.Crim.App.2006), (quoting Clark v. State, 621

So.2d 309, 324 (Ala.Crim.App.1992)). See also Williams

v. State, 795 So.2d 753, 780 (Ala.Crim.App.1999).

‘When reviewing a trial court's jury instructions, we

must view them as a whole, not in bits and pieces, and as

a reasonable juror would have interpreted them. Ingram

v. State, 779 So.2d 1225 (Ala.Cr.App.1999).’ Johnson v.

State, 820 So.2d 842, 874 (Ala.Crim.App.2000).''

Marshall v. State, 20 So.3d 830, 836 (Ala.Crim.App.2008).

“ ‘In setting out the standard for plain error review

of jury instructions, the court in United States v.

Chandler, 996 F.2d 1073, 1085, 1097 (11th Cir.1993),

cited Boyde v. California, 494 U.S. 370, 380, 110 S.Ct.

1190, 108 L.Ed.2d 316 (1990), for the proposition

that “an error occurs only when there is a reasonable

likelihood that the jury applied the instruction in

an improper manner.” Williams v. State, 710 So.2d

1276, 1306 (Ala.Cr.App.1996), aff'd, 710 So.2d 1350

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

(Ala.1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325,

141 L.Ed.2d 699 (1998).’ ”

Broadnax

State,

825

So.2d

134,

196

(Ala.Crim.App.2000) quoting Pilley v. State, 789 So.2d

870, 882–83 (Ala.Crim.App.1998).

[79] Russell argues that the circuit court's instructions

concerning the weighing of the aggravating and

the mitigating circumstances was unconstitutional.

Specifically, he argues that the charge failed to instruct

the jury what to do if the aggravating and the mitigating

circumstances were equally balanced.

*30 The circuit court gave the following instruction on

the process of weighing the aggravating circumstances and

the mitigating circumstances:

“Now ladies and gentlemen, if after a full and fair

consideration of all the evidence in this case you are

convinced beyond a reasonable doubt that at least the

one aggravating circumstance of especially heinous,

atrocious or cruel exists in this case and you are

convinced that this aggravating circumstance outweighs

the mitigating circumstances, your verdict would be this

verdict form which says we, the jury, recommend the

defendant, Ryan Gerald Russell, be sentenced to death.

The vote is as follows. There is a blank by death and a

blank for life imprisonment. And again to reiterate in

order to return this verdict, the life—the death number

must be ten or greater.

“However, if after a full and fair consideration of all

the evidence you are not convinced beyond a reasonable

doubt that at least one aggravating circumstance exists,

especially heinous, atrocious or cruel or that even if

you do find that aggravating circumstance exists that it

does not outweigh the mitigating circumstances in this

case that you may find, then your verdict must be we,

the jury, recommend that the defendant, Ryan Gerald

Russell, be punished by life imprisonment without

parole. The vote is an follows. And again blank for

death and blank for life without parole. In this case, the

life without number must be at least seven in order to

return this verdict form.”

(R. 18280–29.)

The Alabama Supreme Court has held that an instruction

on the weighing process rises to the level of plain error

only when a trial court instructs a jury that it could

recommend a sentence of death without finding any

aggravating circumstance. See Ex parte Bryant, 951 So.2d

724 (Ala.2002). However,

“[t]he charge in this case was not infected with the

peculiar error present in [Ex parte ] Bryant[, 951

So.2d 724 (Ala.2002) ], that is, the jury in this case

was not invited to recommend a sentence of death

without finding any aggravating circumstance. It was

that invitation in Bryant that caused the error in that

case to rise to the level of plain error, rather than error

reversible only by a proper objection. Thus, in this

case, although the court did not specifically instruct

the jury what to do if it found the mitigating and

aggravating circumstances equally balanced, we cannot

conclude, considering the charge in its entirety, that

the error ‘seriously affect[ed] the fairness, integrity or

public reputation of [these] judicial proceedings,’ Ex

parte Davis, 718 So.2d [1166,] at 1173–74 [ (Ala.1998) ],

so as to require a reversal of the sentence.”

Ex parte McNabb, 887 So.2d 998, 1004 (Ala.2004). See

also Ex parte Mills, 62 So.3d 574 (Ala.2010); Ex parte

Walker, 972 So.2d 737 (Ala.2007).

