Appendix — Alabama v. Flowers

(Ly Suvrere

(-§1-1383 /

ar | FEB 26 1992

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

STATE OF ALABAMA,

PETITIONER,

V.

CLAYTON JOEL FLOWERS,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

APPENDIX TO THE PETITION

JAMES H. EVANS

ALABAMA ATTORNEY GENERAL

*THOMAS W. SORRELLS

ASSISTANT ALABAMA ATTORNEY GENERAL

JOHN DAVID WHETSTONE

DISTRICT ATTORNEY FOR THE

28TH JUDICIAL CIRCUIT

OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 242-7300

*Attorney of Record

TABLE OF APPENDICIES

APPENDIX A, OPINION OF COURT OF

CRIMIBRAL APPEALS. ..ccccccccccesss

APPENDIX B, ALABAMA COURT OF

CRIMINAL APPEALS' DENIAL

OF PETITIONER'S APPLICATION

PX TUOUM RO s Cece bee asesedsens

APPENDIX C, ALABAMA SUPREME

COURT'S DENIAL OF PETITIONER'S

PETITION FOR WRIT OF CERTIORARI.

50

APPENDIX A

THE STATE OF ALABAMA --- JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1990-91

CR-89-149

Clayton Joel Flowers

V.

State

Appeal from Baldwin Circuit Court

(CC-89-65)

TYSON, JUDGE

Clayton Joel Flowers, the appellant,

was indicted for the capital murder of Karen

Rolin. Specifically, the appellant was

charged with intentional murder during the

course of sodomy, in violation of

§13A-5-40(a)(3), Code of Alabama 1975. The

jury found the appellant guilty as charged in

the indictment. At the sentencing phase of

the trial, the jury, by a vote of 11 tol,

recommended that the appellant be sentenced to

life imprisonment without parole. The trial

judge rejected that jury's recommendation and

sentenced the appellant to death. The

appellant was 15 years of age at the time this

offense was committed.

At approximately 1:00 a.m. on the

morning of June 5, 1990, Melissa Stone saw

Karen Rolin at the Delchamps grocery store in

Bay Minette with two young boys. Later that

morning, the body of Karen Rolin was found

floating under the Hollinger Creek Road bridge

in Baldwin County, Alabama. A tire tool and a

tire jack were found near the body. There was

blood on the bridge and on the guard rail of

the bridge. That same morning, the victim's

car was found some distance away in Forest

Park Lake.

The appellant gave two statements

regarding the victim's death, the first to the

Bay Minette Police Department and the second

to the Baldwin County Sheriff's Department.

The following is a summary of those

statements. In the early morning hours of

June 5, 1990, the appellant and Bill Caraway

NN

were at Raymond White's house when the victim

picked them up. The three went to Delchamps,

where the victim attempted to cash her

paycheck and then they got some gasoline. At

this point, Caraway was driving, and he drove

to Pine Grove Middle School. There, the

victim said she wanted to have sex with the

appellant, and they did. The appellant said

the he used a condom. Afterwards, Caraway

wanted to have sex with her. At this point,

they all got out of the car and the appellant

sat on the trunk of the car. The victim

performed oral sex on the appellant while

Caraway had anal intercourse with her. The

appellant said that he had anal intercourse

with the victim also. They then got back into

the car and Caraway drove to Hollinger Creex

Road bridge where Caraway got out of the car

and told the appellant to get out. Caraway

told the appellant that he wanted to “shut her

mouth." Caraway then went and opened the trunk

and told the victim to get out of the car.

The appellant told Caraway that he did not

want to be involved, and he got back in the

car. Caraway began hitting the victim with

his fists and a tire tool and then he told the

appellant to get out of the car. When the

appellant got out, Caraway handed him the tire

tool and told him to hit the victim. The

appellant threw down the tire tool. Then

Caraway handed the appellant a tire jack, and

the appellant hit the victim with it one time,

but he thought that she was already dead.

Caraway and the appellant then dragged the

victim across the bridge and threw her body

into the creek. Caraway and the appellant

drove to Forest Park Lake. Caraway wedged a

stick against the accelerator of the victim's

car, and the car went into the lake. Caraway

and the appellant then went to White's house

and White took him home.

Dr. Leroy Riddick performed the autopsy

on the victim's body. The autopsy revealed

numerous lacerations to the head and face,

multiple fractures to the skull, and defensive

wounds to the arms. Dr. Riddick testified

that the victim died of multiple blunt force

injuries to the head and that those injuries

could have been caused by a tire jack. The

autopsy also revealed the presence of six

tears around the anus and that semen was

present in the anus. Riddick stated that the

tears to the anus would have been painful.

Forensic tests showed that blood found

on the victim's car was the same type as the

victim's blood. A footprint impression taken

near a pool of blood on the bridge matched the

shoeprint of one of the appellant's shoes.

Vaginal swabs taken from the victim were

negative for the presence of seminal fluid but

‘anal swabs taken from the victim were positive

for the presence of seminal fluid. No semen

was found in a condom which was found in the

victim's car. Twelve of the victim's finger

prints or palm prints were found on the top of

the trunk of her car. Thirteen of the

appellant's finger prints and palm prints were

found on various places inside and outside of

the victim's car. Two of the appellant's palm

prints were found overlapping two of the

victim's palm prints on the trunk. The palm

prints of the appellant and the victim were

facing different directions. The appellant's

and the victim's palm prints were also found

on the driver's window.

The appellant's testimony at trial

differed somewhat from his statements which

were given to the police. The appellant

testified that after he and the victim had had

consensual sex at the Pine Grove Middle

School, Caraway got in the backseat with the

victim and the appellant tock a walk. A while

later, Caraway called him back to the car.

The victim seemed upset and Caraway was mad.

