Appendix — Brownfield v. Alabama

IN THE SUPREME COURT OF ALABAMA

February 19, 2010

1070225

Ex parte James Ben Brownfield, Jr.

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF CRIMINAL APPEALS

(In re: James Ben Brownfield, Jr. v. State of

Alabama) (Jackson Circuit Court: CC02-99;

CC02-100; CC02-101; Criminal Appeals:

CR-04-0743).

CERTIFICATE OF JUDGMENT

WHEREAS, the ruling on the application for

rehearing filed in this case and indicated below

was entered in this cause on February 19, 2010.

Application Overruled. No Opinion. Stuart, J.—

Cobb, C.J., and Lyons, Woodall, Smith, Bolin

Parker. and Murdock, JJ., concur. Shaw, Jd.,

recuses himself.

WHEREAS, the appeal in the above referenced

cause has been duly submitted and considered by

the Supreme Court of Alabama and the judgment

indicated below wa entered in thi on

December 23, 2009

Affirmed. Stuart, J.—Cobb, C.J., and Lyons,

Woodall. Smith. Bolin, Parker, and Murdock, Jd

concur. Shaw. J.. recuses himself

Now, THEREFORE, pursuant to Rule 41, Ala. k

App. P., IT IS HEREBY ORDERED that this Court's

judgement in this cause is certified on this date. IT

Is FURTHER ORDERED that, unless otherwise

ordered by this Court or agreed upon by the par

ties. the costs of this cause are hereby taxed as

provided by Rule 35, Ala. R. App. P.

|. Robert G. Esdale, Sr., as Clerk of the Supreme

Court of Alabama, do hereby certify that the fore

going is a full, true, and correct copy of the

instrutment(s) herewith set out as same appear(s)

of record in said Court.

Witness my hand this 19th of February, 2010

/ ROBERT G. ESDALE, SR.

Clerk, Supreme Court of Alabama

SUPREME COURT OF ALABAMA

No. 10702590

December 23, 2009

Rx PARTE JAMES BEN BROWNFIELD, JR

(IN RE JAMES BEN BROWNFIELD, JR

STUART, Justice

James Ben Brownfield, Jr., was convicted ol

three counts of capital murder, see §13A-5

40(a)(4)(murder committed during a burglary),

§13A-5-40(a)(10)(murder of two or more persons

by one act or pursuant to one scheme or course of

conduct), and §13A-5-40(a)(15) (murder when the

victim is less than 14 years of age), Ala.Code 1975

The jury, by a vote of 11-1, recommended that

This case was originally assigned to another Justice

on this Court: it wa reassigned to Justice Stuart on

November 19. 2009

a

srownfield be sent need to death. Alter conduct

ing a sentencing hearing the trial court sentenced

Brownfield to death. The Court of Criminal

Appeals affirmed Brownfields convictions and

sentence. Brownfield v. State, |[Ms. CR-04-07438

April 27, 2007! S0.3ad (Ala.Crim.App.2007)

We granted certiorari review to determine a mate

rial question of first impression concerning

Zule 11 .2(b), Ala. R.Crim. P

Brownfield was arrested for and confessed to

murdering Brenda Whitehead McCutchin, Joshua

Dewayne Hodges, and Latham Durwood

McCutchin. Brownfield pleaded not guilty and not

suilty by reason of mental disease or defect. To

determine whether Brownfield was competent to

stand trial and to determine his mental condition

at the time he committed the offenses, the trial

court ordered pretrial mental examinations pul

suant to Rule 11.2(a)(1) and (2), Ala. R.Crim. P

{

Rule 11.2(a) provid

(a) Motion

“hy

(1) Competency to Stand rial. When a person charged

with a crime is before a circult court, the d fendant, the

defendant’s attorney, or the district attorney may petitio

for, or the court on itS Own motion may order, an exam

nation to assist in the determination of the defendant

present mental condition and competency to tand trial

“(2) Mental Condition at Time of Offense. If the deter

dant has timely raised a defense of ‘not guilty by reason

of mental disease or defect’ either by the entry of a plea or

by filing a pre-trial motion pursuant to Rule 15, the court

on its own motion may order, or the defendant, the defen

dant’s attorney, or the district attorney may move ior a!

examination into the defendant’s mental condition at the

time of the offense

Dr. Melissa Clinger, a psychologist, « onducted the

examinations

During the guilt phase of Brownfield’s trial, the

State called Dr. Clinger as a rebuttal witness to

address evidence offered by Brownfield through

his expert witnesse: about his mental condition at

the time of the offenses. Dr. Clinger testified

that during the pretrial mental examination

Brownfield informed her that he had a high-school

diploma, that he had completed three years ol

technical school, that he “was doing three differ

ent things for one year,” that he had worked at a

variety of fast-food establishments, that he had

held the position of assistant manager once, and

that he was a cook at another restaurant and wa

looking to be promoted to a crew OF § hift chief. The

State then questioned Dr. Clinger as to whethe

Brownfield had informed her about his activitie

on December 23. 24, and 25, 2001." The following

Oc urred

“'Prosecutor]}: All right; did he have any mem

ory at all as to his activities on December

93rd, 24th, and 25th?

“!Dr Clinger] He was able to provide me with

an account of what he was doing during most

of that time

“!Prosecutor]: All right; was he able to recall

getting into a verbal dispute with hi ister

(Brenda McCutchin] on the 23rd?

“(Dr. Clinger]: Ye

The murders occurred in the early morning hours oO

December 24, 200]

was he able to give me a sequential and log

cal account of what was going on to assess

memory.

“IProsecutor]: Now, the fact that he couldnt

remember everything perfectly, did you find

that to be unusual?

‘{Dr. Clinger]: No.

“tProsecutor]: Now, based on your inspection

and examination of [Brownfield] and pursuant

to the orders of this court, have you reached

an opinion as to whether the defendant, Ben

Brownfield, suffered at the time of the offense

from a severe mental disease or defect?

“(Dr. Clinger]: | saw no indication to the point

that he ever suffered from a severe mental

disease or defect, you know, ever or during the

time of the alleged offense

“(Prosecutor]: Now, based on your examina

tion and inspection of him, were you able to

develop an opinion as to whether he was able

to appreciate the nature and quality or the

wrongfulness of his acts regarding the time

period in question, December 23rd, 24th, and

25th?

“(Dr. Clinger]: I thought that he had no sig

nificant impairment as far as mental illnes:

or cognitive deficits or problems in thinking

that would have interfered with his ability to

appreciate the wrongfulness of his acts and

the consequences

On cross-examination, Brownfield’s counsel

elicited testimony from Dr. Clinger that Brown

field had informed her that on December 23, 2001,

he had ingested several Xanax tablets and had

snorted crystal methamphetamine. She testified

that he also told her that in the past he had had

difficulty recalling events that had happened

while he was under the influence of Xanax.

Before the Court of Criminal Appeals, Brown-

field argued that the trial court erred in admitting

Dr. Clinger’s testimony because, he says, the tes-

timony was prohibited by Rule 11.2(b). Specifi-

cally, he objected to the admission of Dr. Clinger's

testimony regarding statements he had made

during the mental examinations. The Court of

Criminal Appeals upheld the trial court's eviden-

tiary ruling, holding that Brownfield had opened

the door to the issue of his mental state at the

time of the offenses by pleading “not guilty by rea

son of mental disease or defect,” by putting on evi-

dence of his mental state at the time of the

offenses through the testimony of Dr. Roger Lacy,

and by Brownfield’s counsel s questioning of other

witnesses, attempting to portray Brownfield as

unable to recall the events or to speak voluntarily

with authorities. However, the fact that Brown-

field “opened the door” for the State to present

testimony with regard to his mental condition is

not determinative of whether the admission of the

testimony regarding statements Brownfield made

during the pretrial mental examinations was

proper.

Rule 11.2(b), Ala. R.Crim. P., governs the ad-

missibility of testimony about = statements

made by a defendant during a mental examintion.

Rule 11.2(b)(2), provides:

10a

“The results of mental examinations made

pursuant to subsection (a)(2) of this rule [pro-

viding for examination into the defendant's

mental condition at the time of the offense]

and the results of similar examinations

regarding the defendant's mental condition at

the time of the offense conducted pursuant to

Rule 11.4 shall be admissible in evidence on

the issue of the defendant's mental condition

at the time of the offense only if the defendant

has not subsequently withdrawn his or her

plea of not guilty by reason of mental disease

or defect. Whether the examination is con

ducted with or without the defendant's con-

sent, no statement made by the defendant

during the course of any examination, no les-

timony by an examining psychiatrist or psy

chologist based upon sucha statement, and no

other evidence directly derived from the defen

dant's statement shall be admitted against the

defendant in any criminal proceeding, except

on an tissue respecting mental condition on

which the defendant has testified.”

(Emphasis added.)

The plain language of Rule 11.2(b)(2) unequiv-

ocally forbids the admission of statements made

by a defendant or evidence derived from the defen-

dant’s statements during a pretrial mental exam

ination unless the defendant testifies about his or

her mental condition. Consequently, because

srownfield did not testify at his trial, applying the

plain language of Rule 11.2(b)(2), we must con-

clude that error occurred in the admission of

Dr. Clinger’s testimony concerning statements

Brownfield made during the mental examinations.

lla

Although it was proper to admit into evidence

Dr. Clinger’s testimony regarding her opinion

about Brownfield’s mental condition at the time of

the offenses. the admission of her testimony

regarding statements made by Brownfield during

the mental examinations was error.

The inquiry, however, does not end here. This

Court must determine whether it “appear|s] that

the error complained of has probably injuriously

affected |Brownfield’s] substantial rights.” Rule

45, Ala. R.App. P., provides:

“No judgment may be reversed or set aside,

nor new trial granted in any civil or criminal

case on the ground of misdirection of the jury,

the giving or refusal of special charges or the

improper admission or rejection of evidence,

nor for error as to any matter of pleading or

procedure, unless in the opinion of the court to

which the appeal is taken or application is

made, after an examination of the entire

cause, it should appear that the error com-

plained of has probably injuriously affected

substantial rights of the parties.”

The Court of Criminal Appeals has further

stated with regard to the application of the harm-

less-error rule:

“““After finding error, an appellate court may

still affirm a conviction on the ground that

the error was harmless, if indeed it was.’

Guthrie uv. State, 616 So.2d 914, 931

(Ala.Crim.App.1993), citing Chapman v. Cali

fornia, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d

705 (1967). “The harmless error rule apphes

in capital cases.” Knotts v. State, 686 So.2d

431, 469 (Ala.Crim.App.1995), opinion after

remand, 686 So.2d 484 (Ala.Crim.App.1995),

aff'd, 686 So.2d 486 (Ala.1996), cert. denied,

520 U.S. 1199, 117 S.Ct. 1559, 1387 L.Ed.2d

706 (1997), citing Ex parte Whisenhant, 482

So.2d 1241 (Ala.1983). “In order for a const}-

tutional error to be deemed harmless unde}

Chapman, the state must prove beyond a

reasonable doubt that the error did not con-

tribute to the verdict. In order for the crror to

be deemed harmless under Rule 45, the state

must establish that the error did not injuri

ously affect the appellant’s substantial

rights.” Coral v. State, 628 So.2d 954, 973

(Ala.Crim.App.1992), opinion after remand,

628 So.2d 988 (Ala.Crim.App.1992), aff d,

So.2d 1004 (Ala.1993), cert. denied, 511 U.

1012, 11 $C t. 13887, 128 L.Ed.2d 61 Bers

‘The purpose of the harmless error rule 1s to

avoid setting aside a conviction or sentence for

small errors or defects that have little, if any,

likelihood of changing the result of the trial or

sentencing.” Davis v. State, 718 So.2d 1148

1164 (Ala.Crim.App.1997), aff'd, 718 So.2d

1166 (Ala.1998), cert. denied, 525 U.S. 1179,

119 S.Ct. 1117, 143 L.Ed.2d 112 (1999)

“McNabb Uv. State. ele! So.2d QQ. 976-7 7

(Ala.Crim.App.2001)

Sale U. State, 8 So.3d 330. 347

(Ala.Crim.App.2008). See also Hx parte Brown,

11 So.3d 933 (Ala.2008) (holding that the alleged

improper admission of evidence in a capital trial

was harmless); Cothren v. State, 705 So.2d 849

(Ala.Crim.App.1997) (holding that the improper

admission of the de fe ndant 's coerced confession

lea

was harmless in light of the overwhelming evi

dence establishing that the defendant committed

the capital offense).

In this case, a review of the record establishes

that the admission of Dr. Clinger’s testimony

was harmless; the improperly admitted evidence

could not have probably injuriously affected

Brownfield’s substantial rights. The admission of

testimony regarding Brownfield’s statements con-

cerning his education and work experience 1s

harmless because those statements are not rele-

vant to whether Brownfield committed the offense

or to his mental condition at the time of the

offense. Consequently, testimony concerning those

statements could not have probably injuriously

affected Brownfield’s substantial rights. Likewise,

Dr. Clinger’s testimony regarding Brownfield’s

recollection of the events on December 23, 24, and

25, 2001, could not have probably injuriously

affected Brownfield’s substantial rights because

statements Brownfield made to law-enforcement

officers on December 25 and 26, 2001, had been

previously admitted into evidence and established

with greater detail what Brownfield recalled

regarding the events leading up to and following

the murders. Brownfield’s statement on December

25 provides:

“This statement is written by Investigator

Petty for Mr. Brownfield as told by him. My

sister, [Brenda McCutchin], brother-in-law

[Latham McCutchin] and myself had been

arguing off and on for a while. Brenda was

accusing me of taking her money, and she was

ripping me off, too. Sunday night, 12/23/01,

she. Brenda. went to bed around 10:00 p.m.

l4a

Around midnight, | took about seven or erght

Xanax: I think it was seven. I was wanting it

to knock me out, but it did the opposite. It got

me angry the more I thought about how she

treated me. I went into a rage. I used a regu-

lar claw hammer with a rubber grip, and the

grip was black. They slept in the living

room—Brenda and Josh slept in the living

room, and | went in with the hammer and hit

Brenda in the head first, and then J] hit Josh.

