# Appendix — Morris v. Alabama

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1737%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1287

## Text

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):

“
»

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 constitutionally infirm. There is no ques-
tion but that the Louisiana scheme narrows the
class of death-eligible murderers and then at the
sentencing phase allows for the consideration of
mitigating circumstances and the exercise of dis-
cretion. The Constitution requires no more.”

Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct.
546, 98 L.Ed.2d 568 (1988).

Thus, as this issue has previously been discussed
and determined adversely to Morris’s contention,
there is no error on this ground.

Furthermore, Morris’s argument that he was
improperly convicted of and sentenced based on both
murder during a robbery and murder during a bur-
glary is without merit here. See Part II.B. of this
opinion. The evidence supported the jury's finding
that Morris broke into Rochester’s home with the in-
tention of committing a theft inside and murdered
her in the course of doing so. He also murdered
Rochester while overcoming her physical resistence
and causing serious physical injury in order to com-
mit the theft.

Despite Morris’s contention that he could not be
convicted and sentenced to both of these capital of-
fenses for the same murder, this argument has also
been previously decided adversely to Morris. As this
Court stated in Belisle v. State, 11 So.3d 256
(Ala.Crim.App. 2007), affirmed, 11 So.3d 323

llla

(Ala.2008), cert. denied, _ U.S. __, 129 S.Ct. 2865,
174 L.Ed.2d 582 (2009):

“Belisle was charged and convicted for two counts
of capital murder for murdering Joyce Moore dur-
ing the course of a burglary and a robbery, viola-
tions of §§ 13A-5-40 (a)(2) and (a)(4), Ala.Code
1975. Both require proof of different elements-one a
burglary and one a robbery-and do not offend the
Double Jeopardy Clause. ‘A defendant can be con-
victed of two or more capital murders for the death
of one victim, so long as those convictions are in ac-
cordance with Blockburger [v. United States, 284
U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)], 1.e., so
long as each conviction required an element not re-
quired in the other convictions.’ Heard v. State, 999
So.2d 992, 1009 (Ala. 2007). See also Ex parte
Haney, 603 So.2d 412, 419 (Ala. 1992); Ex parte
Peraita, 897 So.2d 1227 (Ala. 2004); Ex parte
McWilliams, 640 So.2d 1015 (Ala. 1993); Castillo v.
State, 925 So.2d 284 (Ala.Crim.App. 2005); Flowers
v. State, 922 So.2d 938 (Ala.Crim.App. 2005); White
v. State, 900 So.2d 1249 (Ala.Crim.App. 2004);
Wynn v. State, 804 So.2d 1122 (Ala.Crim.App.
2000); Barksdale v. State, 788 So.2d 898
(Ala.Crim.App. 2000); Freeman v. State, 776 So.2d
160 (Ala.Crim.App. 1999); Burtram v. State, 733
So.2d 921 (Ala.Crim.App. 1998); Hyde v. State, 778
So.2d 199 (Ala.Crim.App. 1998); Madison v. State,
718 So.2d 90 (Ala.Crim.App. 1997); Merriweather v.
State, 629 So.2d 77 (Ala.Crim.App. 1993).

“Belisle’s convictions for two counts of capital
murder for murdering Moore during the course of a

112a

burglary and a robbery do not violate the Double
Jeopardy Clause.”

11 So.3d at 280. See also Lewis v. State, [Ms. CR-06-
1770, October 2, 2009] __ So.3d __ (Ala.Crim.App.
2009).

——

Because Morris could properly be convicted of
both of these capital offenses violating double-
jeopardy principles, and because the evidence sup-
ported the jury’s determination of guilt as to these
two offenses, Morris’s claim is without merit.

XIX.

Morris argues that the trial court erred in allow-
ing a key State’s witness, Detective Russell, to be
present during trial. He submits that because the de-
fense had invoked the general exclusionary rule for
witnesses, Detective Russell should not have been
allowed to remain in the courtroom.

This issue must be analyzed under the plain-
error rule because Morris failed to object to Detective
Russell's presence at trial. Centobie v. State, 861
So.2d 1111, 1130 (Ala.Crim.App. 2001), cert. denied,
861 So.2d 1145 (Ala. 2003) (“Because the appellant
failed to object at trial to the presence of either [the
victim's wife or the Alabama Bureau of Investigation
investigator], but merely questioned their presence
and whether Rule 615, Ala.R.Evid., had been in-
voked, this argument is subject to review pursuant to
the plain-error rule. See Rule 45A, Ala.R.App.P.”).