Caraway then drove to Hollinger Creek Road

bridge where he stopped and told the appellant

that he needed to talk to him outside of the

car. The appellant got out of the car and

6

Caraway opened the trunk and said "We need to

make sure she don't say anything” because "she

wouldn't give it to me, so I took it." The

appellant replied that he “wasn't going to

have no part of this." Caraway told the victim

to get out of the car, and the appellant got.

back into the car and listened to the radio.

A few minutes later, Caraway told the

appellant to get out of the car. When he did,

the appellant saw the victim lying on the

ground and saw Caraway with a tire tool in his

hand. Caraway handed him the tire tool and

told the appellant to hit the victim The

appellant threw it down. Caraway then handed

the appellant the tire jack and said, "Hit her

with this or I will hit you with it." The

appellant then threw the jack down and he

vomited. He doesn't remember whether he hit

the victim with the jack. The appellant heard

a splash and then heard the trunk close. He

and Caraway got back in the car and drove to

Forest Park Lake. The appellant got out of

the car and started walking. He heard the

sound of a motor and a splash. The appellant

and Caraway then returned to White's house.

I

The appellant contends that his

statements to the police should have been

suppressed for several reasons. The following

testimony was taken at the suppression hearing.

Larry Durant and Alec McDowell, the

assistant police chief and the police chief of

the Bay Minette Police Department, took the

first statement from the appellant. They

testified that the appellant voluntarily came

to the police station with his stepfather,

Harold Eliott, after McDowell had contacted

the appellant's family and told them that he

needed to talk to the appellant about the

murder of Karen Rolin. When the appellant

arrived at the station, Durant advised the

appellant of his Miranda rights and his right

to have a parent present while he was

8

questioned. At this point, the appellant

stated that he wanted his stepfather there

with him. Eliott said that his wife, the

appellant's mother, was too upset to be there

and that she wanted him there. Eliott was

with the appellant during the interrogation.

At some point during the interrogation, the

appellant's father, Ronald Flowers, came to

the police station. Durant asked the

appellant if he wanted his father present and

the appellant said that he did not. Durant

and McDowell stated that the appellant

voluntarily made the statement and that no

threats, no inducements, or no promises were

made to the appellant and no hopes of reward

offered in order to obtain his statement. The

appellant did not appear to be under the

influence of drugs or alcohol at the time he

made his statement. Although the appellant

was upset and crying, he appeared to

understand what was happening and he could

communicate with the officers.

Investigators Ronald Everts and Richard

Bryars of the Baldwin County Sheriff's

Department took the second statement from the

appellant. Everts advised the appellants of

his rights by reading from a juvenile waiver

form. They testified that no threats, no

inducements, or no promises were made to the

appellant and no hopes of reward were offered

and that he voluntarily gave them a

statement. The appellant was told he could

have either one or both of his parents

present. The appellant said he didn't want to

see his natural father. The appellant never

asked to see his natural parents or a lawyer.

Bryars stated that no one prevented the

natural parents from seeing the appellant.

Ronald Flowers, the appellant's natural

father, testified that the appellant's brother

informed him that the police were

interrogating the appellant, although he knew

the day before that the appellant was going to

talk to the police. He went to the police

LO

station and asked to see the appellant.

Durant told him "It's no use you going in

there and seeing him because he is still in

there being interrogated." Flowers did not see

the appellant until after the interrogation.

Flowers stated that his wife had custody of

the appellant and that he knew that the

appellant's stepfather, Eliott, went with the

appellant to the police station. Flowers

testified that he would have hired an attorney

if he had been with the appellant during

questioning.

Marilyn Flowers, the appellant's

natural mother, testified that her husband,

Harold Eliott, went with the appellant to the

police station and that she thought that

Eliott was going to call Ronald Flowers to

come to the station also. She stated that

Eliott had had some beers prior to going to

the station. She and Eliott have divorced

Since that time. She stated that all

decisions pertaining to the appellant were

L]

made solely by her and Ronald Flowers and that

Eliott was not responsible enough to make any

decisions concerning the appellant. She

stated that she knew the appellant was being

questioned concerning the night Rolin was

killed but that she didn't know how serious

the situation was and, if she had, she would

have been there with the appellant during

questioning.

A

The appellant asserts that he was not

properly advised of his rights and, therefore,

he could not appreciate the consequences of

waiving those rights. Rule 11(A), A.R.Juv.P.,

provides:

"(A) When the child is taken

into custody, he must be informed

of the following rights by the

person taking him into custody:

"(1) That he has the right to

counsel;

"(2) That if he is unable to pay a

lawyer and if his parents or

guardian have not provided a

lawyer, ome can be provided at no

charge;

"(3) That he is not required to

Say anything and that anything he

Says may be used against him; and

"(4) If his counsel, parent, or

guardian is not present, that he

has a right to communicate with

them, and that, if necessary,

reasonable means will be provided

for him to do so."

Officer Durant testified that before he

took the first statement from the appellant,

he informed the appellant of his Miranda

rights? and his right to have a parent

present during questioning.” Durant said

that he read the Miranda warnings from a

Standard Miranda form. Kinder v. State, 515

So. 2d 55, 68 (Ala. Crim. App. 1986), cert. |

lyRule 11(A)(1), (2). and (3) taken

together, are substantially the same as the

warnings required in Miranda v. Arizona, 384

U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966)." Kinder v. State, 515 So. 2d 55, 68

(Ala. Crim. App. 1986), cert. denied (Ala.

1987) (quoting Ex Parte Whisenant, 466 So. 2d

1006, 1007 (Ala. 1985).

2"Rule 11(A) does not require that a

juvenile be informed that has the right to

have a parent or guardian present, but only

that he has the right to communicate with

them." Baker v. State, 450 So. 2d 470, 471

(Ala. Crim. App. 1984).