When I hit her, Josh screamed out, and that’s

why I hit him. I turned out the lights and

| left. | locked the door. This was around 2:00

a.m. or 3:00 a.m. From there, I went to

Latham’s house. I went there because I was

going to kill him, too. I got to Latham’s, and |

knocked on the door and he let me in. | had

the hammer inside my jacket. Latham didn’t

know anything was wrong. I told him I was

soing to go so he could go back to bed. When |

sot up, I reached in my coat and pulled out

the hammer. Latham was behind me, saw it

and grabbed it. I let go with my left hand and

elbowed him, and I turned around and

punched him several times. That's what hap-

pened to my hand. I don’t remember how

many times I hit him, and | turned around

and punched him several times. That's what

happened to my hand. | don’t remember how

many times I hit him, but that’s when I

started hitting him with the hammer in the

head. I was wanting him to die but he kept

breathing and making noises. That's when |

sot the knife. I don’t remember which I did

first. but I stabbed him in the chest and the

throat. 1 took off the clothes | was wearing

and took a shower. | had brought the extra

clothes from my house that | put back on. |

took his wallet with, | think, about filty

dollars in it. I left and went to the South

Pittsburgh/Kimball area. 1 pulled into a

restaurant: | think it was Jack’s. It was on the

right side of the road. I pulled into the dump

ster and threw away the coat, hammer, knife,

my clothes and Latham’s wallet. I rode around

for a while, and then | went to Wal-Mart

which is where I bought this shirt and other

clothes and gifts. I bought them with the

money out of Latham’s wallet. All of this hap

pened between midnight to 5:00 p.m. on Mon

day. | had my own fifty-dollar gift certificat

from Wal-Mart, which I also used. | didn't

start my day planning to kill anyone. That’

not me. I guess | got to a breaking point.”

Brownfield made a similar, though not identical!

statement, to law-enforcement officers on Decem

ber 26. Brownfield’s statement establishes in

detail his recollection of the events surrounding

the murders: the statements made to Dr. Clinge

some seven months after the murders are general!

and cursory. Therefore, Dr. Clinger’s testimony)

with regard to statements made by Brownfield

about his activities on the days surrounding the

murders, in light of the previously admitted

detailed statement Brownfield made to the police,

could not have probably injuriously affected

srownfield’s substantial rights.

Finally, the evidence of Brownfield’s guilt as to

the capital offenses was overwhelming. The

evidence indicated that during the week of!

December 24, 2001, Brownfield had been using

crystal methamphetamine and on the evening ol

December 24 had consumed several Xanax tablets

After taking the tablets, he became angry at ht

sister, Brenda McCutchin, who was sleeping in

her bed with her grandson, Joshua Hodges

Jrownfield entered the room and beat both

Brenda and Joshua with a claw hammer. He then

left Brenda’s house and traveled in her car to

Latham McCutchin’s house. He entered Latham

house, and a struggle ensued. Brownfield

struck Latham with his fists and the hammer

Srownfield also stabbed Latham in the heart and

cut his throat with a knife. When Brownfield left

Latham’s house, he took Latham’s wallet. The ev

dence further indicated that Brownfield admitted

to his ex-girlfriend, Tammy Farmer, that he had

killed Brenda. Joshua, and Latham. The results of

DNA testing of blood found on Brownfield’s sho

indicated that the blood was Latham’s. Becausi

the evidence was sufficient to prove beyond a

reasonable doubt that Brownfield committed the

capital offenses, the error in the admission ol

Dr. Clinger’s testimony was harmle:s

The judgment of the Court of Criminal Appea

affirmed.

AFFIRMED

COBB, C.J., and LYON WOODALI SMITH

BOLIN, PARKER, and MURDOCK, JJ., concu!

SHAW, J recuse himselt

with murdering Lathan Jia‘ r)

course of ae burglar’ Cr LBA-5-40(a)l

Nia Code 1975. Count [Il charged Brownlield w

murdering Brenda McCutchin, Joshua Hodg

and Latham MecCute! 1! gurinyv one cl r p

uant to one chem«e r course oO} ona f

S13A-5-40 (a)(10) Aiq Code 1975 Coie

charged Brownfield with murda

Hodges who was under 14 years of

SI3BA 5-40 (a)( Ld) \ia.Code U5) al uly

ommended by a vote ol ] | that Brownticia

entenced LO death The cram. COUT Ccentve

jury's recommendation and sent a

death Thi App i | followed

The trial court set out thi

the evidence which we \aopt

| ome tin

December 23, ZU00] ¥

hours of December 24, 2001, br irda Wh

head McCutchin Joshua Dewavni Hod

ind Latham Wurwood McCutcn! vere mM

dered in their homes in Scottsbore laban

\t the time of their deat! Mrenda was fo!

ven vears old. Joshua was tnret Cal

ind Latham wa ix{ hou! Cal

\fter consumI1ng X ina pill n tn

December 23. 2001, the twenty even eal

defendant, Jam« Ben Brownfield, Jr., becal

enraged with hi ISte! Brenda Whitehe

MeCutchin Ove! aruy ina mone W hil

Brenda and her grandso) joshua Dewar

Hodges, were sleeping 1n their bed, the ae

lant decided to. ki

( tranvea nu '

Vic itcnin ine deltendant ti } i cIaW

mer into tne room where Brenda and Josnua

were sleeping and hit Brenda with it. Whe}

the defendant hit Brenda, Joshua awoke ©}

ing. At that time, the defendant began hittin

hoth Brenda and Jo hua with the claw han

mer. Brenda suffered approximately twent

forceful blow to the head and other injurte

to he hody Joshua uffered approximat

ixteen blows to the head and other injuri {

nN) hody ,.oth Brenda and Joshua died tron

multiple blunt-force injuri Before he tett

Brenda house. the defendant attempted

pu the house with Kerosene and a ciparctt

After killing Brenda and Joshua, the actiet

lant took the claw hammer and a set ol} clea

lotne and drove acro town to the residel

Nn) brother-in-law Latham Durwoor

MceCutchin. The defendant initially preten

i friendly visit with Latham but later in

the residence. the defendant informed Lathan

that he was going to kill him. The dete ndant

ind Latham struggled for the claw hamm«:

vith the defendant subduing Latham by hit

ting him with hi list ind the hamm:

Latham sullered numerous injurl Hi

fered at least ten forceful DlOW to the ne

with the claw hammer, bruising to the lov

chest, arm and hand fractured rib ind

fractured vertenra Late! {

tabbed Latham 11 the heart and cut

throat with a knife. Latham died from mult)

ple blunt-force injuries \fter killing Lath

the defendant howered and dre ed in

lean clothe lie § mrnered TN r led + }

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took Brownfield to the break area of the station

and had him sit at a table. Officer Porch stated

that he did not engage in any conversation with

Brownfield at that time. He stated that approx}

mately 20 minutes later, Investigator Doug Hood

with the Jackson County District Attorney's office

and Investigator Robert Petty of the Scottsboro

Police Department came and took custody ol

Brownfield. According to Officer Porch, Brownfield

did not appear to be intoxicated; he did not have

inv trouble walking into the police station from

the patrol car or sitting at the table in the break

room; and he did not get physically ill while

Officer Porch’'s presence Officer Porch stated that

e saw nothing that led him to believe that

Brownfield was intoxicated

Officer Porch testified that around 3:30 p.m

December 26, 2001, he escorted Brownfield from

he jail to his patrol car, transported him back to

the police department, and released him to Inves

tigators Hood and Petty; he stated that he did not

engaye in any conversation with Brownfield at

that time. He further testified that at approx)

mately 5:00 p.m. on December 26, he transported

Brownfield back to the jail without conversation

Officer Porch testified that at no time while he

was observing Brownfield did he or anyone in his

presence use violence, make any promises or

threats. or offer him any inducement to get

Brownfield to make a statement

Investigator Hood testified that Investigator

Petty and he took custody of Brownfield at approx

)

imately 12:50 p.m. on December 25 to interview

him and that he conducted a second interview

with Brownfield at 3:28 p.m. on December

+)

6.

2001. Investigator Hood stated that at the onset of

both interviews he advised Brownfield of his

Miranda rights by reading him those rights fron

a card, and that Brownfield checked the box on

the Miranda card indicating that he understood

his rights and that he wished to speak to author-

ities. He signed the card, and Investigator Hood

and Investigator Petty also signed the card as wit

nesses.’ According to Investigator Hood, Brown

field was cooperative and listened to authorities

and followed directions. Investigator Hood further

stated that neither he nor anyone 1n his presence

used any violence on Brownfield, made any

promises or threats to Brownfield, told him that it

would be better for him to confess or to make a

statement. or offered him any inducement to get

him to make a statement. He testified that Brown

field was handcuffed at the beginning of the

December 25 interview, but that he removed

Brownfield’s handcuffs after observing his

demeanor during the initial part of the interview

and determining that Brownfield was being coop

erative and did not pose a risk.

Investigator Petty also testified that he was prt

sent when Investigator Hood interviewed Brown.

field on December 25 and 26. Investigator Petty’s

testimony was substantially similar to Investi-

cator Hood’s testimony, i.e., that Brownfield did

not appear to be intoxicated when he was being

interviewed, at neither he nor anyone in his

stigator Hood stated that, although he

Miranda rights to Brownfield at the beginning of the

view and Brownfield indicated that he understood

wished to speak with them, Brownfield «id not actually

]

ird until the interview was concluded

25a

presence used any violence on Brownfield, made

any promises or threats to Brownfield, told

Brownfield that it would be better for hiin to con-

fess or to make a statement, or offered Brownfield

any inducement to get him to make a statement,

he also testified that Brownfield appeared to

understand his rights and that he voluntarily

waived them to speak with authorities. Investi-

gator Petty further testified that Brownfield’s eyes

were not bloodshot, that he did not detect any

slurred speech, and that Brownfield was quiet

during portions of the interview but not hard to

understand.

Investigator Petty also testified that he trans-

ported Brownfield back to the jail following the

first interview, and that Brownfield agreed to take

officers to the location in Tennessee where he had

discarded the bag containing the bloody clothing,

the hammer, the knife, and Latham’s wallet.

According to Investigator Petty, they went to a

restaurant where Brownfield claimed to have dis-

carded the items, but were unable to locate any

evidence.

Although Brownfield did not present any wit

nesses at the suppression hearing, he did file a

number of ex parte motions with the trial court

regarding his expert witnesses and the manner in

which the defense contended Xanax and other

medications affect an individual’s mental state.”

There was an extended discussion regarding the

absence of the defense experts at the suppression hearing.

The record indicates that the suppression hearing had been

continued a number of times; the State's evidence had been

presented and then the hearing continued for two wecks to

allow the defense to prepare and call its witnesses. Brown

2Qa

“The trial court held the suppression hearing

outside the hearing of the jury; therefore, we

review the evidentiary findings of the trial

court at that hearing under the ore tenus stan

dard.’ Ex parte Jacksun, 886 So0.2d 155, 159

(Ala.2004). ‘When evidence is presented ore

tenus to the trial court, the court’s findings of

fact based on that evidence are presumed

to be correct,’ Ex parte Perkins, 646 So.2d 46,

47 (Ala.1994); ‘|w]le indulge a presumption

that the trial court properly ruled on the

weight and probative force of the evidence,

Bradley v. State, 494 So.2d 750, 761

(Ala.Crim.App.1985), aff'd, 494 So.2d 772

(Ala.1986); and we make ‘ “all the reasonable

inferences and credibility choices supportive

of the decision of the trial court.”’ Kennedy v

State, 640 So.2d 22, 26 (Ala.Crim.App.1993),

quoting Bradley, 494 So.2d at 761. ‘“*"Where

evidence is presented to the trial court ore

/

‘

tenus in a nonjury case, a presumption of cor-

rectness exists as to the court’s conclusions on

issues of fact; its determination will not be

disturbed unless clearly erroneous, without

supporting evidence, manifestly unjust, or

against the great weight of the evidence.’ kx

parte Jackson, 886 So.2d at 159, quoting State

v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quot

ing in turn Ex parte Agee, 669 So.2d 102, 104

(Ala.1995).

field did not raise on appeal the trial court's denial of his

motion for an additional continuance so that he could secur:

the presence of his expert witnesses at the suppression hear

ing; we find no plain error in the trial court's refusal to

grant another con-tinuance approximately one week before

trial

30a

“However, ‘|t]he ore tenus presumption of cor-

rectness applies to findings of fact, not to con-

clusions of law.’ City of Russellville Zoning

Bd. of Adjustment v. Vernon, 842 So.2d 627,

629 (Ala.2002). ‘[T]he ore tenus rule does not

extend to cloak a trial judge’s conclusions of

law, or incorrect application of law to the

facts, with a presumption of correctness.’

Eubanks v. Hale, 752 So.2d 1113, 1144-49

(Ala.1999). ‘“‘{W]hen the trial court improp-

erly applies the law to the facts, no presump-

tion of correctness exists as to the court's

judgment.’”’ Ex parte Jackson, 886 So.2d at

159, quoting Hill, 690 So.2d at 1203, quoting

in turn, Ex parte Agee, 669 So.2d at 104. Thus,

we review the trial court’s conclusions of law

and its application of law to the facts under

' the de novo standard of review.”

Washington v. State, 922 So.2d 145, 157-58

(Ala.Crim.App.2005).

“When reviewing a ruling on the voluntariness

of a confession, we apply the standard artic-

ulated by the Alabama Supreme Court in

McLeod v. State, 718 So.2d 727 (Ala.1998):

“*Ror a confession, or an inculpatory state

ment, to be admissible, the State must prove

by a preponderance of the evidence that it was

voluntary. Ex parte Singleton, 465 So.2d 443,

445 (Ala.1985). The initial determination 1s

made by the trial court. Singleton, 465 So.2d

at 445. The trial court’s determination will not

be disturbed unless it is contrary to the great

weight of the evidence or is manifestly wrong.

ola

Marschke Uv. State, 490 So.2d 7T7

(Ala.Crim.App.1984)

“Tho Fifth Amendment to the Constitution of

the United States provides in pertinent part:

“No person ... shall be compelled in any crim.

inal case to be a witness against himself. .

Similarly, §6 of the Alabama Constitution ol!

1901 provides that “in al] criminal prosecu

tions, the accused ... shall not be compelled to

sive evidence against himself.” These const}

tutional guarantees ensure that no involun-

tary confession, or other inculpatory

statement. is admissible to convict the

accused of a criminal offense. Culombe ¢

Connecticut, 367 U.S. 568, 81 58.Ct. 1860,

6 L.Ed.2d 1037 (1961); Hubbard v. State, 255

Ala. 183. 215 So.2d 261 (19638)

It has long been held that a confession, or

any inculpatory statement, is involuntary if it

‘sc either coerced through force or induced

through an express or implied promise 01

leniency. Bram v. United States, 168 U.S. 582,

18 S.Ct. 183. 42 L.Ed. 568 (1897). In Culombe,

°67 U.S. at 602, 81 S.Ct. at 1879, the Supreme

Court of the United States explained that for

a confession to be voluntary, the defendant

must have the capacity to exercise his own

free will in choosing to confess. If his capacity

has been impaired, that is, “if his will has

been overborne” by coercion or inducement,

then the confession is involuntary and cannot

be admitted into evidence. Jd. (emphasi:

added)

ity of the circu!

