Opposition Brief — Michael Belcher, Petitioner v. Alabama

Supreme Court briefNov 22, 2021

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No. 21-6065

CAPITAL CASE

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In the SUPREME COURT of the UNITED STATES

──────────────────────────────────

MICHAEL DAVID BELCHER,

Petitioner,

STATE OF ALABAMA,

Respondent.

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On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

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BRIEF IN OPPOSITION

════════════════════════════════════════

STEVE MARSHALL

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Richard D. Anderson*

Assistant Attorney General

Morgan B. Thompson

Assistant Attorney General

Office of the Attorney General

501 Washington Avenue

Montgomery, Alabama 36130

(334) 242–7300

Richard.Anderson@AlabamaAG.gov

*Counsel of Record

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED (REPHRASED)

Michael Belcher kidnapped, beat, and killed Samantha Payne. Belcher

was subsequently charged and convicted of capital murder committed during

the course of a kidnapping.

During its case-in-chief, the State introduced several crime-scene and

autopsy photographs that were relevant to prove kidnapping and intentional

murder. While Belcher objected to the autopsy photographs at trial, his claim

that they were “gruesome” was raised for the first time on appeal. The Alabama

Court of Criminal Appeals concluded that, while gruesome, the photographs

were relevant and admissible, and the Alabama Supreme Court denied

Belcher’s petition for writ of certiorari.

Belcher petition presents a single fact-bound assertion of error, but two

questions arise from his petition. First, whether the admission of post-mortem

photographs relevant and probative of the crime-scene and the victim’s injuries

rendered Belcher’s trial fundamentally unfair where the trial court failed to

sua sponte conduct a prejudice analysis on the record. And second, whether the

lower courts erred in admitting gruesome photographs.

TABLE OF CONTENTS

QUESTIONS PRESENTED (REPHRASED).................................................... ii

TABLE OF CONTENTS.................................................................................... iii

TABLE OF AUTHORITES................................................................................ iv

STATEMENT OF THE CASE ........................................................................... 1

REASONS FOR DENYING THE WRIT ........................................................... 7

ARGUMENT ....................................................................................................... 9

I. Belcher’s Claim That the Trial Court Failed to Conduct a Sua

Sponte Prejudice Analysis on the Record is Not Preserved for

Review. ....................................................................................................... 9

II. This Court Should Not Grant Certiorari to Scrutinize State

Court Findings That the Photographs Were Relevant and

Admissible. ............................................................................................... 13

A. Admission of undistorted photographs relevant and

probative of the crime-scene and the victim’s wounds did

not render Belcher’s trial fundamentally unfair. ............................ 14

B. Alabama’s treatment of gruesome photographs is entirely

in-step with other jurisdictions......................................................... 19

CONCLUSION.................................................................................................. 20

iii

TABLE OF AUTHORITES

Cases

Acklin v. State,

790 So. 2d 975 (Ala. Crim. App. 2000)..................................................... 16, 19

Adams v. Robertson,

520 U.S. 83 (1997)........................................................................................... 10

Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537 (1987)......................................................................................... 10