13

denied (Ala. 1987) (quoting Ex Parte

Whisenant, 466 So. 2d 1006, 1007 (Ala. Crim.

App. 1985)). The tape-recorded statement

which was made to Durant and McDowell also

indicates that the appellant was informed of

his rights. Officer Everts testified that he

informed the appellant of his rights by

reading from a juvenile waiver form. The tape

recording of the appellant's second statement

clearly shows that the appellant was informed

of his rights. The appellant seems to argue

that the fact that the police could not find

either one of the waiver forms that the

appellant signed indicates either that the

waivers were never executed or that the

appellant did not knowingly waive his rights.

This contention is meritless. The tape

recordings reveal that the appellant clearly

knew that he was waiving his rights and show

that he had signed a waiver which was

witnessed by the officers and by Eliott.

Furthermore, the appellant stated on the tape

14

that he made the statements "of his own free

will" and that he had returned to Alabama from

Georgia (where he was living with his mother

and Eliott) to “turn himself in." The fact

that the waiver forms were lost between the

time they were executed and the trial date is

not determinative of whether the appellant

knowingly waived his rights, because in many

instances the waiver forms are not introduced

into evidence or the accused refuses to yikes &

waiver form. See Chambers v. State, 497 So.

2d 607 (Ala. Crim. App. 1986); Player v.

State, 421 So. 2d 1338 (Ala. Crim. App.),

cert. denied (Ala. 1982); Proctor v. State,

391 So. 2d 1092 (Ala. Crim. App. 1980).

B

The appellant also contends that his

waiver was not made knowingly and

intelligently because he was not informed that

he was going to be charged with an offense in

this case or that if he was going to be

charged, that he would be charged with a

capital offense and that he could face the

death penalty. This argument is without

merit. There was testimony taken at the

Suppression hearing that the officers informed

the appellant that he was being questioned

about the murder of Karen Rolin before the

appellant made each statement. The

tape-recorded statements support this

testimony. Furthermore, the appellant stated

that he came to the police station to “turn

himself in." Clearly, this statement indicates

that the appellant knew that he was going to

be charged in connection with this offense

when he came to the police station.

We know of no requirement that a

suspect must be informed of all the offenses

with which he could be charged and the

particular punishments he could receive before

he makes a statement. This is particularly

true because in most instances the officers

may not know what the offender will be charged

i6

with until after the suspect has made his

statement. In this case, Chief McDowell

specifically testified that he did not know

that he was going to charge the appellant with

Capital murder until after the appellant had

made his statement. Furthermore, telling a

Suspect that he is going to be charged with a

capital offense and that he could receive the

death penalty could be perceived as coercive

in a particular situation. See Stewart v.

State, 562 So. 2d 1365 (Ala. Crim. App. 1989).

j

The appellant contends that his waiver

of his rights was not voluntarily made because

neither of his parents were osieule during

questioning and because his stepfather, who

was present, does not qualify as a parent or

guardian under Rule 11(A)(4). First of all,

as we have stated, Rule 11l(a)(4) does not

require that a parent be present during the

questioning of a juvenile. All that is

17

required is that the juvenile be informed that

he has the right to communicate with a parent

and that he be allowed to communicate with

that parent if he so chooses. Payne v. State,

487 So. 2d 256 (Ala. Crim. App. 1986); Baker

v. State, 487 So. 2d 264 (Ala. Crim. App.

1986). “We know of no absolute requirement

which necessitates the presence of a parent or

other interested adult in order for a juvenile

to make an effective waiver.” Baker v. State,

450 So. 2d 470, 471 (Ala. Crim. App. 1984).

Thus, we need not address whether Eliott

qualified as a parent or guardian in this

particular situation because the appellant had

no right to have a parent present and because

he never asked to communicate with his parents.

Second, even if there was a right to

have a parent present during the questioning

of a juvenile, the right would belong to the

juvenile, not the parent. See Bombaiiey v.

State, [Ms. 89- 1177, November 30, 1990],

So. 2d (Ala. Crim. App. 1990). Here, the

18

appellant was told that he could have either

or both of his parents present with him. The

appellant told the officers that his mother

was too upset to be present and that he did

not want his father to be present but he said

that he wanted his stepfather to be present,

which the officers allowed. The officers

testified that they never prohibited the

appellant from seeing his parents and that the

appellant never asked to see either of his

natural parents or a lawyer. See M.B.M. v.

State, 563 So. 2d 5 (Ala. Crim. App. 1989).

The fact that the appellant's parents, in

hindsight, wished that they had been present

during the questioning of the appellant does

not confer upon them a right that does not

exist.

D

The appellant contends that it was

error to allow officers Durant and Everts to

read the appellant's rights from a standard

19

form at trial because the form from which they

read was not the same form that the officers

used when they read the appellant his rights

before he gave his statements. Officer Durant

testified that the form from which he read the

Miranda rights at trial was a copy of the same

form containing the Miranda rights which the

Bay Minette Police Department uses everyday

and that this form contained the exact same

rights as those he read to the appellant. He

stated that he never recites the Miranda

rights "off the top of his head" and that he

always reads from this form or a copy thereof

because to do so is standard police

procedure. Officer Everts testified that he

read the appellant his rights from a form,

which is the standard state form, that was

provided to him by the juvenile officers in

Baldwin County and which is the form that is

utilized in Baldwin County. He testified that

although it was not the form from which he

read the appellant his rights, it was an exact

copy. The forms from which the officers read

the rights they gave to the appellant were not

introduced into evidence. We find no error in

allowing these officers to read the rights

they gave the appellant from a standard form

when they both testified that the forms from

which they read at trial and the forms from

which they read the appellant his rights were

the same. "'‘Reviewing courts therefore need

not examine Miranda warnings as if construing

a will or defining the terms of an easement.