1964 U.S. 478

umstance

Ove rborne by

parte VMatthe

tating that

looking

Athy sé

C

oltale

late, 97

\dditional]

n delined

include i

capac Iti

(

L)t 0o.2d ()4 | ( in Corin Lp] )

n order tor int it { He)

LOT) inadm) bie it Wit { Le nown U! l

the mind oO! tne delendant W a IDst

tiall impaired VWnen the roi nee A

made Moore { stale 'Fele ( : :

(Ala.Cr.App.1986); Moor tate, 415

10 (Ala.Cr.App.), cert. denied |

1210 (Ala.), cert. denied, 459 | )4

Ct. 459. 74 L.Ebd.Z2d 610 (19862), and Cas

ited therein Intoxicatiol hort of manta

uch impairment ol the will and mind a

make al mdividual UNCONSCEIOU ol the me

ing ol h) wora will not Trenaer a Latemcnt

or conte 1) nadm) rbd fice bale

f So.2d | | \) | ] » (AI Ul App.) I

denied b 90 2d 1187 (Ala. 1930) ay

Paimer herte 1( , 9d 5 )

\la.Cr.App.), cert denied 1() | !

(Ala.1981). cert. demied, 4595

Ct. 1280, 71 L.hWd.2d 4 Y

he voluntarine fan alleged conf

a gue tion Ol law adadre ed to tne tria f !

vhose ruling will not be disturbed on appé

mnie tf appeal to ne mtral LO tne reat

yvejyht of the « dence ea 1] I esth

fice i Slate upra ( vr? 0? Late

a » (Ala.Cr.App.1979) | deyure

ntox) it } VIC Ky uld lfect tne

Larne Ol a tatement 1 GQuestio! | ,

nitially rdare ca Lné tL} !

lependi upon it ru { { the yur

ing and that no one applied any violence

threatened, or offered any promise or induct

ment to the defendant

‘The defendant gave another statement t

the police on December 26, 2001 The entire

statement was recorded by videotape. Detec

tives Hood and Petty conducted the interview

Prior to the statement, the defendant was

read his Miranda rights and waived them. At

no time did Detective Hood or Detective Petty

physically harm, threaten, or offer any

promise or inducement to the defendant

erty}

The court is mindful that. due to the right

against self-incrimination, an involuntarily

civen incriminating statement is not admis-

sible in a subsequent criminal prosecution

The court finds from the evidence that the

defendant's statements to Detectives Hood

and Petty and Major Ralph Dawe were made

freely and voluntarily. The court further finds

based on the totality of the circumstances that

the defendant knowingly and voluntarily

waived his Miranda rights.’

75-177.) Similarlv, the tri und

WS 1n 1ts sentencing orde)

+ } ) 4

he court has fullv considered the testim« \

of Dr. Roger Lacy, Dr. Lee Evans, D

Clinger. and all other witnesses during the

ruilt and penalty phases of the trial. The

defendant maintains that he was under the

influence of extreme mental or emotional dis-

turbance due to his use of crystal metham

pnetamine ana Xanax In nis confession to law

enforcement, the defendant indicated that he

had taken seven or eight Xanax pills prior to

the thr.e murders. The defendant did not

reveal to law enforcement that he had been

using crystal methamphetamine each day of

the week prior to the murders. The first evi

dence of defendant's use of crystal metham-

phetamine was reported by Dr. Melissa

Clinger in her Forensic Evaluation Report.

The information was provided to Dr. Clinger

by the defendant during the evaluation pro-

cess. Later, the defendant reported to

Dr. Laev and Dr. Evans that he had been on a

erystal-methamphetamine binge the week

prior to the murders. He also reported to the

experts that he had taken Xanax the night of

the murders. The defendant’s friends testified

that the defendant was a frequent user of

erystal methamphetamine. The court does not

doubt that the defendant was using crystal

methamphetamine the week prior to the

crimes and Xanax the night of the crimes. The

court. however, has no credible evidence

regarding the quantity of drugs ingested by

the defendant or the times of ingestion. Fur

thermore. the evidence indicates that over

ime people develop immunities and tolerance

to the effects of drugs. The defendant had

been abusing drugs for years. The court finds

by a preponderance of the evidence that the

defendant did not commit the murders while

under the influence of extreme mental or emo-

tional disturbance. The defendant’s demeanor

and actions immediately following the crimes

indicate otherwise. The defendant's friends

ind acquaintances testified that the defen-

dant acted normally shortly after the mur-

lers. Teresa Manning testified that she saw

the defendant at the store where she worked.

on December 24, 2001, at 1:00 A.M. or 1:30

A.M. She said that she and the defendant car

ried on a conversation and that there was

(

nothing unusual about how the defendant was

acting. The defendant attended a party imme-

diately after the murders. Hannah Robertson

testified that she saw the defendant at the

partv between 1:00 A.M. and 2:00 A.M. on

December 24, 2001. She said the defendant

looked better than usual. She said that the

defendant’s hair looked wet. She carried on a

conversation with the defendant and said that

he seemed normal, that he could talk very

sood, and did not appear to be intoxicated.

Nick Logan, the defendant's best friend, tes

tified that he saw the defendant at the party

on December 24, 2001. In fact. he and the

defendant left the party and rode around for

approximately twenty minutes. Mr. Logan

talked with the defendant for a long period of

time shortly after the murders and he said

that the defendant did not appear to be intox-

icated. He said he noticed nothing out of the

ordinary. The court does not find that the

defendant was so impaired that he was suft-

fering from an extreme mental or emotional

disturbance at the time of the offenses.”

\

(). a00-a04,)

The evidence indicated that Brownfield com-

mitted the murders sometime during the evening

of December 23, 2001, or the early morning hours

of December 24, 2001. The «

cated that in the early mo

24 2001. Brownfield went to a party and engagea

In What witnesses test. ) | |

as normal. coherent conversation. Upon his arr

around noon on December 25, 2001, Brownfield

confessed to the murders. He also confessed

second interview with autho:

of December 26, 2001. A numbe f law-entorc:

ment officials testified that when he made Ni

fessions Brownfield appeared to be coherent, a

not appear to be intoxicated or under the influence

of any substance, and appeared to understand hi

rights and voluntarily waived the |

threat, promise, or inducement. It 1s clear that

trial court determined that Brownfield was not

affected by his purported ingestion of Xanax

he night of the murders and crystal metham

phetamine in the weeks leading up to the murdet

that he was unable to knowingly and voluntar1|

waive his Miranda rights. We have reviewed

transcript, the videotapes of the two recorded col

fessions, and the other evidence 1n the |

evant to this ISSueé ana we cConciulde Cnat

. . - + . + yo 4 « | " _r ,y |

record supports thi Crial rt Ss T1inains ne tria

. : how } r |

COure Gia Not anus ] ret I qaen

Br oe >] : _ + . é 795% | {

SrOWNIeIAaA Ss Iii Tt} ippre - ic

}

tris 2Tround

Wi ]

a I test TN tt ) r) ]

ris to Lhre el ; 7 Kr \ Lie | A ] 1 A

‘ } ]

Or V lun arii’ v4 i\ Vi ] a |

earch of th utom I ‘

ind eryvstal meth Alt

t } t ’ }

40a

Brownfield also claims that the trial court erred

in denying his motion to suppress photographs of

items seized from his automobile because, he

claims, his consent to the search of the vehicle

was involuntary.’ The photographs showed bags

from a Wal-Mart discount store containing cloth-

ing Brownfield purchased after the murders. In a

scattergun manner, Brownfield avers that he con-

sented to the search only upon an overwhelming

show of force by the police, because of his alleged

compromised mental state caused by his drug use,

and because he was not first advised of his

Miranda rights before consenting to the search.

At the suppression hearing, Captain Ralph

Dawe of the Scottsboro Police Department testi-

fied that Brownfield consented to a search of the

vehicle after he was arrested. According to Cap-

tain Dawe. the automobile was searched for

weapons or bloody clothing, and officers discov-

ered, among other things, deodorant, a hair trim-

mer, and several articles of clothing.

to suppress the evidence, the trial court obviously resoly

anv credibility choices re-garding Brownfield's mental stat

in favor of the State, as is evidenced by the trial court's find

ings in its sentencing order concerning mitigating evidence

of Brownfield's alleged ingestion of drugs

The State acknowledges that, although Brownfield's

sister Brenda, and not Brownfield, was the owner of the

automobile, Brownfield's lack of standing to challenge the

search of the vehicle was not ratsed at trial and has there

fore been waived. Thus, for purposes of this opinion, we

assume that Brownfield had standing to challenge the

search of the vehicle. See, e.g., Washington, 922 So.2d at

bos

tla

Further, as is discussed in Part 1.A. above, Off)

cer Porch testified that two or three officers

ordered Brownfield to come out of the apartment

with his hands up; that Brownfield complied with

the officers’ orders and came out of the apartment

with his hands in the air, lay down on his stom-

ach, and placed his hands behind his back, and

was placed in handcuffs at that time. The undis-

puted testimony indicated that Brownfield was

not struck or beaten by officers when he was

taken into custody, nor was he threatened by any

officers in Officer Porch’s presence.

With regard to Browntfield’s alleged intoxication

rendering his consent involuntary, as we have

already discussed in Part I.A. above, the trial

court found from the conflicting evidence that

Brownfield was not intoxicated at the time of the

murders, at the time of his arrest, or at the time

he made his statements to the authorities. For the

same reasons stated in Part ].A., Brownfield 1s not

entitled to any relief on this claim.

Similarly, Brownfield is not entitled to any

relief based on his contentions that the search of

the vehicle was conducted before he was advised

of his Miranda rights and that he consented to the

search only in the face of overwhelming force from

the police. As this Court recently stated in Wash

ington, supra:

“This court has long held that warrantless

searches are per se unreasonable, unless they

fall within one of the recognized exceptions to

the warrant requirement. Rokitski v. State,

715 So.2d 859, 861 (Ala.Crim.App.1997). ‘One

of the exceptions to the rule that a warrant

less search is per se unreasonable is a search

42a

conducted with the consent of the owner.’

Foldi. vu. State, 861 So.2d 414, 422

(Ala.Crim.App.2002). ‘Consent to a search

must be knowingly, intelligently, and freely

given.’ Ex parte Wilson, 571 So.2d 1251, 1255

(Ala.1990). ‘“[W]here the validity of a search

rests on consent, the State has the burden of

proving that the necessary consent was

obtained and that it was freely and voluntar-

ily given, a burden that is not satisfied by

showing a mere submission to a claim of law-

ful authority.” ' Miller v. State, 602 So0.2d 488,

491 (Ala.Crim.App.1992), quoting Florida v.

Rover, 460 U.S. 491, 497, 103 5.Ct. 1319, 75

L.Ed.2d 229 (1983). ‘[T]he question whether a

consent to a search was in fact “voluntary” or

was the product of duress or coercion, express

or implied, is a question of fact to be deter-

mined from the totality of the circumstances.’

Schneckloth v. Bustamonte, 412 U.S. 218, 227,

93 §.Ct. 2041, 36 L.Ed.2d 854 (1973). ‘Factors

relevant to this determination include the cir-

cumstances under which the defendant came

into custody, the defendant’s awareness of the

right to withhold consent, the defendant's per-

formance of cooperative acts, the defendant's

age, intelligence, and education, and the

nature of police behavior.’ Cable v. State, 540

So.2d 769, 774 (Ala.Crim.App.1985).

“‘No particular factor should be given undue

weight in determining the issue of voluntari-

ness. The fact that a defendant was not

informed of the right to refuse to consent does

not, of itself, negate a finding of voluntart-

ness. Nor does the fact that the defendant was

4°26

40a

in police custody or that the officers made

a showing of force. Kennedy v. State, 640

So.2d 22, 24-5 (Ala.Cr.App.1993), quoting

Martinez v. State, 624 So.2d 711, 715-16

(Ala.Cr.App.1993).’

“Rokitski. 715 So.2d at 861-62. See also

United States v. Watson, 423 U.S. 411, 424, 96

S.Ct. 820, 46 L.Ed.2d 598 (1976) ([T]he fact of

custody alone has never been enough in itself

to demonstrate a coerced confession or consent

to search. Similarly, under Schneckloth [v

Bustamonte, 412 U.S. 218, 234 (1973) J, the

absence of proof that [a defendant] knew he

could withhold his consent, though it may be

a factor in the overall judgment, is not to be

viven controlling significance.’). “However,

although not dispositive of the question of vol-

untariness, the fact that a defendant had been

advised of his Miranda rights and of his right

to refuse the request to search are significant

factors in determining whether the consent

was voluntary.’ Foldi, 861 So.2d at 422. See

also United States v. Mendenhall, 446 U.S

544, 558-59, 100 S.Ct. 1870, 64 L.Ed.2d 497

(1980) (Although the Constitution does not

require “proof of knowledge of a right to refuse

as the sine qua non of an effective consent to a

search,” [Schneckloth v. Bustamonte, 412 U.S

218. 234 (1973) | (footnote omitted), such

knowledge was highly relevant to the deter

mination that there had been consent.’).’

Washington v. State, 922 So.2d at 163-64.

Here. Brownfield, who was 27 years old at the

time of his arrest, was ordered out of the apart

44a

ment by a number of armed officers and was

instructed to lay down in the ground, at which

time he was handcuffed. Officers then requested

his permission to search the vehicle. However,

under the specific facts of this case, 1t appears

that the consent was knowingly and freely given.

As has been thoroughly discussed, there is no indl-

cation that Brownfield was under the influence of

alcohol or any narcotic substance at the time he

consented to the search, despite his claims that he

took a number of Xanax a day and a half before

the search and that he had been using crystal

methamphetamine for two wecks before the

search. The overwhelming evidence, specifically

the abundance of testimony from law enforcement

and Brownfield’s friends alike, indicated that he

was not under the influence at the time of his

arrest and subsequent consent to the search of the

vehicle. Further, he was cooperative with author-

ities from the instant he encountered them at the

apartment. Finally, there is no indication that

3rownfield was unaware of or incapable of refus-

ing to consent to the search. Rather, considering

the totality of the circumstances and resolving all

credibility choices in favor of the trial court's rul-

ing, we conclude that after being lawfully arrested

Brownfield voluntarily consented to the search,

even without first being advised of his Miranda

rights, and that that consent was freely offered

without regard to the show of force by the police in

taking Brownfield into custody.

