Appendix — Morris v. Alabama
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Supreme Court, U.S.
FILED
A \ 3 19-808 DEC 16 2010
~\ No. 10-
- OFrftice OF THe CLERn
IN THE
Supreme Court of the United States
ALFONSO MORRIS,
Petitioner,
Vv.
STATE OF ALABAMA,
Respondent.
On Petition for Writ of Certiorari to the
Alabama Court of Criminal Appeals
APPENDICES TO PETITION FOR WRIT OF CERTIORARI
Randall S. Susskind Anna P. Engh
EQUAL JUSTICE INITIATIVE Gregory M. Lipper
122 Commerce Street Counsel of Record
Montgomery, AL 36104 COVINGTON & BURLING LLP
(334) 269-1803 1201 Pennsylvania Ave., NW
Washington, DC 20004
(202) 662-6000
glipper@cov.com
Margaret D. Wilkinson
COVINGTON & BURLING LLP
One Front Street
San Francisco, CA 94111
(415) 591-6000
December 16, 2010 Counsel for Petitioner
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 ~— WASHINGTON, D. C. 20002
j
Table of Contents
Appendix A: Morris v. State, CR-07-1997
(Ala. Ct. Crim. App. Feb. 5, 2010)
(affirming conviction and sentence) ...................... la
Appendix B: Morris v. State, CR-07-1997 (Ala
Ct. Crim. App. Apr. 16, 2010) (denying
SPOTICRCIOT TOE TOMORTIIED ocncccsnccnciesceccesncensssscese 12la
Appendix C: Morris v. State, 1091052 (Ala.
Sept. 17, 2010) (denying petition for writ of
I rence ccenGienmrtdeedarnensaednnnsaradsbriensen 122a
Appendix D: State v. Morris, CC-1997-5397
(Jefferson County Circuit Court June 20,
2008) (sentencing order) ......................0eeceeeeeeeeee 124a
Appendix E: State v. Morris, CC-1997-5397
(Jefferson County Circuit Court Nov. 26,
2007) (oral decision regarding eligiblity for
death penalty under Atkins v. Virginia)........... 143a
Appendix F: State v. Morris, CC-1997-5397
(Jefferson County Circuit Court Nov. 26,
2007) (excerpts from testimony of Dr. Allen
SPINEL titucatasuacecadiasenasennaandlataenaaesseaaanelagte mcd 147a
Appendix G: Morris v. State, CR-02-1765 (Ala.
Ct. Crim. App. Nov. 23, 2005) (reversing
original conviction and sentence). .................666 160a
la
Appendix A
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2009-2010
CR-07-1997
Alfonzo Morris
Vv.
State of Alabama
Appeal from Jefferson Circuit Court
(CC-97-5397)
MAIN, Judge.
On April 3, 2003, Alfonzo Morris was convicted of
two counts of capital murder for the intentional kuill-
ing of Miriam Rochester during the course of a first-
degree burglary, see § 13A-5-40(a)(4), Ala.Code 1975,
and the intentional killing of Miriam Rochester dur-
ing the course of a first-degree robbery, see § 13A-5-
40(a)(2), Ala.Code 1975. Following a sentencing hear-
ing, the jury returned an advisory verdict of death,
by a vote of 10-2. A sentencing hearing was held be-
fore the trial court, and Morris was sentenced to
death. Following an automatic appeal to this Court,
his conviction and sentence were reversed, and the
cause was remanded for further proceedings. Morris
v. State, 956 So.2d 431 (Ala.Crim.App. 2005). This
Court determined that Morris was denied his rights
2a
to due process and a fair trial because he was not
provided with funds to hire an independent mental-
health expert.
On November 26, 2007, a hearing was conducted
pursuant to Atkins v. Virginia, 536 U.S. 304, 122
S.Ct. 2242, 153 L.Ed.2d 335, (2002), to determine
whether Morris is mentally retarded and therefore
not subject to execution under the Eighth Amend-
ment of the United States Constitution. After hear-
ing the evidence and arguments of counsel, the trial
court applied the test set out in Atkins and deter-
mined that Morris is not mentally retarded.
On April 7, 2008, Morris was again tried for the
two counts of capital murder. The jury was unable to
reach a verdict, and the trial court declared a mis
trial. A third trial began on May 5, 2008.
The State’s evidence showed that on February 24,
1997, Miriam Rochester, who was 85 years-old, used
a walker, and weighed 92 pounds, was beaten to
death in her home. Rochester had transformed her
home into a duplex and had taken in a boarder,
Elizabeth Russell, who was also elderly and in poor
health. The two ladies had become friends, and, on
the night of the offense, at approximately 9:30 p.m.,
Rochester telephoned one of Russell’s sons to inform
him that Russell had become ill and was being taken
to the hospital.
A rescue unit and fire engine arrived at the house
at approximately 9:00 p.m. and were shown to Rus-
sell by Rochester. The paramedic who was the driver
3a
of the rescue unit testified that the “house was very
neat and orderly.” (R. 201.) After Russell was as-
sessed and the ambulance called, the paramedic tes-
tified that she went outside to check on her truck.
She testified that she saw someone “fooling around
my rescue unit acting like he was looking in the win-
dows, fooling with the doors.” (R. 203.) She then
asked the person if there was a problem and if she
could help him. The man, whom she identified in
court as Morris, walked up to her and asked what
was happening and who was sick; he insisted that he
wanted to go inside the house. The paramedic testi-
fied that at one point Morris attempted to bypass her
and enter the house, but she prevented him from do-
ing so. He told her that “he lived in that area and he
knew everybody and he had a right to go in there.”
(R. 205.)
Although Morris smelled strongly of alcohol, the
paramedic testified that Morris understood what she
was telling him and that his responses were appro-
priate. As the paramedic saw the rescue crew carry-
ing Russell out to the ambulance, she also saw Mor-
ris finally turn and walk away. The paramedic
thereafter stepped into the ambulance and through
the opened back doors of the vehicle saw that Morris
had returned. She informed her partner that Morris
had been causing trouble previously, and her partner
instructed him to leave. The paramedic testified that
she saw Morris walk approximately half of a block
away as the rescue crew left.
At approximately 10:00 p.m., Russell’s son tele-
phoned Rochester to update her on Russell’s condi-
4a
tion. He received a call from his brother about an
hour later, informing him that the brother had been
to Rochester’s house at his mother's request and that
the door was open and the house appeared to have
been ransacked. Both of Russell’s sons then went to
the house and without entering determined, that the
house had been vandalized. They attempted to tele-
phone Rochester and then telephoned the police.
The police and rescue units arrived around mid-
night, among them the same paramedic who had ear-
her cared for Russell. She testified that she origi-
nally believed that Russell was the deceased. How-
ever, because of the number of police officers present,
she determined that the death was not believed to be
due to natural causes. She informed the officers that
she had been called to the house earlier on that night
and that the house had not been in disarray. She
also told them about Morris’s presence and behavior.
She did not know his name at that time but gave the
officers his description.
The first officer who had arrived at the scene tes-
tified that there were “pry marks” on the door, indi-
cating forced entry. (R. 261.) He took a description
from the paramedic of the man who had attempted to
gain entry into the house and, after the scene was
processed, he left at approximately 4:00 a.m. and re-
sumed his patrol of the area. At approximately 5:00
a.m., he observed a man fitting the description of the
person who had earlier attempted to enter Roches-
ter’s house earlier. The man appeared to be intoxi-
cated and was staggering down the middle of the
5a
street. The officer asked the man questions and he
responded in a “slurred, but logical way.” (R. 265.)
The officer determined that it was not safe for the
man to continue and arrested him for public intox1-
cation. The officer identified Morris at trial as the
man he had arrested. He asked the man if he was
“arrying any weapons, and he responded that he had
a pocketknife in his right front pocket. (R. 267.) He
also stated that he had other items in his pockets
that he described as “junk.” (R. 267.) The officer
stated that the items were pieces of costume jewelry.
He also had a couple of pills and a cigarette in his
pockets. Morris identified himself as “Anthony Mor-
ris’ and gave the officer an address for his resi
dence.! (R. 270.)
Before the officer left the scene of Morris’s arrest,
the paramedic was brought to that location to deter-
mine if she could identify him as the man she had
seen earher. The paramedic testified that she was
certain that he was the man she had seen earlier at
Rochester’s house. (R. 223.) Morris was taken to the
administrative building where officers concluded
that he was too intoxicated to be interviewed. He was
taken to jail for the night and interviewed the follow-
ing day.
! It was later determined that Anthony Morris 1s Morris's
brother and the address that he gave the officer was that of his
brother. He also gave his brother's date of birth when the offi
cers were taking his clothing to be processed.
6a
Rochester's granddaughter and Russell's son
identified some of the jewelry taken from Morris as
belonging to the victim and Russell.? Blood found on
Morris’s shoe was determined to be Rochester’s and a
cigarette butt found in the Rochester's house con-
tained Morris’s DNA.
Morris testified at trial that he had been drinking
on the day of the offense and had gotten into an ar-
gument with the man with whom he had been living.
He left the house and eventually began gambling
with a man known as “Cue Ball.” (R. 433.) He testi-
fied that he won a bag of jewelry from “Cue Ball” and
that, as he was attempting to gather the jewelry,
“Cue Ball” snatched money from him and a fight en-
sued. He stated that other gamblers got involved in
the altercation, because they did not want him to
leave since he was winning. Morris stated that he
suffered cuts and bruises, as well as a laceration over
his eye, in the altercation. He testified that “Cue
Ball” threw the jewelry at him and that he picked it
up and walked to a Huddle House restaurant for
breakfast. He stated that he became belligerent with
the waitress because he had been drinking, and he
was forced to leave. He also testified that after eating
he put a cigarette in his mouth but did not light it.
Morris testified that he then encountered a police
officer who indicated that Morris appeared to have
been drinking and arrested him for public intoxica-
2 Some of the jewelry could not be identified.
Ta
tion. Morris stated that he was taken in the police
car “to the scene of a crime in a house” (R. 441),
where a woman identified him. (R. 443—444.) While
he was standing in front of the police vehicle, he
stated that a dog “came from somewhere” and ran
around his feet. (R. 444.) He was subsequently taken
to the hospital to treat the laceration to his eye and
then was taken to the jail.
Because Morris has been sentenced to death, this
Court must review the proceedings below for plain
error, under Rule 45A, Ala.R.App.P., which states:
“In all cases in which the death penalty has been
imposed, the Court of Criminal Appeals shall notice
any plain error or defect in the proceedings under
review, whether or not brought to the attention of
the trial court, and take appropriate appellate ac-
tion by reason thereof, whenever such error has or
probably has adversely affected the substantial
right of the appellant.”
This plain-error standard of review has been ad-
dressed by this court as follows:
“The standard of review in reviewing a claim under
the plain-error doctrine is stricter than the stan-
dard used in reviewing an issue that was properly
raised in the trial court or on appeal. As the United
States Supreme Court stated in United States v.
Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1
(1985), the plain-error doctrine applies only if the
error is ‘particularly egregious' and if it ‘seriously
affect[s] the fairness, integrity or public reputation
8a
of judicial proceedings.’ See Ex parte Price, 725
So.2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133,
119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v.
State, 723 So.2d 742 (Ala.Cr.App. 1997), aff'd, 723
So.2d 770 (Ala. 1998), cert. denied, 526 U.S. 1052,
119 S.Ct. 13860, 143 L.Ed.2d 521 (1999); Johnson v.
State, 620 So.2d 679, 701 (Ala.Cr.App. 1992), rev'd
on other grounds, 620 So.2d 709 (Ala. 1993), on re-
mand, 620 So.2d 714 (Ala.Cr.App.), cert. denied,
510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235
(1993).”
Hall vv. State, 820 #£So.2d 113, 121-22
(Ala.Crim.App.1999), affirmed, 820 So.2d 152 (Ala.
2001), cert. denied, 979 U.S. 1080, (2002). “The stan-
dard applicable to plain-error review is a stringent
one....” Ex parte Perkins, 851 So.2d 453, 455 (Ala.
2002), cert. denied, 540 U.S. 830, 124 S.Ct. 69, 157
L.Ed.2d 55 (2003).
Although Morris's failure to object will not pre-
clude this Court from reviewing an issue, it will
weigh against any claim of prejudice. See Dull v.
State, 600 So.2d 343 (Ala.Crim.App. 1991), affirmed,
600 So.2d 372 (Ala. 1992), cert. denied, 507 U.S. 924,
113 S.Ct. 1293, 122 L.Ed.2d 684 (1993).
I.
Morris argues that his execution is prohibited by
the Eighth Amendment to the United States Consti-
tution because he is mentally retarded. He raises
several contentions on appeal to support his argu-
ment.
9a
The record indicates that a hearing was held
pursuant to Atkins v. Virginia, 536 U.S. 304, 122
S.Ct. 2242, 153 L.Ed.2d 335 (2002), and following the
presentation of the evidence and arguments of coun-
sel, the trial court concluded that Morris is not men-
tally retarded. Morris argues that the trial court
made a number of factual errors and that it relied on
“reasoning foreclosed by the courts” in making its de-
termination. (Morris’s brief, at 29.)
The trial court's decision is due to be evaluated
under an abuse-of-discretion standard. Byrd v. State,
[Ms. CR-07-0113, May 1, 2009] _ So3d _, __
(Ala.Crim.App.2009) (““A judge abuses his discre-
tion only when his decision is based on an erroneous
conclusion of law or where the record contains no
evidence on which he rationally could have based his
decision.”””).
The United States Supreme Court in Atkins pro-
vided guidelines for determining whether a person is
mentally retarded to the extent that he or she should
not be executed. However, the Court also held that
ultimately the states should establish their own
definitions. The Court stated:
“To the extent there is serious disagreement
about the execution of mentally retarded offenders,
it is in determining which offenders are in fact re-
tarded. In this case, for instance, the Common-
wealth of Virginia disputes that Atkins suffers
from mental retardation. Not all people who claim
to be mentally retarded will be so impaired as to
10a
fall within the range of mentally retarded offenders
about whom there is a national consensus. As was
our approach in Ford v. Watnwright, 477 U.S. 399,
106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard
to insanity, ‘we leave to the State[s] the task of de-
veloping appropriate ways to enforce the constitu-
tional restriction upon [their] execution of sen-
tences.’ Id., at 405, 416—417.”
536 U.S. at 317, 122 S.Ct. at 2250. (Footnote omit-
ted).
Alabama has yet to statutorily define mental re-
tardation in the context of determining the suffi-
ciency of an Atkins claim. However, Alabama has de-
fined a mentally retarded person for the purposes of
the “Retarded Defendant Act,” § 15-24-1 et seq.,
Ala.Code 1975, as follows:
“Mentally retarded person. A person with signifi-
cant subaverage general intellectual functioning
resulting in or associated with concurrent impair-
ments in adaptive behavior and manifested during
the developmental period, as measured by appro-
priate standardized testing instruments.”
§ 15-24-2(3), Ala.Code 1975.
The Alabama Supreme Court has directed that
review of Atkins claims are to be conducted applying
the “most common’ or ‘broadest’ definition of mental
retardation, as represented by the clinical definitions
considered in Atkins and the definitions set forth in
the statutes of other states that prohibit the imposi-
lla
tion of the death sentence when the defendant is
mentally retarded. See, e.g., Ex parte Perkins, 851
So.2d 453, 455—56 (Ala. 2002).” Smith v. State, [Ms.
1060427, May 25, 2007] __ So.3d __, __ (Ala. 2007).
Moreover, in examining the definitions of mental re-
tardation in other states with statutes prohibiting
the execution of a mentally retarded person, the Ala-
bama Supreme Court has written:
“Those states with statutes prohibiting the execu-
tion of a mentally retarded defendant require that
a defendant, to be considered mentally retarded,
must have significantly subaverage intellectual
functioning (an IQ of 70 or below), and significant
or substantial deficits in adaptive behavior. Addi-
tionally, these problems must have manifested
themselves during the developmental period (i.e.,
before the defendant reached age 18).”
Ex parte Perkins, 851 So.2d 453, 456 (Ala. 2002).3
Similarly, in suggesting guidance for determining
whether a defendant is mentally retarded so as to
prohibit the defendant's execution, the Atkins Court
discussed clinical definitions of mental retardation
and concluded that these definitions “require not
3 See 851 So.2d at 456 n. 3 for a list of statutes referenced.
Moreover, Morrow v. State, 928 So.2d 315, 323-24 n. 8, 9, and
10 (Ala.Crim.App. 2004), provides a lst of states that have cre-
ated procedures for determining mental retardation legisla-
tively and judicially and sets out states’ varying requisite bur-
dens of proof.
12a
only subaverage intellectual functioning, but also
significant limitations in adaptive skills such as
communication, self-care, and self-direction that be-
came manifest before age 18.” 536 U.S. at 318. Fur-
ther, “[i]mplicit in the definition is that the subaver-
age intellectual functioning and the deficits in adap-
tive behavior must be present at the time the crime
was committed as well as having manifested them-
selves before age 18.” Smith v. State, _ So.3d at __.
Alabama appellate courts have determined that
until the Alabama Legislature establishes a defini-
tion for mental retardation to be used in determining
Atkins claims, Alabama courts will continue to re-
view such claims “on a case-by-case basis and to ap-
ply the guidelines that have been judicially devel-
oped thus far.” Morrow v. State, 928 So.2d 315, 324
(Ala.Crim.App. 2004).
The burden of proof for a claim that a capital de-
fendant is mentally retarded and therefore may not
constitutionally be executed is on the defendant, and
he or she must prove this claim by a preponderance
of the evidence. Cf. Trawick v. State, 698 So.2d 151
(Ala.Crim.App. 1995) (overruling Bass v. State, 585
So.2d 225 (Ala.Crim.App. 1991), to the extent it im-
plied that the burden of proving an insanity defense
was by a “preponderance of the evidence” rather than
by “clear and convincing evidence”).
“In the context of an Atkins claim, the defendant
has the burden of proving by a preponderance of
the evidence that he or she is mentally retarded.’
Smith v. State, [Ms. 1060427, May 25, 2007] __
13a
So.3d at _; see Smith v. State, [Ms. CR-97-1258,
Jan. 16, 2009] __ So.3d __ at __ (Ala.Crim.App.
2000) (opinion on return to fourth remand). “The
question of [whether a capital defendant is men-
tally retarded] is a factual one, and as such, it is
the function of the factfinder, not this Court, to de-
termine the weight that should be accorded to ex-
pert testimony of that issue.” Smith v. State, [Ms.