Belcher v. State,

CR-18-0740, 2020 WL 7382535 (Ala. Crim. App. Dec. 16, 2020) ............. 7, 11

Braswell v. State,

288 So. 2d 757 (Ala. Crim. App. 1974)..................................................... 16, 19

Brown v. State,

11 So. 3d 866 (Ala. Crim. App. 2007)....................................................... 15, 18

Cardinale v. Louisiana,

394 U.S. 437 (1969)......................................................................................... 10

Cavazos v. Smith,

565 U.S. 1 (2011)............................................................................................... 9

Chunn v. State,

339 So. 2d at 1102 (Ala. Crim. App. 1976) .................................................... 18

Dowling v. United States,

493 U.S. 342 (1990)......................................................................................... 14

Ex parte Hodges,

856 So. 2d 936 (Ala. 2003) .............................................................................. 11

Ex parte Phillips,

287 So. 3d 1179 (Ala. 2018) ...................................................................... 16, 18

Ex parte Siebert,

555 So. 2d 780 (Ala. 1989) .................................................................. 14, 15, 18

Kaley v. United States,

571 U.S. 320 (2014)......................................................................................... 13

Marshall v. Lonberger,

459 U.S. 422 (1983)......................................................................................... 13

McCoy v. Louisiana,

138 S. Ct. 1500 (2018)....................................................................................... 9

McKee v. State,

31 So. 2d 656 (Ala. Ct. App. 1947) ................................................................. 16

Medina v. California,

505 U.S. 437 (1992)......................................................................................... 14

Mitchell v. State,

84 So. 3d 968 (Ala. Crim. App. 2010)....................................................... 15, 18

Payne v. Tennessee,

501 U.S. 808 (1991)......................................................................................... 14

Perry v. New Hampshire,

565 U.S. 228 (2012)......................................................................................... 14

Pierce Cty., Wash v. Guillen,

537 U.S. 129 (2003)......................................................................................... 10

Romano v. Oklahoma,

512 U.S. 1 (1994)............................................................................................. 14

Salazar-Limon v. Houston,

137 S. Ct. 1277 (2017)....................................................................................... 8

Sochor v. Florida,

504 U.S. 527 (1992)......................................................................................... 12

Spencer v. Texas,

385 U.S. 554 (1967)......................................................................................... 13

Stallworth v. State,

868 So. 2d 1128 (Ala. Crim. App. 2001)................................................... 15, 18

Taylor v. Culliver,

No. 4:09-cv-00251-KOB-TMP (N.D. Ala. Sept. 26, 2012) ....................... 15, 18

Webb v. Webb,

451 U.S. 493 (1981)......................................................................................... 10

Wesley v. State,

26 So. 2d 413 (Ala. Ct. App. 1946). ................................................................ 16

Statutes

Code of Alabama

§ 13A-5-40(a)(1).................................................................................................... 4

§ 13A-5-49(4), (8).................................................................................................. 6

Rules

Alabama Rules of Appellate Procedure

Rule 45A ............................................................................................................... 8

Supreme Court Rule

Rule 10.............................................................................................................. 7, 8

STATEMENT OF THE CASE

During the early morning hours of November 2, 2015, Michael Belcher

dragged Samantha Payne into the Talladega National Forest, tied her to a tree,

and caused her death.

Earlier that morning, around 2:00 a.m., Samantha arrived at Wee

Racing – a motor-vehicle repair shop owned by the Belcher family. (R. 467, 504,

687.)1 When she arrived, Belcher, Chylli Bruce, and Steven George were inside

getting high on methamphetamine provided to them by Belcher. (R. 471, 472,

501–04.) Shortly after Samantha’s arrival, Marcus George and Alyssa Watson

arrived.2 (R. 472, 504, 591–92.) Sometime thereafter, Steven decided to steal

Samantha’s car, which he took to a bridge and burned. (R. 550–58.) Marcus

and Watson joined Steven at the bridge (R. 557, 593), and after getting Steven

clean clothes (R. 550, 558), the three returned to Wee Racing. (R. 559.)

When Samantha realized her car was gone, she accused Belcher of

stealing it. (R. 472–73, 508.) Samantha and Belcher argued before Belcher

pinned her to a wall. (R. 472–73.) Samantha tried to leave but Belcher would

not let her. (R. 476.) Belcher, Samantha, and Bruce made their way outside (R.

473, 508), where Belcher forced Samantha onto the backseat of his car, held

1 References to the trial transcript are referred to as “R. ___”, while references

to the clerk’s record on direct are referred to as “CR. ___”.

2 For clarity, the State will refer to Steven George as “Steven” and Marcus

George as “Marcus”.

her down, and beat her. (R. 473–76.) Belcher gave his keys to Bruce and told

her to drive them to his home. (R. 473–75.) Marcus, Steven, and Watson agreed

to meet them there and drove to the home in Marcus’s Jeep. (R. 477, 559–60.)

The two groups arrived at Belcher’s home before sunrise. (R. 560, 562.)

Once parked, Belcher took Samantha from the backseat of his car, threw her

to the ground, and proceeded to hit and kick her in the face and about her body.

(R. 561.) Samantha was bleeding severely. (R. 478, 562.)

At some point while at Belcher’s home, a patrol car passed nearby (R.

597, 562), so it was suggested that Samantha be taken to a different location.

(R. 478, 562, 597.) Belcher then put Samantha on the backseat floorboard of

his car and climbed on top of her, pinning her down. (CR. 155; R. 479, 562.)

Bruce drove Belcher’s car off his property (R. 562), while Steven, Marcus, and

Watson drove in Marcus’s Jeep. (R. 479, 562.) The two groups drove to an

abandoned trailer. (R. 563.)