113a

“Rule 9.3, Ala.R.Crim.P., states:
“(a) Witnesses. Prior to or during any proceeding,
the court, on its own motion or at the request of
any party, may exclude witnesses from the court-
room and direct them not to communicate with
each other, or with anyone other than the attor-
neys in the case, concerning any testimony until
all witnesses have been released by the court.’

“The Committee Comments to this rule establish
that “The power to exclude and separate witnesses
is entirely a matter of discretion with the trial
court. Teague v. State, 245 Ala. 339, 16 So.2d 877
(1944); Beddow v. State, 39 Ala.App. 29, 96 So.2d
175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178
(1957), cert. denied, 355 U.S. 390, 78 S.Ct. 412, 2
L.Ed.2d 414 (1958). By invoking the rule, the court
is not compelled to exclude all witnesses but may
be selective as appropriate.’

“Further, Rule 615, Ala.R.Evid., states:

“At the request of a party the court may order
witnesses excluded so that they cannot hear the
testimony of other witnesses and it may make the
order of its own motion. This rule does not au-
thorize exclusion of (1) a party who is a natural
person, (2) an officer or employee of a party which
is not a natural person designated as its repre-
sentative by its attorney, (3) a person whose pres-
ence is shown by a party to be essential to the
presentation of the party's cause, or (4) a victim of
a criminal offense or the representative of a vic-

ll4a

tim who is unable to attend, when the representa-
tive has been selected by the victim, the victim's
guardian, or the victim's family.’

“The Comments to this rule explain that two of
the categories which do not authorize exclusion are
‘a party that is not a natural person is entitled to
have a representative present. This person is to be
an officer or employee of the party and is to be des-
ignated by the party's attorney. Allowing such a
witness to be present is consistent with historic
Alabama practice. An example of this would be
when a police officer, who has been in charge of the
state's investigation, is allowed to remain in the
courtroom despite the fact that the officer will be a
witness. See, e.g., Portomene v. United States, 221

F.2d 582 (5th Cir. 1955).”

Johnson v. State, [Ms. CR-99-1349, October 2, 2009]
So.38d_,_ (Ala.Crim.App. 2009).

The record establishes that Detective Russel!
was the chief investigator or “on-call homicide detec-
tive” in this case (R. 348—49), and, as such, he was
the “official ‘law enforcement representative” and
allowed to remain in the courtroom by Rule 615,
Ala.R.Evid. Centobie v. State, 861 So.2d at 1130. The
trial court did not abuse its discretion in allowing
Detective Russell to remain tn the courtroom despite
the fact that Detective Russell testified at trial. “In
Ex parte Lawhorn, 581 So.2d 1179, 1181 (Ala. 1991),
the Alabama Supreme Court stated that ‘Alabama
appellate courts have time and again refused to hold
it an abuse of discretion on the part of the trial court

115a

to allow a sheriff, police chief, or similarly situated
person who will later testify to remain in the court-
room during trial.’ See also Jackson v. State, 502
So.2d 858 (Ala.Crim.App. 1986); Johnson v. State,
479 So.2d 1377 (Ala.Crim.App. 1985); Chesson v.
State, 435 So.2d 177 (Ala.Crim.App. 1983), and au-
thorities cited in those cases.” Jd.

Here, the trial court did not abuse its discretion
by allowing Detective Russell to remain in the court-
room during the trial. There was no plain error as to
this claim.

XX.

Morris argues that Alabama’s method of execu-
tion is unconstitutional under the Eighth and Four-
teenth Amendments to the United States Constitu-
tion, as well as under the Alabama Constitution of
1901, Art. I, § 15. Specifically, Morris contends that
the method of lethal injection used in Alabama could
result in excessive and undue pain, because “[iJt is
undisputed that, without proper anaesthesia, the
administration of pancuronium bromide and potas-
sium chloride, either separately or in combination,
would result in a terrifying, excruciating death. The
basic mechanics are that the inmate would first be
paralyzed and suffocated (because the paralysis
would make him unable to draw breath), then feel a
burning pain throughout his body, and then suffer a
heart attack while remaining unable to breathe.” Ex
parte Belisle, 11 So.3d 323, 338 n. 15 (Ala. 2008),
cert. denied, _ U.S. _., 129 S.Ct. 2865, 174 L.Ed.2d

116a

582 (2009), quoting Harbison v. Little, 511 F.Supp.2d
872, 883 (M.D.Tenn. 2007).