CR-97-1258, Jan. 16, 2009] _ So.3d at (quoting
Atkins v. Commonwealth, [266 Va. 73,] 581 S.E.2d
514, 515 (2003)). As the Alabama Supreme Court
has explained, questions regarding weight and
credibility determinations are better left to the cir-
cuit courts, ‘which [have] the opportunity to per-
sonally observe the witnesses and assess their
credibility.’ Smith v. State, [Ms. 1060427, May 25,
2007] _ So.3d at __ (quoting Smith v. State, [Ms.
CR-97-1258, Sept. 29, 2006] _ So3d _, __
(Ala.Crim.App. 2006) (Shaw, J., dissenting)(opinion
on return to third remand)).”
Byrd v. State, __ So.3d at _.. See also Jenkins v.
State, 972 So.2d 165, (Ala.Crim.App. 2005) (“Pre-
ponderance of the evidence’ is defined as: “The
greater weight of the evidence, not necessarily estab-
lished by the greater number of witnesses testifying
to a fact but by evidence that has the most convinc-
ing force; superior evidentiary weight that, though
not sufficient to free the mind wholly from all rea-
sonable doubt, is still sufficient to incline a fair and
impartial mind to one side of the issue rather than
the other.’ Black’s Law Dictionary 1220 (8th ed.
2004).”).
l4a
Moreover, if Morris fails to prove even one of the
three prongs of the Atkins test by a preponderance of
the evidence, he has not satisfied his burden of proof.
Smith v. State, __ So.3d at __ (“All three factors must
be met in order for a person to be classified as men-
tally retarded for purposes of an Atkins claim.”).
Following this Court’s decision on Morris’s first
direct appeal, an Atkins hearing was held to provide
him the opportunity to prove by a preponderance of
the evidence that he is mentally retarded. Morris
presented the testimony of Dr. Allen Shealy, a psy-
chologist, who testified that he had interviewed Mor-
ris on two occasions for a period of three hours each
time.
As to Morris’s intellectual functioning, he admin-
istered the Wechsler Adult Intelligence Scale Edition
3, the Bender-Gestalt with Cantor Interference Pro-
cedure, and the Vineland II Adaptive Behavior Scale.
He also testified that he interviewed Morris’s two sis-
ters and reviewed a number of Morris’s records, in-
cluding his prison and school records. He also testi-
fied that he reviewed previous psychological reports
and testings, as well as records from the Taylor Har-
din Secure Medical Facility. Dr. Shealy concluded
that Morris was mildly mentally retarded and that
he had a full-scale IQ of 50. (Atkins hearing R. 17.)
He testified that, chronologically, he reviewed Mor-
ris's first IQ test administered when Morris was six
years of age, which had resulted in an IQ score of 73.
He also noted that he had considered an IQ test ad-
ministered in 1999 by Dr. Kimberly Ackerson, find-
ing that Morris had a full scale IQ of 53 and that he
15a
was moderately mentally retarded. He testified that
he then considered his own findings, as well as the
last testing conducted by Dr. Glenn King in October
2007, which Morris scored a full-scale IQ of 41; Dr.
King concluded that he was malingering.
As to Morris’s adaptive behavior, Dr. Shealy tes-
tified that he first considered the findings of the Ala-
bama Department of Mental Health after it had ad-
ministered the AAMD Adaptive Behavior Scale in
1999 and had concluded that Morris was moderately
retarded. He then considered the test he adminis-
tered, concluding that Morris was significantly im-
paired in several areas, particularly in communica-
tion. He also found that Morris was impaired in daily
living and somewhat in socialization. Most recently,
Morris was given an adaptive behavior scale by Dr.
King, who concluded that Morris was functioning at
an age of five years and six months, but Dr. King be-
lieved that Morris was malingering. Although Dr.
Shealy also concluded that Morris may have been
malingering, he discounted the importance of this
conclusion, because he testified that even the men-
tally retarded can malinger. Moreover, he stated that
because he was in special education classes as a
child, the issue of malingering on the more current
tests was moot. (Atkins hearing R. 25).
Moreover, Dr. Shealy concluded, based on a
statement by the Alabama Department of Mental
Health that the reported history information on Mor-
ris suggested that his adaptive behavior had been
impaired since childhood, as well as on school re-
16a
cords, that his mental] retardation had manifested
before Morris reached age 18.
At the hearing, Morris also presented the testi-
mony of one of his sisters as to his adaptive behavior
as a child. She testified that Morris was a slow
learner and that he could not manage money or his
medicine. She also testified that he did not separate
colors before doing the wash, did not clean well, and
did not prepare meals. She stated that he had never
lived alone that he had never married but had fa-
thered two children.
The State presented the testimony of Wyatt
Rhone, a patient-education coordinator at Taylor
Hardin Secure Medical Facility. He testified that he
had met with Morris several times, both when he
was an outpatient and when he was an inpatient.
Specifically, he testified that in 2006, Morris was
transported from jail to Taylor Hardin, where Rhone
met with him six times during a four-to six-week pe-
riod. Morris’s beginning assessment score was a zero,
and at the completion of the six-week course, he was
still assessed at zero. Rhone testified that examples
of questions on the test are: “[W]ho's the head of the
courtroom[?]” (Atkins hearing R. 85.) “Who repre-
sents you or talks for you in court, which of course
would be your lawyer. Who is it that's against you in
court, which is the D.A.” Ud.) He testified that he
found it difficult to believe that Morris would have
scored a zero because the questions concerned very
basic knowledge, and on certain occasions Morris
was able to discuss far more complex matters; he
gave as an example a discussion they had had con-
17a
cerning an episode of the television show The Croco-
dile Hunter.
Approximately 10 to 11 months later, when Mor-
ris was an inpatient, Rhone testified that he met
with him for 13 30-minute sessions. He gave Morris
the same test, and he again scored zero. He also gave
Morris a true-false test containing 10 questions and
Morris scored a zero, which Rhone stated was “a lit-
tle unusual.” (Atkins hearing R. 91.) He testified that
he administered the true-false test a second time,
and Morris answered one question correctly. Rhone
concluded that “[1]f he was managing to answer all of
them wrong, that was an indication of an intellectual
ability to reason that out.” (Atkins hearing R. 92).
Rhone also stated that Morris typically refused to
answer multiple-choice questions. He testified that
he determined that Morris was malingering.
The State presented the testimony of Vicki Web
ster, a nurse at the Jefferson County jail, who stated
that she had met with Morris at least six times con-
cerning his medical conditions and treatments while
he was incarcerated at the jail. She testified that
Morris demonstrated familiarity with his medical
conditions and recounted his medical history and
past medications. He was also able to take advantage
of the medical services provided in the jail, as well as
to fill out the written medical forms.
Ned Whitehead testified for the State that he
was custodian of the records at the Jefferson County
jail. He identified a visitors log that indicated, de-
spite Morris’s statement to Dr. Shealy that he had
18a
not seen his family and that they may not know
where he is, that Morris's family members had vis-
ited him a number of times.
Terry Love, of the Alabama Probation and Parole
Office, testified that he had interviewed Morris pur-
suant to a presentence investigative report that had
been ordered in 2003. Morris provided the informa-
tion, such as his parents’ names and the dates they
had die d, his siblings’ names, and his employment
history, including “lawn service self-employed from
‘92 to ‘97, how much he made doing it, hustling, gam-
bling, stealing, sold marijuana, a variety of things he
was doing to make a living.” (Atkins hearing R. 112).
He also provided the names and ages of his children.
(Atkins hearing R. 114).
Phillip Russell, of the Birmingham Police De-
partment, testified that he interviewed Morris on the
day after his arrest in the present case. He testified
that Morris gave him his brother’s, Anthony Mor-
ris’s, name, date of birth, and address as his own. He
signed his statement using his brother’s name.
A handwriting specialist, Steven Drexler, testi-
fied for the State that Morris gave a number of writ-
ing samples for comparison purposes and that he
could determine that the signature on the submitted
court documents was that of Morris. He stated, how-
ever, that the handwriting in the text of the docu-
ments was inconclusive as to the author. Drexler tes-
tified that Morris had attempted to alter his hand-
writing in a number of the samples and that “[ijn
particular [in] the extended writings where he was
19a
writing paragraph after paragraph after paragraph
and maintaining that altered style, in my opinion it
would take a great deal of mental] fortitude to be able
to maintain that style and not resort back to your
normal habits.” (Atkins hearing R. 157). Moreover,
Drexler concluded that the reason he could not make
a determination concerning the author of the text of
the documents was because the “extended writing
standard provided to me was not natural writing.
And because I am comparing natural writing to un-
natural writing, my opinion is [ don't have an opin-
ion, it’s inconclusive.” (Atkins hearing R. 163).
Finally, the State presented the testimony of Dr.
Glenn King, a clinical and forensic psychologist, who
interviewed Morris on two occasions at the Jefferson
County Detention Facility. He first spoke with Mor-
ris on October 38, 2007 and testified that initially
Morris indicated that he did not know his Social Se-
curity number or his prison-identification number
(AIS number). Dr. King testified that “ve been in-
terviewing and evaluating death row inmates since
about 1991, both in Georgia and Alabama. And Mr.
Morris is the first person that’s not known his AIS
number.” (Atkins hearing R. 176.) He indicated that
he had no relationship with family members and
that he did not know their birth dates or ayes. He
indicated that at the time of his arrest he was living
with “some more people, would not identify them.”
(Atkins hearing R. 177.) He indicated that he had
been involved in odd jobs, including lawn service and
steel-mill assembly work and that he had a driver’s
license. Dr. King stated that when asked the farthest
distance he had driven, he became evasive. He also
20a
found that Morris was malingering in his answers as
to the current date and his current location. Dr. King
testified:
“His thought processes were normal in progress
and form. And at the same time, throughout the in-
terview from the early onset, he was, in my opinion,
somewhat uncooperative, mildly hostile, didn't
want to be there, clipped in his answers, frequently
evasive, not answering questions or frequently say-
ing ‘I don't know’ to things. And that's how I would
describe his affect as well is that he was somewhat
indifferent to the process and at other times he was
uncooperative.”
(Atkins hearing R. 178.)
Dr. King testified that he administered an IQ
test to Morris and that his overall score was 41,
which placed him “below the lowest one tenth of one
percent of the general population.” (Atkins hearing
R. 181-82.) He stated that “a lot of Morris's scores
were in the three to five year old range.” (Atkins
hearing R. 182.) Dr. King concluded that Morris was
“clearly malingering” for a number of reasons. (At-
kins hearing R. 183.) He noted that his IQ scores
were “totally inconsistent” with his “general presen-
tation” during the interview, as well as his responses
and statements on the videotapes made at the time
of the arrest. (Atkins hearing R. 182.) Moreover,
some of the questions Morris answered incorrectly
could be answered correctly by people who suffer
from extreme mental retardation. As examples, Dr.
King noted that Morris was shown a picture of a cat
2la
with a ball and stated that the picture showed a cat
with a kid. He was unable to take four blocks and
put them in the shape of a person although a plate
showed the design. Even after Dr. King demon-
strated the appropriate configuration, Morris was
still unable to do so. Dr. King also pointed out the
inconsistency in Morris’s inability to count a series of
blocks while his achievement test showed that he
could add and subtract simple numbers. In the
achievement test, Morris was able to read fill-in-the-
blank questions but responded with written answers
that were obviously incorrect. Morris was unable to
spell simple words on his achievement test; however,
in contrast, his written requests for health care con-
sultations contained misspelled words but were so-
phisticated as to syntax and vocabulary.
As to adaptive behavior, Dr. King testified that
he tested Morris on the 10 “domains” dealing with
the ability to communicate, the ability to use com-
munity resources, and functional academics. (Atkins
hearing R. 191.) He stated that the range of the scor-
ing was 1 to 19, with the average being 10. As to
Morris’s scores, Dr. King testified:
“He scored a three or lower on absolutely every-
thing indicating that he essentially is nonfunc-
tional in all of these areas meaning he’s not able to
communicate, not able to use community resources,
not able to have any academic abilities, unable to
take care of himself, has no conception really of
health and safety issues, can’t use leisure activities,
can't even take care of himself in terms of bathe
himself, wash himself and that sort of thing, cannot
22a
direct himself, and also has no social relationships
meaning in almost all of these cases-in five of the
subtest scores, he scored one, which is the lowest
possible. And his individual answers on some of the
items were also absurd.”
(Atkins hearing R. 192.) Among the answers given by
Morris were that he was unable to answer the tele-
phone or to cut his meat in order to eat it.
Dr. King also testified that he administered a
test to Morris specifically devised to determine if the
respondent is malingering—the Test of Memory Ma-
lingering. Dr. King found that Morris was malinger-
ing based on his scores on that test. He also noted
that his previous test scores given by other adminis-
trators also indicated that he was malingering; for
example, Dr. King noted that the chances of Morris's
having scored a 0 on a 10-question true-false test
was 1 in 4,000. He also noted that Dr. Kamal Nagi, a
psychiatrist and forensic examiner at Taylor Hardin
Secure Medical Facility who had also interviewed
Morris, believed that he was malingering.
Ultimately, based on all of the information
available to him, Dr. King concluded that Morris
functions in the high borderline to low average range
of intellectual ability with an IQ possibly in the low
80s. He also found that Morris’s adaptive skills indi-
cated that he could drive and that he was able to
support himself by working. Moreover, he noted that
the IQ test that he was administered in first grade
scored him at 73, “certainly not retarded.” (Atkins
hearing R. 202.) Dr. King also noted that he had re-
23a
viewed Morris’s school records and that there was no
indication that Morris was ever in special-education
classes. The court confirmed through the attorneys
that Dr. Shealy had stated that Morris was in spe-
cial-education classes based on information from
Morris or family members. (Atkins hearing R. 204.)
Dr. King testified that Morris’s school records indi-
cated that he was a slow learner, but that he was
rated as average in seventh grade for participation in
class discussions and activities; further, although
there was a place on the form in the school records
on which to indicate any handicaps, none were in-
cluded for Morris.
On cross-examination, Dr. King stated that he
asked Morris if he had a “jailhouse lawyer” at the
Jefferson County jail help him fill out his documents,
and Morris responded that he did not. Morris in-
formed him that when he had been at Homewood, he
had someone who had helped him on occasion. Dr.
King concluded that Morris is not mentally retarded.
Based on the evidence presented at the hearing,
the trial court found that Morris was not retarded.
Specifically, the court found that, because all the ex-
aminers believed that Morris was malingering, they
could not establish an accurate IQ score; rather they
acknowledged that his actual IQ may be higher than
the scores he had received through testing. He also
found that Morris was able to adapt and function,
referencing his ability to sell drugs and street-
savvies. Finally, he found that there was no manifes-
tation of retardation before age 18, stating that he
24a
believed that Morris's school records were more relli-
able than the accounts given by his family members.
In the present case, Morris has not proved by a
preponderance of the evidence that he is mentally
retarded, such that the determination by the trial
court, pursuant to the discretion vested in it as the
fact finder, should be reversed. As to Morris’s intel-
lectual functioning, the experts all found that he was
malingering. Although Dr. Shealy concluded that
this fact did not prohibit his finding that Morris is
mentally retarded, Dr. King and Wyatt Rhone both
found that Morris's specific instances of malingering
indicated that he was not mentally retarded. The
trial court was entitled to weigh the conflicting tes-
timony of the experts and evaluate their testimony.
The court did not exceed its discretion in doing so.
While the jury is the fact finder in reconciling
conflicting expert testimony as to mental competency
at the time of the offense, the following guidelines
are applicable to the trial court's determination as to
conflicting expert testimony as to mental retarda-
tion:
““Opinions of experts in the field of mental dis-
orders as to an accused’s sanity or insanity are of
course admissible and certainly should be care-
fully considered by a jury. Such opinion evidence
is not, however, conclusive on the jury. The re-
sponsibility is upon the jury to weigh all the evi-
dence, expert and lay, pertaining to the issue of
the accused’s mental competency. The weight to
be accorded all such evidence is solely within the
25a
jury's province. They may reject it all even though
it is without conflict.”
“Fitzhugh v. State, 35 Ala.App. 18, 26, 43 So.2d
831, 838, cert. denied, 253 Ala. 246, 43 So.2d 839
(1949), cert. denied, 339 U.S. 986, 70 S.Ct. 1007, 94
L.Ed. 1388 (1950)...
ace
““Expert testimony, even when uncontradicted, is
not conclusive on the issue of sanity, ... and the jury
may find such testimony adequately rebutted by
the observations of mere laymen.” [United States
v.} Mota, 598 F.2d [995] at 999 [ (5th Cir.1979)].
See also Greider v. Duckworth, 701 F.2d 1228, 1234
(7th Cir. 1983) (“The jury could credit the testi-
mony of lay witnesses over that of an expert wit-
ness”); United States v. Emery, 682 F.2d 493, 498 n.
3 (5th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct.
465, 74 L.Ed.2d 615 (1982) (“The jury can find ex-
pert testimony adequately rebutted by the observa-
tions of laymen’).
“Although “a factfinder need not adhere to an ex-
pert opinion on incompetency if there is reason to
discount it,” Strickland v. Francis, 738 F.2d 1542,
1552 (11th Cir. 1984), “the jury cannot arbitrarily
ignore the experts in favor of the observations of
laymen,” id., and must have an “objective reason,”
to disregard the expert's opinion which is rebutted
26a
only by lay testimony. Wallace v. Kemp, 757 F.2d
1102, 1109 (11th Cir. 1985).
““TIn making this judgment [to disregard the ex-
pert's opinion], the court should consider
““(1) the correctness or adequacy of the factual
assumptions on which the expert opinions are
based;
““(2) possible bias in the experts’ appraisal of
the defendant's condition;
““(3) inconsistencies in the experts’ testimony,
or material variations between experts; and
““(4) the relevance and strength of the contrary
lay testimony.
““Strickland, 738 F.2d at 1552; Brock [v. United
States,| 387 F.2d [254, 258 (5th Cir. 1967) |] (quot-
ing Mims v. United States, 375 F.2d 135, 143—44
(5th Cir. 1967)).”
“Wallace v. Kemp, 757 F.2d at 1109.
“Ellis v. State, 570 So.2d 744, 751-53 (Ala.Cr.App.
1990).”
Dunaway ov. State, 746 So.2d 1021, 1033
(Ala.Crim.App. 1998), affirmed, 746 So.2d 1042 (Ala.