The inquiry is simply whether the warnings

reasonably "“convey[y] to [a suspect] his

rights as required by Miranda."'" M.B.M, 563

So. 2d at 8 (quoting Duckworth v. Eagan, 492

U.S. 195, 1609 &.Ct. 2675, 106 L.Ed.24 166

(1989)). The warnings that these officers

testified that they gave to the appellant

reasonably conveyed to the appellant his

rights as required by Miranda and Rule 11(A),

A.R.Juv.P.

"It is well settled in this

state that an extrajudicial

statement is presumed to be

involuntary and is inadmissible at

trial unless the State presents

sufficient evidence to show that

the statement was in fact

voluntary and that the proper

Miranda warnings were given. Ex

parte Johnson, 522 So.2d 234

(Ala.1988); Crowe v. State, 485

So.2d 351 (Ala.Cr.App.1984),

reversed on other grounds, 485

So.2d 373 (Ala.1985). When the

State seeks the admission of the

statement of a juvenile, the State

must show that the juvenile was

advised of his rights under Rule

11(A), A.R.Juv.P., rather than the

standard Miranda rights of which

adults are advised. See Ex parte

Whisenant, 466 So.2d 1006

(Ala.1985); Scott v. State, 501 .

So.2d 1273 (Ala Cr.App. 1986).

Rule 11(A) contains the basic

Miranda warnings, plus the

additional information that the

juvenile has the ‘right to

communicate with [his counsel,

parent, or guardian if they are

not present], and that if

necessary, reasonable means will

be provided for him to do so."

Rule 11(A)(4), A.R.Juv.P. See Ex

parte Whisenant, supra.

"Due process requires the trial

court to hear evidence outside the

presence of the jury in order to

determine whether the statement or

confession was, in fact,

voluntarily made. Jackson v.

Denno, 378 U.S. 368, 84 S.Ct.

1774, 12 L.Ed.2d 908 (1964);

Miller v. Dugger, 838 F.2d 1530

(llth Cir.), cert. denied a

U.S. ._ _, 108 §.Ct. 2832, 100

L.Ed.2d 933 (1988). This

hp eepeeeeenesnemenaiiiied

determination is to be made based

upon a consideration of the

‘totality of the circumstances. '

Blackburn v. Alabama, 361 U.S.

199, 206, 80 S.Ct. 274, 280, 4

L.Ed.2d 242, 248 (1960); Myers v.

State, 431 So.2d 1342, 1345

(Ala.Cr.App.1982), writ quashed,

431 So.2d 1346 (Ala.1983).

"The United States Supreme Court

has specifically held that the

‘totality of the circumstances'

test is applicable when

determining the admissibility of a

juvenile's confession:

"'This totality-of-the-

circumstances approach is

adequate to determine whether

there has been a waiver even

where interrogation of

juveniles is involved. We

discern no persuasive reasons

why any other approach is

required where the question is

whether a juvenile has waived

his rights, as opposed to

whether an adult has done so.

The totality approach

permits--indeed it mandates--

inquiry into all the

circumstances surrounding the

interrogation. This includes

evaluation of the juvenile's

age, experience, education,

background, and intelligence,

and into whether he has the

Capacity to understand the

warnings given him, the nature

of his Fifth Amendment rights,

and the consequences of

waiving these rights.'

“Fare v. Michael C., 442 U.S. 707,

4723, 99 &.Ct. 2560, 2572, Gi

L.Ed.2d 197 (1979) (quoted in

Chambers v. State, 497 So.2d 607,

609-10 (Ala.Cr.App.1986)); Jackson

v. State, 516 So.2d 726, 745

(Ala.Cr.App.1985)). See also

Scott v. State, 501 So.2d at 1274;

Whisenant v. St » 466 So.2d 995,

1000 (Ala.Cr.App.1984), reversed

on other grounds, 466 So.2d 10C6

(Ala.1g85)."

Carr v. State, 545 So. 2d 820, 822 (Ala. Crim.

App. 1989). The state showed that the

appellant was advised of his Miranda rights

and of those guaranteed by Rule l11(A),

A.R.Juv.P., and it presented evidence that the

appellant's statements were made voluntarily,

after a knowing waiver of his rights. Thus,

it is clear from our consideration of the

"totality of the circumstances," including the

appellant's age (15 years old) and educational

level (completed ninth grade), that the trial

court's finding that the appellant's

statements were voluntarily made is fully

supported by the evidence.

II

During his oral charge to the jury, the

judge instructed the jury on the capital

offense of intentional murder during the

course of sodomy and on the lesser included

offenses of intentional murder and sodomy.

The appellant seems to argue that the trial

judge should have instructed the jury that

they could find the appellant guilty of murder

and sodomy without necessarily finding him

guilty of a capital offense. This argument is

without merit. Under the facts of this case,

if the jury found that the appellant committed

the murder and the sodomy, the appellant is

guilty of the capital offense of intentional

murder during the course of sodomy and not of

two separate offenses. The events which

constituted this offense were part of one

eontiagous transaction. Although there is

some doubt as to whether the sodomy occurred

at the Pine Grove School or at the Hollinger

Creek Road bridge, there is no doubt that the

victim was killed because she had been

sodomized and because the appellant and

Caraway wanted to make sure that she did not

go to the police. The capital offense of

murder during the course of sodomy occurs when

it is shown that the murder was committed "in

the course of or in connection with the

commission of, or in immediate flight from the

commission of" a sodomy ( 13A-5-39(2). Code

of Alabama). See Bradley v. State, 494 So. 2d

750 (Ala. Crim. App. 1985), aff'd, 494 So. 2a

772 (Ala. 1986), aff'd, 494 So. 2d 772 (Ala.