However, in £x parte Belisle, 11 So.3d at 338, the
Alabama Supreme Court held that, in light of the
safeguards included in the administration of the
drugs used for executions by lethal injection in Ala-
bama, these procedures do not constitute cruel and
unusual punishment.

“We note that Alabama’s statutory death-penalty
scheme has repeatedly been upheld against consti-
tutional challenges. A comprehensive listing of the
cases dealing with these challenges can be found in
Travis v. State, 776 So.2d 819, 873 (Ala.Crim.App.
1997), aff'd, 776 So.2d 874 (Ala. 2000), cert. denied,
531 U.S. 1081, 121 S.Ct. 785, 148 L.Ed.2d 681
(2001). Moreover, we know of no authority in sup-
port of the general proposition that death by lethal
injection violates a defendant's constitutional
rights. Indeed, a number of jurisdictions have re-
jected such claims. See, e.g., Sums v. State, 754
So.2d 657, 668 (Fla. 2000); State v. Carter, 89 Ohio
St.3d 593, 608, 734 N.E.2d 345 (2000); Ritchie v.
State, 809 N.E.2d 258, 262 (Ind. 2004); Wheeler v.
Commonwealth, 121 S.W.3d 173, 186 (Ky. 2003).
Today, we join these jurisdictions in holding that
death by lethal injection is not per se cruel and un-
usual punishment.”

Bryant vu. State, 951 So.2d 732, 747-48
(Ala.Crim.App. 2003), cert. denied, 951 So.2d 732
(Ala. 2006), cert. denied, 549 U.S. 1324, 127 S.Ct.
1909, 167 L.Ed.2d 569 (2007). (Footnote omitted.)

117a

XXII.

Morris argues that his conviction and sentence
are due to be reversed based on the cumulative effect
of the previously alleged errors.

““The Alabama Supreme Court has set forth the
cumulative-error rule as follows: ‘[W]hile, under
the facts of a particular case, no single error
among multiple errors may be sufficiently preju-
dicial to require reversal under Rule 45, if the ac-
cumulated errors have “probably injuriously af-
fected substantial rights of the parties,” then the
cumulative effect of the errors may require rever-
sal.’ Ex parte Woods, 789 So.2d 941, 942-43 n .1
(Ala. 2001) (quoting Rule 45, Ala.R.App.P.). Ap-
plying this standard to Lewis’s allegation of cu-
mulative error, we have scrupulously reviewed
the record and find no evidence that the cumula-
tive effect of any of the individually nonreversible
errors in this case affected Lewis’s substantial
rights at trial.”

“Sharift. vu. State, 993 So.2d 907, 946-47
(Ala.Crim.App. 2008) (quoting Lewis v. State, [Ms.
CR-03-0480, April 28, 2006] _— So.3d _,
(Ala.Crim.App. 2006)).”

Brown v. State, [Ms. CR-07-195%, November 143,
2009] __ So.3d ___, __ (Ala.Crim.App. 2009.)

In the present case, when we review the record
and the errors previously discussed, there is no indi-

118a

cation that they affected Morris’s substantial rights
at trial.

XXII.

According to Rule 45A, Ala.R.App.P., we have
searched the entire proceedings for any plain error.
In so doing, we note that the record of the proceed-
ings does not affirmatively show that the petit jury
was sworn as to their oath of service. (R. 107.) How-
ever, the case-action summary reflects that the jury
was sworn and the record does show parenthetically
that the venire-members were administered their
oath before voir dire examination. (C. 47, R. 13.)
Therefore, there is no error, plain or otherwise, be-
cause of this omission. Ex parte Lee, 989 So.2d 504,
506 (Ala. 2008).

Further, pursuant to § 13A-5-53, Ala.Code 1975,
we are required to address the propriety of Morris’s
sentence of death. It is the finding of this Court that
there is no error in the sentencing that adversely af-
fected Morris’s rights.

The trial court found the existence of three ag-
gravating circumstances: that Morris had previously
been convicted of another felony involving the use of
violence to the person, specifically second-degree as-
sault, § 13A-5-49(2), Ala.Code 1975; that Morris in-
tentionally caused the death of Rochester during the
commission of first-degree robbery, § 13A-5-49 § 4),
Ala.Code 1975; and that Morris intentionally caused
the death of Rochester during the commission of
first-degree burglary, § 13A-5-49(4), Ala.Code 1975.

119a

The trial court further found the existence of no
statutory mitigating circumstances. Moreover, the
trial court found that Morris presented no nonstatu-
tory mitigating circumstances at the sentencing
hearing, and the trial court found none to be present
in this case.