Once parked again, Belcher pulled Samantha from the car, stomped her

face, and repeatedly kicked her in the ribs. (R. 564.) During the beatings,

Samantha crawled across the ground, crying out “I love you. Y’all don’t have to

do this.” (R. 564–65.) Despite Samantha’s pleas, Belcher continued to beat her.

(Id.) During the beatings, Samantha scratched Belcher. (R. 610.) To get rid of

any DNA evidence under Samantha’s nails, Bruce and Watson cut off her

acrylic fingernails with knives. (R. 480, 602, 610–11.) Some of Samantha’s

natural nails were also removed. (R. 480.)

With the sun rising, the group decided to leave the abandoned trailer.

(R. 482.) Belcher hog-tied Samantha with a cable wire, a shoestring, and her

own belt, and then put her in the trunk of his car. (R. 565–66.) Belcher then

got in the driver’s seat of his car, Bruce in the passenger seat, and Steven in

the backseat (R. 482 565–68), while Marcus and Watson got in Marcus’s Jeep.

(R. 567–68.) The two groups drove off the property towards the Talladega

National Forest. (R. 569–70.)

On the way to the Forest, Belcher’s trunk popped open, and Samantha

fell onto the road as the car traveled 40-45 m.p.h., and Michael and Steven put

her back in the trunk. (R. 483, 569–70.) Once in the Forest, Belcher’s car ran

out of gas, forcing him to pull over. (R. 570–71.) Rather than stop as well,

Marcus and Watson kept driving. (R. 571–72.) Belcher told Bruce to call

Marcus and Watson (R. 485, 572) and directed Steven to help him pull

Samantha from the trunk. (R. 484.) Samantha was screaming. (R. 485.)

Belcher and Steven dragged Samantha into the woods and across a

creek. (R. 572–74.) Samantha continued to scream, prompting Belcher to

stomp her face and threaten to kill her if she did not “shut up”. (R. 574–75.)

Samantha was bleeding severely. (R. 573.) Belcher told Steven to get more rope

and asked for Steven’s knife. (R. 575.) Steven gave Belcher his knife and left

the woods but did not get Belcher more rope. (R. 575.) When Steven left Belcher

with Samantha, she was alive and fully clothed. (R. 579–80.)

A week later, Samantha was found bare and decapitated with her hands

bound around a tree – the binding made from a cable wire, shoestring, her belt,

and some of her clothing. (CR. 219; R. 822–26.) Jeffery Eiland, who discovered

Samantha’s remains, only recognized her remains as human because of her

fingernails (R. 434–36), though some were missing. (CR. 332.) Samantha was

likewise missing multiple teeth and most of her internal organs. (CR. 333; R.

830.) Several of her ribs were fractured (CR. 333), the flesh on her lower

extremities mostly gone. (CR. 332.) According to the autopsy report, it was

impossible to determine Samantha’s cause of death due to decomposition. (CR.

331.) But according to Bruce, Belcher told her that he killed Samantha by

stabbing her. (R. 488.)

On January 28, 2016, a Tuscaloosa County Grand Jury indicted Belcher

for one count of capital murder committed during the course of a kidnapping

pursuant to ALA. CODE § 13A-5-40(a)(1). (CR. 16.) On March 5, 2019, the trial

began. (R. 98.)

At trial, the State introduced several photographs of the scene where

Samantha’s body was discovered (State’s Exhibits 1–4, and 38–58) (CR. 196–

99, 218–38; R. 432–36, 824–32); a photograph of Samantha’s hands (States

Exhibit 7) (CR. 203; R. 454–55); and autopsy photographs. (State’s Exhibits

147–161 and 173–175) (CR. 336–50; 362–64; R. 913–27.) Belcher did not object

to these photographs as gruesome.3

The State used Exhibits 1–4 to illustrate the testimony of Eiland as they

show what he saw as he walked up to Samantha’s remains. (R. 432–36.)

Exhibit 7 was used by Samantha’s mother, Susanne Payne, to identify

Samantha after her remains were found – Susanne recognized her daughter

from her fingernails. (R. 454–55.) Exhibits 38–58 illustrate the testimony of

Investigator Jason Mellown regarding the scene. Mellown used Exhibit 38 to

point out the victim’s body in relation to the overall crime scene. (R. 824.)