1999); cert. denied, 529 U.S. 1089, 120 S.Ct. 1724,
146 L.Ed.2d 645 (2000).
27a
Moreover, Morris did not prove by a preponder-
ance of the evidence that any of the alleged deficits
in his adaptive behavior that might indicate retarda-
tion had manifested before the age of 18. Although
his sisters testified that he could not live alone and
that he had always lived with family members, evi-
dence at the hearing in the presentence investigative
report indicated that Morris was living with another
man at the time of the offense.4 There was also no
indication in Morris’s school records that he attended
special-education classes. A review of Morris’s school
records, contained in the record on appeal as Defen-
dant's Exhibit 4, indicates that he was considered to
be a slow learner and was described as “mischievous”
in elementary school, but was assessed an IQ score of
73. Although he failed courses in 7th and 8th grades,
he also made B’s, C’s, and D’s. Because the evidence
was conflicting and therefore implicated credibility
and weighing choices, this determination is better
suited to the trial court. See generally Ex parte
Bridgett, 1 So.3d 1057, 1063 (Ala. 2008); Denson v.
Middleton, 17 Ala.App. 266, 267, 84 So. 473, 474
(1919). There is no indication from the evidence pre-
sented that the determination made by the trial
court was improper.
As to Morris’s adaptive functioning, although
there was evidence indicating that Morris was inca-
pable of living alone and of performing certain basic
4 During Morris’s testimony at trial, he acknowledged that he
was renting from a handicapped man with whom he lived and
for whom he shopped and prepared meals. (R. 428-29.)
28a
tasks, this evidence came generally from Morris him-
self or his sisters. Although Morris’s sister testified
that Morris was incapable of taking his temperature
or taking medicine, the State presented evidence in-
dicating that Morris sought medical attention in jail
when needed and articulately requested his medica-
tion or need for treatment.® The State also presented
evidence that Morris had worked and engaged in
drug dealing and gambling. See Smith v. State, [Ms.
1060427, May 25, 2007] __ So.3d at __ (“More in-
sightful into Smith’s adaptive behavior is the fact
that Smith was involved in an interstate illegal-drug
enterprise.”). There was also evidence indicating
that Morris worked in lawn care and in assembly
work. Cf. Holladay v. Allen, 555 F.3d 1346, 1359
(11th Cir. 2009) (Holladay’s jobs included pumping
gas “which he had to leave because he could not work
the cash register” and a warehouse job that he lost
“because other employees were concerned about his
inabilities.”). The State presented further evidence
indicating that Morris used his brother’s name, ad-
dress, and date of birth when he was arrested and
again in a statement to the police. See Smith uv.
Smith, __ So.3d at __ (Alabama Supreme Court con-
sidered the fact that Smith gave a police officer a
false name two days before the offense as indicating
of a lack of deficits in his adaptive behavior.).
5 It is also notable that although Morris’s sister also testified
that he was incapable of cooking a meal, Morris testified at trial
that he had cooked breakfast for his landlord and himself on
the morning of the offense.
29a
Morris’s specific arguments raised on appeal ad-
dress conflicts in the evidence, which were properly
weighed and evaluated by the trial court as the
finder of fact. Therefore, the trial court did no err in
determining that Morris is not mentally retarded for
purposes of Atkins.
II.
Morris argues that he was improperly sentenced
to death because, he says, the trial court failed to
consider and to find the existence of several non-
statutory mitigating circumstances, and it impermis-
sibly counted the same aggravating circumstance
twice.
A.
Morris contends that the trial court improperly
failed to consider the following nonstatutory mitigat-
ing evidence: that he had a low level of intelligence;
that he had a poor educational history; that he suf-
fered from psychiatric problems; that he had a his-
tory of alcohol and drug abuse; that he was intoxi-
cated at the time of the crime; that his parents di-
vorced when he was a teenager; that his father died
in a fire when he was a teenager and his mother died
four months before the crime for which he was con-
victed; that the killing of Rochester was not planned
because he believed no one was home; that he had
adapted to prison life; and that his sister asked for
mercy on his behalf. Thus, Morris argues that the
trial court's finding, without explanation in its sen-
30a
tencing order that no nonstatutory mitigating cir-
cumstances existed was erroneous.
Morris did not object on this ground at the trial
court level; therefore this issue must be analyzed
pursuant to the plain-error rule. Rule 45A,
Ala.R.App.P.
In Johnson v. State, [{Ms. CR-99-1349, October 2,
2009] _. So.3d __ (Ala.Crim.App. 2009), this Court
determined that the trial court's failure to make spe-
cific findings as to each nonstatutory mitigating cir-
cumstance in its sentencing order did not constitute
plain error. Moreover, as in the present case, the
sentencing order addressed all that was required, al-
though it did not list or find any nonstatutory miti-
gating circumstances. In so holding, we wrote:
“In Ex parte Lewis, [Ms. 1070647, May 29, 2009]
_. So.3d __ (Ala. 2009), the Alabama Supreme
Court quoted Clark v. State, 896 So.2d 584
(Ala.Crim.App. 2000), concerning a trial court's
duty in considering whether proffered evidence
constitutes a mitigating circumstance, stating:
““The sentencing order shows that the trial
court considered all of the mitigating evidence of-
fered by Clark. The trial court did not limit or re-
strict Clark in any way as to the evidence he pre-
sented or the arguments he made regarding miti-
gating circumstances. In its sentencing order, the
trial court addressed each statutory mitigating
circumstance listed in § 13A-5-51, Ala.Code 1975,
and it determined that none of those circum-
dla
stances existed under the evidence presented. Al-
though the trial court did not list and make find-
ings as to the existence or nonexistence of each
nonstatutory mitigating circumstance offered by
Clark, as noted above, such a listing is not re-
quired, and the trial court's not making such find-
ings indicates only that the trial court found the
offered evidence not to be mitigating, not that the
trial court did not consider this evidence. Clearly,
the trial court considered Clark’s proffered evi-
dence of mitigation but concluded that the evi-
dence did not rise to the level of a mitigating cir-
cumstance. The trial court's findings in this re-
gard are supported by the record.
““Because it is clear from a review of the entire
record that the trial court understood its duty to
consider all the mitigating evidence presented by
Clark, that the trial court did in fact consider all
such evidence, and that the trial court's findings
are supported by the evidence, we find no error,
plain or otherwise, in the trial court's findings re-
garding the statutory and nonstatutory mitigat-
ing circumstances.”
“896 So.2d at 652—53 (emphasis added).’
“ _So.3dat _.
“Here, it is clear that the trial court considered all
of the evidence offered and made proper findings as
to what evidence constituted nonstatutory mitigat-
ing circumstances. “[T]he trial court is not required
to specify in its sentencing order each item of pro-
32a
posed nonstatutory mitigating evidence offered that
it considered and found not to be mitigating.”
Williams ov. State, 710 So.2d 1276, 1347
(Ala.Crim.App. 1996), aff'd, 710 So.2d 1350 (Ala.
1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325,
141 L.Ed.2d 699 (1998).’ Brown v. State, 11 So.3d
866, 932 (Ala.Crim.App. 2007), affirmed, ix parte
Brown, 11 So.3d 933 (Ala. 2008), cert. denied,
Brown v. Alabama, _ U.S. __ , 129 S.Ct. 2864, 174
L..Ed.2d 582 (2009). ‘We have often stated that
“lajlithough the trial court is required to consider
all mitigating circumstances, the decision § of
whether a particular mitigating circumstance is
proven and the weight to be given it rests with the
sentencer.” Boyd vu. State, 715 So.2d 825, 840
(Al.Crim.App. 1997), affd, 715 So.2d 852 (Ala.
1998), quoting Williams v. State, 710 So.2d 1276,
1347 (Ala.Crim.App. 1996), affd, 710 So.2d 1350
(Al.1997), cert. demied, 524 U.S. 929, 118 S.Ct.
2325, 141 L.Ed.2d 699 (1998).’ Hodges v. State, 856
So.2d 875, 932 (Ala.Crim.App. 2001), affirmed, Ex
parte Hodges, 856 So.2d 936 (Ala. 2003), cert. de-
nied, Hodges v. Alabama, 540 U.S. 986, 124 S.Ct.
465, 157 L.Ed.2d 379 (2003) (finding that ‘a trial
court is not bound to find as a mitigating circum-
stance that a codefendant received a lesser sen-
tence than death. See Johnson v. State, 820 So.2d
842 (Ala.Crim.App. 2000), aff'd, 820 So.2d 883 (Ala.
2001)).”
So.3d at __.
Here, Morris made no argument at sentencing
concerning the existence of any nonstatutory mitigat-
dda
ing circumstances. In fact, the only witness the de-
fense presented was Morris’s sister, who became
emotional and was unable to testify. Morris did not
argue the existence of any of the now cited nonstatu-
tory mitigating circumstances at the sentencing
hearing.
“The trial court did not have an obligation to in-
struct on a statutory mitigating circumstance that
was not relied upon or argued during the penalty
phase. As we stated in Johnson v. State, 820 So.2d
842, 875 (Ala.Crim.App. 2000), [aff'd], 820 So.2d
883 (Ala. 2001):
“Johnson did not present any evidence at the
penalty phase concerning the statutory mitigat-
ing circumstances enumerated in § 13A-5-51....
cece
““The tral court’s instructions were consistent
with the evidence presented at the penalty phase;
they did not constitute plain error. As we stated
in Pressley v. State, 770 So.2d 115, 141 42
(Ala.Cr.App. 1999):
“<The trial judge had no burden to recognize a
statutory mitigating circumstance not presented
by the defense, and proffer it to the jury.... There
is no requirement that the trial court read the en-
tire list of statutory mitigating circumstances to a
jury where there was no evidence offered to sup-
port each circumstance. Holladay v. State, 629
So.2d 673, 687 (Ala.Cr.App. 1992), cert. denied,
34a
510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555
(1994). The trial court’s instructions were suffi-
cient. The trial court did not commit plain error
by not sua sponte instructing the jury on a statu-
tory mitigating circumstance not offered by
Pressley.”
““See also Burgess v. State, 723 So.2d 742
(Ala.Cr.App. 1997), affd, 723 So.2d 770 (Ala.
1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360,
143 L.Ed.2d 521 (1999); Rieber v. State, 663 So.2d
985 (Ala.Cr.App. 1994), aff'd, 663 So.2d 999 (Ala.),
cert. denied, 516 U.S. 995, 116 S.Ct. 531, 133
L.Ed.2d 437 (1995).”
“McGriff v. State, 908 So.2d 961 at 1020 (Ala. Crim
App 2000) (opinion on return to remand).”
Ziegler v. State, 886 So.2d 127, 148 (Ala.Crim.App.
2003), cert. denied, 543 U.S. 863, 125 S.Ct. 194, 160
L.Ed.2d 106 (2003).
The jury was charged as to every statutory miti-
gating circumstance and charged that it could con-
sider any aspect of Morris's character or record. See §
13A-5-51 and § 13A-5-52, Ala.Code 1975. The trial
court is not required to recognize a nonstatutory
mitigating circumstance where no evidence was pre-
sented at sentencing as to its existence, nor was any
such nonstatutory mitigating circumstance argued
by Morris as to any impact it may have in determin-
ing his sentence.
35a
B.
Morris argues that the trial judge and the jury
improperly counted the same aggravating circum-
stance twice. He refers to the aggravating circum-
stances that the murder was committed while Morris
was engaged in the commission of a burglary, § 13A-
5-49 § 4), Ala.Code 1975, and that the murder was
committed when Morris was engaged in the commis-
sion of a robbery, § 13A-5-49(4), Ala.Code 1975. He
argues that because the same conduct supported a
finding of both aggravating circumstances, the trial
court and jury should have considered and found
only one.
Morris raises this claim for the first time on ap-
peal; therefore, this claim must be evaluated pursu-
ant to the plain-error rule. See Rule 465A,
Ala.R.App.P.
However, this Court has previously recognized
that if two or more of the circumstances that make
the offense a capital offense are also aggravating cir-
cumstances under § 13A-5-49(4), Ala.Code 1975,
then the trial court may consider and find each of the
underlying offenses as an aggravating circumstance
and so charge the jury.
In Turner v. State, 924 So.2d 737 (Ala.Crim.App.
2002), cert. denied, 547 U.S. 1056, 126 S.Ct. 1653,
164 L.Ed.2d 399 (2006), Turner claimed that his con-
stitutional rights had been violated by the considera-
tion of both robbery and rape, the underlying of-
36a
fenses in his capital-murder charge, as two separate
aggravating circumstances. This Court found:
“As we stated in Hodges v. State, 856 So.2d 875,
889 (Ala.Crim.App. 2001), ‘If the actions committed
during the course of the murder support the finding
that more then one of the enumerated underlying
felonies was committed, then a trial court may ap-
ply § 18A-5-49(4) more than once.’ Citing Stewart v.
State, 730 So.2d 1203 (Ala.Crim.App. 1997), affad,
730 So.2d 1246 (Ala.1999).”
924 So.2d at 790.
The circumstances of Rochester's murder sup-
port a finding that the murder occurred during a
burglary and robbery and that each aggravating cir-
cumstance should apply to Morris's sentencing.
C.
Morris argues that the Eighth Amendment to
the United States Constitution requires that he be
sentenced to no more than life in prison without pa-
role. Specifically, Morris contends that because the
murder was “entirely unplanned and given the
wealth of mitigating evidence in Mr. Morris's back-
ground,” the aggravating circumstances were out-
weighed by the mitigating circumstances, and he
should have been sentenced to life imprisonment
without the possibility of parole.
37a
Morris raises this issue for the first time on ap-
peal; thus, the plain-error rule applies. See Rule 45A,
Ala.R.App.P.
The process of weighing the aggravating circum-
stances and the mitigating circumstances is ad-
dressed in § 13A-5-48, Ala.Code 1975:
“The process described in Sections 13A-8-46(e)(2),
13A-5-46(e)(3) and Section 13A-5-47(e) of weighing
the aggravating and mitigating circumstances to
determine the sentence shail not be defined to
mean a mere tallying of aggravating and mitigat-
ing circumstances for the purpose of numerical
comparison. Instead, it shall be defined to mean a
process by which circumstances relevant to sen-
tence are marshalled and considered in an organ-
ized fashion for the purpose of determining
whether the proper sentence in view of all the rele-
vant circumstances in an individual case is life im-
prisonment without parole or death.”
The weighing process is best undertaken by the
sentencing authority, who has directly heard the evi-
dence and seen the witnesses and therefore can bet-
ter determine what evidence should have the greater
impact in determining the proper punishment for the
capital defendant. This process does not deal with
numerical values or comparisons. The determination
rests on the specific circumstances of each case.
“In keeping with the dictates of the United States
Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98
S.Ct. 2954, 57 L.Ed.2d 973 (1978), the sentencing
38a
authority in Alabama, the trial judge, has unlim-
ited discretion to consider any perceived mitigating
circumstances, and he can assign appropriate
weight to particular mitigating circumstances. The
United States Constitution does not require that
specific weights be assigned to different aggravat-
ing and mitigating circumstances. Murry v. State,
455 So.2d 53 (Ala.Crim.App. 1983), rev'd on other
grounds, 455 So.2d 72 (Ala. 1984). Therefore, the
trial judge is free to consider each case individually
and determine whether a particular aggravating
circumstance outweighs the mitigating circum-
stances or vice versa. Moore v. Balkcom, 716 F.2d
1511 (11th Cir. 1983). The determination of
whether the aggravating circumstances outweigh
the mitigating circumstances is not a numerical
one, but instead involves the gravity of the aggra-
vation as compared to the mitigation.”
Ex parte Clisby, 456 So.2d 105, 108—09 (Ala. 1984),
cert. denied, Clisby v. Alabama, 470 U.S. 1009, 105
S.Ct. 1372, 84 L.Ed.2d 391(19885).
Moreover,
““lw)hile the existence of an aggravating or miti-
gating circumstance is a fact susceptible to proof
under a reasonable doubt or preponderance stan-
dard, see State v. Dixon, 283 So.2d 1, 9 (Fla.
1973), cert. denied, 416 U.S. 943, 94 S.Ct. [1950],
40 L.Ed.2d 295 (1974), and State v. Johnson, 298
N.C. 47, 257 S.E.2d 597, 617-18 (1979), the rela-
tive weight is not. The process of weighing cir-
cumstances is a matter for judge and jury, and,
39a
unlike facts, is not susceptible to proof by either
party.’
““696 F.2d at 818. Alabama courts have adopted
the Eleventh Circuit’s rationale. See Lawhorn uv.
State, 581 So.2d 1159, 1171 (Ala.Crim.App. 1990)
(‘while the existence of an aggravating or mitigat-
ing circumstance is a fact susceptible to proof, the
relative weight of each is not; the process of
weighing, unlike facts, is not susceptible to proof
by either party’); see also Melson v. State, 775
So.2d 857, 900-901 (Ala.Crim.App. 1999);
Morrison v. State, 500 So.2d 36, 45
(Ala.Crim.App. 1985).
““Thus, the determination whether the aggra-
vating circumstances outweigh the mitigating cir-
cumstances is not a finding of fact or an element
of the offense.”
Harris v. State, 2 So.3d 880, 905 (Ala.Crim.App.
2007).
Here, the trial court properly weighed the aggra-
vating circumstances and the mitigating circum-
stances before determining Morris’s sentence. The
judge did not err in determining that the three ag-
gravating circumstances that the murder was com-
mitted during the course of a robbery and a burglary
§§ 13A-5-49 § 4)) and that Morris had previously
been convicted of a violent felony (§ 13A-5-49(2))
outweighed the mitigating circumstances surround-
ing his character and background.
40a
IIT.
Morris alleges that the charges against him
should be dismissed because, he says, he was denied
his constitutional right to a speedy trial. Morris ar-
gues that the six-year gap between his arrest and his
first trial was presumptively prejudicial and was
caused by the State’s negligence. He further con-
tends that he did not acquiesce to the delay and that
he was prejudiced because the witnesses’ memories
may have been affected; moreover, certain witnesses
may have disappeared.
Morris first raised this argument in his brief in
his first appeal; therefore, any error must rise to the
level of plain error. See Rule 45A, Ala.R.App.P. see
also Sharp v. State, [Ms. CR-05-2371, August 29,
2008] So.8d __,__ (Ala.Crim.App. 2008).