Here, the circuit court did not instruct the jury that it

could recommend a sentence of death without finding the

existence of any aggravating circumstance. Indeed, the

circuit court specifically instructed the jury, several times,

that it could not vote for a sentence of death unless it

specifically determined that the aggravating circumstance

that the offense was especially heinous, atrocious, or cruel

had been proven beyond a reasonable doubt. The circuit

court's jury instruction did not constitute plain error, and

Russell is due no relief on this claim.

*31 [80] Russell next argues that the circuit court's

instructions on mitigating circumstances were erroneous

because, he says, they implied that the jury could not

consider a mitigating circumstance unless all the jurors

agreed upon its existence. Specifically, he argues that the

circuit court's failure to give a specific instruction that

the jury's findings as to mitigation did not have to be

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

unanimous violated the Supreme Court's decision in Mills

v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d

384 (1988).

“The United States Supreme Court in Mills v. Maryland

held that if there was a substantial probability that a jury

instruction in the penalty phase of a capital trial implied

that a finding on a mitigating circumstance must be

unanimous the death sentence must be vacated.” Calhoun

v. State, 932 So.2d 923, 972 (Ala.Crim.App.2005).

More recently, the United States Supreme Court in Smith

v. Spisak, 558 U.S. 139, 130 S.Ct. 676, 175 L.Ed.2d 595

(2010), again considered this issue and stated:

“[T]he instructions did not say that the jury must

determine the existence of each individual mitigating

factor unanimously. Neither the instructions nor the

forms said anything about how—or even whether—

the jury should make individual determinations that

each particular mitigating circumstance existed. They

focused only on the overall balancing question. And

the instructions repeatedly told the jury to ‘conside[r]

all of the relevant evidence.’ Id., at 2974. In our view

the instructions and verdict forms did not clearly bring

about, either through what they said or what they

implied, the circumstance that Mills found critical,

namely,

“ ‘a substantial possibility that reasonable jurors,

upon receiving the judge's instructions in this case,

and in attempting to complete the verdict form

as instructed, well may have thought they were

precluded from considering any mitigating evidence

unless all 12 jurors agreed on the existence of a

particular such circumstance.’ 486 U.S., at 384, 108

S.Ct. 1860.”

558 U.S. at 148, 130 S.Ct. 676.

Since Mills v. Maryland, many federal courts have upheld

instructions similar to the instructions given in this case.

“[T]he trial court's jury instructions

and verdict form contained no

statement that reasonably could be

read by jurors to require unanimity

on mitigating factors. And Lucas

can point us to no Supreme Court

precedent clearly establishing that

an affirmative instruction must be

given when the trial court has not

otherwise suggested that unanimity

is mandatory.”

Lucas v. Warden, Georgia Diagnostic & Classification

Prison, 771 F.3d 785, 807 (11th Cir.2014).

“[W]e find that with regard to mitigating factors,

these instructions contain no express requirement of

unanimity—that is, they omit any requirement of

unanimity. And, as we have previously held, ‘the only

reasonable reading of [such] instruction [i]s that, by

omission, no unanimity [i]s required.’ See Coe v. Bell,

161 F.3d 320, 338 (6th Cir.1998) (citing Kordenbrock v.

Scroggy, 919 F.2d 1091, 1121 (6th Cir.1990) (en banc)).”

*32 Nichols v. Heidle, 725 F.3d 516, 546 (6th Cir.2013).

“[T]he failure to adequately instruct

the jury on unanimity may be

harmless where the jury is informed

that aggravating circumstances must

be unanimously found beyond a

reasonable doubt and no constraints

are placed on the jury's ability to find

mitigating circumstances.”

Nika v. State, 124 Nev. 1272, 1297–98, 198 P.3d 839, 856

(2008).

The circuit court's instructions on the application of

mitigating evidence did not constitute error, much less

plain error, and Russell is due no relief on this claim.

XV.

[81] Russell argues that § 13A–5–49(8), Ala.Code 1975,

which sets out that the offense is especially heinous,

atrocious, or cruel compared to other capital offenses,

is unconstitutional on its face because, he says, it

fails to “sufficiently minimize the risk that the death

penalty will be applied in an arbitrary or capricious

manner.” (Russell's brief, at p. 90.)