Moreover, consent is not the lone exception to

the warrant requirement. Rather, there are a

number of additional exceptions, including (1) a

search incident to a lawful arrest and (2) probable

Lda

cause. See State v. Gargus, 899 So.2d 587

(Ala.Crim.App.2003). Both exceptions apply in

this case. For these reasons, we cannot say that

the trial court erred in denying Brownfield's

motion to suppress the photographs of the items

discovered in the automobile.

C

,rownfield next contends that the trial court

allowed improper hearsay testimony. Specifically,

he claims that Virginia Goode was allowed to tes-

tify that “her brother [Charles Jackson] had called

her at approximately noon on December 20, 2001,

and told her that Tammy Farmer had said that

there were two bodies in a home on Wallace Lane

and that ‘this guy’ had killed them. (R. 1122.)"

(Brownfield’s brief at p. 40.)

Prior to Goode’s testimony, Tammy Farmer tes

tified that she and Brownfield dated “off and on™

(R. 1085) and that she also dated Charles Jackson

(R. 1087.) According to Farmer, Brownfield admit

ted to her sometime late in the evening of Decem

ber 24 or early in the morning of December 20

that he had killed Brenda, Josh, and his brother

in-law. and described the killings in some detail

Farmer testified that Brownfield finally went to

sleep at approximately 4:00 a.m. on December 25,

9001. at which time she also went to sleep. She

further testified that at approximately 11:15 a.m

on December 25, 2001, she telephoned Jackson

and “proceeded to tell him what had happened.”

(R. 1108.) Farmer stated that the police arrived

at her apartment shortly after she spoke with

Ja kson

Also before (,00d¢ restimon Larry Dune

director of the Jackson County 911 emergence

line. testified that someone placed an cmergen¢

;

911 call at approximate ly noon on December

2001. and reported two bodies 1n a nous \ccord

ing to Duncan, there wa no audiotape of the 9]

call. but the notion on tn d) patcners lov iy

cated as follow

“On 12/25/2Z200 it | | operatol

received a call on. the ecottshboro§ Police

Department line. And he entered it as a 1]

which IS FCC ord hecause ak didn t Know wh

to do with it at that time. And it was a call b

an unknown female who relused

herself, and sh advised that he had Kno

edge ol a female and child dead ata residen

On Wallace Lan and would not i Nov [

knew ind once avaln he refused her nal

and advised the locatiol Lhe cc

dence on the lett

ek 1115.) Dune in identified additional |

on the log as indicating that law enlorcement

notified of the call and reflecting the 91 ]-dispatel

operator § effort to trace tne emergency ii} ft

ascertain the caller telephone numbet

Goode testified that Charle Jackson wa I

brother, and that she received a telephone '

from him “just before lunch.” (R

lowing exchange then occurred

“Prosecutor ] (Oka and alte)

vour brother did Vt )

|

[Cioodel: Y«

i

; ' cu

YAY '* 3

‘ ' ’ ' Af

7 (

, |

rs I

| | ,

j ( .

if 1 ' . i pial ; , |

ippeal LO U ss | |

| ks ’ ‘ “a ’ rya'y .

- : r the is aame 1 | f *() | ; ;

) / ee le " ’ ’ , Tia {)] tLe MI

' ry¢ I , . | : |

1] | |

‘Hearsay’ is a statement, other than one made

by the declarant while testifying at the trial o1

hearing, offered in evidence to prove the truth of

the matter asserted.” Rule 801(c), Ala. R. Evid

We do not read Goode’s testimony as being

ffered for the truth of any matters asserted

Rather, we read her testimony to explain why she

telephoned the authorities. It is well settled that

the he arsav rule “““does not exclude extrajudicial

utterances offered merely to prove the fact of the

making or delivery thereof, or to explain subse-

quent conduct of a hearer.’ Ashford v. State, 472

So.2d 717. 719 (Ala.Crim.App.1985), quoting 22A

C.J.S. Criminal Law § 718 (1961).” Robtitaill

1 So.2d at 57 (Ala.Crim.App.2005). See

also Stallworth v. State, R68 So.2a 1128

State, 97

(Ala.Crim.App.2001). Thus, the testimony was not

inadmissible eee evidence.

Brownfield also avers that in the context of the

evidence—1.e.. Farmer’s earlier testimony that

Brownfield had confessed to her and that she had

telephoned her boyfriend Jackson and told him of

Brownfield’s confession, coupled with Goode’s tes-

timony that Jackson was her brother—Goode's

testimony had the effect of “repeating definite

complaints of a particular crime by the accused,

ithat were} so likely to be misused by the jury as

evidence of the fact asserted that it should [have

been] excluded as hearsay.” (Brownfield’s brief at

p. 45, quoting Moseley v. State, 570 So.2d 719, 721

(Ala.Crim.App.1990).) However. we note that at no

point did Goode testify that Brownfield was

involved in the killings, 1.e., she did not identify

killer as anyone other than “this guy.”

+

\

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LOT

St

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—

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2a

trial. It was undisputed that the police had

already begun investigating the case upon the dis-

covery of Latham’s body sometime before Goode's

call to the police. Additionally, there was an abun-

dance of evidence that Brownfield confessed

repeatedly to committing the crimes, both to

Farmer and to law-enforcement officials upon his

arrest and in subsequent interrogations. There-

fore, even if the admission of Goode’s testimony

was error, it was harmless. See. e.g., Stallworth v.

State, 868 So.2d 1128 (Ala.Crim.App.2001). See

also Rule 45. Ala.R.App.P.*

DD.

Brownfield further contends that the trial court

improperly prevented him from introducing the

full text of statements made by a deceased indi-

vidual after the State had first introduced part of

that statement.

The State plaved for the jury a videotape of

Brownfield’s confession to the police. In that

video, an investigator told Brownfield that “a cou-

ple of witnesses” or “some folks” claimed to have

seen Brownfield at the Wallace Lane residence:

the officer then stopped mid-sentence and asked

whether Brownfield remembered having to have

~

We note that at the request ot the defense, the trial

court cautioned the jury that the 911-dispatch log was not

offered for the truth of the matter asserted. We also note

that no such instruction was requested or given with regard

to Goode's testimony regarding her statements during the

911 call. While the better practice mav have been to give a

limiting instruction, in the context of this case based on the

evidence presented at trial. the lack of such a limiting

instruction did not amount to reversible error

4 4 , P 7)

aiter committing the acts \ rd e

T ale the ?) ) T ? ) T | | )

1e1iQ LLi¢ aEeteece Bose ( (] { LT

trial Lal iting tnat Rr A ( 1 W en Weck

and later In possesslOn | r 2 L¥OooO White 4 hr

qiryiwrktnory b lo I} ) Br \ m 7 ‘ ry 7 r } , ‘

auTomMmoodiie Nis, Sraewy sce COTiCeC Tus, i 1d ¢

; : - . '

an interence that Browntle ld was tne de}

witness claimed to have seen at the Wallace ine

: . . | —s ) 4 a" . | art

residence On Dect mber 24 Accoraing to DD!) i |

c } sae ;

field. the witness. who was not identified

videotape, was 4 harles Erskin Smith. whom ]

Ic 14 — ; a_i. — 1; | a }

Ok, 1OoOWever, omit! rad since a1ledad anda Was th

unavailable to testify at trial. Brownfield clain

TNAt Ene remalnadael r SIMICN S STATEMERE INCLIUACt

1 description of the person Smit! lalmed to hay

seen and tnat that aescript l ( ! {

‘| ; .

[Defense Out) e | { ( Li (

,

tnat wnat TnHev 4 CQ tne | 4 tape rie

} }

ISKed a question which that questlol I

\ ) , >

says that they had a witness that saw son

- a.

: 1 > > | +

body driving an ‘S85 white Chrysler at

_

witness has now died, and, of course, that

would normally be hearsay. But we want to

make the argument that they have essentially

introduced part of that statement, and we

would lke to introduce the rest of the state-

ment. The statement of the description of the

individual does not or is not consistent with

Brownfield. You know, it’s a smaller individ

ual and that’s what we want to introduce, and

we think because thev've been able to essen

tially introduce part of that statement, then we

just want to introduce the rest of it.

“(Prosecutor]: Well. Judge. our position is that

the defendant [sic] 1 think. is deceased, and 1

believe that is correct end that there is noth-

ing in the rules of evidence or the law that

permits that statement to come in or hearsay

about that statement to comes in. And it does

not fall within any of the exceptions to the

rules.

“THe CourT: | would agree with that, but how

do vou address the fact that the question was

asked in the statement or interrogation of the

defendant?

“{Prosecutor]: Well, judge, I guess my answer

to that would be that if that’s the case, then

any information that officers use 1n the inter-

rogation or in questioning witnesses would be

subject to being brought in outside the

hearsay rules which again I just don’t think

the law says-well, the law says that hearsay

can come in based on, you know, if it’s a dying

declaration which there’s no contention that

that’s here. But if there has been a court

IIA

proceeding and there's been testimony and the

availability to cross-examine on that issue by

the other party which we don't have here, so |

don’t know of any basis under the law that it

would come in.

“(Defense counsel]: Well, we could put on the

record that this is a denial of my client's due

process rights. The State is having its cake

and eating it, too. They're able to, through the

videotape, introduce an inference that my

client was there on 12/24 and that someone

saw him there. And now we're being denied

the right to cross-examine their knowledge

about that. You know, thev're getting in what

they want to get in, but the truth is according

to the written statement-there’s two state-

ments. and this is the only two-statement wit-

ness that I know of. Now, I could be wrong.

but according to my files, this is the only two-

statement witness, so this witness was very

important to the State. And they went back—-

1 believe Detective Petty went back—well,

[Detective Shane] Clarke went first and then

Il believe Detective Petty went back. And |

believe Detective Petty testified yesterday

inat he felt like that he needed to clarify, and

| may be wrong as to exactly what he said, but

it was something to that effect. But now we're

being precluded it appears. And we Tre asking

for the right to not be precluded from getting

the information that rebuts their allegation

and assertion to the jury. We need the jury to

hear the whole statement, and I didnt

research what rule that is that [the prosecu-

56a

tor} has referred to. But, first, it sounds good,

but. secondly, Iam familiar that there 1s some

type of rule that addresses, you know, if a par-

tial statement is introduced that the whole

thing should come in. Now, for more of a bet

ter argument, it seems to me that just fair-

ness and due process rights because the jury is

going to be left with the inference that Mr.

Brownfield was back there on 12/24, belteve,

around noon or whenever that took place

according to the question through the video.

“Tore Court: But he denied that he was there

that day, correct?

“! Defense counsel]: He did deny that.

“Tue CourT: And he said that he was there

but said that it happened the next day?

“(Defense counsel}: Well, the whole presump-

tion of the video is that this man has done this

and he’s involved and our story or the State’s

story or the law enforcement’s story is what

you believe. And there is direct evidence that

rebuts that as there will be a lot of other evi-

dence that rebuts it. But on this specific issue,

we're prevented from getting that in. And,

again—

“THE CouRt: Well, you've got it tn that there

was someone else reported at the residence on

the 24th, and it wasn’t the defendant.

“(Defense counsel]: Well, | agree with Your

Honor on that point absolutely, I agree. But

what were not being able to get in, Your

Honor, is the very description of this person,

which is in no way the same person as Ben

Brownfield according to the witness. And,

again, the State has had every opportunity

well. | believe their objection here is that they

will not have a right to cross-examine this

witness who is now deceased. But they re not

the ones that took-well, I’m not saying [the

prosecutors], but the State or the prosecution

is the one that had the opportunity to at least

two times talk to this witness. And if they

needed to talk to him anymore, you know,

either him or others to further corroborate his

statements, then they have had the opportu

nity to do so. And it would be unfair and a

denial of my client’s due process rights from

being able to put this in and on that ground

alone plus the ground that Gary argued.

“(Prosecutor]: Well, Judge. | beheve the

defense received a copy of that statement.

“(Defense counsel]: Your Honor, we'll concede

to that. You know, we've had that statement,

and [ don’t know exactly when we got it, but

I'm not going to argue that the State has with

held that statement because

“!Prosecutor]: Well, my point being 1s that

they had an opportunity just as the State did

to talk to that witness further. And it would

not have changed the issue here in court if the

witness has since deceased. But any further

reference to that statement outside of the

video in which the defendant denied being

there that particular date was brought up in

questioning by the defense attorneys not by

the State.

58a

“(Defense counsel]: And the fact that we had

an opportunity to speak to him, I’m not deny-

ing. But I’m not seeing the relevance of that in

the context of this argument. You know, if we

had talked to him for three hours, then where

does that put us in this argument because we

would still be at the same place? And, again,

we're not disputing his statement at all. You

know, whatever it says on its face is what we

think the jury should hear.

“Tiiz COURT: Well, I still see it as hearsay,

and I don’t see that there’s an exception to

that rule.”

(R. 1289-93.) (Emphasis added.)

As the trial court noted, the defense elicited tes-

timony refuting the inference alluded to in the

videotape. On cross-examination of Investigator

Hood, the following exchange occurred:

“(Defense counsel]: Now, are you aware of

someone in the Scottsboro Police Department

interviewing a gentleman on 12/24—well, I’m

sorry, that interviewed a gentleman sometime

after 12/25 of 2001 that purportedly saw a

male approximately 5’7” or 5’8” in height at

Wallace Lane on or about 12:00 noon on

12/24?

“(Prosecutor]: Judge, | object to the hearsay.

“(Defense counsel]: Well, I just want to know

if he’s aware of that.

“THE COURT: Overruled.

“(Investigator Hood]: I’m not aware-well,

there was a number of witnesses that state-

CR,

59a

ments were taken from, but there was one guy

that said that he [jump-started] a white car at

Wallace Lane.

“(Defense counsel]: And was that along about

noon on 12/24?

“(Investigator Hood]: I believe that's right.

“(Defense counsel]: And that person did not fit

the description of the defendant; is that your

understanding?

‘Investigator Hood]: Well, Mr. Brownfield

said that he remembered when he got |jump-

started].

“(Defense counsel]: But the individual descrip-

tion of that man-now, I’m not asking you what

my chent said. I’m asking you, do you know

what the witness is claiming?

“(Investigator Hood]: Well, | don’t know what

his specific description was because | didn't

take that statement.”