Exhibits 39, 40, and 46 show how Samantha was found – bound to a tree – and

Exhibits 41, 45, and 56 show the material used to bind her. (R. 824–27, 830.)

Exhibits 42–44 show where Samantha’s skull was found (R. 825–26) and

Exhibits 54 and 55 show that her skull was missing teeth. (R. 829–30.) Exhibit

47 shows where different pieces of evidence were found and marked (R. 827–

30) while Exhibits 48–55 illustrate the evidence marked in Exhibit 47. (Id.)

Exhibit 56 depicts where Samantha’s clothes were found (R. 830) and Exhibits

3 Belcher did not object to the crime scene photographs at all. Belcher did,

however, object to the autopsy photographs on the following grounds:

“[S]everal of them are repetitive, and several of the don’t relate to

the body. They’re bindings and stuff like that which are already

introduced through another witness. So I’m objecting to all of them

going in and ask that the State cull out just the ones that related

to the body.”

(R. 914.)

57 and 58 show how her remains were moved into a body bag, keeping

everything as originally found. (R. 831–32.)

State’s Exhibits 147–155 show the victim’s wrists tied together and the

extensive layering of the material used to bind her. (R. 913–19.) Exhibit’s 156–

161 and 173–175 likewise show the injuries sustained by the victim – the

removal of her fingernails and her missing teeth – as well as an identifiable

tattoo. (R. 919–27.) The State must prove every element of its case, and these

pictures were used to prove the kidnapping, that Belcher intended the victim’s

death, and that Belcher intended to cause the victim harm.

The jury returned a verdict finding Belcher guilty of capital murder. (R.

1067.) The case then proceeded to the penalty phase (R. 1070), during which

the State submitted to the jury two aggravating circumstances: that the

murder was committed during the kidnapping, which was proven beyond a

reasonable doubt by virtue of jury’s verdict, and the murder was especially

heinous, atrocious, or cruel as compared to other capital murders. (R. 1074–92,

1174–81, 1191–95); see also ALA. CODE § 13A-5-49(4), (8). To prove beyond a

reasonable doubt that the murder was heinous, atrocious, and cruel, as the

State is required to do, it presented testimony from Susanne Payne and

Investigator Richard Wilkins. (R. 1074–90.) It also incorporated the guiltphase evidence, including the photographs at issue, which the State briefly

referenced in its closing argument. (R. 1090–92, 1175.) The jury returned a

unanimous recommendation of death. (R. 1206.) The trial court conducted a

sentencing hearing on April 3, 2019. (R. 1211.) After weighing the aggravating

and mitigating circumstances, the court followed the jury’s recommendation

and sentenced Belcher to death. (R. 1215.)

On direct appeal, the Alabama Court of Criminal Appeals (hereinafter

“ACCA”) addressed at length Belcher’s claim regarding the admission of

“gruesome crime scene and autopsy photographs” and found “no error, much

less plain error, in regard to this claim.” Belcher v. State, No. CR-18-0740, 2020

WL 7382535, at *23, 25 (Ala. Crim. App. Dec. 16, 2020). However, because

Belcher’s claim was raised for the first time in the ACCA, that court reviewed

his claim for “plain error” only.

REASONS FOR DENYING THE WRIT

Belcher fails to meet this Court’s requirement that there be “compelling

reasons” for granting certiorari. See Sup. Ct. R. 10. Although Belcher

challenged the admission of the photographs at issue in the appellate courts

below, he did not argue, as he does now, that the trial court improperly failed

to sua sponte conduct a prejudice analysis on the record. Because Belcher

waived the argument he presses before this Court, this case does not tee up

Belcher’s asserted reason for granting the writ, and this Court should deny

Belcher’s petition.

Moreover, this is a heavily fact-bound case that presents no novel

questions for this Court to answer and involves no circuit split in need of

resolution. Rather, Belcher takes issue with the routine application of state

evidentiary law. But Belcher never objected to the gruesome nature of the

autopsy and crime-scene photographs at trial, so there was no prejudice

analysis done on the record.4 Despite this, the Alabama Court of Criminal

Appeals concluded that there was no error, plain or otherwise, in admitting the

photographs5 and the Alabama Supreme Court denied Belcher’s petition for

writ of certiorari. This Court does not sit to correct narrow evidentiary rulings.