1986), cert. denied, 480 U.S. 923, 107 S.Ct.

1385, 94 L.Ed.2d 699 (1987). Certainly, the

facts of this case indicate that the murder

occurred in connection with the commission of

the sodomy. The crime began with the sodomy,

and it was consummated when the victim was

killed. See generally Connolly v. State, 500

So. 20 57 (Ala. Crim. App. 1985), aff'd, 500

So. 2d 68 (Ala. 1986); Hallford v. State, 548

So. 2d 526 (Ala. Crim. App. 1988), aff'd, 548

So. 2d 547 (Ala. 1989), cert. denied.

U.S. ___, 110 S.Ct. 354, 107 L.Ed.2d 342

(1989). Thus, there was no proof that two

separate offenses, unrelated to each other,

occurred here. The trial judge properly

instructed the jury on the offenses in

question and did not err by failing to give

the additional instruction requested by

defense counsel.

Zid

During the presentation of the

appellant's defense, defense counsel sought to

admit the testimony of Rayford Mitchell, an

inmate in the Baldwin County jail. Mitchell

would have testified that Bill Caraway told

him that the appellant had sex with the

victim. Caraway then said that he wanted to

have sex with the victim and that she

refused. Caraway stated that he tried to

force the victim to have sex with him and that

when she refused and started screaming, he hit

her with a jack and had sex with her after she

was dead. Caraway also told Mitchell that he

had run over the victim with the car. The

trial judge refused to allow Mitchell's

testimony because it constituted inadmissible

hearsay. The appellant contends this refusal

was error.

"As a general rule, an accused

may introduce any legal evidence

that tends to show that someone

else committed the crime for which

he is charged. Green v. State, 258

Ala. 471, 64 So.2d 84 (1953). See

generally ©. Gamble,

Alabama Evidence, 48.01(1) (rd

ed. 1977); Schroeder, Hoffman and

Thigpen, Alabama Evidence,

§4-4(a)(c) (1987).

“However, hearsay evidence is

not legal evidence and is not

admissible to show that someone

other than the accused committed

the offense at issue. Houston v.

State, 208 Ala. 660, 95 So. 145

(1923). See also McDonald v.

State, 241 Ala. 172, 1 So.2d 658

(1941); Morris v. State, 25

Ala.App. 175, 142 So. 685 (1932).”"

Thomas v. State, 539 So. 2d 375, 395 (Ala.

Crim. App.), aff'd, 539 So. 2d 399 (Ala.

1988), cert. denied, 491 U.S. 910, 109 S.Ct.

3201, 105 L.Ed.2d 709 (1989).

28

eon

The appellant concedes that Mitchell's

testimony was hearsay evidence, but he argues

that this evidence should have been admitted

under the declaration against interest

exception to the hearsay rule. The

traditional rule in Alabama has been that

"In a criminal action, the

declaration of a person, since

deceased that he committed the

Crime for which the accused is

being tried, is not admissible

under the hearsay exception for

declarations against pecuniary or

proprietary interest and this is

true regardless of the fact that

the declaration also tended to

subject the declarant to civil

liability in tort."

C. Gamble, McElroy's Alabama Evidence,

249.02(1) (4th ed. 1991) (citing Wesson v.

State, 238 Ala. 399, 191 So. 249 (1939));

Wells v. State, 21 Ala. App. 217, 107 So. 31

(1926); Spicer v. State, 198 Ala. 13, 73 So.

396 (1916); West v. State, 76 Ala. 98 (1884).

This court's holding in Lundy v. State, 539

So. 2d 324 (Ala. Crim. App. 1988), cert.

denied (Ala. 1989), appears to have modified

the rule as set out above. In Lundy, this

court implicitly held that the person did not

have to be deceased but merely unavailable and

explicitly held that the hearsay declarant in

that case was unavailable because he would

have refused to testify by asserting his

privilege against self-incrimination under the

Fifth Amendment to the United States

Constitution. The appellant alleges that the

hearsay declarant in this case, Caraway, would

have invoked his Fifth Amendment privilege

and, thus, would have been unavailable. We

agree that under the reasoning of Lundy,

Caraway was an unavailable witness.°

However, we do not believe that Lundy

modified the basic rule that the declaration

of a person, who is now unavailable, that he

3However, there would have had to

have been evidence that Caraway would have

invoked the Fifth Amendment to show his actual

unavailability. In Lundy, the court contacted

the hearsay declarant's attorney. The

attorney told the court that, if his client

was called to testify, the client would assert

his Fifth Amendment privilege against

self-incrimination.

31)

committed the offense for which the defendant

is being tried, is not admissible under the

hearsay exception in question. In Lundy, the

defendant was charged with the Capital murder

of his wife. The state's evidence tended to

Show that he hired Rex Goodson to run over his

wife with his truck and kill her and that

Goodson did so. During the state's case in

chief, Rex Goodson's uncle was allowed to

testify that Rex came to his house shortly

after the collision that killed the

defendant's wife and said, "I have run over

somebody. I don’t know how badly they are

hurt and I want to call the police." Lundy,

539 So. 2d at 329. Defense counsel objected

to the admission of this evidence as hearsay.

On appeal, this court stated that although the

statement was hearsay, the statement was an

admission against interest and was properly

admitted as an exception to the hearsay rule.

The reason this court found that the statement

was properly admitted as a declaration against

3 ]

interest is because the statement was "an

admission to being involved in an accident"

not “an admission to a crime." Lundy, 539 So.

2d at 330. Here, Caraway's statement to

Mitchell was an admission to a crime, i.e.,

the crime for which the appellant was being

tried and, thus, it is not admissible under

the hearsay exception for declarations against

pecuniary or proprietary interest.