“To the extent that [the appellant] is

claiming that the ‘especially heinous,

atrocious or cruel’ statutory

aggravating circumstance found in

§ 13A–5–49(8), Ala.Code 1975, is

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

unconstitutional on its face, that

argument is without merit. See

Bui v. State, 551 So.2d 1094

(Ala.Cr.App.1988), aff'd, 551 So.2d

1125 (1989), cert. granted, judgment

vacated on other grounds, 499

U.S. 971, 111 S.Ct. 1613, 113

L.Ed.2d 712 (1991); Hallford v.

State, 548 So.2d 526, 541–42

(Ala.Cr.App.1988), aff'd, 548 So.2d

547 (Ala.), cert. denied, 493 U.S.

945, 110 S.Ct. 354, 107 L.Ed.2d 342

(1989).”

Freeman

State,

776

So.2d

160,

196

(Ala.Crim.App.1999). The especially heinous, atrocious,

or cruel aggravating circumstance is not unconstitutional

on its face—Russell is due no relief on this claim.

XVI.

[82] Russell argues that the circuit court erred in failing

to consider all of his proffered mitigating evidence.

Specifically, he argues that the circuit court erred in

not finding the following evidence to be mitigating:

that Russell's parents divorced when he was young,

that Russell was “alcohol dependent,” that Russell was

“managing properly in jail,” that Russell was in the

process of adopting Katherine, and that Russell had

actively participated in Katherine's life.

[83] “ ‘While Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct.

2954, 57 L.Ed.2d 973 (1978),] and its progeny require

consideration of all evidence submitted as mitigation,

whether the evidence is actually found to be mitigating is

in the discretion of the sentencing authority.’ ” Ex parte

Slaton, 680 So.2d 909, 924 (Ala.1996), quoting Bankhead

v. State, 585 So.2d 97, 108 (Ala.Crim.App.1989). “It is

not required that the evidence submitted by the accused as

a non-statutory mitigating circumstance be weighed as a

mitigating circumstance by the sentencer.” Haney v. State,

603 So.2d 368, 389 (Ala.Crim.App.1991).

The circuit court acted within the scope of its discretion in

declining to consider some evidence that was presented to

be mitigation. Russell is due no relief on this claim.

XVII.

*33 [84] Russell next argues that the circuit court

erred in finding that the murder was especially heinous,

atrocious, or cruel as compared to other capital murders

because, he says, there was no evidence indicating that

the murder was “unnecessarily torturous” to the victim.

The State asserts that there was sufficient evidence for the

jury to find that Katherine was psychologically tortured

before her death and that, therefore, this aggravating

circumstances was properly applied in this case.

[85]

[86]

[87] The circuit court made the following

findings of fact on this aggravating circumstance:

“The Court is in a significantly better position to

evaluate this case as it is compared to capital cases. This

is based not only upon the Court's personal experiences

of having tried and sentenced other capital offenses, but

also from reading those cases that are of record in the

State of Alabama and in other jurisdictions. Heinous

is defined as extremely wicked or shockingly evil. The

Court can think of little that would be more wicked or

shockingly evil, than for someone in a parental role to

intentionally kill the one they are entrusted to love and

protect. Atrocious is defined as outrageously wicked or

violent.

“The evidence in this case tended to prove that Russell

chased Katherine into a corner and put a gun to

the back of her head and shot her. In light of the

relationship of the victim and Defendant in this case,

no act could be more outrageously wicked. The term

cruel means designed to inflict a high degree of pain.

The cruelty involved in this case does not only involve

physical pain, it also involves mental and emotional

pain. The mental and emotional pain of rejection and

abuse experienced by a child when being killed by a

person she called ‘Daddy’ is beyond comprehension.

“This crime does fit the definition of especially

heinous, atrocious and cruel when compared to other

capital offenses, because it was a pitiless crime. It

was unnecessarily emotionally and psychologically

torturous to the victim, an eleven year old girl,

Katherine Helen Gillespie. The victim was the person

that Russell had been entrusted to care for, love and

protect, not only by his family, but by society. Russell

had voluntarily undertaken that obligation.”

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

(R. 156–57.)

“In Alabama, for the manner of

homicide to meet the statutory

definition of especially heinous,

atrocious, or cruel, the murder

must be unnecessarily torturous to

the victim. See Ex parte Kyzer,

399 So.2d 330, 334 (Ala.1981).

In making this determination we

consider whether the violence

involved in the killing was

beyond what was necessary to

cause death, whether the victim

experienced appreciable suffering

after a swift assault, and whether

there was psychological torture. See

Norris v. State, 793 So.2d 847

(Ala.Crim.App.1999).”