There is no question that Alabama courts understand this issue to be one

of fundamental fairness implicating the Due Process Clause. Thus, the

asserted error could consist only of “erroneous factual findings or the

misapplication of a properly stated rule of law.” Sup. Ct. Rule 10. This Court

“rarely grant[s] review where the thrust of the claim is that a lower court

simply erred in applying a settled rule of law to the facts of a particular case.”

Salazar-Limon v. Houston, 137 S. Ct. 1277, 1278 (2017) (Alito, J., concurring

in denial of certiorari). “Error correction is outside the mainstream of the

4 See supra note 3.

5 Id. Belcher’s failure to raise this claim at trial limited the Alabama appellate

courts’ review of the issue to a “plain error” review - a standard that

incorporates not only the merits, but also state-law procedural issues (such as

whether the error was “plain”). See Rule 45A, Alabama Rules of Appellate

Procedure.

Court’s functions.” Cavazos v. Smith, 565 U.S. 1, 11 (2011) (Ginsburg, J.,

dissenting) (cleaned up). And “because the present case is so unique, it is hard

to see how it meets [this Court’s] stated criteria for granting review.” McCoy v.

Louisiana, 138 S. Ct. 1500, 1515 (2018) (Alito, J., dissenting). Thus, this Court

should deny Belcher’s petition.

ARGUMENT

Belcher’s Claim That the Trial Court Failed to Conduct a Sua

Sponte Prejudice Analysis on the Record is Not Preserved for

Review.

Belcher claims that “[t]he trial court failed to conduct even a cursory

analysis of the risk of prejudice in these photographs.” (Pet. at 14.) According

to Belcher, “[b]ecause no prejudice analysis was conducted prior to the

admission of the photographs presented in this case, [he] remains under

sentence of death based on the outcome of a trial proceeding infected by passion

and prejudice.” (Pet. at 15.) Belcher did not object at trial to these photographs

as gruesome, therefore, the photographs at issue were admitted without a

prejudice analysis conducted on the record by the trial court. Thus, a proper

reading of Belcher’s claim is that the trial court failed to conduct a sua sponte

prejudice analysis on the record in violation of federal constitutional law.

No document filed in the state appellate courts below challenged the trial

court’s failure to sua sponte conduct a prejudice analysis on the record. As such,

Belcher did not provide the state courts an opportunity to consider his claim.

Because Belcher did not challenge the trial court’s failure to conduct a sua

sponte prejudice analysis on the record, his claim is waived under this Court’s

case law. See generally Adams v. Robertson, 520 U.S. 83, 90–91 (1997)

(“Requiring parties to raise issues below not only avoid unnecessary

adjudication in this Court by allowing state courts to resolve issues on statelaw grounds, but also assists [in] deliberations by promoting the creation of an

adequate factual and legal record.”); Pierce Cty., Wash v. Guillen, 537 U.S. 129,

140 (2003); Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S.

537, 549–50 (1987) (“It is well settled that this Court will not review a final

judgment of a state court unless the record as a whole shows either expressly

or by clear implication that the federal claim was adequately presented in the

same system.”) (quotation and citation omitted); Webb v. Webb, 451 U.S. 493,

498–99 (1981) (“[This] Court has consistently refused to decide federal

constitutional issues raised . . . for the first time on review of state court

decisions.”); Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (“It was very

early established that the Court will not decide federal constitutional questions

raised here for the first time on review of state court decisions.”). On this

ground alone this Court should deny Belcher’s petition for writ of certiorari.

Further, the ACCA’s “plain error” review of the admission of the

photographs demonstrates that a sua sponte review by the trial court would

not have changed matters.6 Belcher v. State, CR-18-0740, 2020 WL 7382535,

*23 (Ala. Crim. App. Dec. 16, 2020) (“Belcher next argues that the circuit court

erred in admitting gruesome crime-scene and autopsy photographs that

depicted the post-murder mutilation of Samantha’s body. He did not . . . object

to those photographs on the ground that they were gruesome. Therefore, we

review this claim for plain error.”) The ACCA found no error, plain or

otherwise. Id. at *25. (“Evidence of the mutilation and the photographs of the

body were clearly material and relevant to show where and in what condition

Samantha’s body was found. Although some of the photographs were gruesome

. . . we cannot say that the circuit court abused its substantial discretion . . . .