1229-30.) Investigator Petty testified on cross-

examination that he estimated Brownfield to be

approximately six feet tail and to weigh approx1-

mately 230 pounds. The following exchange then

occurred:

“(Defense counsel]: Now, you took a statement

from a Mr. Charles Erskin Smith on 12/26; is

that correct?

“(Investigator Petty]: Yes, sir.

“(Defense counsel]: Can you tell us about that

statement and what led you to him, you know,

to take a statement?

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64a

allow the defense to elicit hearsay evidence in the

form of the statements of a deceased witness to

law-enforcement officers investigating the mur-

ders was, if error at all, harmless error. See Rule

45, Ala.R.App.P. See also Smith v. State, 745

So.2d 922 (Ala.Crim.App.1999) (exclusion of wit-

ness was harmless error).

y

k

de

Brownfield also contends that the trial court

erred in allowing forensic scientist Nancie Jones

to testify as an expert witness because, he claims,

PCR DNA analyses was outside of her area of

expertise.'! Specifically, he argues that Jones had

undertaken no coursework in human genetics;

that she was not board-certified in any of the

areas emploved in PCR DNA analysis: and that

her past involvement in published research was

limited to methods of testing other than PCR DNA

analysis.'~

se We note that Brownfield does not challenge the

admissibility of the DNA evidence itselt. Rather, his specific

arguments take issue with Jones's qualifications as an

expert. Thus, we need not discuss in detail the admissibility

of the evidence itself other than to note that there was no

error, plain or otherwise, in the admission of the DNA evi-

dence at trial. See generally Blackmon v. State, [Ms. CR-01-

2126, Aug. 25, 2006] —So.2d— (Ala.Crim.App.2005) (opinion

on application for rehearing) (dis-cussing the application of

the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), analysis to

determine the admissibility of PCR DNA evidence.).

oe

The State avers that this issue is raised for the first

time on appeal. We note that Brownfield filed a motion chal

lenging the admissibility of the DNA evidence prior to trial,

and that the trial court conducted a hearing outside of the

boa

“‘Whether a witness is sufficiently qualified to

testify as an expert 1s a question for the trial court

to resolve in its discretion, and its ruling will not

be disturbed on appeal unless it has abused that

discretion.” Smith v. State, 698 So.2d 189, 205

(Ala.Crim.App.1996), aff'd. 698 So.2d 219

(Ala.1997). Moreover, ‘[i]t is for the jury to deter

mine the weight and credibility of an expert wit-

ness's testimony.’ Ar/crease v. John Deere Indus.

Equip. Co., 663 So.2d 900, 902 (Ala.1995).”

Adams v. State, 955 So.2d 1037, 1089

(Ala.Crim.App.2003), rev'd in part, on other

grounds, 955 So.2d 1106 (Ala.2005).

Here, Jones, a forensic scientist with the

Alabama Department of Forensic Sciences, testi-

fied extensively as to her training and experience

with DNA testing; as to the procedures employed

by her laboratory during PCR DNA testing; and as

to PCR DNA testing in general. She testified that

she had been employed as a forensic scientist

since 1994 and that she was formerly employed as

a laboratory technician in what is now the foren-

sic-biology section from 1988 until 1992. She

stated that she had a bachelor of science degree

from Athens State College and that she had com-

pleted graduate level course work at Alabama

A&M University and the University of Alabama

hearing of the jury to determine the admissibility of the evi

dence. At that hearing, Brownfield questioned Jones exten

sively as to her knowledge, skill, training, and areas of

expertise. It appears that the trial court understood Brown-

field's questioning to challenge Jones's competency to testify

as an expert on the proffered DNA evidence. Even assuming

that the specific allegations were preserved for appellate

review, for the reasons that follow, we find no error, plain or

otherwise.

Oba

at Birmingham, including courses in genetics,

molecular biology, biochemistry, and statistics.

She testified that she had on-the-job training and

had participated in workshops co-sponsored by the

Fk Bl and her laboratory to learn to perform PCR

DNA analysis. She stated that she was a member

of the American Academy of Forensic Sciences, a

member of the Southern Association of Forensic

Seiences, and a member of the Association of

Forensic DNA Analysts and Administrators. She

testified that she was the training officer for new

forensic scientists hired by her department, hav-

ing previously trained three forensic scientists

and training a fourth. She stated that her labo

ratory undertakes technical and administrative

reviews of their notes and reporting, and technical

reviews of their DNA process; she further stated

that she underwent proficiency testing at least

twice a year to compare their own proficiency to

that of other scientists at laboratories around the

nation, and that she had never failed a proficiency

test. She also testified as to the national certifi-

cations held by her laboratory, and described in

detail the procedures employed by her laboratory

in conducting DNA testing, including those

employed during PCR DNA testing. She testified

that although she did not hold a Ph.D. or board

certification in any scientifie disciplines, the

Department of Forensic Sciences had no such

requirements for forensic scientists. She testified

that she conducted “probably hundreds” of DNA

tests a vear and that she had previously testified

as an expert in DNA testing five or six times. (R.

1433.) Clearly, Jones’s testimony supported the

trial court's decision to allow her to testify as an

67a

expert witness. Having reviewed the record, we

find no abuse of the trial court's diseretion in

determining that Jones was qualified to testify as

an expert on the State’s DNA evidence

i.

Brownfield further claims that the trial court

improperly allowed Dr. Melissa Clinger, Brown

field’s court-appointed psychologist, to testify dur

ing the guilt phase of his trial about information

he had provided her during her mental examina

tion of Brownfield.

“The general rule is that by actively pursu

Ing an insanity defense and by introducing

testimony of qualified psychologists or psv-

chiatrists as defense witnesses, the defendant

waives any potential psvchotherapist-patient

privilege or privilege against self-incrimina

tion against subsequent qualified testimony or

rebuttal. Hx parte Day, 378 So.2d 1159

(Ala.1979): Salmon v. State, 460 So.2d 334

(Ala.Cr.App.1984); Magwood v. State, 426

So.2d 918 (Ala.Cr.App.1982).

“Fifth Amendment problems may. arise,

however, when an examining psychiatrist o1

psvchologist is ellowed to give testimony

based upon conversations with a eriminal

defendant. Rule Li.26D), mee.a.Cr.P..,

addresses this problem by limiting such tes

timony to the mental condition of the

accused

Williams v. State, 710 So.2d 1276, 1299

(Ala.Crim.App.1996). Rule 11.2(b), Ala. R.Crim.P..

OSa

provides for the admissibility of mental exam)

nations. as foliows

“(1) The results of examinations conducted

pursuant to subsection (a)(1) of this rule, Rule

11.8, or Rule 11.4 on the defendant's mental

competency to stand trial shall not be admis-

sible as evidence in a trial for the offense

charged and shall not prejudice the defendant

in entering a plea of not guilty by reason of

mental disease or defect

“(2) The results of mental examinations made

pursuant to subsection (a)(2) of this rule and

the results of similar examinations regarding

the defendant's mental condition at the time

of the offense conducted pursuant to Rule 11.4

shall be admissible 1n evidence on the issue of

the defendant's mental condition at the time

of the offense only if the defendant has not

subsequently withdrawn his or her plea of not

suilty by reason of mental disease or defect

Whether the examination is conducted with or

without the defendant's consent, no statement

made by the defendant during the course ot

the examination, no testimony by an examin

Ing psychiatrist or psychologist based upon

such a statement, and no other evidence

directly derived from the defendant’s state

ment shall be admitted against the detendant

In any criminal proceeding, except on an issue

respecting mental condition on which the

defendant has testified.’

Before trial, Brownfield underwent a court

ordered evaluation administered by Dr. Clinger in

August 2002 to determine Brownfield’s compe-

69a

tenev to stand trial and his mental state at the

time of commission of the offenses. Dr. Clinger’s

forensic evaluation report contains the following:

(C

“Prior to beginning the interview, the defen-

dant was informed as to the purpose of the

evaluation and limited confidentiality of the

information to be obtained. He was told the

results will be submitted in the form of a

report to the Court, the defense attorney, and

the District Attorney. He was also intormed

that these results may be used in court pro

ceedings either through testimony of the

examiner and/or the written report, to assist

reaching decisions regarding his competency

to stand trial and his mental state at the time

of the alleged offense, but that none of the

information could be used as evidence against

him concerning his guilt on any charge. An

explanation that this information might be

used during the penalty phase as aggravating

or mitigating factors was added. Mr. Brown-

field indicated he understood the purpose and

limited confidentiality of the evaluation, and

he reviewed and signed a written notification

form indicating his willingness to proceed

with the interview.”

115.)

At the onset of the guilt phase of the trial,

defense counsel confirmed that Brownfield was

proceeding under his pleas of not guilty and not

guilty by reason of mental disease or defect. (R.

768.) Throughout his opening statements, defense

counsel repeated'y stated that the murders were

the result of Brownfield’s addiction to metham-

phetamine. Defense counsel stated, among other

70a

many comments: “This is a case about death by

meth.” (C. 776); “You will hear evidence that my

client was totally submissive to the drug, meth,

and that his brain was basically fried and that he

had very, very little cognitive ability to do any-

thing.” (C. 777); “[M]y client suffered from amne-

sia and confusion.” (R. 777-78); and “[YJou’re going

to hear testimony of what it means to falsely con-

fess; and you're going to hear evidence of what a

false memory is. You will hear evidence from a

psychiatrist that these conditions exist in this

case.” (R. 778.)

Throughout the State’s case during the guilt

phase of the trial, Brownfield clearly attempted to

elicit evidence challenging his mental status at

the time of the offenses, 1.e., attempting to show

that the murders were committed while he was

under the influence of Xanax and crystal metham-

phetamine.

During the defense’'s case, Dr. Roger Lacy tes-

tified as an expert for the defense; he testified

that he had examined the videotaped confessions,

the police reports, Dr. Clinger’s report, and the

report prepared by Dr. Joseph Embry of the

Alabama Department of Forensic Sciences, and

had interviewed Brownfield. According to

Dr. Lacy, at the time of the murders, Brownfield

was “confused, he was in a drug soup.” (R. 1736.)

Dr. Lacy further testified that at the time he pur-

portedly waived his Miranda rights, Brownfield

was “like a two-year-old, you know, being confused

and befuddled, delirium.” (R. 1737.) Finally, Dr.

Lacy stated that, at tne time he made the confes-

sions, Brownfield’s mental status was “confused

with gradual changing from about a two-year-old

Jla

at the beginning to maybe the level of about a ten-

year-old at best at the end.” (R. 1737.) He further

stated that Brownfield’s statements were invol-

untary and that Brownfield could not have made

a knowing, voluntary, or intelligent statement. Dr.

Lacy further testified that Brownfield was unable

to remember anything from the interrogations.

According to Dr. Lacy, Brownfield, because of his

mental state as a result of his drug ingestion, was

ina highly suggestive state and assimilated infor-

mation and details relayed to him during the

interrogations as his own memories, an occurrence

Dr. Lacy characterized as a “false memory.” Dr.

Lacy stated that Brownfield, at the time of the

confessions, would not have been able to recognize

that he was a suspect, would not have recognized

the severity of the legal implications of what he

was saying, would not have recognized the police

investigators as adversaries, and would not have

been able to recognize or understand his rights.

Dr. Lacy further stated that at the time of the

murders, Brownfield was in a state of delirium

and would not have understood or accurately

interpreted the events taking place around him.

At the conclusion of the defense’s case, the State

called Dr. Clinger as a rebuttal witness. Dr.

Clinger testified without objection that she had

examined Brownfield to determine his sanity at

the time of the offenses; she stated that she gath-

ered information from the district attorney's office

and from defense counsel and had met with

Brownfield twice for a total of approximately four

or five hours. When asked what information she

used to diagnose Brownfield, defense counsel

objected and requested a sidebar, at which time a

{23

bench conference was held off the record. Upon

the conclusion of that bench conference, Dr.

Clinger testified without objection that her goal

was to evaluate Brownfield and to assess his

treatment needs, if any. She stated that she per-

formed a diagnostic clinical interview and admin-

istered an IQ test; she testified without objection

as to her conclusions regarding his intetlectual

status and mental ability. Dr. Clinger testified

that Brownfield was able to recall and repeat

information to her, including arithmetic problems

she posed to him, his educational background, and

his work history. The following exchange then

occurred:

“(Prosecutor]: All right; did he have any mem-

ory at all as to his activities on December 238,

24 and 25?

“[Dr. Clinger]: He was able to provide me with

an account of what he was doing during most

of that time.

“{Prosecutor]: All right; was he able to recall

getting into a verbal dispute with his sister on

the 23rd?

“(Dr. Clinger]: Yes.

“|Prosecutor!: And what details was he able to

provide regarding that?

“(Dr. Clinger]: Well, it was something about-

“(Defense counsel]: Judge, | object again. That

goes to the very issue that I was informing

you about. And that has nothing to do with

this test or his assessment, and I would

object.

“(JURY NOT PRESENT.)

“The Court All right; do you want to state

your objection?

“(Defense counsel]: Well, Judge, what I’m con-

cerned about is the very front page of the

forensic evaluation report prepared by Dr.

Clinger, she says, and I will just read it, ‘Ben

Brownfield was also informed that these

results may be used in court proceedings

either through testimony of the examiner

and/or the written report to assist reaching

decisions regarding his competency to stand

trial and his mental state at the time of the

alleged offense but that none of the informa-

tion could be used as evidence against him

concerning his guilt on any charge.’ Now, my

objection is that this questioning, and where |

beheve the assistant district attorney was

going with that is to get into the facts of what

Mr. Brownfield has described to Dr. Melissa

Clinger. And just because the court gives some

kind of limiting instruction at some point that

they are not to consider any of this in their

determination of guilt[, it] 1s still highly pre}-

udicial and will violate his rights, Your

Honor—his due process rights because he was

told that none of this could be used, and none

of this information could be used as evidence

against him. And this is a way to circumvent

that by getting into the details of what he told

her.

74a

“THE COURT: Well, he has raised the issue of

insanity at the time of the alleged offense, and

the law is very clear that any statements that

he gives to the psychologist would be admis-

sible on that issue.

“|Defense counsel]: Well, there is no issue of

insanity, and we withdraw any claim that he

was insane. And we will put that on the

record,

“|Prosecutor]: Judge, we would consider that

to be untimely made, and they’ve already

introduced evidence from their expert on his

inability to recall the details. And if it’s not

admissible on his mental state at the time, it

certainly is to impeach Dr. Lacy’s testimony

about him having no memory whatsoever of

these events.