In weighing the aggravating circumstances
against the mitigating circumstances, the trial court
determined that “[a]fter consideration of all the mat-
ters that were presented to [the] Court, the testi-
mony heard at trial, and the sentencing hearing be-
fore [the] Court, both in mitigation and by aggrava-
tion, taking into account all other matters that were
proferred before [the] Court,” the aggravating cir-
cumstances outweighed the mitigating circum-
stances. (C. 64.) The trial court’s findings concerning
the aggravating and mitigating circumstances are
supported by the record.

It is the finding of this Court that death is the
proper sentence in this case. After carefully review-
ing the record of both the guilt and sentencing
phases of Morris's trial, we conclude that there is no
indication that the sentence of death was imposed
under the influence of passion, prejudice, or any
other arbitrary factor. Section 13A-5-53(b)(2),
Ala.Code 1975, requires this Court to weigh the ag-
gravating circumstances and the mitigating circum-
stances independently to determine the propriety of
Morris's sentence of death. An independent weighing
of the aggravating and mitigating circumstances in-
dicates that the trial court properly determined that
the aggravating circumstances outweighed the miti-

120a

gating circumstances and that death is the proper
sentence.

As required by § 13A-5-53(b)(3), Ala.Code 1975,
this Court must determine whether Morris’s sen-
tence was disproportionate or excessive when com-
pared to the penalties imposed in similar cases. The
sentence of death in this case is neither dispropor-
tionate nor excessive to the penalties imposed in
similar cases, considering the circumstances sur-
rounding both the crime and Morris. See, e.g., Belisle
v. State, 11 So.3d 256 (Ala.Crim.App. 2007), cert. de-
nied, 11 So.38d 323 (Ala. 2008), cert. denied, __ U.S.
__ (2009); Saunders v. State, 10 So.3d 53
(Ala.Crim.App. 2007), cert. denied, 10 So.3d 53 (Ala.
2008), cert. denied, __—~U-.S. __, 129 S.Ct. 2433, 174
L.Ed.2d 229 (2009.)

For the reasons expressed here, Morris’s convic-
tions and sentences are affirmed.

AFFIRMED.

WELCH and KELLUM, JJ., concur. WISE, P.J., con-
curs in the result. WINDOM, J. recuses herself.

12la

Appendix B

COURT OF CRIMINAL APPEALS
STATE OF ALABAMA

April 16, 2010

CR-07-1997 Death Penalty

Alfonzo Morris v. State of Alabama (Appeal from Jef-
ferson Circuit Court: CC97-5397)

NOTICE

You are hereby notified that on April 16, 2010
the following action was taken in the above refer-
enced cause by the Court of Criminal Appeals:

Application for Rehearing Overruled.
/s/

Lane W. Mann, Clerk
Court of Criminal Appeals

ec: Hon. Tommy Nail, Circuit Judge
Hon. Anne-Marie Adams, Circuit Clerk
Anna P. Engh, Attorney — Pro Hac
Gregory M. Lipper, Attorney — Pro Hac
Randall S. Susskind, Attorney
Joshua Bearden, Asst. Attorney General

122a

Appendix C

IN THE SUPREME COURT OF ALABAMA
September 17, 2010

1091052

Ex parte Alfonzo Morris. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL AP-
PEALS (In re: Alfonzo Morris v. State of Alabama)
(Jefferson Circuit Court: CC97-5397; Criminal Ap-
peals : CR-07-1997).

CERTIFICATE OF JUDGMENT

WHEREAS, the petition for writ of certiorari in
the above referenced cause has been duly submitted
and considered by the Supreme Court of Alabama
and the judgment indicated below was entered in
this cause on September 17, 2010:

Writ Denied. No Opinion. Woodall, J. - Lyons,
Stuart, Smith, Bolin, Parker, and Shaw, JuJ.,
concur. Murdock, J., dissents. Cobb, C.J.,
recuses herself.

NOW, THEREFORE, pursuant to Rule 41, Ala.
R. App. P., IT IS HEREBY ORDERED that this
Court’s judgment in this cause is certified on this
date. IT IS FURTHER ORDERED that, unless oth-
erwise ordered by this Court or agreed upon by the

parties, the costs of this cause are hereby taxed as
provided by Rule 35, Ala. R. App. P.

123a

I, Robert G. Esdale, Sr., as Clerk of the Supreme
Court of Alabama, do hereby certify that the forego-
ing is a full, true, and correct copy of the instru-
ment(s) herewith set out as same appear(s) of record
in said Court.