The record indicates that Rochester's murder oc-
curred on February 25, 1997, and that Morris was
arrested for public intoxication on that same date.
The arrest warrant charging him with Rochester’s
murder was issued on February 27, 1997. On March
31, 2008, jury selection began in Morris’s first trial.®
Thus, the delay between Morris’s arrest and his trial
was approximately 73 months.
6 This Court may take judicial notice of its records in Morris's
first appeal. Lee v. State, [Ms. CR-07-0054, October 9, 2009] __
So.3d _, __ (Ala.Crim.App. 2009), citing Hull v. State, 607
So.2d 369, 371 (Ala.Crim.App. 1992).
4la
“As the Alabama Supreme Court stated in Ex
parte Walker, 928 So.2d 259, 263 (Ala. 2005):
“An accused’s right to a speedy trial is guaran-
teed by the Sixth Amendment to the United
States Constitution and by Art. I, § 6, of the Ala-
bama Constitution, 1901. As noted, an evaluation
of an accused’s speedy-trial claim requires us to
balance the four factors the United States Su-
preme Court set forth in Barker [v. Wingo, 407
U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)):
“(ljength of delay, the reason for the delay, the de-
fendant's assertion of [her] right, and prejudice to
the defendant.” 407 U.S. at 530, 92 S.Ct. 2182, 33
L.Ed.2d 101 (footnote omitted). See also Ex parte
Carrell, 565 So.2d [104] at 105 [(Ala. 1990)]. “A
single factor is not necessarily determinative, be-
cause this is a ‘balancing test, in which the con-
duct of both the prosecution and the defense are
weighed.” Ex parte Clopton, 656 So.2d [1243] at
1245 [(Ala. 1985)] (quoting Barker, 407 U.S. at
530, 92 S.Ct. 2182, 33 L.Ed.2d 101). We examine
each factor in turn.’
“(Footnotes omitted.)
“A. Length of delay. As the Ex parte Walker court
stated concerning the length of the delay:
“In Doggett v. United States, the United States
Supreme Court explained that the first factor—
length of delay—‘“is actually a double enquiry.”
505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d
520 (1992). The first incuiry under this factor is
42a
whether the length of the delay is “presumptively
prejudicial.” 505 U.S. at 652, 112 S.Ct. 2686, 120
L.Ed.2d 520 (quoting Barker, 407 U.S. at 530-31,
92 S.Ct. 2182, 33 L.Ed.2d 101). A finding that the
length of delay is presumptively prejudicial “trig-
gers’ an examination of the remaining three
Barker factors. 505 U.S. at 652 n. 1, 112 S.Ct.
2686, 120 L.Ed.2d 520 (“[A]s the term is used in
this threshold context, ‘presumptive prejudice’
does not necessarily indicate a statistical prob-
ability of prejudice; it simply marks the point at
which courts deem the delay unreasonable
enough to trigger the Barker enquiry.”). See also
Roberson uv. State, 864 So.2d 379, 394
(Ala.Crim.App. 2002).
“In Alabama, “(t]he length of delay is measured
from the date of the indictment or the date of the
issuance of an arrest warrant-whichever is ear-
lier-to the date of the trial.” Roberson, 864 So.2d
at 394. Cf. § 15-2-7, Ala.Code 1975 (“A prosecu-
tion may be commenced within the meaning of
this chapter by finding an indictment, the issuing
of a warrant or by binding over the offender.”);
Rule 2.1, Ala.R.Crim.P. (“All criminal proceedings
shall be commenced either by indictment or by
complaint.”). The length of the delay in this case
was approximately 50 months: Walker was in-
dicted on January 14, 2000, and she pleaded
guilty on March 25, 2004. See Carrell, 565 So.2d
at 107 (calculating the length of delay from de-
fendant's indictment until his plea of guilty). The
State concedes (and both the trial court and the
Court of Criminal Appeals held) that the 50-
43a
month delay in Walker’s case was presumptively
prejudicial.’
“928 So.2d at 263-64 (footnotes omitted).”
Belisle v. State, 11 So.3d 256, 271—72 (Ala.Crim.App.
2007), affirmed, 11 So.3d 323 (Ala. 2008), cert. de-
nied, __—~U-.S. __, 129 S.Ct. 2865, 174 L.Ed.2d 582
(2009.)
Here, because the delay was 73 months, the de-
lay was presumptively prejudicial. Accordingly, we
examine the remaining factors set out in Barker uv.
Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101
(1972).
As to the reasons for the delay, “[t]he State has
the burden of justifying the delay.” Ex parte
Anderson, 979 So.2d 777, 780 (Ala. 2007). In the pre-
sent case, the majority ef the delays are attributable
to Morris. Morris was arrested on February 25, 1997,
and the case-action summary included in the record
of Morris’s first trial indicates that the case was as-
signed to the original trial court in December 1997.
Morris was arraigned in January 1998, and the case
was set for trial in May 1998. A number of motions
were filed, largely by defense counsel, and subpoenas
were issued, and his case was reset for trial on Feb-
ruary 22, 1999. However, on February 10, 1999,
Morris filed a motion for continuance until a psychi-
atric evaluation could be completed. The trial court
ordered that Morris be evaluated for competency to
stand trial and mental state at the time of the of-
fense. Dr. Kimberly Ackerson was then appointed by
44a
the trial court, and she examined Morris in May
1999. He was again examined for the same reasons
by Dr. Clyde Williams. Both experts found Morris
incompetent to stand trial, but determined that his
competency could be restored through competency
training. Thereafter, on November 11, 1999,’ the
State filed a motion to determine Morris's compe-
tency because the trial had been set for December 6,
1999.
Morris was found incompetent to stand trial by
order dated February 21, 2001, and required to un-
dergo competency training by the Alabama Depart-
ment of Mental Health and Mental Retardation at
Taylor Hardin Secure Medical Facility. Morris at-
tended outpatient competency training sessions from
March 9, 2001, until March 31, 2001. Morris’s as-
sessment scores failed to improve, and on June 22,
2001, Wyatt Rhone filed a competency-evaluation re-
port indicating that he believed that Morris was pur-
posefully giving false answers and malingering;
therefore, on November 8, 2001, the State filed a mo-
tion requesting that Morris be placed into inpatient
treatment, training, and evaluation. In that motion,
the State argued that the case had been continued a
number of times to determine Morris’s competency
and that there was still no basis on which to deter-
mine whether Morris had benefitted from the train-
ing or whether he was currently competent to stand
7 The case-action summary, however, despite the date
stamped on the State’s motion, reflects that the State filed this
motion on November 15, 1999.
45a
trial. Thus, the trial court ordered Morris to be com-
mitted to Taylor Hardin Secure Medical Facility on
December 4, 2001, and he was committed on Decem-
ber 18, 2001. On January 31, 2002, Morris was diag-
nosed as competent to stand trial by Dr. Nagi, who
also determined that Morris had been malingering.
On July 26, 2002, the State again requested a com-
petency hearing, which was held on December 9,
2002. Morris was determined to be competent on
January 15, 2003, and the striking of the jury began
on March 31, 2003.
Thus, almost four years of the delay were attrib-
utable to determining Morris’s competency to stand
trial. Moreover, it was concluded that for at least
part of the treatment, he had been malingering.
““Tyelays occasioned by the defendant or on his be-
half are excluded from the length of the delay and
are heavily counted against the defendant in apply-
ing the balancing test of Barker.”” Ex parte Walker,
928 So.2d at 265 (Ala. 2005) (quoting Zumbado uv.
State, 615 So.2d 1223, 1234 (Ala.Crim.App. 1993),
quoting in turn McCallum v. State, 407 So.2d 865,
868 (Ala.Crim.App. 1981)).” Ex parte Anderson, 979
So.2d at 781.
“Barker v. Wingo recognizes three categories of
reasons for delay: (1) deliberate delay, (2) negli-
gent delay, and (3) justified delay. 407 U.S. at
531, 92 S.Ct. 2182, 33 L.Ed.2d 101. Courts assign
different weight to different reasons for delay. De-
liberate delay is “weighted heavily” against the
State. 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d
101. Deliberate delay includes an “attempt to de-
46a
lay the trial in order to hamper the defense” or
“to gain some tactical advantage over (defen-
dants) or to harass them.” 407 U.S. at 531 & n.
32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (quoting United
States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455,
30 L.Ed.2d 468 (1971)). Neghgent delay is
weighted less heavily against the State than is
deliberate delay. Barker, 407 U.S. at 531, 92 S.Ct.
2182, 33 L.Ed.2d 101; Ex parte Carrell, 565 So.2d
{[104,] 108 [(Ala. 1990)]. Justified delay-—which
includes such occurrences as missing witnesses or
delay for which the defendant is primarily re-
sponsible—is not weighted against the State.
Barker, 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d
101; Zumbado v. State, 615 So.2d 1223, 1234
(Ala.Crim.App. 1993) (“Delays occasioned by the
defendant or on his behalf are excluded from the
length of delay and are heavily counted against
the defendant in applying the balancing test of
Barker.”) (quoting McCallum v. State, 407 So.2d
865, 868 (Ala.Crim.App. 1981)).’
“Contrary to the appellant’s allegations in his
brief to this court, there is not any indication that
the State deliberately or negligently delayed the
trial in any way. In fact, during several pre-trial
hearings, the State expressed concern about not de-
laying the trial unnecessarily. Based on the record
before us, it appears that very little of the delay
was actually attributable to the State. Thus, ‘we
see no deliberate delay by the State to enhance its
own case or to prejudice the defense.’ /rvin v. State,
940 So.2d 331, 343 (Ala.Crim.App. 2005).
47a
“Some of the delay in this case was caused by
neutral reasons that are not attributable to either
the State or the appellant. The investigation was
completed, forensic analysis was performed, psy-
chological testing was done, discovery was con
ducted, and numerous evidentiary matters were re-
solved. Neutral reasons for delay do not ordinarily
require a dismissal of the case based on a violation
of the right to a speedy trial. See Pierson v. State,
677 So.2d 830, 831 (Ala.Crim.App. 1996).
ac
.. Thus, the majority of the delay was justified
delay that was attributable to the appellant
and/or to the trial court, and it weighs heavily
against the appellant rather than against the
State.”
Sharp v. State, [Ms. CR-05-2371, August 29, 2008]
So.3d _ , (Ala.Crim.App. 2008).
Because the majority of the delays were the re-
sult of motions filed by Morris concerning his compe-
tency and there was no indication of unjustified de-
lays or negligence on this ground by the State, this
reason for the delay is not weighed against the State,
but rather against Morris. See Belisle v. State, 11
So.3d at 272 (“It appears that the majority of the de-
lays were due to motions filed by Belisle. ‘Justified
delay-which includes such occurrences as missing
witnesses or delay for which the defendant is primar-
48a
ily responsible-is not weighted against the State.
Barker, 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Fd.2d
101.’ Ex parte Walker, 928 So.2d 259 at 265 (Ala.
2005).”) See also Blackmon v. State, 7 So.3d 397, 448
(2005), cert. denied, __-:* U.S. __, 129 S.Ct. 2052, 173
L.Ed.2d 1136 (2009) (“It appears that a good portion
of the delays were based on motions filed by
Blackmon.”). See also Sharifi v. State, 993 So.2d 907,
924 (Ala.Crim.App. 2008), cert. denied, _. U.S. _,
129 S.Ct. 491, 172 L.Ed.2d 386 (2008) (“The record
shows that the circuit court took every precaution to
ensure that Sharifi was granted a fair trial. It is
clear that the majority of the delays were due to the
court's desire to make every resource available to
Sharifi before he faced trial on the capital charge.”).
Morris did not assert his right to a speedy trial
until the appeai from his first trial. In Belisle v.
State, 11 So.3d at 272, where Belisle did not assert
his right to a speedy trial until 10 months before he
was tried, this Court stated:
“An accused does not waive the right to a
speedy trial simply by failing to assert it. Barker,
407 U.S. at 528, 92 S.Ct. 2182, 33 L.Ed.2d 101.
Even so, courts applying the Barker v. Wingo fac-
tors are to consider in the weighing process
whether and when the accused asserts the right
to a speedy trial, 407 U.S. at 528-29, 92 S.Ct.
2182, 33 L.Ed.2d 101, and not every assertion of
the right to a speedy trial is weighted equally.
Compare Kelley v. State, 568 So.2d 405, 410
(Ala.Crim.App. 1990) (“Repeated requests for a
speedy trial weigh heavily in favor of an ac-
49a
cused.”), with Clancy v. State, 886 So.2d 166, 172
(Ala.Crim.App. 2003) (weighing third factor
against an accused who asserted his right to a
speedy trial two weeks before trial, and stating:
“The fact that the appellant did not assert his
right to a speedy trial sooner “tends to suggest
that he either acquiesced in the delays or suffered
only minimal prejudice prior to that date.””’)
(quoting Benefield v. State, 726 So.2d 286, 291
(Ala.Crim.App. 1997), additional citations omit-
ted), and Brown v. State, 392 So.2d 1248, 1254
(Ala.Crim.App. 1980) (no speedy-trial violation
where defendant asserted his right to a speedy
trial three days before trial).’
“Ex parte Walker, 928 So.2d at 265-66.”
Moreover, in Sharp v. State, supra, Sharp failed
to raise this issue in a pretrial motion for a speedy
trial. Instead, he raised this contention in a post trial
motion for a judgment of acquittal. This Court
quoted ZJrvin uv. State, 940 So.2d 331, 343
(Ala.Crim.App. 2005), stating:
“Irvin failed to assert his constitutional right to
a speedy trial below. The record contains no mo-
tion for a speedy trial. In Barker v. Wingo, the
Supreme Court recognized, “failure to assert the
right will make it difficult for a defendant to
prove that he was denied a speedy trial.” 407 U.S.
at 532, 92 S.Ct. 2182, 33 L.Ed.2d 101. Likewise,
this Court has held:
50a
Gocees
Since there was no effort on the part of the ap-
pellant to secure his right to a speedy trial ... he
may not complain of any delay on appeal.’
Tidmore [v. City of Birmingham], 356 So.2d [231,]
233 [(Ala.Crim.App. 1977)]. While a defendant
who fails to demand a speedy trial does not for-
ever waive his right, this is one factor which must
be considered.”
“Bailey v. State, 375 So2d 519, 523
(Ala.Crim.App. 1979). In Turner v. State, 924
So.2d 737, 748 (Ala.Crim.App. 2002), this Court
recognized that the failure of the defendant to as-
sert his right to a speedy trial weighed against a
finding of plain error regarding this claim.”
So.3d at _.
Because Morris did not assert this right until the ap-
peal from his first trial, this factor must weigh
against him.
Finally, Morris has failed to show any prejudice
as a result of this delay. He alleges in his brief on
appeal that he did not acquiesce to this delay and
that the delay may have resulted in diminished
memories of the witnesses. He, however, does not
present any specific example of such a diminished
memory. He alludes to the fact that the paramedic’s
notes were destroyed, but there is no indication in
the record that this in any way affected her testi-
mony.
ola
He also claims that certain witnesses may have
disappeared and states that defense counsel at-
tempted to subpoena three Huddle House restaurant
employees before Morris’s first trial, who could have
testified that he was present there on the night of
the offense. However, even if Morris had been to the
Huddle House restaurant, that does not negate his
commission of the offense on the same night. He also
speculates that the police officer who had guarded
the door to Rochester’s house, who could not be iden-
tified at trial, may have confirmed that Rochester's
dog left the house on the morning following the of-
fense. Thus, he speculates that the dog could then
have transferred the blood to Morris’s shoe. This pos-
sible evidence, he claims, would have refuted the
State’s evidence that the dog did not leave the house.
However, this claim is clearly conjecture based on
more conjecture.
These cited instances by Morris are speculation
and fail to show any resulting prejudice. Moreover.
because the State acted with due diligence in at-
tempting to timely bring Morris to trial, he has failed
to meet his burden of proving prejudice. “[W]here
the state pursues the accused “with reasonable dili-
gence,” the delay-however long-generally is excused
unless the accused demonstrates “specific prejudice
to his defense.” Doggett v. United States, 505 U.S.
648 (1992), 112 S.Ct. [at] 2686. Thus, when the state
acts with reasonable diligence in bringing the defen-
dant to trial, the defendant has the burden of prov-
ing prejudice caused by the delay.” Sharp v. State, __
So.3d at __, quoting Ex parte Walker, 928 So.2d at
267. “Appellant must point to specific facts in evi-
dence to support his claim. United States v. Radue,
707 F.2d 4938, 495 (11th Cir.), cert. denied, 464 U.S.
916, 104 S.Ct. 281, 78 L.Ed.2d 259 (1988).
‘(S]peculative allegations, such as general allegations
of loss of witnesses and failure of memories, are in-
sufficient to demonstrate the actual prejudice....’
United States v. Butts, 524 F.2d 975, 977 (5th Cir.
1975), citing United States v. McGough, 510 F.2d
598, 604 (5th Cir. 1975).” Haywood v. State, 501
So.2d 515, 518 (Ala.Crim.App. 1986). See also
Lawson v. State, 954 So.2d 1127, 1134-35
(Ala.Crim.App. 2006). Because Morris has failed to
show any prejudice based on the delay, this factor
must be weighed against him.
After reviewing Morris’s claim that his constitu-
tional right to a speedy trial had been violated by the
delay between his arrest and first trial, and evaluat-
ing and weighing the Barker factors, there was no
plain error on this ground.
IV.
Morris argues that his conviction should be over-
turned because the State was allowed to introduce
an unreliable witness identification of him based on
an impermissibly suggestive one-man showup. He
alleges that the identification of him by the para-
medic on the morning following the offense was un-
duly suggestive, was not independently reliable, and
was not harmless error.
The record indicates that, when the paramedic
responded to the call at Rochester’s home, the para-
53a
medic informed the police about the man she had
seen earlier at that location who had attempted to
gain entry into the house and to learn the details of
the first emergency call involving Russell. She gave
them a description of the man, and when Morris,
who matched the description, was seen by an officer
later that morning in the area of the offense, the
paramedic was taken to view and possibly identify
Morris as that man.
She testified that, at approximately 9:00 p.m.
during the initial emergency call, after she first be-
gan speaking with the man, he approached her on
the walkway to the house. As they spoke, he at-
tempted to walk around her, but she blocked him. At
that time, they were standing “literally toe to toe.”