“(Defense counsel}: We are not arguing that he

was legally insane. That’s the term that I’m

talking about, legal insanity. And nothing

that we have put on or attempted to argue

goes to legal insanity.

“(Prosecutor]: Well, Your Honor, that was one

of the questions that we asked before we got

started if he was maintaining that plea and

{defense counsel] stated clearly, yes, [he] was.

“(Defense counsel]: Well, we have not put on

any evidence to that effect.

“(Prosecutor]: And in fact I think he requested

an instruction to that effect.

“(Defense counsel]: Well, that doesn’t mean

that we’re going that route.

75a

“THE COURT: Well, | asked specifically so that

this issue could be addressed at the very

beginning, and you told me that you definitely

intended to pursue that plea of not guilty by

reason of mental disease or defect. And you

put on your psychiatrist.

“|Defense counsel]: Well, Your Honor, we said

that we were not contesting his sanity at trial

or his competency at trial. And that’s what |

recall telling the court that that was not going

to be an issue.

“Titt COURT: Right, because that issue had

already been decided by the court because it

had not been made an issue previously and

there had been no request for a hearing on the

issue of whether he was competent to stand

trial.

“|Defense counsel]: Well, our position now is

that we’re not arguing any insanity.

“THE COURT: Well, | think it’s too late. I think

the door has been opened because there’s been

questions asked of your psychiatrist regarding

that plea. So I’m going to permit her to testify.

But any statements that he made to you, you

can relate, you know, if they had a bearing on

your assessment of his mental state at the

time of the alleged offense. Otherwise, they

should not be admissible in this hearing. Do

you understand?

“(Dr. Clinger]: Well, Your Honor, | didn’t ask

if he did it or not, and he didn’t tell me if he

did it or not.

THE COUR’ All right o that hould take

care of that

“| Defense { ounsel] Well Judge. iS the court

saying that we asked our witnesses questions

concerning whether the defendant was legally

insane?

“THE COURT: [Tm saying that questions were

asked and at no time was there an objection

made to those questions. And | know the p

chiatrist was asked if he was suffering from a

mental disease or defect, and

“| Defense counsel]: Yes, that was asked

“THE COURT: Right, and there was no objec

tion made as if you had withdrawn that plea

‘|Defense counsel]: Okay, | see the court

point

“THE CouRtT: All night; let's recess for lunch

Dr. Clinger then testified that Brownfield

informed her that he was unhappy with his siste1

because on December 23, 2001, he had given hey

some money that she was supposed to have used

to obtain drugs. Dr. Clinger testified with regard

to the events of December 24 that Brownfield

recalled taking a shower at Farmer's residence

and riding around with his friend Nick Logan and

that he told Farmer what he had done. As for

srownfield’s recollection of the events on Decem

ber 25, Dr. Clinger testified that Brownfield told

her that he remembered the officers advising him

of his Miranda rights. According to Dr. Clinger

she saw no indication that Brownfield suffered

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draw his plea of not guilty by reason of mental

disease or defect did not close the door that he had

already opened. As this Court stated in Lee v.

State, 898 So.2d 790 (Ala.Crim.App.2001) (opinion

on return to remand):

“Even though the appellant ostensibly aban-

doned his plea that he was not guilty by rea-

son of mental disease or defect, he clearly

based his defense on a contention that there

was something wrong with his mental cond1-

tion. Therefore, Dr. Ronan’s testimony about

the results of her mental examination was

admissible to refute his defense that there

was something wrong with him, to rebut Dr.

Blanton’s testimony that he was psychotic and

mentally retarded, and to explain the incon-

sistencies between her conclusions and Dr.

Blanton’s conclusions. Furthermore, even if

the appellant was not advised of his Miranda

rights and was not told that his statements

could be used against him, Dr. Ronan’s testi-

mony about statements the appellant made

was admissible pursuant to Rule 11.2(b)(2),

Ala.R.Crim.P., because those statements were

relevant and material to support her conclu-

sion that he did not suffer from any mental

disease or defect and that he was not mentally

retarded. See Williams v. State, 710 So.2d

1276, 1299-1300 (Ala.Crim.App.1996), aff d,

710 So.2d 1350 (Ala.1997). Finally, the record

does not support the assertion that the State

was trying to use Dr. Ronan’s testimony to

malign the appellant’s character. Rather, it

shows that the State used the testimony to

rebut Dr. Blanton's testimony and to explain

the inconsistencies between his conelusions

and her conclusions. Therefore. we do not find

that there was any plain error in this regard.”

The reasons set forth in Lee are equally appli-

cable here. The evidence was properly admitted to

rebut both Dr. Lacy’s testimony during the

defense’s case, and, to some degree, the testimony

elicited by the defense’s questioning of other wit-

nesses attempting to portray Brownfield as unable

to recall the events or to speak voluntarily with

authorities. Therefore, we find no error, plain

or otherwise, in the trial court’s allowance of

Dr. Clinger’s testimony.

G.

Brownfield also argues that the cumulative

effect of the trial court’s errors mandates a new

trial. Although he does not specify what errors he

is referring to, we note that this claim was

advanced as a subpart of his assorted evidentiary

claims addressed in Part I of this opinion; thus,

we construe his argument to be limited to the

claims addressed in Part I.

As the Alabama Supreme Court has so suce-

cinctly stated, the cumulative-error rule is as fol-

lows: “[W]hile, under the facts of a particular case,

no single error among multiple errors may be suf-

ficiently prejudicial to require reversal under Rule

45, if the accumulated errors have ‘probably

injuriously affected substantial rights of the par-

ties,’ then the cumulative effect of the errors may

require reversal.” Ex parte Woods, 789 So.2d

941, 942 n. 1 (Ala.2001) (quoting Rule 465,

Ala.R.App.P.). Applying this standard, we have

SOa

considered these allegations of error cumulatively,

and we do not find that Brownfield’s substantial

rights have probably been injuriously affected.

II.

Brownfield next argues that the trial court erred

in denying his challenges for cause of prospective

jurors J.C., A.M., H.P., and D.W. Specifically,

Brownfield contends that his challenges for cause

of prospective jurors J.C., A.M., and H.P. were

improperly denied because those prospective

jurors initially indicated in response to general

questions posed during voir dire that they would

always vote to impose the death penalty for cer-

tain convictions. He also argues that prospective

juror J.C. failed to affirmatively indicate, in

response to a question posed during voir dire,

whether he felt that a sentence of life imprison-

ment without parole was a serious sentence. He

specifically contends that his challenge for cause

of prospective juror D.W. should have been

granted based on D.W.’s initial denial that she did

not know one of the victims granddaughters.

As the Alabama Supreme Court explained

in Bethea v. Springhill Memorial Hospital, 838

So.2d 1 (Ala.2002), error in the trial court’s

refusal to remove a prospective juror for cause is

subject to the harmless-error analysis:

“The application of a‘harmless-error’ analysis

to a trial court's refusal to strike a juror for

cause is not new to this Court; in fact, such an

analysis was adopted as early as 1909:

Sla

‘The appellant was convicted of the crime

of murder in the second degree. While it was

error to refuse to allow the defendant to

challenge the juror C.S. Rhodes for cause,

because of his having been cn the jury

which had tried another person jointly

indicted with the defendant, yet it was error

without injury, as the record shows that the

defendant challenged said juror perempto-

rily, and that, when the jury was formed the

defendant had not exhausted his right to

peremptory challenges.’

“Turner v. State, 160 Ala. 55, 57, 49 So. 304,

305 (1909). However, in Swain v. Alabama,

380 U.S. 202, 219, Sea S.Ct. 824, 13 L.Ed.2d

759 (1965), overruled on other grounds, Bat-

son v. Kentucky, 476 U.S. 79, 106 8.Ct. 1712,

90 L.Ed.2d 69 (1986), the United States

Supreme Court stated, in dicta, that ‘[t]he

denial or impairment of the right is reversible

error without a showing of prejudice. (Empha

sis added [in Bethea |.) Some decisions of this

Court as well as of the Alabama Court of

Criminal Appeals reflect an adoption of this

reasoning. See Dixon v. Hardey, 591 So.2d 8

(Ala.1991): Knop v. McCain, “one So.2d 229

(Ala.1989); Ex parte Rutledge, 52 2d 1118

(Ala.1988): Ex parte Beam, . 424 723

(Ala.1987); Uptain v. State, 534 So.2d 686, 688

(Ala.Crim.App.1988) (quoting Swain and cit-

ing Beam and Rutledge ); Mason v. State, 536

So.2d 127, 129 (Ala.Crim.App.1988) (quoting

U/ptain ).

a Cy

Si

2S),

sZa

“~..[TJhis Court has returned to the ‘harm-

less-error’ analysis articulated in the Ross v.

Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101

L.ed.2d 80 (1988), and [United States v.] Mar-

tinez-Salazar, 528 U.S. 304, 120 S.Ct. 774,

145 L.Ed.2d 792 (2000), decisions. Because a

defendant has no right to a perfect jury or a

jury of his or her choice, but rather only to an

‘impartial’ jury, see Ala. Const.1901 $6, we

find the harmless-error analysis to be the

proper method of assuring the recognition of

that right.

“In this instance, even if the Betheas could

demonstrate that the trial court erred in not

granting their request that L.A.C. be removed

from the venire for cause (an issue we do not

reach), they would need to show that its rul-

ing somehow injured them by leaving them

with a less-than-impartial jury. The Betheas

do not proffer any evidence indicating that the

jury that was eventually impaneled to hear

this action was biased or partial. Therefore,

the Betheas are not entitled to a new trial on

this basis.”

833 So.2d at 6-7 (footnotes omitted). See also

Calhoun v. State, 932 So.2d 923

(Ala.Crim.App.2005). Here, as in Bethea, Brown-

field has offered no evidence that the jury ulti-

mately impaneled was_ biased. Brownfield

concedes in his brief that he exercised a peremp-

tory challenge to remove D.W. from the venire,

and it is apparent from the record that prospective

jurors J.C., A.M., and H.P. were not selected to

serve on the jury empaneled to hear the case.

S3a

Therefore, even if the trial court's refusal to

remove the complained-of venire members for

cause was error, the error was harmless.

Moreover, we note with regard to prospective

jurors J.C., A.M., and H.P., that “[jJurors who give

responses that would support a challenge for

cause may be rehabilitated by subsequent ques-

tioning by the prosecutor or the court.” Johnson v.

State, 820 So.2d 842, 855 (Ala.Crim.App.2000).

“The crucial inquiry is whether the veniremen

could follow the court’s instructions and obey his

oath, notwithstanding his views on capital pun-

ishment.” McNabb v. State, 887 So.2d 929, 944

(Ala.Crim.App.2001), quoting other cases. Here,

although each of the three complained-of prospec-

tive jurors gave initial responses during voir dire

indicating strong support in the application of the

death penalty, each also indicated that they could

set aside any predetermined feelings about the

death penalty and follow the trial court's instruc-

tions. Therefore, there was no error in the trial

court’s refusal to remove prospective jurors J.C.,

A.M., and H.P. for cause.

Admittedly, the questions surrounding prospec-

tive juror D.W. raise a closer question in that

there was some question as to whether a child of

D.W.’s brother was Latham McCutchin’s grand-

daughter. We note the following individual voir

dire:

“THE Court: [D.W.], | had some questions

that I wanted to ask you. One of the potential

witnesses in this case saw your name and

thought that you might be related to [T.C.]

who is Latham McCutchin’'s daughter. And |

S4da

beheve the relationship would be that this

potential witness thought that you might be

the aunt of |T.C.]s’ daughter; is that correct?

“PROSPECTIVE JUROR [D.W.]: The only [T]

that I know isa [T] that was with my brother

when they were in high school, and they did

have a child together. But I don’t have any-

thing to do with her, you know, | just know

her on a first name basis. And, you know, |

don’t know her last name, and | don’t know

the mother.

“THE COURT: So you could be tne aunt of

[T.C.]s’ child; is that correct?

“PROSPECTIVE JUROR [D.W.]: Yes.

“THE COURT: But you don’t know her or the

child?

“PROSPECTIVE JUROR [D.W.]: No.

“THE COURT: Now, the fact that your niece, |

guess it would be the granddaughter of one of

the alleged victims, Mr. Latham McCutchin,

would that have any impact on your verdict in

this case?

“PROSPECTIVE JUROR [D.W.]: No, because I

have no idea of who it is.

“THE CourtT: And the fact that there would be

some relationship, that would have no effect

whatsoever?

“PROSPECTIVE JUROR [D.W.]: Well, I don’t

know them. So if 1 never knew them, how

could I hold them accountable? You know, it’s

like

Rd5a

“THE COURT: Well, it would be in this case

that you might have more sympathy towards

them because you have come connection with

the family.

“PROSPECTIVE JUROR [D.W.]: | can’t have any

sympathy towards anybody that I don’t know.

“THE Court: All right; thank you. Do y'all

have any questions?

“(Defense counsel]: No.

“|Prosecutor]: I think you were asked about

the names, [R.M.] and [T.C.], and you don’t

know either of those people?

“PROSPECTIVE JUROR [D.W.]: Not on a per-

sonal basis, you know, I know of them. You

know, like, I] don’t know the McCutchins at

all, and the only one | know is the daughter

that is possibly my brother’s child.

“{Prosecutor]: And what is that daughter’s

name?

“PROSPECTIVE JUROR [D.W.]: [R], and I only

know her on a first name basis, and I’ve only

seen her, like, three times. And 1 don’t know

her birthday, and I don’t know how old she ts.

“|Prosecutor|: That’s all.

“THE COURT: Was paternity ever established?

“PROSPECTIVE JUROR [D.W.]: | reaily don't

know.

“THE COURT: So your brother was not married

to [T.C.]?

86a

“PROSPECTIVE JUROR [D.W.]: No, 1t was just a

fling, you know, something that happened

during high school. And it was possible, but |

don’t know anything for sure, and | don't

know anything about it.”

(R. 722-24.)

Thus, although Brownfield exercised a peremp-

tory strike to remove D.W. from the venire, it is

clear from the following exchange that this was

not the type of close familial relationship that nor-

mally gives rise to concerns about partiality. The

tria! court thoroughly questioned the prospective

juror about her possible relationship with the vic-

tim and his family and determined that the chal-

lenge for cause was due to be denied. We agree

with the trial court.

For these reasons, Brownfield is not entitled to

any relief on this claim.

ITI.