Witness my hand this 17th day of September,
2010.

/s/ Robert G. Esdale

Clerk, Supreme Court of Alabama

124a

Appendix D

IN THE CIRCUIT COURT,
TENTH JUDICIAL CIRCUIT
JEFFERSON COUNTY, ALABAMA
CRIMINAL DIVISION

STATE OF ALABAMA,
Plaintiff,

Case Number:
CC-1997-5397

V.

ALFONSO MORRIS,

i i i a a a a a

Defendant.

ORDE

The Defendant in this case, Alfonso Morris, was
charged by indictment by the Grand Jury of the
Tenth Judicial Circuit of Alabama, in and for Jeffer-
son County, Alabama, with a two-count indictment.
Count I charged the capital offense of murder during
burglary in the 1st degree. Count II of the indictment
charged the capital offense of murder during a rob-
bery in the 15* degree.

The charges in this indictment were brought un-
der the provisions of the Alabama Death Penalty
Statute, under Alabama Code § 13A-5-40(a)(4) and §
13A-5-40(a)(2). Subsequent to the indictment being
returned by the November 1997 Grand Jury, the case
was set for pre-trial on January 9, 1998 and was

125a

subsequently set for trial on February 22, 1999. On
motion of Defendant’s attorneys, Defendant was or-
dered examined by Dr. Ackerson for competency to
stand trial on February 12,1999. On February 23,
1999 the Defendant entered a special plea of not
guilty by reason of mental disease or defect. The
Honorable James Garrett, Circuit Judge, received a
forensic evaluation from Dr. Ackerson on June 28,
1999. A competency hearing was conducted by the
Honorable James Garrett, Circuit Judge, and he or-
dered the Defendant be sent to the Taylor Hardin
Secure Medical Facility for competency testing and
training as per Dr. Ackerson’s findings on December
13, 1999. This matter was set for competency hear-
ing on August 7, 2000, July 30,2001, October 15,
2001, December 17, 2001, and December 9, 2002. On
December 9, 2002, the Honorable James Garrett re-
ceived testimony as to Defendant's competency. On
January 20, 2003, Judge Garrett found the Defen-
dant competent to stand trial. Upon Judge Garrett’s
retirement, the case was reassigned to the Honorable
Laura Petro, Circuit Judge, for trial. On January 27,
2003, the Honorable Laura Petro recused herself,
and this case was reassigned to the Honorable
Tommy Nail, Circuit Judge, for trial. The case was
subsequently set for trial on March 31, 2003.

The case proceeded to trial on March 31, 2003
and a jury of fourteen (14) men and women duly em-
panelled and sworn as required by law heard the evi-
dence in this case, whereupon the jury, after hearing
the evidence and being charged as to the applicable
law and upon consideration of the law and evidence,
and the number of the jury being diminished by two

126a

(2) as provided by law, the twelve (12) remaining ju-
rors found the Defendant guilty of the capital offense
as charged in Count I of the indictment and guilty of
the capital offense as charged in Count II of the in-
dictment. The jury was polled and the verdict was
unanimous in finding said Defendant guilty of the
capital offenses. The verdict was returned by the
jury on April 3, 2003 and was announced by the
Court on said date. Subsequent to the jury finding
the Defendant guilty of the capital offense, the Court
commenced a sentencing hearing before the same
jury as required by Alabama Code §13A-5-45.

After due deliberation, the jury returned a ver-
dict fixing the Defendant's punishment at death.
The jury was individually polled as to whether the
verdict and the enumeration of the verdict as set out
on the verdict form was proper and each juror said
that that was the proper vote as to punishment of
the defendant and the recommendation of the jury
was ten (10) jurors recommended that the Defendant
be sentenced to death and two (2) jurors recom-
mended that the Defendant be sentenced to life
without the possibility of parole.

At the sentencing hearing on May 30, 2003, no
additional evidence was presented to the Court as to
what the punishment should be and the Court did
affix the punishment and did sentence the Defendant
to death by lethal injection.

On November 23, 2005, the Alabama Court of
Criminal Appeals issued an opinion reversing the
Defendant's two capital murder convictions on the
ground that he was denied funds to hire an inde-

127a

pendent psychologist or psychiatrist. On December
7, 2005, the State of Alabama requested that the
Court of Criminal Appeals reconsider and reverse its
decision; that request was denied by the Court of
Criminal Appeals.

The case was returned to this Court, and Defen-
dant made a motion for funds for a mental evalua-
tion of the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1737%3A2. Public record. Not legal advice.