(R. 205.) She estimated that their faces were less
than 24 inches apart. (R. 205.) After he had been in-
structed to leave and appeared to have done so, the
paramedic again saw him when she had stepped
down from the back of the ambulance. She testified
that he was on the sidewalk within 10 feet of her
when he was again instructed to leave. (R. 210-11.)
As to her ability to clearly see the man, she stated
that there was lighting from the house, a street light,
and lights from the fire and rescue vehicles called
“scene lights.” (R. 212.) She also testified that “I’m
fairly certain that it was a pretty good moon that
night but it was very clear for me to be able to see
him.” (R. 212.)
After giving the police a description of the man
and the clothes he was wearing during her second
dispatch, which occurred around midnight, she was
54a
taken to the location where Morris was arrested for
public intoxication, between 4:00 and 5:00 a.m., by
police car. She was asked to view the man, but she
testified that the officers “never said that it was the
person or anything like that.” (R. 222.) She stated
that “I looked at him and realized who he was, |
knew who he was.” (R. 222.) She stated that she rec-
ognized him as the man she had confronted earlier,
but that, out of an abundance of caution, she planned
on requesting that the officers order him to speak.
He began talking and “fussing” before she could do
so, and she testified that “I knew when I saw him
that it was him, but that was just a confirmation to
me that it was him.” (R. 223.) The paramedic stated
that she identified the man to the officers and told
them that laceration on the man's forehead had not
been there earlier. (R. 223.) She again identified
Morris at trial as the man that she had seen on those
two occasions “without a doubt.” (R. 225.)
In the present case, the one-man showup was
conducted approximately four hours after the para-
medics informed the police about the man who had
earlier been present at the scene of the offense, and
approximately seven hours after she had seen him.
She was shown only Morris to identify.
“In Ex parte Appleton, 828 So.2d 894 (Ala. 2001),
this Court noted:
““The danger inherent in a one-man showup,
where a witness is shown a single suspect and
asked, ‘Is that the man?’ is twofold. First, a one-
man showup conveys a clear message that ‘the po-
55a
lice suspect this man.’ Second, a one-man showup
does not give the witness a choice of identifying
another person as being the perpetrator of the
crime charged. Consequently, when a one-man
showup is used to identify the perpetrator of a
crime, the reliability of the witness’s identifica-
tion is not put to an objective test, such as a live
or photographic lineup, in which a single suspect
must be chosen from a group of persons possess-
ing similar physical characteristics.”
“828 So.2d at 899-900 (quoting Ex parte Frazier,
729 So.2d at 254-55 (citations omitted) (emphasis
omitted)).”
Ex parte Wimes, 14 So.3d 131, 134 (Ala. 2008). How-
ever, despite the susceptibility to unreliability a one-
man showup presents, ““it 1s permitted where con-
ducted promptly after the commission of a crime or
demanded by necessity, emergency, or exigent cir-
cumstances.”” Gavin v. State, 891 So.2d 907, 959
(Ala.Crim.App. 2003), cert. denied, 891 So.2d 998
(Ala. 2004), cert. denied, Gavin v. Alabama, 543 U.S.
1123, 125 S.Ct. 1054, 160 L.Ed.2d 1073 (2005), quot-
ing Ex parte Appleton, 828 So.2d 894, 900 (Ala.
2001), quoting in turn Brazell v. State, 369 So.2d at
29.
Moreover, the clear import of evaluating the pro-
cedures employed in pretrial identifications, as well
as identification testimony, is to determine reliabil-
ity. There are two prongs involved in this evaluation;
the first addresses the suggestiveness of the initial
identification.
56a
“The second prong of the Brazell [v. State, 369
So.2d 25, 28-29 (Ala.Crim.App. 1978)] test requires
us to address whether the “procedure found to
have been ‘unnecessarily’ or ‘impermissibly’ sugges-
tive was so ‘conducive to irreparable mistaken
identification’ ... or had such a tendency ‘to give rise
to a very substantial likelihood of irreparable mis-
identification’ ... that allowing the witness to make
an in-court identification would be a denial of due
process.” Brazell, 369 So.2d at 28-29 (quoting
United States ex rel. Phipps v. Follette, 428 F.2d
912, 914-15 (2d Cir. 1970)). We evaluate the likeli-
hood of misidentification under the five factors set
forth in Neil v. Biggers[, 409 U.S. 188, 93 S.Ct. 375,
94 L.Ed.2d 401 (1972)]:
“{1] [T]he opportunity of the witness to view the
criminal at the time of the crime, [2] the witness’
degree of attention, [3] the accuracy of the wit-
ness' prior description of the criminal, [4] the
level of certainty demonstrated by the witness at
the confrontation, and [5] the length of time be-
tween the crime and the confrontation.’
“409 U.S. at 199-200, 409 U.S. 188, 93 S.Ct. 375,
34 L.Ed.2d 401 (emphasis omitted).”
Ex parte Wimes, 14 So.3d at 134-35.
Here, even if the initial showup was unduly sug-
gestive, the paramedic’s testimony reveals that the
circumstances surrounding her observing and hear-
ing Morris support the reliability of her identifica-
57a
tion. She testified to the duration of the confronta-
tion, her proximity to Morris during the confronta-
tion, and the good lighting conditions. Her testimony
clearly indicated a high degree of attention to him
due to her role as a caregiver whose responsibilities,
she testified, included protecting the equipment; es-
pecially in light of his aggressive and unruly behav-
ior. She described Morris as approximately five feet
and eight inches tall, medium build, dark complex-
ion, and “not real clean shaven.” (R. 217-18.) She
stated that he was wearing a baseball cap, a sateen
jacket, and possibly a sweatshirt. She also described
“what we would now call desert camo sand, the
brown tones of the camouflage pants and tennis
shoes.” (R. 217-18.) Further, her testimony confirms
the certainty of this identification. Finally, all of
these bases of her identification happened within
approximately seven hours and were part of her sin-
gle shift.
“As this Court noted in O’Deill v. State, 482 So.2d
1341 (Ala.Crim.App. 1985):
“(I]t is settled law that prompt, on-the-scene
confrontations are not constitutionally impermis-
sible, but are consistent with good police work.”
(Citations omitted.) Hobbs v. State, 401 So.2d 276,
279 (Ala.Cr.App. 1981). A prompt on-the-scene
identification of a suspect increases the reliability
of the identification under the following rationale:
““TT]he police action in returning the suspect to
the vicinity of the crime for immediate identifica-
tion in circumstances such as these fosters the
58a
desirable objectives of fresh, accurate identifica-
tion which in some instances may lead to the im-
mediate release of an innocent suspect and at the
same time enable the police to resume the search
for the fleeing culprit while the trail is fresh.” Jd.
at 280, quoting Bates v. United States, 405 F.2d
1104 (D.C.Cir. 1968).’
“482 So.2d at 1346.”
Gavin v. State, 891 So.2d at 960.
Here, the factors enumerated in Neil v. Biggers,
409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), all
support the reliability of the paramedic’s identifica-
tion of Morris as the man she had confronted at the
scene of the offense only hours before the murder.
Thus, even if the one-man showup had been unduly
suggestive, it did not taint her identification as it did
not invite an irreparable misidentification. Ex parte
Appleton, 828 So.2d at 900; Brazell v. State, 369
So.2d 25, 29 (Ala.Crim.App. 1978).
V.
Morris argues that the trial court repeatedly and
improperly admonished him in front of the jury. He
refers to instances during his testimony of conversa-
tions he had had with police officers when the trial
court admonished him to testify only as to what he
and the officer did rather than what was said. Morris
contends that this testimony was not hearsay be-
cause it was not being offered to prove the truth of
the matters asserted. Further, he contends that the
59a
trial court’s actions diminished his credibility with
the jury and left him unable to fully present his tes-
timony to the jury.
Morris failed to object to any of these instances
at trial; in fact, defense counsel indicated that he
agreed that Morris was attempting to give hearsay
testimony and instructed him accordingly. Therefore,
this issue is to be analyzed under the plain-error
rule. Rule 45A, Ala.R.App.P.
This testimony by Morris was restricted as to
what he was told by a police officer as he was re-
counting his arrest and identification by the para-
medic. All the statements from the officer were in-
structions or informational to Morris to facilitate
Morris's arrest.
“Rule 801(c), Ala. R. Evid., reads:
““Hearsay” is a statement, other than one made
by the declarant while testifying at the trial or
hearing, offered in.evidence to prove the truth of
the matter asserted.’
“Rule 802, Ala. R. Evid., provides that
“(hjearsay is not admissible except as provided
by these rules, or by other rules adopted by the
Supreme Court of Alabama or by statute.”
Ex parte Baker, 906 So.2d 277, 283 (Ala. 2004), on
remand, 906 So.2d 292 (Ala.Crim.App. 2005).
60a
The trial court’s restrictions on Morris’s testi-
mony concerned out-of-court statements made by a
police officer. See generally Vaughn v. State, [Ms.
CR-08-0485, August 7, 2009) _ So3d _, _
(Ala.Crim.App. 2009) (“Testimony from Officer
Shultz regarding what the victim told him consti-
tuted hearsay; the nonhearsay portion of his testi-
mony—what he observed when he arrived at the
scene—did not constitute substantive evidence nec-
essary to support a revocation of probation.”). Cf.
White v. State, 900 So.2d 1249, 1261 (Ala.Crim.App.
2004) (“His only objection seems to be that Slaton
was permitted to testify about hearsay, but Slaton
did not testify about what Thompson told him, only
that he met Thompson at the location where Newton
had testified she met Thompson.... Slaton's testi-
mony about what he did was not hearsay.”).
Even if this testimony might have been admissi-
ble because it was being offered not “to prove the
8 The trial court also stated that it would not allow Morris to
give renditions of his out-of-court conversations because he
would not be allowed to “make a speech” but rather must “an-
swer questions.” (R. 442.) There was no error in this statement
by the trial court. Hodges v. State, [Ms. CR-04-1226, March 23,
2007} __ So.3d __, __ (Ala.Crim.App. 2007) (trial counsel was
not ineffective for failing to object to the trial court's instruc
tions to Hodges to “stop making statements” and “simply an-
swer the questions he was asked.” There was also no merit to
the claim. “Hodges made an unsolicited comment to the prose-
cutor, then asked the court if he could make a statement. The
trial court is vested with much discretion to control the proceed-
ings in its courtroom and to ensure that proper decorum is
maintained.”).
61a
truth of whatever facts might be stated, ‘but rather
to establish the reason for action or conduct by the
witness,” Grayson v. State, 824 So.2d 804, 813
(Ala.Crim.App. 1999), quoting Edwards v. State, 502
So.2d 846, 849 (Ala.Crim.App. 1986), quoting in turn
Tucker v. State, 474 So.2d 131, 1382 (Ala.Crim.App.
1984), rev'd on other grounds, 474 So.2d 134 (Ala.
1985), its omission was harmless. Morris was not
prevented from or restricted in testifying as to his
account of the events. For example, although, as a
result of the objections he changed his testimony to
state that he got out of the police car for the para-
medic to look at him, rather than testifying that the
officer told him to do so, the subject matter of the
testimony remained the same.
There is no indication in the record that these
instructions in any way limited Morris’s testimony.
Any error on this basis was harmless, and Morris's
substantial rights were not probably affected by
these restrictions. “No judgment may be reversed or
set aside, nor new trial granted ... on the ground of
misdirection of the jury ... or the improper ... rejec-
tion of evidence ... unless in the opinion of the court
to which the appeal is taken or application is made,
after an examination of the entire cause, it should
appear that the error complained of has probably
injuriously affected substantial rights of the parties.”
Rule 45, Ala.R.App.P. See also O.A.C. v. State, 851
So.2d 146, 152 (Ala.Crim.App. 2002) (trial court did
not erroneously prevent appellant from testifying as
he “failed to make the necessary threshold showing
that the evidence he sought to introduce was suffi-
ciently probative with respect to his claimed defense,
62a
so as to tip the balance in favor of admitting the evi-
dence on the basis of his constitutional right to pre-
sent a defense.”); Williams v. State, 531 So.2d 49
(Ala.Crim.App. 1988) (any error in the trial court's
limitation of examination of defense witness concern-
ing victim's intoxication was harmless); Aing uv.
State, 929 So.2d 1032, 1039—40 (Ala.Crim.App. 2005)
(trial court's limitation of King’s cross-examination of
his wife, if error at all, was harmless).
We find no plain error as to this claim.
VI.
Morris argues that the Eighth Amendment to
the United States Constitution prohibits his execu-
tion because his previous trial resulted in a hung
jury. Morris raises this issue for the first time on ap-
peal; therefore, it is due to be analyzed under the
plain-error rule. Rule 45A, Ala.R.App.P.
Morris's second trial ended when the trial court
declared a mistrial because the jury was unable to
reach a verdict. Although Morris contends that this
fact should disallow any future sentence of death as
to the same offense, there is no legal support for
Morris's argument.
In State v. Woods, 382 S.C. 153, 676 S.E.2d 128
(2009), Woods’s first trial ended in a hung jury and
mistrial, and he was retried and sentenced to death.
In addressing whether a change of venue was appro-
priate for the second trial based on the trial court's
holding in the first trial, the court stated:
“A mistrial is the equivalent of no trial and leaves
the cause pending in the circuit court. State v.
Smith, 336 S.C. 39, 518 S.E.2d 294 (Ct.App. 1999).
It leaves the parties ‘as though no trial had taken
place. Grooms v. Zander, 246 S.C. 512, 514, 144
S.E.2d 909, 910 (1965) (rulings of trial judge in pro-
ceeding ending in mistrial represent no binding ad-
judication upon the parties as the mistrial leaves
the parties in status quo ante). A court ruling as to
admissibility and competency of testimony during a
trial which is later declared a mistrial results ‘in no
binding adjudication of the rights of the parties.’
Keels v. Powell, 213 S.C. 570, 572, 50 S.E.2d 704,
705 (1948).
“
“Here, the case having resulted in a mistrial, it
was a nullity and therefore began anew when
called again for trial. State v. Mills, 281 S.C. 60,
314 S.E.2d 324, cert. denied 469 U.S. 930, 105 S.Ct.
324, 83 L.Ed.2d 261 (1984) (when mistrial occurs
because of inability of jury to agree on verdict, it is
the same as if no trial took place).”
382 S.C. at 157-58, 676 S.E.2d at 131. See e.g. State
v. Manning, 329 S.C. 1, 495 S.E.2d 191 (1997)
(wherein Manning was sentenced to death for mur-
dering a state trooper and his conviction was re-
versed on appeal, leading to a second trial, which re-
sulted in a mistrial because the jury could not reach
a decision); People v. Hovarter, 44 Cal.4th 983, 81
Cal.Rptr.3d 299, 189 P.3d 300 (Cal. 2008) (wherein
64a
jury was unable to reach a verdict as to penalty in
Hovarter’s first trial for capital murder committed
during a rape and kidnapping, resulting in a mistrial
and he was retried and convicted and sentenced to
death); Hogan v. State, 139 P.3d 907, 948—49
(Okla.Crim.App. 2006) (“Where a capital-stage jury
becomes ‘deadlocked’ during its deliberations, this is
not an ‘acquittal’ on the death penalty. Hence the
State can re-pursue the death penalty in a re-
sentencing or retrial in the same case. Thus
Sattazahn [v. Pennsylvania, 537 U.S. 101, 123 S.Ct.
732, 154 L.Ed.2d 588 (2003)] apples the same rule to
capital-stage ‘hung juries’ that the Court has consis-
tently applied to hung juries in the guilt stage.” (foot-
notes omitted)).
The rationale in Hammond v. State, 776 So.2d
884 (Ala.Crim.App. 1998), in which this Court found
plain error in the prosecutor's comment referencing
Hammond's previous trial, is applicable to this issue:
“We hold that at the sentencing phase of a second
or subsequent capital murder trial, it is reversible
error for the prosecution to comment on the result
of a defendant's previous trial for the same offense.
Frazier v. State, 632 So.2d 1002, 1007 (Ala.Cr.App.
1993). It does not matter that trial counsel did not
preserve this error for review; we find the error to
be plain error. Rule 45A, Ala.R.App.P; Tomlin ov.
State, 591 So.2d 550 (Ala.Cr.App. 1991); Frazier v.
State, supra. This is especially so when the prose-
cution informs the jury that a previous jury rec-
ommended, and a previous judge imposed, the
death penalty. In determining whether Hammond
65a
should receive the death penalty or hfe imprison-
ment without parole, this jury was aware of how
another jury had resolved this very issue-adversely
to the defendant. If a juror was uncertain as to
whether aggravating circumstances existed, or, if
found to exist, whether they outweighed the miti-
gating circumstances, the knowledge that 12 other
people had determined that it did could have
swayed the juror’s verdict in favor of death. Fur-
ther, the jury’s awareness of Hammond's previous
death sentence would diminish its sense of respon-
sibility and mitigate the serious consequences of its
decision. People v. Hope, 116 IIl.2d 265, 274, 508
N.E.2d 202, 205, 108 I1l.Dec. 41, 45 (ill. 1986).”
776 So.2d at 892.
There is no prohibition against a death sentence
in a second trial where a capital defendant’s first
trial resulted in a mistrial attributable to a hung
jury. In such a situation, a capital defendant is tried
anew with a new jury. The previous jury’s determi-
nations are neither attributable to nor to be consid-
ered by the later jury. Thus, there was no plain error
on this ground.
VII.
Morris argues that his sentence contravened
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002), because the jury did not deter-
mine whether he is mentally retarded; the jury did
not unanimously find that the aggravating circum-
66a
stances existed; and the jurors were instructed that
their verdict was only a recommendation.
Morris failed to raise these issues at the trial
court level; therefore, this issue is due to be evalu-
ated under the _ plain-error rule. Rule 45A,
Ala.R.App.P.
Initially, we note that the jury’s finding of guilt
of the capital offenses containing, by definition, two
aggravating circumstances indicates that the jury
unanimously found the existence of these two aggra-
vating circumstances. Specifically, in this case, the
jury unanimously found the existence of the aggra-
vating circumstances that the murder was commit-
ted while Morris was engaged in the commission of
the burglary and of the robbery of Rochester by find-
ing him guilty of the capital offenses of murder dur-
ing a burglary and murder during a robbery. § 13A-
5-49(4), Ala.Code 1975; § 13A-5-40(a)(2) and (4),
Ala.Code 1975. Furthermore, the trial court in-
structed the jury that it could not vote on the death
penalty unless it found the existence of at least one
aggravating circumstance. (R. 592.)