Brownfield next argues that Alabama’s statu-

tory capital-sentencing scheme is constitutionally

infirm for two reasons: (1) that pursuant to Ring

vu. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153

L.Ed.2d 556 (2002), the jury, and not the trial

judge, must make the determination as to whether

the aggravating circumstances outweigh the mit-

igating circumstances; and (2) that the jury’s rec-

ommendation of death must be unanimous.

With regard to Brownfield’s contention that the

jury, rather than the trial court, should weigh the

mitigating circumstances a,ainst the aggravating

circumstances, we note that nothing in Ring

87a

requires such an approach. Rather, in a number of

opinions decided in the aftermath of Ring, both

this Court and the Alabama Supreme Court have

concluded that Ring did not invalidate Alabama’s

death-penalty statute, a statute that vests the

ultimate sentence determination in the hands

of the trial judge and not the jury. See, e.g., kx

parte Hodges, 856 So.2d 936 (Ala.2003); Ex parte

Waldrop, 859 So.2d 1181 (Ala.2002); Duke uv.

State, 889 So.2d 1, 41 (Ala.Crim.App.2002) (opin-

ion on return to remand), cert. granted, sentence

of death vacated pursuant to Roper v. Simmons,

643 U.S. 561, 125 S.Ct. 1183, 161 L.Ed.2d 1

(2005), Duke v. Alabama, 544 U.S. 901, 125 S.Ct.

1588, 161 L.Ed.2d 270 (2005); Turner v. State, 924

So.2d 737 (Ala.Crim.App.2002); Stallworth vu.

State, 868 So.2d 1128, 1178 (Ala.Crim.App.2001)

(opinion on return to second remand). In recog-

nizing the narrowness of the United States

Supreme Court’s holding in Ring, this Court has

noted that although “[t]he Ring Court held that

any aggravating circumstance that increased a

sentence to death must be proved to a jury beyond

a reasonable doubt,” the Ring Court “did not reach

the question whether judicial sentencing or judi-

cial override was constitutional.” Stallworth ov.

State, 868 So.2d at 1183 (opinion on return to sec-

ond remand). Further:

ace

Ring’s claim is tightly delineated: He con-

tends only that the Sixth Amendment

required jury findings on the aggravating cir-

cumstances asserted against him. No aggra-

vating circumstance’ related to _ past

convictions in his case; Ring therefore does

not challenge Almendarez-Torres v. United

ssa

States, 523 U.S. 224, 118 8.Ct. 1219, 140

L.Ed.2d 350 (1998), which held that the fact of

prior conviction may be found by the judge

even if it increases the statutory maximum

sentence. He makes no Sixth Amendment

claim with respect to mitigating circum

stances. See Apprendi v. New Jersey, 530 U.S

466, 490-91, n. 16, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000) (noting “the distinction the

Court has often recognized between facts in

aggravation of punishment and facts in miti

gation” (citation omitted [in Ping |)). Nor does

he argue that the Sixth Amendment required

the jury to make the ultimate determination

whether to impose the death penalty. See

Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct

2960, 49 L.Ed.2d 913 (1976) (plurality opin

ion) (“[I]t has never [been] suggested that jury

sentencing is constitutionally required.”). He

does not question the Arizona Supreme

Court’s authority to reweigh the aggravating

and mitigating circumstances after that court

struck one aggravator. See Clemons v. Mis

sissippi, 494 U.S. 738, 745, 110 S.Ct. 1441,

108 L.Ed.2d 725 (1990). Finally, Ring does not

contend that his indictment was constitu

tionally defective. See Apprendi, 530 U.S., at

477, n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435

(Fourteenth Amendment “has not been

construed to include the Fifth Amendment

right to ‘presentment or indictment of a Grand

’” 999

Jury’”).

Stallworth v. State, 868 So.2d at 1183-84 (quoting

Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428)

RUGn

As the Alabama Supreme Court stated in Ha

parte Waldrop:

“|Tlhe weighing process is not a factual dete

mination. In fact, the relative ‘weight’ of

aggravating circumstances and mitigating cir

cumstances is not susceptible to any quantum

of proof. As the United States Court of

Appeals for the Kleventh Circuit noted, ‘While

the existence of an aggravating or mitigating

circumstance is a fact susceptible to proof

under a reasonable doubt or preponderance

standard ... the relative weight is not.’ Ford

v. Strickland, 696 F.2d 804, 818 (11th

Cir.1983). This is because weighing the aggra

vating circumstances and the mitigating cir

cumstances 1s a process in which ‘the

sentencer determines whether a defendant el)

gible for the death penalty should in fact

receive that sentence.’ Tutlaepa v. California,

512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d

750 (1994). Moreover, the Supreme Court ha:

held that the sentencer in a capital case need

not even be instructed as to how to weigh par

ticular facts when making a sentencing dec}

sion. See Harris v. Alabama, 513 U.S. 504,

512,115 8.Ct. 1031, 130 L.iEd.2d 1004 (1995)

(rejecting ‘the notion that “a specific method

for balancing mitigating and aggravating fac

tors in a capital sentencing proceeding is con

stitutionally required”’ (quoting Franklin |

Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320,

101 L.idd.2d 155 (1988)) and holding that ‘the

Constitution does not require a State to

ascribe any specific weight to particular fac

ay

tors, either in avyyvravation or mitigation, to be

considered by the Sentence r)

“Thus, the weighing proce iol a factual

determination or an clement of an offense

Instead, it 1s a moral or legal judgment that

takes into account a theoretically limitless set

of facts and that cannot be reduced to a sci

entific formula or the discovery of a discrete

observable datum. Sce Caltfornia v. Ramo

163 U.S. 992, 1008, 1038 S.Ct. 3446, 77 L.Ed.2d

1171 (1983) COnce the jury finds that the

defendant falls within the legislatively

defined category of persons eligible for the

death penalty, the jury| | then is free to

consider a myriad of factors to determine

whether death is the appropriate punish

ment.’); Zant v. Stephens, 462 U.S. 862, 902

lO’ S.Ct. 2733, 77 L.Md.2d 235 (1983) (Rehn

quist, J., concurring in the judgment) (‘sen

tencing decisions rest on a= far-reaching

Inquiry into countless facts and circumstances

and not on the type of proof of particular el

ments that returning a conviction does’)

“In Ford vu. Strickland, supra, the defendant

claimed that ‘the crime of capital murder in

llorida includes the clement of mitivatiny ci

cumstances not outweighing ayvyvravatiny en)

cumstances and that the capital sentencing

proceeding in Florida involves new findings of

fact significantly affecting punishment.’ ford,

696 F.2d at 817. The United States Court of

Appeals for the Kleventh Circuit rejected thi

argument, holding that ‘aggravating and mit

ivating Circumstances are not tacts or els

92a

“Thus, the determination whether the aggra-

vating circumstances outweigh the mitigating

circumstances is not a finding of fact or an

element of the offense. Consequently, Ring

and Apprendi do not require that a jury weigh

the aggravating circumstances and the miti-

gating circumstances.”

Ex parte Waldrop, 859 So.2d at 1189-1190 (foot-

note omitted).

Here, in returning guilty verdicts as to the

charged capital offense of burglary-murder and

the capital offense of the murder of two or more

people during one act or pursuant to one scheme

or course of conduct, the jury of necessity unani-

mously found that two statutory aggravating cir-

cumstances had been proven beyond a reasonable

doubt, i.e., § 13A-5-49(3) and (4), Ala.Code 1975.

See, e.g., Stallworth v. State, 868 So.2d 1128

(Ala.Crim.App.2001) (opinion on return to

remand) (if the aggravating circumstance that ele-

vated the punishment to death was also an ele-

ment of the capital offense, Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2000). was not violated because the jury's

verdict in the guilt phase found that fact to exist

beyond a reasonable doubt). See also Ex parte

Waldrop, supra (jury conviction of the capital

offense of murder-robbery satisfied the require-

ment that an aggravating circumstance be found

by the jury and the verdict itself rendered the

defendant death-eligible, exposing him to a range

of punishment that included the death penalty).

Thus, the limited mandates of Ring have been sat-

isfied in this case, because the jury unanimously

93a

found at least one statutory aggravating circum-

stance, making Brownfield eligible for the death

penalty. What relative weight to assign the aggra-

rating circumstances and mitigating circum-

stances was for the trial court. See Ex parte

Waldrop, 859 So.2d at 1190 (“the determination

whether the aggravating circumstances outweigh

the mitigating circumstances 1s not a finding of

fact or an clement of the offense. Consequently,

Ring and Apprendi do not require that a jury

weigh the aggravating circumstances and the mit-

igating circumstances.”). Therefore, Brownficld is

not entitled to any relief on this claim.

With regard to Brownfield’s contention that the

jury’s 11-1 advisory verdict in favor of the death

penalty was not a “unanimous” verdict as set out

in Rule 23.1(a), Ala. R.Crim.P., which states that

the “verdict of the jury shall be unanimous, shall

be in writing, signed by the foreman, and shall be

returned in open court,” we note that the jury's

verdict as to the charged offenses was unanimous

in this case. The 11-1 vote of the jury following the

sentencing hearing recommending that Brownfield

be sentenced to death for his commission of the

charged offenses was merely an advisory sen-

tencing verdict. It is well settled that Alabama

law allows for the jury to return an advisory ver-

dict as to sentencing in capital-murder cases and

that the jury may vote to recommend the death

penalty by a vote of at least 10 jurors in favor of

death (12-0, 11-1, or 10-2). Further, both this

Court and the Alabama Supreme Court have

upheld death sentences imposed after the jury

made a nonunanimous recommendation that the

defendant be sentenced to death. See, e.g.,

944

Ex parte McNabb, 887 So.2d 998, 1000 (Ala.2004)

(jury recommended death by 10-2 vote);

Stallworth v. State, 868 Soe.2d 1128, 1136

(Ala.Crim.App.2001) Gury recommended death by

10-2 vote); Irvin v. State 940 So.2d 331, 364-366

(Ala.Crim.App.2005) Gury recommended death by

10-2 vote). Accordingly, Brownfield’s argument is

without merit.

IV.

Last, as required by §13A-5-53, Ala.Code 1973,

we review the propriety of Brownfield’s convic-

tions and sentence of death. Brownfield was

indicted for, and convicted of, murdering three-

year-old Joshua Hodges, a violation of §13A-5-

40(a)(15), Ala.Code 1975; murdering Latham

McCutchin during the course of a burglary, a vio-

lation of §13A-5-40(a)(4), Ala.Code 1975; and mur-

dering Brenda McCutchin, Joshua Hodges, and

Latham McCutchin, during one act or pursuant to

one scheme or course of conduct, a violation of

§13A-5-40(a}(10), Ala.Code 1975.

The record reflects that Brownfield’s sentence

was not imposed under the influence of passion,

prejudice, or any other arbitrary factor. Section

13A-5-53(b)(1), Ala.Code 1975.

The trial court’s sentencing order reflects that,

with regard to each capital-murder charge, the

court found the existence of the aggravating cir-

cumstance that the murders were especially

heinous, atrocious, or cruel:

“Under the pretext of a friendly visit, the

defendant was~ allowed into Latham

MecCutchin’s home. Rather than a friendly

95a

visit, the defendant’s sole purpose of gaining

entry into the home was to kill Latham

McCutchin. Minutes after being invited into

Latham’s home. the defendant informed

Latham that he was going to kill him. Imme-

diately, Latham tried to defend himself from

the defendant. He saw the defendant pull the

claw hammer from his jacket and grabbed at

it. During the struggle for the claw hammer,

the defendant elbowed Latham and punched

him several times with his fists. Dr. Embry

testified that he observed a 6 1/2 inch by 1/2

inch rib bruise on Latham’s lower chest. After

punching Latham with his fists, the defendant

began to hit Latham repeatedly with the claw

hammer. Latham suffered at least ten forceful

blows to the head. He had numerous lacera-

tions to his head and fractures on his skull.

Dr. Embry described the lacerations as blunt-

force injuries to the scalp. He said some

injuries extended all the way to the bone and

the bone was driven into the brain or dis-

placed. He described one 3-inch-by-3-inch sec-

tion of bone missing from Latham’s head.

Latham suffered defensive wounds to his arms

and hands in an attempt to ward off the

defendant's blows. According to Dr. Embry,

Latham suffered bruising to his forearm and

hands. Latham also suffered fractured ribs

and a fractured vertebra. Latham didn’t die

instantly. According to Dr. Embry, the bleed-

ing around the left kidney and blood in the

bladder indicates that Latham survived fora

period of time. The defendant stabbed Latham

in the heart with a knife leaving a 1 1/4 incl

46a

wound over the heart and extending into it.

The defendant cut Latham’s throat with the

knife from one side of his neck to the other.

The defendant told investigators that he

stabbed Latham in the chest and cut his

throat because he kept breathing and making

noises. He also told his girlfriend that ‘they

don’t die instantly.’ Clearly, Latham

McCutchin suffered intense pain for a signif-

icant periad of time prior to his death. Addi-

tionally, Latham McCutchin © suffered

psychologically. The court can only imagine

the intense fear that Latham must have felt

when his brother-in-law told him that he was

going to kill him. Latham was trapped in his

own home having been awakened from sleep

for the night. Latham had no weapon to

defend himself against the much younger and

stronger defendant. He saw the defendant pull

the claw hammer from his jacket and was

helpless to prevent the attack on his life. The

murder of Latham McCutchin was committed

under circumstances that caused fear and

pain to Latham before his death. Further-

more, while Latham lay dying or dead in his

living room floor, the defendant wrote a mes-

sage on a wall in the house. He wrote, ‘This

was necessary Ben. I’m sorry for your family.

They deserved it.’ Afterward, the defendant

showered in the victim’s bathroom, gathered

his blood-soiled clothes, the claw hammer, and

knife, and left the residence to dispose of the

evidence. The court finds that Latham’s mur-

der was a conscienceless or pitiless crime and

unnecessarily torturous to the victim. The

Q7a

court finds that the defendant's brutality to

Latham exceeds that which is normally pre-

sent in a capital case.

“Brenda Whitehead McCutchin and her three-

yvear-old grandson, Joshua Dewayne Hodges

were murdered in their bed. Both Brenda and

Joshua were asleep when the defendant first

struck Brenda with aclaw hammer. After the

defendant hit Brenda with the claw hammer,

Joshua woke up crying. At that point, the

defendant began attacking both Brenda and

Joshua with the claw hammer. Brenda tried to

defend herself and/or Joshua. Dr. Embry tes-

tified that Brenda suffered lacerations to her

face, injuries to her shoulder and right side of

the body, broken jaw on both sides of the face,

and broken left middle and ring fingers with

extensive blunt-force injuries to the hands.