Therefore, we find no error, must less plain error, in the admission of the

photographs[.]”). Had the trial court conducted its own sua sponte review, there

is no reason to suspect that it would have produced any other result.

Further, the ACCA’s holding of no plain error is an independent and

adequate state-law ground for dismissing Belcher’s claim regarding the

supposed necessity of sua sponte review. In Sochor v. Florida, this Court

Under Alabama law, when a defendant like Belcher has not raised an

argument before the trial court, the appellate court cannot correct the

purported error unless failure to do so would “seriously affect the fairness or

integrity of the judicial proceedings.” Ex parte Hodges, 856 So. 2d 936, 947 (Ala.

2003). Thus, “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.” Id. (internal quotation marks omitted).

reviewed a Florida Supreme Court decision that rejected a petitioner’s claims

because (1) “they [were] not preserved for appeal,” and (2) they “ha[d] no

merit.” 504 U.S. 527, 534 (1992). This Court held that the state court decision

“indicate[d] with requisite clarity that the rejection of Sochor’s claim was based

on the alternative state ground that the claim was ‘not preserved for appeal,’

and Sochor has said nothing in this Court to persuade us that this state ground

is either not adequate or not independent.” Id. The same is true here. While

the Alabama Court of Criminal Appeals did consider the merits of Belcher’s

claim and held that the trial court did not err, the appellate court also held

that there was no plain error under Alabama law.

Finally, even assuming state plain-error review preserved review of the

admission of the photographs in this Court, it did not preserve the first issue

Belcher has presented to this Court—whether their admission without a sua

sponte prejudice analysis by the trial court violated federal constitutional law.

In state appellate courts, Belcher argued that the trial court, and subsequently

the ACCA, improperly admitted gruesome photographs. Or in other words, he

challenged the application of evidentiary law to a set of facts. Thus, Belcher

preserved for review whether the lower courts improperly admitted these

photographs under Alabama evidentiary law, not whether the trial court

improperly failed to sua sponte conduct a prejudice analysis on the record.

II.

This Court Should Not Grant Certiorari to Scrutinize State

Court Findings That the Photographs Were Relevant and

Admissible.

Belcher argues that “[t]he trial court’s failure to assess the prejudicial

impact of more than 40 gruesome color photos of the victim’s decomposed body

thus invited jurors to disregard the holes in the prosecution’s case-in-chief, and

to instead convict based on caprice and emotion.” [Pet. at 16.] Because there is

no federal or state law, and Belcher cites to none, that requires a trial court to

sua sponte conduct a prejudice analysis on the record, Belcher really challenges

the trial court’s, and subsequently, the ACCA’s, application of state evidentiary

law.

The Constitution “has never been thought [to] establish this Court as a

rule-making organ for the promulgation of state rules of criminal procedure.”

Spencer v. Texas, 385 U.S. 554, 564 (1967). “[B]ecause the Bill of Rights speaks

in explicit terms to many aspects of criminal procedure, the Due Process Clause

has limited operation in the field.” Kaley v. United States, 571 U.S. 320, 334

(2014) (cleaned up). “[T]he Due Process Clause does not permit the federal

courts to engage in a finely-tuned review of the wisdom of state evidentiary

rules.” Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983).

With that in mind, state-court evidentiary rulings implicate the Due

Process Clause only when “the admission of evidence . . . so infected the [trial]

with unfairness as to render the jury’s imposition of the death penalty a denial

of due process.” Romano v. Oklahoma, 512 U.S. 1, 12 (1994).7 Stated

differently, the relevant question is whether the “evidence is so extremely

unfair that its admission violates fundamental conceptions of justice.” Perry v.

New Hampshire, 565 U.S. 228, 237 (2012) (cleaned up).

This Court has “defined the category of infractions that violate

‘fundamental fairness’ very narrowly.” Dowling v. United States, 493 U.S. 342,

352 (1990). Expanding “constitutional guarantees under the open-ended rubric

of the Due Process Clause invites undue interference with both considered

legislative judgments and the careful balance that the Constitution strikes

between liberty and order.” Medina v. California, 505 U.S. 437, 443 (1992).

Admission of undistorted photographs relevant and

probative of the crime-scene and the victim’s wounds did

not render Belcher’s trial fundamentally unfair.