In Lundy, 539 So. 2d at 330, we stated:

"Rule 804(b)(3) of the Federal

Rules of Evidence provides that a

statement against interest is

admissible when the declarant is

unavailable. This includes

statements that would subject the

declarant to either criminal or

Civil liability, if a reasonable

person in that pesition would not

have made that statement, had they

not believed it to be true."

Although we made reference to this

federal rule in Lundy, we did not overrule the

existing law and adopt the federal rule as

law. While an increasing number of

jurisdictions, like the federal courts, are

allowing extrajudicial declarations of a

Criminal act to be admitted into evidence in a

Criminal trial, Annot., 92 A.L.R. 3d 1164

(1979), we do not find this to be the rule of

law in this state at this time.

The appellant also argues that Chambers

v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038,

35 L.Ed.2d 297 (1973), is controlling in this

case. In Thomas, this court addressed this

very issue in a similar fact situation to the

one at bar and distinguished Chambers. We

find that the rationale expressed in Thomas

also applies to distinguish the present case

from Chambers. Furthermore, we believe that

the reasoning from the following Mississippi

case addressing this issue is relevant:

"In Chambers, one McDonald had

confessed to several persons that

he and not Chambers killed the

deceased. McDonald thereafter

repudiated his confessions but was

present when Chambers was tried.

Chambers held that proof of

McDonald's confession was

admissible and the case was

reversed because this testimony

had been excluded.

"The Mississippi rule regarding

the inadmissibility of

declarations against penal

interest where the declarant is

not available as a witness was

announced in Brown v. State, 99

Miss. 719, 55 So. 961 (1911).

Brown was not overruled in

Chambers, for in the latter

opinion the Court noted that '

we need not decide in this case,

whether, under other

circumstances, it might serve some

valid state purpose by excluding

untrustworthy testimony.’ 410 U.S.

at 300, 93 S.Ct. at 1048. And in

Chambers, the Court said that ‘the

availability of McDonald [the

declarant] significantly

distinguishes this case from prior

Mississippi precedent, Brown v.

State, puera, . . «' 4360 UJ. 8S. at

301, 93 S.Ct. at 1049.

"We hold, therefore, that the

validity of the rule announced in

Brown was not undermined by the

Chambers opinion, and where the

declarant is not available, his

out-of- court declarations against

penal interest are not

sufficiently trustworthy to

justify the Court in making an

exception to the hearsay rule."

Thompson v. State, 309 So. 2d 533 (Miss.

1975), cert. denied, 423 U.S. 924, 96 S.Ct.

266, 46 L.Ed.2d 250 (1975).

Likewise, we find that our present

rule, which forbids the admission into

evidence at a criminal trial of a declaration

by an unavailable declarant that he committed

the crime for which the defendant is being

tried, was not overruled by Chambers, and the

out-of-court statement made by Caraway to

Mitchell was illegal hearsay evidence.

Furthermore, even had this —

been legal, we would still conclude that it

wasS properly excluded. While it is proper to

present legal evidence to show that someone

else committed the offense for which the

accused is charged, that evidence, to be

admissible, must be inconsistent with the

guilt of the accused. Thomas. Here, the

evidence sought to be introduced by the

appellant was not inconsistent with the

appellant's guilt of the charged offense.

This evidence only showed that someone else,

Caraway, may .also have been guilty of the

Charged offense. There is no error here.

IV

The appellant contends that the trial

court erred by refusing defense counsel's

“request that special interrogatories be sent

to the jury for the purpose of aiding the jury

in its deliberations." (Appellant's brief

(Pennington). p. 24.) Section 12-16-14, Code

of Alabama 1975, provides: “All instruments of

evidence and Gepositions read to the jury may

be taken out by them on their retirement." See

also Rule 22.1, A.R.Crim.P; C. Gamble,

McElroy's Alabama Evidence, §10.04 (4th ed.

1991). Rule 14, A.R.Crim.P.Temp., allows the

court, in its discretion, to submit the charge

against the defendant and the “given” written

instructions to the jury in a complex case.

See also Rule 21.1, A.R.Crim.P. We can find

no authority in Alabama nor has the appellant

cited us to any authority which requires or

allows the submission of special

interrogatories to the jury during its

deliberations. Thus, this argument is without

merit.

Vv

The appellant argues, and the attorney

general concedes, that the appellant's

sentence of death must be vacated. In

Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct.

2687, 101 L.Ed.2d 702 (1988), a plurelity of

the United States Supreme Court held that it

would violate the Eighth Amendment to execute

a defendant who was under the age of 16 at the

time the offense was committed. 4 The

plurality opinion was authored by Justice

Stevens and concurred in by Justices Brennan,

Blackmun, and Marshall. Justice O'Connor

concurred in the judgment and wrote a

concurring opinion. Justice Scalia wrote a

dissenting opinion, which was joined by Chief

Justice Rehnquist and Justice White. Justice

Kennedy did not participate in the Opinion.

With regard to the interpretation of a

4The Eighth Amendment to the United

States Constitution provides that: "Excessive

bail shall not »be required, nor excessive

fines imposed, nor cruel and unusual

punishment."

37

plurality opinion, the Supreme Court has

stated that "the holding of the Court may be

viewed as that position taken by those Members

who concurred in the judgments on the

narrowest grounds." Green v. Georgia, 428 U.S.

iS3, 169 nn. 15, 96 &.CE. 2909, 2923 A. i353, 49

L.Ed.2d 85g, 872 n. 15 (1976). Thus, we need

to look to Justice O'Connor's opinion to

determine the exact holding of the Supreme

Court. In her opinion, Justice O'Connor

stated that the plurality and dissent agree on

two things: “that there is some age below

which a juvenile's crimes can never be

constitutionally punished by death, and that

our precedents require us to locate this age

in light of the ‘"‘evolving standards of

decency that mark the progress of a maturing

society.'"'" Thompson, 487 U.S. at __, 108

S.Ct. at 2706. Justice O'Connor went on to

say that although she believed “that a

national consensus forbidding the execution of

any person for a crime committed before the

38

age of 16 very likely does exist," she was

"reluctant to adopt this conclusion as a

matter of constitutional law" at that time.