“The Supreme Court has held, in numerous cases,
that the jury's verdict finding a defendant guilty of
capital murder during the guilt phase of his trial,
indicated that the jury had unanimously found a
proffered aggravating circumstance included within
the § 13A-5-40(a), Ala.Code 1975, definition of the
particular capital-murder offense charged in the
indictment. See, e.g., Ex parte Hodges, 856 So.2d
936 (Ala. 2003); Ex parte Waldrop, 859 So.2d 1181
67a
(Ala. 2002); Stallworth v. State, 868 So.2d 1128
(Ala.Crim.App. 2001) (opinion on return to second
remand), cert. denied, 868 So.2d 1189 (Ala. 2003).
But see Ex parte McGriff, 908 So.2d 1024, 1039
(Ala. 2004) (authorizing prospective use of a pen-
alty-phase special interrogatory). Moreover, in Ex
parte McNabb, 887 So.2d 998 (Ala. 2004), the Su-
preme Court held that even a nonunanimous rec-
ommendation of death by the jury proved that the
jury, including the jurors who voted against the
recommendation of death, had unanimously found
the existence of a proffered aggravating circum-
stance, even though the circumstance was not in-
cluded within the definition of the particular capi-
tal-murder offense charged in the indictment, be-
cause the trial court had specifically instructed the
jury that it could not proceed to a vote on whether
to impose the death penalty unless it had already
unanimously agreed that the aggravating circum-
stance existed. Because the jury recommended by a
vote of 10—2 that Lewis be sentenced to death, it is
clear that it unanimously found the existence of at
least one aggravating circumstance.”
Sharifi vu. State, 993 So2d 907, 94041
(Ala.Crim.App. 2008), cert. denied, _ U.S. _; 129
S.Ct. 491, 172 L.Ed.2d 386 (2008), quoting Lewis v.
State, [Ms. CR-03-0480, April 28, 2006] __ So.2d _,
__ (Ala.Crim.App. 2006). See Newton v. State, [Ms.
CR-05-1517, October 2, 2009] __ So.3d +
(Ala.Crim.App. 2009) (““We note that Ring requires
only that the jury unanimously find the existence of
an aggravating circumstance in order to make the
defendant death-eligible.””).
68a
Thus, it is clear that the jury unanimously found
the existence of two aggravating circumstances.
Therefore, there was no violation of Ring v. Arizona,
supra.
Moreover, as Morris concedes, Alabama does not
require that a jury in a capital case make a determi-
nation of whether the defendant was mentally re-
tarded. “{NJothing in Atkins vu. Virginia, 536 U.S.
304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), or in Ex
parte Perkins, 851 So.2d 453 (Ala. 2002), requires a
jury determination of mental _ retardation.”
Beckworth ov. State, 946 So.2d 490, 510
(Ala.Crim.App. 2005).
As to Morris's claim that the trial court violated
Ring v. Arizona, supra, by improperly instructing the
jury that its sentencing decision was only a recom-
mendation, this issue has previously been decided
adversely to Morris. In Smith v. State, [Ms. CR-97-
1258, January 16, 2009] __ So.8d __ (Ala.Crim.App.
2000) (opinion on return to forth remand), this Court
stated:
“We addressed this same issue in Duke v. State,
889 So.2d 1, 43 (Ala.Crim.App. 2002), vacated on
other grounds, 544 U.S. 901, 125 S.Ct. 1588, 161
L.Ed.2d 270 (2005), and stated:
“Duke also argues that Ring [v. Arizona, 536
U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), ]
requires penalty-phase relief when the jury is told
that its verdict is “advisory” or merely a “recom-
69a
mendation.” Contrary to Duke’s contention, Ring
does not address the advisory nature of a jury's
sentencing recommendation. Duke's jury was
properly informed that under Alabama law, its
verdict was an advisory one. See § 13A-5-46,
Ala.Code 1975. Thus, the jury was not misled re-
garding its role in the sentencing decision. See
Caldwell v. Mississippi, 472 U.S. 320, 328-29,
105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Ex parte
Taylor, 666 So.2d 73, 88 (Ala. 1995), cert. denied,
516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856
(1996).’
“See also dZJrvin uv. State, 940 So2d 331
(Ala.Crim.App. 2005).”
__ So0.3d at __ (footnote omitted).
Therefore, Morris’s sentencing did not violate
Ring v. Arizona, supra.
VII.
Morris argues that the trial court improperly in-
structed the jury concerning its consideration of the
aggravating and mitigating circumstances. Specifi-
cally, Morris contends that the trial court erred by
failing to instruct the jury that it was required to
unanimously find the existence of at least one par-
ticular aggravating circumstance and that it did not
have to be unanimous in its decision as to the miti-
gating circumstances. Moreover, Morris alleges that
the trial court failed to instruct the jury that it must
recommend a sentence of life imprisonment without
70a
parole if it found that the aggravating circumstances
and the mitigating circumstances were of equal
weight.
These issues are being raised for the first time
on appeal; and therefore, they must be evaluated un-
der the plain-error rule. Rule 45A, Ala.R.App.P.
However, because the jury unanimously found
beyond a reasonable doubt during the guilt stage
that Morris committed a murder during the course of
a burglary and during the course of a robbery, the
jury unanimously found during the penalty phase
the aggravating circumstances contained in these of-
fenses. As this Court stated in Newton v. State, su-
pra, when Newton argued that the trial court had
violated his Eighth and Fourteenth Amendment
rights by failing to instruct the jury that it had to be
unanimous as to its findings concerning aggravating
circumstances:
“We addressed and rejected a similar argument in
Blackmon ov. State, 7 So.38d 397, 432-33
(Ala.Crim.App. 2005), as follows:
“Blackmon also argues that her death sentence
violates Ring because the jury was not instructed
that it had to unanimously determine the exis-
tence of the aggravating circumstance and the
weight that should be assigned to that aggravat-
ing circumstance. Again, in Duke we stated:
“We note that Ring requires only that the jury
unanimously find the existence of an aggravating
Tla
circumstance in order to make the defendant
death-eligible. Alabama law does not require that
the jury's advisory verdict be unanimous before it
can recommend death. See § _ 13A-5-46(f),
Ala.Code 1975. Nothing in Ring supports Duke’s
claim the jury's advisory verdict be unanimous.”
Duke, 889 So.2d at 43 n. 4.’
“During the guilt phase of the trial, the jury
unanimously found beyond a reasonable doubt that
Newton committed a murder during the course of
committing a robbery. “The jury’s unanimous find-
ing of one aggravating circumstance is sufficient to
satisfy Ring.’ Ex parte McNabb, 887 So.2d 998,
1006 (Ala. 2004). Therefore, Newton’s argument is
without merit.”
__ So.3d at _.
This Court also addressed Newton’s claim that
his constitutional rights had been violated by the
trial court's failure to instruct the jury that it did not
have to be unanimous in its decision as to the miti-
gating circumstances. In finding no plain error on
this ground, the Court stated:
“We addressed a similar argument in Smith uv.
State, 795 So.2d 788, 835-36 (Ala.Crim.App. 2000),
as follows:
“Smith also argues that the trial court’s failure
to instruct the jury that its finding as to mitigat-
ing circumstances did not have to be unanimous,
implied that the mitigating circumstances had to
be unanimous. There was no objection raised at
trial concerning the court’s failure to instruct that
the jury'e finding did not have to be unanimous.
We review this issue for plain error. Rule 45A,
Ala. R.App. P.
“A review of the jury’s instruction on mitigating
circumstances does not reflect that the trial court
instructed the jury that its decision that evidence
was mitigating had to be unanimous. The trial!
court instructed that jury in accordance with the
Alabama Proposed Pattern Jury Instructions for
Use in the Guilt Stage of Capital Cases Tried Un-
der Act No. 81-178.
“As we recently stated in Halil v. State, 820
So.2d 113 (Ala.Cr.App. 1999):
““This Court addressed a similar issue in
Freeman v. State, 776 So.2d 160 (Ala.Cr.App.
1999):
““Freeman also contends that the trial court
erred by failing to instruct the jury that its find-
ings as to mitigating circumstances did not have
to be unanimous. In failing to so instruct the jury,
he says, the trial court implied that the jurors
had to unanimously agree before they could find
the existence of a mitigating circumstance. Free-
man did not object at trial to the trial court's in-
structions to the jury concerning mitigating cir-
cumstances; therefore, we will review this claim
under the plain error rule. Rule [45A,] Ala.
R.App. P.’
T3a
““We have reviewed the trial court’s instruc-
tions to the jury; we find nothing in the instruc-
tions that would have suggested to the jurors, or
given them the impression, that their findings
concerning the existence of mitigating circum-
stances had to be unanimous. See Coral v. State,
628 So.2d 954, 985 (Ala.Cr.App. 1992), aff'd, 628
So.2d 1004 (Ala. 1993), cert. denied, 511 U.S.
1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994);
Windsor v. State, 683 So.2d 1027 (Ala.Cr.App.
1994), aff'd, 683 So.2d 1042 (Ala. 1996), cert. de-
nied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d
545 (1997).””
__ $o.3d at _.
In the present case, a review of the trial court’s
instructions to the jury concerning its duty in finding
mitigating circumstances reveals that there is no
“reasonable likelihood or probability” that the jurors
might have believed that they were required to
unanimously find the existence of any particular
mitigating circumstance. Thus, there was no error.
Morris also claims that the trial court’s instruc-
tion failed to charge the jury that if it found that the
weight of the aggravating circumstances and the
mitigating circumstances was equal, it must recom-
mend a sentence of life imprisonment without the
possibility of parole. However, the instructions given
by the trial court in the present case were essentially
identical to those given in Ex parte McNabb, 887
So.2d 998, 1001 (Ala. 2004), in which they were
74a
found to be harmless. In discussing McNabb deci-
sion, this court has written:
“The Alabama Supreme Court addressed this is-
sue in Ex parte McNabb, 887 So.2d 998 (Ala. 2004).
In that case, the trial court instructed the jury as
follows during the sentencing phase of the trial:
“{I}f, after a full and fair consideration of all of
the evidence in the case, you are convinced be-
yond a reasonable doubt that at least one aggra-
vating circumstance does exist and you are con-
vinced that the aggravating circumstance out-
weighs the mitigating circumstances, then your
verdict would be: “We, the jury, recommend that
the defendant be punished by death, and the vote
is as follows....” However, if after a full and fair
consideration of all of the evidence in this case,
you determine that the mitigating circumstances
outweigh any aggravating circumstance or Cir-
cumstances that exist, or you are not convinced
beyond a reasonable doubt that at least one ag-
gravating circumstance does exist, your verdict
should be to recommend the punishment of life
>
»
imprisonment without parole....
“McNabb, 887 So.2d at 1001. Thus, just as in this
case, the language used in instructing the jury in
McNabb did not specifically instruct the jury on
what to do if the aggravating circumstances and
mitigating circumstances were in balance.
“The Alabama Supreme Court held that although
the trial court did not instruct the jury as to what
Tbda
to do when the mitigating circumstances and the
aggravating circumstances were in balance, ‘the
jury [in McNabb] was not invited to recommend a
sentence of death without finding any aggravating
circumstance.’ Jd. at 1004. The Supreme Court
then held that, in considering the jury charge in its
entirety, it could not conclude that ‘the error “seri-
ously affect{[ed) the fairness, integrity or public
reputation of [these] judicial proceedings,” Ex parte
Davis, 718 So.2d at 1173-74, so as to require a re-
versal of the sentence. McNabb, 887 So.2d at
1004.”
Sale v. State, 8 So.3d 330, 349 (Ala.Crim.App. 2008),
cert. denied, 8 So.3d 352 (Ala.2008), cert. denied, ___
U.S. _, 129 S.Ct. 2062, 173 L.Ed.2d 1141 (2009).
Here, a review of the complete instructions given
by the trial court reveals that there is no indication
that the fairness of the sentencing proceedings was
in any way affected. The jury was informed as to its
role in weighing its findings as to the aggravating
circumstances and the mitigating circumstances.
Thus, there was no plain error as to this issue.
[X.
Morris argues that the prosecutor made im-
proper statements in his opening and closing argu-
ments, in violation of his Fifth, Sixth, Eighth, and
Fourteenth Amendment rights. Morris failed to ob-
ject to any of these alleged improper remarks at trial;
therefore, any error must rise to the level of plain er-
ror. Rule 45A, Ala.R.App.P.
76a
A.
Morris contends that the prosecutor improperly
prejudiced him in front of the jury by making the fol-
lowing argument concerning conflicting evidence be-
tween certain State’s witnesses and the evidence of-
fered by the defense:
“If you believe the defense and you believe AIl-
fonzo Morris you must also believe two additional
things. You must believe that Officer Smith and Of-
ficer Shirley Jackson conspired to swap those ciga-
rettes somehow and that they hed to you, both of
them, on the stand.”
(R. 516.)
This comment by the prosecutor was merely re
ferring to certain conflicts in the evidence offered by
the State and the evidence offered by the defense.
The officers referred to testified that a cigarette
found at the scene of the offense contained Morris's
DNA. Morris testified that at the time of his arrest
the arresting officer took a cigarette from him that
Morris had had in his mouth. Morris testified that
“the only cigarette that had my DNA on it is the
cigarette he took out of my mouth-I mean, out of my
pocket what I had in my mouth at the time of the ar-
rest.” (R. 446.)
“The prosecutor properly argued to the jury evi-
dence that contradicted that defense. The prosecu-
tor has a right to present his impressions from the
77a
evidence. See Taylor v. State, 666 So.2d 36, 64
(Ala.Cr.App.), remanded on other grounds, opinion
extended and affd on return to remand, 666 So.2d
71 (Ala.Cr.App. 1994), affd, 666 So.2d 73
(Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct.
928, 133 L.Ed.2d 856 (1996). The prosecutor may
comment on proper inferences to be drawn from the
evidence and may draw conclusions based on his or
her own reasoning. Id.”
Gamble v. State, 791 So.2d 409, 431 (Ala.Crim.App.
2000). See Ferguson v. State, 814 So.2d 925,946-47
(Ala.Crim.App. 2000), affirmed, 814 So.2d 970 (Ala.
2001), cert. denied, 535 U.S. 907, 122 S.Ct. 1208, 152
L.Ed.2d 145 (2002) (holding that prosecutor can
draw inferences and deductions from the evidence
although Ferguson argued that prosecutor improp-
erly “offered advice on how to evaluate Ferguson’s
statements to police, which contradicted the testi-
mony of his codefendant on the question of [Fergu-
son's] role in the shootings”).
The prosecutor properly argued his case to the
jury, including referencing the evidence presented
that contradicted that of the defense.
B.
Morris alleges that the prosecutor improperly
told the jury that defense counsel’s argument showed
that Morris was lying. Specifically, Morris contends
that, after defense counsel had argued that whoever
committed the murder did not intend to do so, the
prosecutor improperly commented that the defense
78a
was alleging contradictory theories: that Morris did
not commit the offense and that he committed the
offense but did not mean to commit it. Morris argues
that this comment suggests that defense counsel’s
remarks were substantive evidence and was an at-
tempt by the State to lessen its burden of proof.
This argument by the prosecutor, however, was a
legitimate comment on Morris's theories of defense.
““Argument by the prosecution concerning omissions
and inconsistencies in the defendant's version of the
case 1s not improper.” Whitt v. State, 733 So.2d 463,
482 (Ala.Crim.App. 1998), quoting Mosely v. State,
628 So.2d 1041, 1042 (Ala.Crim.App. 1993), quoting
in turn Salter v. State, 578 So.2d 1092, 1096
(Ala.Crim.App. 1990), cert. demed, 578 So.2d 1097
(Ala. 1991). “The prosecutor's argument regarding
the defense's theory was a fair and legitimate com-
ment on the evidence and a fair response to the ar-
gument of the defense.” Whitt v. State, 733 So.2d at
483. See Minor ov. State, 914 So.2d 372
(Ala.Crim.App. 2004) (prosecutor’s comments during
rebuttal closing argument of guilt phase of capital
trial did not impermissibly shift the burden of proof
but was a legitimate comment on the lack of evidence
to support Minor's theory of defense); Reeves v. State,
807 So.2d 18 (Ala.Crim.App. 2000) (prosecutor’s
comment during rebuttal closing argument at guilt
phase did not spotlight defense’s strategy and argue
that the evidence did not support defense's theory
that the robbery was a “mere afterthought”). Here,
the comment by the prosecutor was an appropriate
response to Morris's arguments. Butler v. State, 781
So.2d 994, 1004 (Ala.Crim.App. 2000).
C.
Morris argues that the prosecutor improperly
told the jury that it was its “oath” to convict Morris.
Morris refers to an exhortation made by one of the
prosecutors at the close of his guilt-phase argument,
arguing to the jury that it was its oath to hold Morris
responsible for this brutal murder.
“Generally, the prosecutor is in error by exhort-
ing the jury to “do what's right,” or to “do its job,” if
that exhortation “impl[ies}] that, in order to do so, it
can only reach a certain verdict, regardless of its
duty to weigh the evidence and follow the court's
instructions on the law.” McNair v. State, 653
So.2d 320, 339-40 (Ala.Crim.App. 1992), aff'd, 653
So.2d 353 (Ala. 1994), quoting Arthur v. State, 575
So.2d 1165, 1185 (Ala.Crim.App. 1990). However, it
is not improper for a prosecutor to argue to the jury
that a defendant is guilty or to urge the jury to find
the defendant guilty of the crime charged so long as
that argument is based on the evidence; in fact,
that is exactly what a prosecutor is supposed to do
during closing argument. See Galloway v. State,
484 So.2d 1199 (Ala.Crim.App. 1986), and the au-
thorities cited therein. See also Broadnax v. State,
825 So.2d 134, 183 (Ala.Crim.App. 2000), aff'd, 825
So.2d 233 (Ala. 2001), and Melson v. State, 775
So.2d 857, 889-90 (Ala.Crim.App. 1999), affd, 775
So.2d 904 (Ala. 2000). Moreover, “the prosecuting
attorney may characterize the accused or his con-
duct in language which, although it consists of in-
vective or opprobrious terms, accords with the evi-
80a
dence of the case.” Henderson v. State, 584 So.2d
841, 857 (Ala.Crim.App. 1988), remanded on other
grounds, 584 So.2d 862 (Ala. 1991), on remand to,
587 So.2d 1071 (Ala. Crim.App. 1991), remanded
on other grounds, 616 So.2d 348 (Ala. 1992), on re-
turn to remand, 616 So.2d 352 (Ala. Crim.App.