Blackmon v. State, 7 So.3d 397, 419 (Ala.Crim.App.2005).

See also Ex parte Key, 891 So.2d 384, 390 (Ala.2004); Ex

parte Clark, 728 So.2d 1126, 1140–41 (Ala.1998).

*34 “[T]he status of the victim is of no consequence

in determining whether the crime was unnecessarily

torturous to the victim. However, it is relevant and

probative of whether the crime was conscienceless

or pitiless.” Clark v. State, 896 So.2d 584, 648–

49 (Ala.Crim.App.2000). See Fleming, Sufficiency of

Evidence, for Purposes of Death Penalty, to Establish

Statutory Aggravating Circumstance that Murder was

Heinous, Cruel, Depraved, or the Like–Post–Gregg

“This Court has affirmed findings that certain

‘execution style’ murders were ‘especially heinous,

atrocious or cruel.’ See, Rieber v. State, 663 So.2d

985, 992–93 (Ala.Cr.App.1994), aff'd, 663 So.2d 999

(Ala.1995) (the victim had been stalked by the

defendant before the murder; the victim was very much

afraid of the defendant; she was robbed and was shot

in the wrist and then in the head; she was alive when she

was found, but subsequently died ); Wright v. State, 494

So.2d 726, 744 (Ala.Cr.App.1985), aff'd, 494 So.2d 745

(Ala.1986) (trial court found that the two victims were

murdered ‘in order that they would not be witnesses'

and that they ‘were each shot in the head [and] slowly

died in a pool of blood ’); Lawhorn v. State, 581 So.2d

1159, 1174 (Ala.Cr.App.1990), aff'd, 581 So.2d 1179

(Ala.1991) (victim was run down and was ‘confronted

with the barrel of a shotgun in his face’; he was shot

and shot again after getting back up; he was then shot

three times while lying on the ground ‘trapped and making

gurgling noises' ). In those cases cited here, the victims

were aware of what was happening to them.’'

Ex parte Clark, 728 So.2d 1126, 1139 (Ala.1998)

(emphasis in original). See also State v. Rossi, 146 Ariz.

359, 706 P.2d 371 (1985) (“[D]efendant used special bullets

which he knew were designed to inflict greater tissue

damage on a human body.”).

Here, there was testimony that within two hours of her

death Katherine and Russell had been involved in a

car accident in which the air bags in Russell's vehicle

had deployed, that Katherine had suffered a blunt-force

injury to her chest that was consistent with an air bag,

Cases, 63 A.L.R.4th 478 (1988). 15

that Russell had fled the scene of that accident, that

the vehicle involved in the accident followed him to his

[88]

[89]

[90] To determine whether Katherine's house, that the occupants reported the accident to police,

murder was especially heinous, atrocious, or cruel as

that Russell refused to let anyone in the house after the

compared to other capital murders, we must consider the

accident, that Katherine was last seen crying and upset,

entire chain of events that led to Katherine's death. “[A]

and that Katherine was shot at point-blank range while

murder is not rendered especially heinous, atrocious, or

in a crouched position between the side of the dryer

cruel merely by the specific method in which a victim is

and a wall. 16 Russell used a large caliber gun, a .40

killed, but by the entire set of circumstances surrounding

Glock brand semi-automatic pistol, and pressed it to

the killing.” State v. Tirado, 358 N.C. 551, 595, 599

Katherine's head. 17 The bullet struck Katherine's head

S.E.2d 515, 544 (2004). “In evaluating the brutality and

with such force that her skull exploded. Russell then

heinousness of a defendant's conduct, the entire spectrum

placed Katherine's lifeless body in a plastic trash can, head

of facts surrounding the given incident must be analyzed

first, and put that can in the backseat of his car. Russell's

and evaluated.” People v. McGee, 121 Ill.App.3d 1086,

callous treatment of Katherine's body evidenced his total

1089, 77 Ill.Dec. 539, 542, 460 N.E.2d 843, 846 (1984).

disrespect for human life.

Russell v. State, --- So.3d ---- (2015)

2015 WL 3448853

*35 Certainly, it was reasonable for the jury to conclude

that at the time of Katherine's death she was crouched

between the dryer and a wall, in a “cubby area,” in an

attempt to hide from the only other occupant of the

house, Russell, and that her fear of him motivated her to

hide. This inference was reasonable based on the evidence

presented.

there is an evidentiary basis for the

jury's verdict, the

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