Because of this, Justice O'Connor was

unwilling to decide whether the execution of

those under age 16 violates the Eighth

Amendment. However, Justice O'Connor

concurred in the plurality's decision that

Thompson's death sentence should be vacated

because Oklahoma's capital offense statute did

not set a minimum age below which the death

penalty could not be imposed upon a person

convicted of a capital offense.

"The case before us today raises

some of the same concerns that

have led us to erect barriers to

the imposition of capital

punishment in other contexts.

Oklahoma has enacted a statute

that authorizes capital punishment

for murder, without setting any

minimum age at which the

commission of murder may lead to

the imposition of that penalty.

The State [Oklahoma] has also, but

quite separately, provided that

15-year-old murder defendants may

be treated as adults in some

Circumstances. Because it

proceeded in this manner, there is

a considerable risk that the

Oklahoma legislature either did

not realize that its actions would

have the effect of rendering

15-year-old defendants death-

eligible or did not give the

question the serious consideration

that would have been reflected in

the explicit choice of some

minimum age for death-eligibility.

Were it clear that no national

consensus forbids the imposition

of capital punishment for crimes

committed before the age of 16,

the implicit nature of the

Oklahoma legislature's decision

would not be constitutionally

problematic. In the peculiar

circumstances we face today,

however, the Oklahoma statutes

have presented this Court with a

result that is of very dubious

constitutionality, and they have

done so without the earmarks of

careful consideration that we have

required for other kinds of

decisions leading to the death

penalty. In this unique

Situation, I am prepared to

conclude that petitioner and

others who were below the age of

16 at the time of their offense

may not be executed under the

authority of a capital punishment

statute that specifies no minimum

age at which the commission of a

Capital crime can lead to the

offender's execution."

Thompson, 487 U.S. at » 286 &.Ct. @t 2Ffili.

The facts of Thompson are indistinguishable

from those before us. The appellant, like

+0

Thompson, was 15 at the time he committed the

Capital offense. Alabama's death statute

provides no minimum age below which the death

penalty cannot be imposed upon a person.

Further, Alabama 's statutory scheme, which

allows a child over the age of 14 te be tried

as an adult, is similar to the one that was in

effect in Oklahoma at the time Thompson was

decided. Thus, we must vacate the appellant's

sentence of death.

An amicus brief was filed in this case

by the district attorney of Baldwin County.

In his brief, the district attorney asserts

that the Supreme Court's decision in Thompson

was reversed by that Court's ruling in

n Vv n ky, 492 U.S. 361, 109 S.Ct.

2969, 106 L.Ed.2d 306 (1989). We disagree and

find that the facts presented in and the

holding of Stanford are distinguishable from

the case at bar. In Stanford, a plurality

Opinion, authored by Justice Scalia and joined

by Chief Justice Rehnquist and Justices White

and Kennedy, stated that the execution of a

defendant who was 16 or 17 years Of age at the

time of the commission of a capital offense

does not violate “the Eighth Amendment's

prohibition against cruel and unusual

punishment." Stanford, U.S. at , 109

S.Ct. at 2980. Justice Brennan wrote a

dissenting opinion, which was joined in by

Justices Stevens, Marshall, and Blackmun.

Just as in Thompson. Justice O'Connor wrote a

concurring opinion, which represents the

holding of the court. In her opinion, Justice

O'Connor explicitly distinguished her holding

in Thompson from her holding in Stanford and

stated:

“Last Term, in Thompson v.

Oklahoma, 487 U.S. ’ , 108

S.Ct. 2687, , 101 L.Ed.2d 702

(1988) (concurring in judgment), I

expressed the view that a criminal

defendant who would have been

tried as a juvenile under state

law, but for the granting of a

petition waiving juvenile court

jurisdiction, may only be executed

for a capital offense if the

State's capital punishment statute

specifies a minimum age at which

the commission of a capital crime

can lead to an offender's

execution and the defendant had

reached that minimum age at the

time the crime was committed. As

a threshold matter, I indicated

that such specificity is not

necessary to avoid constitutional

problems if it is clear that no

national consensus forbids the

imposition of capital punishment

for crimes committed at such an

age. Id. at __, 108 S.Ct., at

, Applying this two-part

Standard in Thompson. I concluded

that Oklahoma's imposition of a

death sentence on an individual

who was 15 years old at the time

he committed a capital offense

Should be set aside. Applying the

Same standard today, I conclude

that the death sentences for

Capital murder imposed by Missouri

and Kentucky on petitioners

Wilkins and Stanford,

respectively, should not be set

aside because it is sufficiently

Clear that no national consensus

forbids the imposition of capital

punishment on 16- or 17-year-old

Capital murderers."

.

Stanford, ___—°uU.S. at , 109 S.Ct. at 2981.