1993), quoting Nicks v. State, 521 So.2d 1018, 1023
(Ala.Crim.App. 1987), aff'd, 521 So.2d 1035 (Ala.
1988). See also Handley v. State, 214 Ala. 172, 175,
106 So. 692, 695 (1925) (argument—“She is a mur-
derer; she is a murderer. She is not some one who
has committed some of the lower offenses of homi-
cide”’—did not transcend the bounds of legitimate
argument’); Maples v. State, 758 So.2d 1, 58
(Ala.Crim.App.), affd, 758 So.2d 81 (Ala. 1999)
(prosecutor's comment that the defendant “is a
murderer; a capital murderer” was not improper);
Melson, 775 So.2d at 889 (prosecutor's reference to
the defendant as a “cold-blooded murderer” with
“‘no remorse” was not improper); Thomas v. State,
766 So.2d 860, 933-34 (Ala. Crim.App. 1998), aff,
766 So.2d 975 (Ala. 2000) (prosecutor’s references
to defendant as a “street punk,” ““criminal,””
“thug,” ““murderer,” and “manipulator” were not
improper); and Kinard v. State, 495 So.2d 705, 711
(Ala.Crim.App. 1986) (prosecutor’s reference to de-
fendant as “an unmitigated liar and murderer”
was not improper). The prosecutors comments
were supported by the evidence in this case and
were not improper.”
Minor v. State, 914 So.2d 372, 420 (Ala.Crim.App.
2004), (finding no plain error in prosecutor’s com-
8la
ment asking the jury “to find that man guilty of the
murder of his son”’).
There was no plain error in this comment by the
prosecutor.
D.
Morris argues that the prosecutor repeatedly
made improper references to him as “the one har in
this case” (Morris’s brief, at 101), based on his omis-
sion of details in his statements to the police. He fur-
ther argues that in doing so, the prosecutor vouched
for the credibility of State’s witnesses. Morris fails to
cite to the record in support of this argument.
A review of the closing arguments by both of the
prosecutors, taking into account their total argument
to the jury, reveals that the comments referring to
Morris as lying or being a liar or implying deceit on
Morris’s part, were based on the contradictions in the
statements Morris gave to the police, Morris’s an-
swers during his testimony suggesting that he did
not remember or did not know, and his use of a false
identification when he was arrested, as well as the
conflicts between his testimony and that of State’s
witnesses.
This Court addressed this same issue recently in
Johnson v. State, (Ms. CR-99-1349, October 2, 2009]
_So.3d __ (Ala.Crim.App. 2009), and stated:
“... [A]Jny characterization of Johnson as a liar by
the prosecutor would have been supported by the
82a
evidence in the present case because of the varying
statements given by her to the police. She initially
stated that she was in Tuscaloosa, Alabama, at the
time of the murder, but eventually admitted that
the first statement was untrue and cast the blame
on Richards; she eventually admitted having been
involved in the murder. Similarly, in Smith uv.
State, 795 So.2d 788 (Ala.Crim.App. 2000), Smith
argued that the prosecutor improperly referred to
him as a liar. This Court stated:
“Clearly, this characterization of the appellant
is supported by the record. Smith, in his first
statement, totally denied any involvement in the
robbery-murder. In the second statement he ad.-
mitted his participation in the robber-murder
“(T]he prosecutor, in the appropriate case, may
use opprobrious terms to characterize the accused
or his conduct, provided that the remarks are in
accord with the evidence.” Bankhead [v. State,
585 So.2d 97, 105 (Ala.Crim.App. 1989), cert. de-
nied, 519 U.S. 1079, 117 S.Ct. 742, 132 L.Ed.2d
680 (1997)].’
“795 So.2d at 825.
“Further, there is no indication in the record that
the prosecutor improperly vouched for the credibil
ity of the State's witnesses.
ay: A distinction must be made between an ar-
gument by the prosecutor personally vouching for
a witness, thereby bolstering the credibility of the
witness, and an argument concerning the credi-
83a
bility of a witness based upon the testimony pre-
sented at trial. ‘[P]rosecutors must avoid making
personal guarantees as to the credibility of the
state's witnesses.’ Ex parte Parker, 610 So.2d
1181 (Ala. 1992). See Ex parte Waldrop, 459 So.2d
959, 961 (Ala. 1984), cert. denied, 471 U.S. 1030,
105 S.Ct. 2050, 85 L.Ed.2d 323 (1985).
ray Attempts to bolster a witness by vouching
for his credibility are normally improper and er-
ror.” ... The test for improper vouching 1s whether
the jury could reasonably believe that the prose
cutor was indicating a personal! belief in the wit-
ness’ credibility.... This test may be satisfied in
two ways. First, the prosecution may place the
prestige of the government behind the witness, by
making explicit personal assurances of the wit
ness’ veracity.... Secondly, a prosecutor may 1m-
plicitly vouch for the witness’ veracity by indicat-
ing that information not presented to the jury
supports the testimony.’
““U/nited States v. Sims, 719 F.2d 375, 377 (11th
Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct
1304, 79 L.Ed.2d 703 (1984).”
“DeBruce v. State, 651 So.2d 599, 610-11
(Ala.Crim.App. 1993), aff'd, 651 So.2d 624 (Ala
1994).’
“Brown ov. State, ll So.3d 866, 910-11
(Ala.Crim.App. 2007), affirmed, Ex parte Brown, 11
So.3d 933 (Ala. 2008). cert. denied, Brown v. Ala-
84a
bama, __ U.S. _, 129 S.Ct. 2864, 174 L.Ed.2d 582
(2009).
“Here, there is no indication in the record that the
prosecutor impermissibly vouched for any witness’s
credibility as he never suggested that there was
evidence undisclosed to the jury that would support
a witness's testimony nor did he ever make per-
sonal assurances of a witness’s veracity. Thus,
there is no error on this ground.”
So.3d at __
The prosecutors’ references to Morris as being a
liar were based on the evidence and were thus a
proper argument to the jury. Moreover, the prosecu-
tors did not vouch for the credibility of any witnesses
in doing so.
X
Morris argues that his conviction is due to be
overturned because, he says, the State failed to es-
tablish the reliability of the methodology for its DNA
testing. Morris also argues that the State improperly
failed to retain samples of DNA for testing by the de-
fense. Morris failed to object at trial as to the meth-
odology of the State’s DNA testing. Moreover, al-
though the defense implied error in the State's fail-
ure to retain a sample of the cigarette butt when
cross-examining the State’s expert, Morris never ob-
jected on this ground.
85a
Morris contends that the trial court erred by fail-
ing to conduct an evidentiary hearing outside the
jury’s presence as to the reliability of the State's
DNA testing. However, Morris never requested such
a hearing or objected to its omission.
“In the present case, because the admission of the
DNA evidence was not contested or challenged be-
fore or during trial, the trial court did not hold a
hearing outside the presence of the jury. In Payne
v. State, 683 So.2d 440, 455 (Ala.Cr.App. 1995),
affd, 683 So.2d 458 (Ala. 1996), cert. denied, 520
U.S. 1146, 117 S.Ct. 1319, 1387 L.Ed.2d 481 (1997),
we held that a trial court did not commit reversible
error by not holding a hearing outside the presence
of the jury to determine the admissibility of the
DNA evidence. In Payne, we concluded that if a de-
fendant wanted to allege that the trial court erred
in not conducting a hearing outside the jury’s pres-
ence to determine the admissibility of the DNA evi-
dence, it was incumbent upon the defendant to
have first requested that such a hearing be con-
ducted. Accordingly, because Simmons did not re-
quest a hearing, no reversible error occurred in this
regard in the trial court's admission of the DNA
evidence.”
Simmons ov. State, 797 So2d 1134, 1145
(Ala.Crim.App. 1999).
Moreover, in arguing that the State erred by fail-
ing to identify the method used to test the DNA and
thereby to verify its reliability, Morris acknowledged
that this Court has held counter to his argument in
86a
Broadnax vu. State, 825 So.2d 134, 174
(Ala.Crim.App. 2000), by finding that the State's fail-
ure to name the particular method of DNA analysis
did not result in unreliable evidence. Rather, this
Court held that “[t]he failure of testimony to name
the DNA method used goes to the weight of the evi
dence, not its admissibility.” Jd
““Whether otherwise reliable testing procedures
were performed without error in a particular case
goes to the weight of the evidence, not its admis
sibility. Only if a party challenges the perform-
ance of a reliable and relevant technique and
shows that the performance was so particularly
and critically deficient that it undermined the re
liability of the technique, will evidence that is
otherwise reliable and relevant be deemed inad
missible.””
Broadnax v. State, 825 So.2d at 173—-74, quoting
Simmons v. State, 797 So.2d at 1144—45, quoting in
turn, Jurner v. State, 746 So.2d 355, 360-61 (Ala
1998)
Here, the methodology of the DNA testing was a
matter concerning the weight to be accorded that evn
dence and there is no indication in the record or
showing made by Morris that the testing was unrel:
able. Thus, to so conclude would be to yield to specu
lation
As to Morris’s argument that the State’s failure
to demonstrate the reliability of the DNA testing was
compounded by the destruction of the cigarette butt
87a
during the pretrial testing, the record shows other-
wise. On cross-examination, the State’s expert was
asked about the destruction of the cigarette butt and
the resulting inability of an independent test by a
secondary expert. The expert testified that “[t}here’s
DNA extract remaining, the liquid that-after the liq-
uid dissolves the filter and sponge material, what's
left is called the DNA extract. And there's a portion
of that that we always retain for future testing if
that's required, so that is left, yes.” (R. 420.)
Thus, Morris suffered no prejudice-he could have
tested the DNA using his own expert. See Holdren :
Legursky, 16 F.3d 57, 60 (4th Cir. 1994), cert. denied,
513 U.S. 831, 115 S.Ct. 106, 130 L.Ed.2d 53 (1954)
(any failure by treating physician to collect samples
from rape victim for subsequent testing went to the
weight of the evidence rather than its admissibility)
Cf. Ex parte Gingo, 605 So.2d 1237 (Ala. 1992) (de-
struction of samples allowed evidence of test results
only against Gingo and he was denied access to any
potentially exculpatory material)
XI
Morris argues that the trial court improperly re
stricted defense counsel from questioning police offi
cers about the failure to investigate evidence sug
gesting that someone else had committed the mur
der. Specifically, Morris alleges that he was not a!
lowed to question a State’s witness about whether
his investigation revealed that a suspicious blue van
with several black males was seen in the vicinity of
88a
Rochester’s house around the time of Rochester’s
death.
The record contains the State's renewal of its
motion in limine and a second motion in limine, re-
questing the trial court to bar Morris from referring
to a “blue car with several black males in it located
in the alley.” These motions, however, are dated as
filed on March 19, 2007, and July 17, 2007, respec-
tively, indicating that they were filed before Morris's
second trial, which ended in a mistrial. In the second
motion in lhmine, the State argues that during the
first trial, defense counsel questioned the State's
witness about his investigation of the alleged vehicle.
The court held that the questioning called for inad-
missible hearsay; therefore before the second trial
the State requested that Morris be barred from a
similar line of questioning.
In the third trial, just prior to voir dire, the fol
lowing transpired:
“{Prosecutor|: Well, Judge, you know, | forget
what all we did the last time but we just want to
renew our motions in limine that no questions in
volving hearsay of—well, canvassing the neighbor-
hood. I think they tried to ask the detective that. If
the witnesses are available, that's fine but we
don't-we would object to hearsay questions so we
have a motion in limine about that. I believe you
granted that last time.
“|Defense counsel]: That was about the blue car
deal
89a
“[Prosecutor]): Right, that's right.
“THE COURT: About the what?
“[Prosecutor]: There was a suspicious blue car in
the alley or neighborhood or something. Who knows
who said that.
“THE COURT: Well, to the extent it involves
hearsay, I grant the motion in limine. You know, |
kind of have to wait and see what happens, you
know, as we progress and see how the question is
asked because it's difficult to do till I hear the ques
tions.”
(R. 910.)
No further discussion was had on this subject,
and Morris did not attempt to question the State’s
witness as to any investigation concerning this al
leged vehicle. Morris may not assert as error a bar to
questioning a witness when he never sought to ques
tion the witness as to the information he now claims
was relevant. The trial court stated that it could not
rule on the questions until they were posed and only
held that it would not allow inadmissible hearsay
into evidence. It appears from the record that Morris
was satisfied with, or acquiesced to, the trial court's
ruling. J.k. vu. State, 997 So.2d 335, 340-41
(Ala.Crim.App. 2007) (J.E. cannot predicate error on
the violation in the present case because he acqui-
esced in the determination that the error was cured
and that further correction was not required.”)
90a
There is no error on this ground.
XII.
Morris argues that the trial court failed to prop-
erly instruct the jury on the reasonable-doubt stan-
dard. He raises this challenge for the first time on
appeal; therefore, this instruction is due to be evalu-
ated under the plain-error rule. Rule 45A,
Ala.R.App.P.
Morris specifically takes issue with certain ter-
minology used by the trial court to describe reason-
able doubt. He cites to the following language by the
trial court: “[A]nd the law means a sound and sensi-
ble reason as opposed to some imaginary or fanciful
reason”; “[I]t's not a probability or mere suspicion,
it's not a mere possible doubt because everything re-
lating to human affairs is open to some possible
doubt”; “[I]t does not mean a vague or arbitrary no-
tion”; “[I]t's distinguished from a doubt arising from
mere possibility, from bare imagination or from fan-
ciful conjecture.” (R. 526.) Morris also argues as im-
proper the trial court's instruction to the jury that “to
convict an innocent person or to acquit a guilty per-
son damages the entire criminal justice system.” As
to this last instruction, Morris contends that it im-
properly suggests that a wrongful conviction is no
more harmful that a wrongful acquittal, although the
reasonable-doubt standard stands for the principle
that “it is better that a hundred guilty men go free
than one innocent man suffer an unjust conviction.”
9la
(Morris’s brief, at 107, quoting Pruitt v. State, 270
P.2d 351, 362 (Okla.Crim.App. 1954).)
““Tn setting out the standard for plain error re-
view of jury instructions, the court in Untted
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), affd, 710 So.2d 1350 (Ala.
1997), cert. demied, 524 U.S. 929, 118 S.Ct. 2325,
141 L.Ed.2d 699 (1998).”
“Broadnax uv. State, 825 So.2d 134, 196
(Ala.Crim.App.2000), quoting Pilley v. State, 789
So.2d 870, 882-83 (Ala.Crim.App. 1998). More-
over, “[w]hen reviewing a trial court's jury in-
structions, we must view them as a whole, not in
bits and pieces, and as a reasonable juror would
have interpreted them. Jngram uv. State, 779 So.2d
1225 (Ala.Cr.App. 1999).” Johnson v. State, 820
So.2d 842, 874 (Ala.Crim.App. 2000).’
“Snyder vu. Siate, 893 So.2d 488, 548 (Ala.Crim.App.
2003).”
Belisle v. State, 11 So.3d 256, 308 (Ala.Crim.App.
2007), affirmed, 11 So.3d 323 (Ala. 2008), cert. de-
nied, __—*-U.S. __, 129 S.Ct. 2865, 174 L.Ed.2d 582
(2009.)
92a
A review of the entire reasonable-doubt instruc-
tion given by the trial court in the present case re-
veals that it properly followed the legal guidelines
and the Alabama Pattern Jury Instructions in in-
structing the jury. The trial court charged the jury as
follows:
“Now, ladies and gentlemen, the burden of proof
in this case is on the State of Alabama as it is in
any criminal case. And you say, well, what does
that mean. Well, it’s almost a self-defining term. It
means a doubt that you can give a reason for. And
the law means a sound and sensible reason as op-
posed to some imaginary or fanciful reason. Some-
times efforts to define beyond a reasonable doubt
don't always clarify it. It’s not a probability or a
mere suspicion, it’s not a mere possible doubt be-
cause everything relating to human affairs is open
to some possible doubt.
“A reasonable doubt is a doubt of a fair-minded
juror honestly seeking the truth after careful and
impartial consideration of all of the evidence. It’s a
doubt based upon reason and common sense. It
does not mean a vague or arbitrary notion, but it's
an actual doubt based upon the evidence, the lack
of evidence, a conflict in the evidence, or a combina-
tion of all of those factors. It’s a doubt that remains
in your minds after going over the entire case and
giving consideration to all of the testimony and evi-
dence and it's distinguished from a doubt arising
from mere possibility, from bare imagination or
from fanciful conjecture.
93a
“If after considering all the evidence you’re con-
vinced of the defendant's guilt beyond a reasonable
doubt, it would be your duty to convict the defen-
dant and you should say so. However, after consid-
ering all the evidence in the case you have a rea-
sonable doubt of the defendant's guilt, then you
should acquit him and say so in that regard as
well.”
(R. 525-26.)
None of the language found objectionable in Cage
v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d
339, was used by the trial court in his reasonable-
doubt charge.? The instruction neither lowered the
standard of proof nor was it confusing or deficient.
“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’ but must be
based on ‘reason and common sense.’ It also in-
forms jurors that reasonable doubt that ‘entitles an
accused to an acquittal is not a mere fanciful,
9 We note that the trial court did use the terminology “mathe-
matical certainty or beyond all doubt” in its circumstantial-
evidence charge. (R. 533.) However, there was no error in that
usage. Sharifi v. State, 993 So.2d 907, 933-34 (Ala.Crim.App.
2008), cert. denied, _ U.S. __, 129 S.Ct. 491, 172 L.Ed.2d 386
(2008.).
94a
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), quot-
ing Price uv. 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.20038).”
Harris v. State, 2 So.3d 880, 913 (Ala.Crim.App.
2007).
Moreover, the trial court did not imply that it is
preferable to convict an innocent man than to free a
guilty one; rather, it instructed as to the wrongful-
ness of both. See generally Jackson v. State, 432
So.2d 504, 508 (1983) (holding, without commenting
on the charge, that the trial court did not err in fail-
ing to charge the jury that “it is better that many
guilty people go unpunished than that one innocent
person is convicted” because it was an abstract prin-
ciple of law).
There was no error, plain or otherwise, in the
trial court's instructions to the jury as to the reason-
able-doubt standard.
XIII.