Under Alabama law, “‘[p]hotographic evidence is admissible in a

criminal prosecution if it tends to prove or disprove some disputed or material

issue, to illustrate some relevant fact or evidence, or to corroborate or dispute

other evidence in the case. Photographs that tend to shed light on, to

strengthen, or to illustrate other testimony may be admitted into evidence.’”

Ex parte Siebert, 555 So. 2d 780, 783 (Ala. 1989) (citing Chunn v. State, 339 So.

7 Cf. Payne v. Tennessee, 501 U.S. 808, 825 (1991) (“In the event that evidence

is introduced that is so unduly prejudicial that it renders the trial

fundamentally unfair, the Due Process Clause of the Fourteenth Amendment

provides a mechanism for relief.”).

2d 1100, 1102 (Ala. Crim. App. 1976)). Consequently, “[p]hotographs

illustrating crime scenes have been admitted into evidence, as have

photographs of victims and their wounds.” Id. (citing Hill v. State, 516 So. 2d

876 (Ala. Crim. App. 1987)); see also Taylor v. Culliver, No. 4:09-cv-00251KOB-TMP (N.D. Ala. Sept. 26, 2012) (not selected for publication in F. Supp)

(holding, in review of an action seeking habeas corpus relief from a capital

murder conviction and death sentence, that autopsy photographs, including

those evidencing the sawing and removal of a skull cap and brain, “did not

render [the petitioner’s] trial fundamentally unfair” as they were relevant to

prove intent to kill); Stallworth v. State, 868 So. 2d 1128, 1151 (Ala. Crim. App.

2001) (finding post-mortem photographs of the victims showing their cause of

death and the extent of their injuries more probative than prejudicial); Brown

v. State, 11 So. 3d 866, 895–96 (Ala. Crim. App. 2007) (finding that autopsy

photographs of the victim depicting the character and location of the victim’s

wounds were relevant and admissible); Mitchell v. State, 84 So. 3d 968, 1005–

06 (Ala. Crim. App. 2010) (finding crime scene and wound-related photographs

relevant and admissible to prove the extent of the victim’s injuries).

But the photograph “must be a true and accurate representation of the

subject that it purports to represent.” Ex parte Siebert, 555 So. 2d at 783 (citing

Mitchell v. State, 450 So. 2d 181, 184 (Ala. Crim. App. 1984)). Thus, the

“gruesomeness” of a photograph becomes objectionable where: 1) there is

“distortion of the subject matter as where necrotic or other surgery caused

exposure of nonprobative views, e.g., ‘massive mutilation’” or 2) there is “focal

or prismatic distortion where the position of the camera vis-à-vis the scene or

object to be shown gives an incongruous result, e.g., a magnification of a wound

to eight times its true size.” Ex parte Phillips, 287 So. 3d 1179, 1218 (Ala. 2018)

(internal citations and quotations omitted); see also McKee v. State, 31 So. 2d

656 (Ala. Ct. App. 1947); Wesley v. State, 26 So. 2d 413 (Ala. Ct. App. 1946).

Therefore, when a crime scene or autopsy photograph depicting the crime scene

or the victim’s wounds is not objectionable on distortion grounds, “the

probative value outweighs any inflammatory or prejudicial effect.” Id. at 1219.

See also Acklin v. State, 790 So. 2d 975, 997–98 (Ala. Crim. App. 2000) (finding

that the probative value of the post-mortem photographs outweighed any

potential prejudice where there was no showing that the photographs were

distorted and the photographs were used to illustrate the testimony of the

forensic pathologist concerning the victims’ wounds and cause of death);

Braswell v. State, 288 So. 2d 757, 759–60 (Ala. Crim. App. 1974) (finding

enlarged pictures of the victim’s wounds admissible as the enlargement did not

distort the victim’s wounds).

In his petition, Belcher suggests that the photographs were irrelevant

because they did not prove the “cause of death.” Indeed, because Belcher left

his victim’s body in the woods where it was subject to decay and animal

predation, the exact cause of death could not be determined. (CR. 331.) But the

relevance of the photographs does not begin and end with exactly how Belcher

caused Samantha’s death. At trial, the State introduced several photographs

of the scene where Samantha’s remains were discovered (State’s Exhibits 1–4,

and 33–58), including a photograph of Samantha’s hands. (States Exhibit 7.)

The State used Exhibits 1–4 to illustrate the testimony of Eiland as he

described what he saw as he walked up to Samantha’s remains. (R. 432–36.)