We conclude that neither the plurality's nor

Justice O'Connor's reasoning in Stanford

affects this court's decision in the case at

bar, because the appellant was 15 years of age

at the time he committed the Capital offense

and the petitioners in Stanford were 16 and 17

} 3

years old at the time of their offenses. The

district attorney of Baldwin County seems to

argue that the court's holding in Thompson

somehow has been explicitly overruled because

Since the time the case was decided, Justice

Brennan has retired and has been replaced by

Justice Souter. We disagree. The Supreme

Court's opinion in Stanford did not overrule

its previous holding in Thompson and, thus,

Thompson remains the law of this land and is

controlling upon this court. Further, the

district attorney argues that Thompson should

be distinguished from this case because he

alleges that the Legislature intended that

15-year-olds should be subject to the death

penalty because the Legislature provided that

the appellant's age should be a mitigating

factor in determining whether the death

penalty should be imposed upon a particular

defendant, and he cites us to a Florida case,

LeCroy v. State, 533 So. 2d 750 (Fla. 1988),

cert. denied, 492 U.S. 925, 109 S.Ct. 3262,

44

106 L.Ed.2d 607 (1989). In LeCroy, a

pre-Stanford case, the Florida Supreme Court

distinguished Thompson on four different

grounds: 1) the defendant in LeCroy was 17

years old at the time he committed the capital

offense; 2) a Florida statute oseuctain that a

child of any age indicted for a crime

punishable by death or life imprisonment

"shall be tried and handled in every respect

25 if he were an adult,” LeCroy, 533 So. 2d at

758 (quoting Fla. State. Ann. §39.02(5)(c));

3) “point two is reinforced by the Florida

Legislature's decision that age should be a

Statutory mitigating factor"; and 4) the trial

judge in sentencing the defendant considered

his age but found him to be mentally and

emotionally mature and this was consistent

with the jury's recommendation of death. We

are unconvinced by the district attorney's

argument based on LeCroy. First of all, the

court in LeCroy specifically stated that it

was limiting its holding to the particular

15

facts before it and it did not consider this

case "to be a definitive resolution of whether

there is some irreducible minimum age below

which the death penalty may never be imposed."

LeCroy, 533 So. 2d at 758. Second, while the

court did say that the fact that the

legislature included age as a statutory

mitigating factor indicated that the

legislature had considered that a "child" may

be death-eligible, it specifically stated that

this fact should be considered with the

statute, which provides that a child of any

age who is indicted for an offense punishable

by death or life imprisonment shall be treated

as an adult in every respect. Third, the main

distinction between these two cases is the age

of the two defendants. The appellant here was

15 years old and the defendant in LeCroy was

17 years old. The facts of Lecroy are more

similar to Stanford than Thompson. While it

is true that there was no provision under

Oklahoma law that designated the defendant's

46

age aS a mitigating factor at the time

Thompson was decided, we are not convinced

that the inclusion of such a provision in our

death statute indicates that the Legislature

specifically considered and intended that the

death penalty should be imposed on ‘ae or

15-year-old capital defendants. Furthermore,

courts of two other states, which also have

provisions in their death statutes which

provide that the defendant's age shall be a

mitigating factor, have vacated the death

sentences of 15-year-old capital defendants

under Thompson.” See State v. Stone, 535 So.

2d 362 (La. 1988); Cooper v. State, 540 N.E.2d

1216 (Ind. 1989). Therefore, based on the

reasons set out above, the appellant's

sentence of death is vacated, because it

violates the Eighth Amendment's prohibition

against cruel and unusual punishment.

SWe must note, however, that neither

Of these Courts addressed the specific point

raised by the district attorney of Baldwin

County.

47

The appellant's other issue concerning

the heinous, atrocious, and cruel aggravating

circumstance is moot since the death penalty

cannot be imposed in this case. Furthermore,

during oral argument, the appellant asserted

that the court's instructions to the jury on

reasonable doubt during the guilt and

sentencing phases of the trial were improper.

No objection was made to these instructions

during the trial, and the appellant did not

assert this issue in his briefs to this

court. During oral argument, this court

granted the state's request to brief this

issue. Although the state has filed a

supplemental brief concerning this issue, the

appellant has not filed a supplemental brief

with this court with regard to this issue. An

objection to the court's oral charge to the

jury cannot be raised for the first time on

appeal. Kyser v. State, 513 So. 2d 68 (Ala.

Crim. App. 1987), Rule 14, A.R.Crim.P.Temp.

Thus, we find that this issue has not been

48

preserved for review. We must also note that

because the appellant cannot receive a death

sentence in this case, we are not required to

notice plain error in the record. Rule 45A,

A.R.App.P.; Cook v. State, 384 So. 2d 1158

(Ala. Crim. App.), cert. denied, 384 So.2a

1161 (Ala. 1980); Eady v. State, 424 So.2d 694

(Ala. Crim. App. 1982).

The appellant's conviction of the

Capital offense is affirmed. The appellant's

sentence of death is vacated and this cause is

remanded to the trial court with instructions

that the appellant be sentenced to life

imprisonment without’ the possibility of parole.

AFFIRMED IN PART; REVERSED IN PART AND

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

APPENDIX B

Clayton Joel Flowers v. State, CR 89-149

Mobile Circuit Court (CC-89-65)

ON APPLICATION FOR REHEARING

TYSON, JUDGE

The Attorney General now argues in

brief that the sentence of death imposed in

this case should be upheld. This court

adheres to its position as stated in its

Opinion. The state's motion under Rule 3g(k)

is denied. Each of the appellant's motions

under Rule 39(k) are denied. All three

applications for rehearing are overruled.

OPINION EXTENDED; MOTIONS DENIED;

APPLICATIONS OVERRULED.

All the Judges concur.

q 0

APPENDIX C

THE STATE OF ALABAMA - JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

December 6, 1991

1901890

Ex parte State of Alabama

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

(Re: Clayton Joel Flowers v. State)

(CCA 89-149 (Baldwin CC-89-65) )

CERTIFICATE OF JUDGMENT

Writ Denied

The above cause having been duly

submitted, IT IS CONSIDERED AND ORDERED that

the petition for writ of certiorari is denied.

PER CURIAM - HORNSBY, CJ., ALMON, SHORES,

ADAMS, HOUSTON AND STEAGALL, JJ. CONCUR.

MADDOX AND INGRAM, JJ., DISSENT