Morris alleges that the State improperly intro-
duced victim-impact evidence during the guilt phase
95a
of his trial. Morris refers to evidence that Rochester
had a son who was deaf, that she listened to “church”
music, and that she had a granddaughter who died of
Hodgkin’s disease, that she owned religious jewelry,
and that she had a Bible that was “torn up” during
the offense. He argues that this evidence unduly in-
flamed the jury. Morris failed to object to any of this
testimony at trial; therefore, this issue is due to be
analyzed under the plain-error rule. Rule 45A,
Ala.R.App.P.
A review of the record reveals that this testi-
mony had no prejudicial impact on Morris's trial.
“In Ex parte Rieber, 663 So.2d 999, 1006 (Ala.
1995), this Court held:
“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 [the defendant] did
not receive a fair trial simply because the jurors
were told what they probably had already sus-
pected-that [the victim] was not a “human is-
land,” but a unique individual whose murder had
inevitably had a profound impact on her children,
spouse, parents, friends, or dependents (para-
phrasing a portion of Justice Souter’s opinion con-
curring in the judgment in Payne v. Tennessee,
501 U.S. 808, 838, 111 S.Ct. 2597, 2615, 115
L.Ed.2d 720 (1991)).”
Ex parte Walker, 972 So.2d 737, 747 (Ala. 2007)
(holding no reversible error from introduction of
96a
guilt-phase evidence concerning family history,
community activity, and character of 87-year-old vic-
tim, as well as testimony from a daughter and a
friend).
After carefully examining the record, we con-
clude that the admission of the complained-of testi-
mony did not constitute reversible error.
XIV.
Morris argues that, during the prosecutor’s ques-
tioning of a police officer at trial, the prosecutor im-
properly commented on Morris’s silence following the
appointment of defense counsel. Morris raises this
issue for the first time on appeal, and thus this issue
is to be analyzed under the plain-error rule. Rule
45A, Ala.R.App.P.
However, the testimony to which Morris alludes
could not reasonabiy have been construed to consti-
tute a comment on his failure to testify. During the
direct examination of the officer who had taken Mor-
ris's statement following his arrest and who had in-
terviewed him again later, the prosecutor elicited
testimony recounting a number of inconsistencies,
deceitful responses, and alterations in the state-
ments given by Morris. The following transpired dur-
ing this direct examination:
“Q. You talked to him about the jewelry he had on
him when he was arrested?
“A. Yes, sir, we did.
97a
“Q. How did he explain how he came to be in pos-
session of that?
“A. Said he won it in a crap game shooting dice.
“Q. Did he tell you any other explanation for it?
“A. He said he had paid ten dollars to a guy for this
stuff too. When it all started we asked him where
he lived and who he lived with and then he said he
paid ten dollars for the stuff, and then later on in
the interview he said he won it 1n a crap game.
“Q. Did he tell you the name of the person he won it
from?
“A. No, sir, he did not.
“Q. Did y’all ask him who?
“A. Yes, sir.
“Q. Did he teil you he didn't know?
“A. Yes, sir.
“Q. Did y’all ask him about names for any of the
people that he got in a fight with?
“A. Yes, sir.
“Q. Did he tell you who they were?
98a
“A. By name, no, sir.
“@. Did he tell you who he was rolling dice with?
“A. By name, no, sir.
“Q. Did y’all talk to him about his time frame for
when he was at certain places the night before?
“A. Yes, sir.
“Q. Was he able to give you some accurate or spe-
cific times?
“A. Nothing was specific time-wise.
“Q. Could he tell you what time he left his house?
“A. Specific time, no, not by time, no.
“Q. Did he tell you what time he ate at the Huddle
House?
“A. No, sir. A specific time, no, sir.
“Q. Did he give you ages of the guys who he got in a
fight with?
“A. Yes, sir.
“Q. Do you recall what ages those were?
“A. Eighteen to twenty years old.
99a
“Q. Did he tell you anything about being taken
back to the crime scene?
“A. No, sir.
“Q. Did he tell you anything about seeing crime
scene tape?
“A. No, sir.
“Q@. Where did he tell you he thought he was taken
after he was arrested?
“A. I think he said he went to the fire station, yeah,
I think that's right, and then to Cooper Green.
“Q. Did he tell you that he was with Ron Smith?
“A. No, sir.
“Q. At any point?
“A. No, Sir.
“Q. And when was the first time you heard the
names Ron Smith or Cue Ball or John Lewis in re-
lation to this case?
“A. About a month ago.”
(R. 470-72.)
Taken in context, the question by the prosecutor
was to elicit testimony indicating that Morris had
100a
recently formulated a story as part of his defense.
The jury would not have understood this question to
refer to Morris's silence following the appointment of
defense counsel.
As this Court stated in Connell v. State, 7 So.3d
1068 (Ala.Crim.App. 2008):
“We have reviewed the complained-of comment in
light of the entire trial, including the defense’s
opening argument and the prosecutor's closing ar-
gument. Viewed in that context, the prosecutor was
obviously commenting on the appellant’s previous
inconsistent statements and on the fact that the
evidence did not support the representations de-
fense counsel made in his opening argument.
Moreover, the prosecutor's comment was not “of
such character that a jury would naturally and
necessarily construe it as a comment on the defen-
dant's silence.” Ex parte Davis, 718 So.2d at 1173.
Therefore, the appellant's argument is without
merit.”
7 So.3d at 1096. See Barber v. State, 952 So.2d 393,
440 (Ala.Crim.App. 2005) (prosecutor's comment
would not have been construed by the jury as a com-
ment on Barber's silence, but rather was “a permis-
sible comment on the evidence and reply-in-kind to
the defense's implications’).
XV.
Morris argues that his conviction should be over-
turned because, he says, the trial court improperly
10la
admitted gruesome and unduly prejudicial photo-
graphs of the victim into evidence. Morris refers to
pages in the transcript containing the admission of
photographs depicting the victim's wounds and the
crime scene. When the trial court asked if there were
any objections to the admission of these photographs,
defense counsel responded that he had no objection.
Therefore, this issue must be analyzed under the
plain-error rule. Rule 45A, Ala.R.App.P.
““Generally, photographs are admissible into
evidence in a criminal prosecution ‘if they tend to
prove or disprove some disputed or material is-
sue, to illustrate or elucidate some other relevant
fact or evidence, or to corroborate or disprove
some other evidence offered or to be offered, and
their admission is within the sound discretion of
the trial judge.” Bankhead v. State, 585 So.2d 97,
109 (Ala.Crim.App. 1989), remanded on other
grounds, 585 So.2d 112 (Ala. 1991), aff'd on re-
turn to remand, 625 So.2d 1141 (Ala.Crim.App.
1992), rev'd, 625 So.2d 1146 (Ala. 1993), quoting
Magwood uv. State, 494 So2d 124, 141
(Ala.Crim.App. 1985), aff'd, 494 So.2d 154 (Ala.
1986). “Photographic exhibits are admissible even
though they may be cumulative, demonstrative of
undisputed facts, or gruesome.” Williams v. State,
506 So.2d 368, 371 (Ala.Crim.App. 1986) (cita-
tions omitted). In addition, “photographic evi-
dence, if relevant, is admissible even if it has a
tendency to inflame the minds of the jurors.” Ex
parte Siebert, 555 So.2d 780, 784 (Ala. 1989).
“This court has held that autopsy photographs,
although gruesome, are admissible to show the
102a
extent of a victim's injuries.” Ferguson v. State,
814 So.2d 925, 944 (Ala.Crim.App. 2000), aff'd,
814 So.2d 970 (Ala. 2001). “[A]utopsy photo-
graphs depicting the character and location of
wounds on a victim's body are admissible even if
they are gruesome, cumulative, or relate to an
undisputed matter.” Jackson v. State, 791 So.2d
979, 1016 (Ala.Crim.App. 2000), quoting Perkins
v. State, 808 So.2d 1041, 1108 (Ala.Crim.App.
1999), aff'd, 808 So.2d 1143 (Ala. 2001), judgment
vacated on other grounds, 536 U.S. 953, 122 S.Ct.
2653, 153 L.Ed.2d 830 (2002), on remand to, 851
So.2d 453 (Ala. 2002). “The same rule applies for
videotapes as for photographs: ‘The fact that a
photograph is gruesome and ghastly is no reason
for excluding it, if relevant, even if the photo-
graph may tend to inflame the jury.” Siebert v.
State, 562 So.2d 586, 599 (Ala.Crim.App. 19839),
aff'd, 562 So.2d 600 (Ala. 1990), quoting Walker v.
State, 416 So.2d 1083, 1090 (Ala.Crim.App. 1982).
See also Ward ov. State, 814 So.2d 899
(Ala.Crim.App. 2000). Generally, “[a] properly au-
thenticated video tape recording of the scene of
the crime constitutes competent evidence” and “is
admissible over the defendant's objections that
the tape was inflammatory, prejudicial, and cu-
mulative.” Kuenzel v. State, 577 So.2d 474, 512-
13 (Ala.Crim.App. 1990), affd, 577 So.2d 531
(Ala.1991). “Provided that a proper foundation is
laid, the admissibility of videotape evidence in a
criminal trial is a matter within the sound discre-
tion of the trial judge.” Donahoo v. State, 505
So.2d 1067, 1071 (Ala.Crim.App. 1986).’
LO38a
“973 So.2d at 393.
“Here, the crime scene video was properly au-
thenticated and constituted competent evidence.
Despite the gruesome appearance of the crime
scene and the victim's body, the video and photo-
graphs of the body and crime scene were properly
admitted within the trial court's discretion.”
Johnson v. State, [Ms. CR-99-1349, October 2, 2009]
__ So.3d _, (Ala.Crim.App. 2009).
In the present case, after viewing the photo-
graphs and noting that they were properly authenti-
cated by the witness, we find that they were compe-
tent evidence and properly admitted within the trial
court's discretion. There was no plain error as to the
admission of the photograph.
XVI.
Morris contends that the trial court deprived
him of his constitutional right to ask jurors about
their racial bias. Specifically, Morris argues that, be-
cause he is a black man and the victim was a white
woman, he should have been allowed to submit a
written questionnaire to the prospective jurors to as-
certain whether they had any racial bias. He argues
that the trial court’s decision to prevent him from do-
ing so violated his Fifth, Sixth, Eighth, and Four-
teenth Amendment rights under the United States
Constitution.
104a
In the present case, the record indicates that
there was a thorough voir dire examination of the
venire, including group and individual questioning.
The trial court did not limit the questioning. More-
over, Morris raises no specific claim or indication of
prejudice by a juror who sat on his jury or another
member of the venire.
“In Ex parte Land, 678 So.2d 224 (Ala. 1996),
the Alabama Supreme Court held that the method of
voir dire examination is within the discretion of the
trial court and a trial court's refusal to allow the use
of [a] juror questionnaire is not an abuse of that dis-
cretion. Hodges v. State, 856 So.2d 875, 913
(Ala.Crim.App. 2001), affd, 856 So.2d 936
(Ala.2003).” Sneed v. State, 1 So.3d 104, 135
(Ala.Crim.App. 2007), cert. denied, 1 So.3d 104 (Ala.
2008), cert. denied, _—«s~U'.S. __, 129 S.Ct. 1039, 173
L.Ed.2d 472 (2009.)
Similarly, in Brown v. State, 11 So.3d 866, 885
(Ala.Crim.App. 2007), Brown argued “that the circuit
court erred in denying his motion to have the pro-
spective jurors complete juror questionnaires related
to their qualifications for jury service. [Brown] as-
sert[ed] that voir dire [was] inadequate to uncover
prejudices; therefore, he argue[d], it was essential
that the jurors complete questionnaires.” In holding
that the trial court did not abuse its “broad discre-
tion” by denying Brown’s request for juror question-
naires, this Court noted that Brown pointed to no
specific instance where the voir dire had been inade-
quate to show any prejudices. Id.
105a
In the present case, the trial court did not abuse
its discretion in denying Morris’s motion, and there
was no indication of any racial prejudice by the po-
tential jurors.
XVII.
Morris contends that his right to an impartial
jury was violated by the striking of two prospective
jurors who were opposed to the death penalty.!°
The record indicates that during the voir dire
examination of the venire, the trial court asked if
anyone had a fixed opinion either in favor of or in
opposition to the death penalty. (R. 21—23.) The two
potential jurors whose removal Morris now chal-
lenges, indicated that they held such a fixed opinion
were subsequently questioned individually. The trial
court and defense counsel questioned the first poten-
tial juror, who unequivocally stated that he would
never consider the death penalty. The prosecutor
moved that the juror be removed for cause, and the
trial court granted the motion. Morris did not object.
The second potential juror also stated that he would
not consider the death penalty under any circum-
stances. Morris again did not object to the’ trial
10 We note that the record indicates that a third potential juror
indicated that she had strong feelings about the death penalty
but that she was not further questioned as to her beliefs. How-
ever, the record shows that neither party had to exercise a
strike to remove this potential juror, and she did not serve on
the jury.
106a
court’s granting of the prosecutor's motion to strike
the potential juror for cause. Rule 45A, Ala.R.App.P.
According to § 12-16-152, Ala.Code 1975:
“On the trial for any offense which may be pun-
ished capitally or by imprisonment in the peniten-
tiary, it is a good cause of challenge by the state
that the person would refuse to impose the death
penalty regardless of the evidence produced or has
a fixed opinion against penitentiary punishment or
thinks that a conviction should not be had on cir-
cumstantial evidence, which cause of challenge
may be proved by the oath of the person or by other
evidence.”
See Rule 18.4(e), Ala.R.Crim.P. (“When a prospective
juror is subject to challenge for cause or it reasonably
appears that the prospective juror cannot or will not
render a fair and impartial verdict, the court, on its
own initiative or on motion of any party, shall excuse
that juror from service in the case”).
“Also, “[t]he trial judge is in the best position to
hear a prospective juror and to observe his or her
demeanor.” McNair v. State, 653 So.2d 320, 324
(Ala.Crim.App. 1992), affd, 653 So.2d 353 (Ala.
1994) (quoting Ex parte Dinkins, 567 So.2d 1313,
1314 (Ala. 1990)). Finally,
666
[t]he test for determining whether a strike rises
to the level of a challenge for cause is “whether a
juror can set aside their opinions and try the case
fairly and impartially, according to the law and
107a
the evidence.” Marshall v. State, 598 So.2d 14,
16 (Ala.Cr.App. 1991). “Broad discretion is vested
with the trial court in determining whether or not
to sustain challenges for cause.” Ex parte Nettles,
435 So.2d 151, 153 (Ala. 1983). “The decision of
the trial court ‘on such questions is entitled to
great weight and will not be interfered with
unless clearly erroneous, equivalent to an abuse
of discretion.” Nettles, 435 So.2d at 153. In
Marshall v. State, 598 So.2d 14 (Ala.Cr.App.
1991), this court held that it was not error for a
trial court to deny challenges for cause of two ju-
rors who stated that they knew the victim or her
family. One veniremember had been employed as
a maid by the victim’s family and the other stated
that she knew the victim's family. Marshall, 598
So.2d at 16. This court held that this relationship
was not grounds for a challenge for cause as long
as the juror indicates that he or she can be fair
and impartial. 598 So.2d at 16.’
“Dunning vu. State, 659 So.2d 995, 997
(Ala.Crim.App. 1994).”
Killingsworth v. State, [Ms. CR-06-0854, November
13, 2009] __ So.3d __, _ (Ala.Crim.App. 2009).
The trial court, which is able to view the poten-
tial juror's demeanor as he or she answers the ques-
tions posed on voir dire and subsequently if neces-
sary, is in a better position to evaluate his or her be-
liefs or convictions. In the instant case, these poten-
tial jurors’ responses show that their opposition to
the death penalty was unwavering and thus would
108a
have prevented them from carrying out their duties
as fair jurors. There was no error here.
XVIII.
Morris argues that Alabama's’ “capital-
sentencing statute fails to narrow the universe of de-
fendants eligible for the death penalty.” (Morris’s
brief, at 112.) Specifically, he contends that the death
penalty is arbitrarily imposed because Alabama al-
lows the factor making certain offenses capital to
also serve as an aggravating circumstance in the
case. He also again argues that he is being punished
twice for the same offense by being convicted of capi-
tal murder because it occurred during both a robbery
and a burglary. Morris raises these claims for the
first time on appeal; therefore, this issue is due to
evaluated under the plain-error rule. Rule 45A,
Ala.R.App.P.
Morris's claim concerning the “double-counting”
of the aggravating circumstance has consistently
been upheld by Alabama appellate courts:
““'W)hen a defendant is found guilty of a capital
offense, ‘any aggravating circumstance which the
verdict convicting the defendant establishes was
proven beyond a reasonable doubt at trial shall be
considered as proven beyond a reasonable doubt
for purposes of the sentencing hearing.’ Ala.Code
1975, § 138A-5-45(e); see also Ala.Code 1975, §
13A-5-50 (‘The fact that a particular capital of-
fense as defined in Section 13A-5-40(a) necessar-
ily includes one or more aggravating circum-
109a
stances as specified in Section 13A-5-49 shall not
be construed to preclude the finding and consid-
eration of that relevant circumstance or circum-
stances in determining sentence.’). This is known
as ‘double-counting’ or ‘overlap, and Alabama
courts ‘have repeatedly upheld death sentences
where the only aggravating circumstance sup-
porting the death sentence overlaps with an ele-
ment of the capital offense.’ Ex parte Trawick, 698
So.2d 162, 178 (Ala. 1997); see also Coral v. State,
628 So.2d 954, 965 (Ala.Crim.App. 1992).””
Billups v. State, [Ms. CR-05-1767, November 13,
2009] __ So.38d _, __ (Ala.Crim.App. 2009), quoting
Barber ov. State, 952 So.2d 393, 458—-59
(Ala.Crim.App. 2005). See also Newton v. State, [Ms.
CR-05-1517, October 2, 2009] _ So3d _,
(Ala.Crim.App. 2009).
This precise ground of error, that this double-
counting fails to narrow the class of death-eligible
murderers, has been addressed and determined ad-
versely to Morris by the United States Supreme
Court:
“Here, the ‘narrowing function’ was performed by
the jury at the guilt phase when it found defendant
guilty of three counts of murder under the provt-
sion that ‘the offender has a specific intent to kill or
to inflict great bodily harm upon more than one
person’ The fact that the sentencing jury is also re-
quired to find the existence of an aggravating cir-
cumstance in addition is no part of the constitu-
tionally required narrowing process, and so the fact
110a
that the aggravating circumstance duplicated one
of the elements of the crime does not make this
sentence constitutionall
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