Both Brenda and Joshua suffered fractured

skulls. The defendant told his girlfriend that

‘they don’t die instantly.” According to Dr.

Embry, a person may live longer with a frac-

tured skull because the brain can swell. One

autopsy photograph shows Brenda's herniated

brain protruding from the skull. In addition to

a fractured skull, Joshua suffered lacerations

consuming a large area around the right eye.

He suffered injuries to both sides of his face,

the right side of his neck, and the upper torso.

Perhaps in an attempt to ward off the blows,

Joshua suffered a 1/4 inch cut to his right Iit-

tle finger. Ultimately Brenda and Joshua died

from their injuries but not before each of them

experienced intense pain from the savage

98a

beatings. Brenda suffered approximately

twenty forceful blows to her head. Joshua suf-

fered approximately sixteen forceful blows to

his head. As did Latham, Brenda and Joshua

suffered psychologically. Surely, Brenda was

horrified when she awoke to see her own

brother attacking her with a claw hammer as

she lay helpless in her own bed. During the

attack, there was sufficient time for Brenda to

fear not only for her life but to fear for the life

of her three-year-old grandson who was sleep-

ing just inches away. Certainly, Brenda expe-

rienced mental suffering and agony upon

realizing that her brother intended to kill not

only her, but also her grandson and that she

was helpless to prevent it. Joshua could not

possibly have escaped mental suffering. He

was awakened from sleep by the sounds of the

attack on his grandmother. When he cried out,

he saw his beloved uncle raise a claw hammer

to him as well. Certainly, Joshua experienced

extreme shock, fright, and horror before his

death. The murders of Brenda McCutchin and

Joshua Hodges were committed under cir-

cumstances that caused fear and pain to them

before their deaths. While Brenda and Joshua

lay dying or dead in their bed, the defendant

left messages in various rooms of the house.

He wrote, ‘Fuck this God,’ ‘Fuck this world,’

‘T’ll be dead too,’ ‘It’s about to pick up,’ ‘Don’t

look for me,’ “Tammy I love you Always Never

4-get Baby,’ ‘Killing is my business,’ and ‘My

whole life I have been ran over. It’s stopping

now.’ Afterward, the defendant retrieved the

claw hammer and proceeded to Latham

99a

McCutchin's house to kill Latham. The court

finds that the murders of Brenda McCutchin

and Joshua Hodges were conscienceless or

pitiless crimes and unnecessarily torturous to

the victims. The court finds that the brutality

the defendant exhibited to Brenda and to

Joshua exceeds that which is normally pre-

sent in a capital case.

“The court finds that the State proved beyond

a reasonable doubt that each of the murders of

the three victims was especially heinous, atro-

cious or cruel compared to other capital

offenses.”

(C. 350-53.) The trial court also found that the

murders were committed by one act or pursuant to

one scheme or course of conduct. Section 13A-5-

49(9), Ala.Code 1975. The trial court’s sentencing

order further reflects that the court also found as

an aggravating circumstance in the count charg-

ing Brownfield with Latham’s death that the mur-

der was committed during the commission

of a first-degree burglary. Section 13A-5-49(4),

Ala.Code 1975.

The State presented ample evidence indicating

that the murders were committed by one act or

pursuant to one scheme or course of conduct.

Thus, this aggravating circumstance was correctly

applied in this case.

Similarly, there was an abundance of evidence

indicating that Brownfield went to Latham’s res-

idence intending to kill him; thus, there was

ample evidence that that murder was committed

during the commission of a first-degree burglary.

Therefore, this aggravating circumstance was cor-

100a

rectly applied as to the count charging Brownfield

with killing Latham.

Finally, for the circumstance that the murders

were especially heinous, atrocious. or cruel to

exist, the murders must have been unnecessarily

torturous to the victims. See Ex parte Kyzer, 399

So.2d 330, 334 (Ala.1981). In this determination

we must consider whether the violence involved

in achieving the killing went beyond what was

necessary to cause death, whether the victims

experienced appreciable suffering after a swift

assault, and whether there was psychological tor-

ture. See Norris v. State, 793 So.2d 847

(Ala.Crim.App.1999). The evidence supports the

above-quoted portion of the trial court’s findings

that the murders were especially heinous, atro-

cious, or cruel. Brownfield savagely bludgeoned to

death his 47-year-old sister and her 3-year-old

grandson as they lay helpless in their bed; both

victims awakened upon the first blows, and each

suffered defensive wounds among the many

wounds sustained during the extended attacks;

and Brenda surely suffered knowing that she

could not defend either herself or her young

grandson as they were being beaten to death, as

too did young Joshua, who was awakened from his

sleep to the sight of his uncle attacking first his

grandmother a few inches from him, and then the

attack alternating between him and his grand-

mother. Similarly, 64-year-old Latham saw the

commencement of the attack that killed him in his

own home, at the hands of his brother-in-law; that

attack lasted for some time as well, and Latham

suffered a number of wounds, some defensive.

Finally, the evidence indicated that the victims

101a

survived for some period following the com-

mencement of the attacks. We have consistently

held that brutal beatings that result in death

meet the statutory definition of especially

heinous, atrocious, or cruel. See Brooks v. State,

695 So.2d 176 (Ala.Crim.App.1996), aff'd, 695

So.2d 184 (1997); Smith v. State, 795 So.2d 788

(Ala.Crim.App.2000); Ashley v. State, 651 So.2d

1096 (Ala.Crim.App.1994); McGahee v. State, 632

So.2d 976 (Ala.Crim.App.), aff'd, 6382 So.2d 981

(Ala.1993); Freeman v. State, 555 So.2d 196

(Ala.Crim.App.1988). Clearly, there was sufficient

evidence from which the jury could conclude that

the manner of death in this case was especially

heinous, atrocious, or cruel when compared to

other capital cases. ‘Thus, this aggravating cir-

cumstance was correctly found by both the jury

and the circuit court.

The trial court found one statutory mitigating

circumstance was present-that Brownfield had no

significant history of prior criminal activity. Sec-

tion 13A-5-51 (1), Ala.Code 1975. The trial court’s

sentencing order further addressed the evidence of

nonstatutory mitigating circumstances’ that

defense counsel had presented:

“During the penalty phase of the trial, the

defendant presented evidence of nonstatutory

mitigating circumstances.

“Evidence exists that the defendant, during

his childhood, suffered from obesity, was

rejected by his peers, and provided the pri-

mary care to his ailing parents. During ado-

lescence, the defendant experimented with

drugs to gain friendships. From the age of

102:

twenty years to the age of twenty-four years,

the defendant made a lot of friends but was

regularly abusing drugs. The following years,

the defendant’s drug use continued to worsen.

The court finds that the defendant suffered

from a substance dependence disorder that

went untreated.

“The defendant presented evidence that he

suffers from dysthymie disorder, a mental ill-

ness that exists when a person has chronic

feelings of sadness and low, self-esteem. The

court recognizes that the defendant experi-

enced periods of sadness-and low self-esteem

during his life but does not find that these

periods were severe or chronic. The evidence

shows that the defendant was doted on by his

parents and had a relatively happy childhood.

During early adulthood, the defendant social-

ized with his extended family and friends and

maintained employment. The defendant was

able to function appropriately in society

although he did not always choose to do so.

“The defendant presented evidence that he

was detrimentally affected by the death of his

parents. Surely, the defendant experienced

sadness and loss by the death of his parents.

The defendant was an adult, however, when

his parents died. The court does not find that

the defendant was harmed by his parents’

deaths.

“The evidence established that the defendant

demonstrated the capacity to love and care for

another human being during his life. The

defendant loved and cared for his elderly par-

1O3a

ents. The evidence further established that

the defendant had friends and relatives that

cared for him

Jased on the evidence, the court finds that

the defendant is a low risk for future violence

in prison and would adapt well to prison env!

ronment. The court finds that, once taken into

custody, the defendant cooperated with law

enforcement and confessed to the crimes. The

court further finds that the defendant ha:

expressed remorse for the deaths of the vic

tims.”

(C. 359-60.) The circuit court weighed the aggra

vating circumstances and the mitigating circum

stances, considered the jury's recommendation of

death, and sentenced Brownfield to death. Con

trary to Brownfield’s bare assertion on appeal,

there 1s no indication that either the jury's advi

sory verdict or the trial court’s imposition of the

death penalty was imposed as a result of passion,

prejudice, or some other arbitrary factor,

Pursuant to § 13A-5-53(b)(2), Ala.Code 1975, we

must independently weigh the aggravating cir-

cumstances and the mitigating circumstances to

determine the propriety of Brownficld’s sentence

of death. Brownfield, in a cold and brutal manner,

savagely beat his 47-year-old sister, Brenda, and

her 3-year-old grandson, Joshua, to death with a

hammer and then wrote assorted comments on the

ralls and attempted to set fire to the house. He

then drove across town to the house where his 64

year-old brother-in-law, Latham, lived, which he

entered under the ruse of a friendly visit, before

killing Latham by savagely beating him with the

ame nammer he had used to kill Brenda an

Joshua and stabbing him in the heart with a

knife. Further, the evidence indicated that all

three victim ulfered defensive wounds and that

they survived the initial blows and were alive for

ome period during the attacks. This Court is con

vinced, alte, Independe ntiyv we rr hing the avora

Valtiny circumstance and Lr mitivatis

Circumstance that death was the appropriate

punishment in this case

srowntlield Cnlcence Wa neither di propor

tionate nor excessive when compared to penalty

imposed in similar cases. See Brooks uv. State, 695

So.2d 176 (Ala.Crim App 1996), alld, 695 So. 2d

184 (1997) Smith State 195 So.2d 78#

(Ala.Crim.App.2000); Ashley v. State, 651 So.2d

1096 (Ala.Crim.App.1994); McGahee vo. State, 632

90.20 976 (Ala.Crim.App.), aff'd, 682 So.2d 981)

(Ala.1998) freeman State pede oO. %d | 96)

(Ala Crim App 19GR8)

La lL. we have curched the record for any erro

that may have adversely affected Brownfield

ubstantial rights and have found none. See Rul

LDA. Ala Ik App |?

srowntlield’s convictions and sentence to death

are due to be. and are hereby. affirmed

AFFIRMED

BASCHARB,. P..f md SHAW WISI md WELCH

dIed.. cone?

1()!)

No. 1070255

Suprenu Court of the State of Alabame

( ogurt of Criminal

\ppeals Case

Number

( R-0O4.0744

BRIE OF APPELLANI

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106a

Brownfield to use one of his peremptory strikes to

remove Webster from the jury venire, and the case

should therefore be reversed and remanded for a

new trial.

Hil.

THIS COURT SHOULD REVERSE THE

DECISION OF THE COURT OF CRIMINAL

APPEALS BECAUSE THE TRIAL COURT

ERRED IN NOT FINDING THAT THE

SENTENCE OF DEATH IS INAPPRO-

PRIATE IN MAKING ITS MANDATED

INDEPENDENT WEIGHING OF

AGGRAVATING AND MITIGATING

CIRCUMSTANCES

This Court should determine that death was not

the proper sentence in this case.

There are several] significant factors in favor of

such leniency. First, at the time of the crime,

Brownfield was a 27-year-old with no significant

history of prior criminal activity. Brownfield

expressed remorse for the deaths of the victims.

The trial court even found that Brownfield would

be a low risk for future violence in prison and

would adapt well to the prison environment. The

trial court also found that Brownfield had the

capacity to love and care for other human beings,

but found that he suffered from dysthymiec disor

der and a substance dependence disorder. The

trial court further found that Brownfield was

under the influence of methamphetamine and

Xanax either prior to or during the offenses.

107a

Therefore, if the Court declines to reverse

Brownfield’s conviction and the judgment of the

Court of Appeals, it should set the sentence of

death aside and remand to the trial court with

directions that Brownfield be sentenced to life

imprisonment without parole, pursuant to Ala.

Code §13A-5- 53(d) (3).

lV.

THIS COURT SHOULD REVERSE THE

DECISION OF THE COURT OF CRIMINAL

APPEALS BECAUSE THE LOWER COURT

ERRED IN NOT FINDING FINDING THAT

ALABAMA’S STATUTORY SCHEME

FOR IMPOSING THE DEATH PENALTY

VIOLATES THE RIGHT OF THE

APPELLANT TO A JURY DETERMINA-

TION OF WHETHER AGGRAVATING

CIRCUMSTANCES OUTWEIGH

MITIGATING CIRCUMSTANCES

[In accordance with recent rulings in Ring v. Ari

zona, 536 U.S. 584 (2002), and ovcher similar cases,

it is appropriate, and further, it is constitutional,

for aggravating circumstances to be found by the

jury by a reasonable doubt. In his concurring opin-

ion to Ring, Justice Scalia stated that the “fun-

damental meaning of the jury-trial guarantee of

the Sixth Amendment is that all facts essential to

imposition of the level of punishment that the

defendant receives must be found by the jury by a

reasonable doubt.” 122 8S. Ct. at 2445. Further-

more, the advisory sentencing verdict returned by

the jury in this case was a vote of 1]-1 in favor of

1O8a

death. (R. 2303). This Court said in its opinion

that “the jury unanimously found at least one

statutory aggravating circumstance, making

Brownfield eligible for the death penalty.” (Opin-

ion*79). However, because one juror voted against

death in the sentencing phase, it is possible that

such vote was cast because he or she did not find

an aggravating circumstance that would make the

Appellant eligible for death, or because that juror

determined that mitigating circumstances present

outweighed any aggravating circumstance. There-

fore, the Jury was not unanimous as required

under Rule 23.1(a) of the Alabama Rules of Crim-

inal Procedure. Although this Court routinely

upholds death sentences imposed after nonunan-

imous Jury recommendations, the Appellant main-

tains that to do so is violative of the U.S. Supreme

Court's holding in Ring, and of his Sixth Amend-

ment Constitutional rights. This Court erro-

neously found that the jury should not decide

what relative weight to assign the aggravating

and mitigating circumstances.

V

THIS COURT SHOULD REVERSE THE

DECISION OF THE COURT OF CRIMINAL

APPEALS BECAUSE IT ERRED IN NOT

FINDING THAT THE SENTENCE OF

DEATH WAS IMPOSED PURSUANT TO

PASSION, PREJUDICE, OR SOME

ARBITRARY FACTOR

This court should determine that the sentence of

death was imposed pursuant to passion, prejudice,

L109a

or some arbitrary factor. The combined offenses

were tragic. Clearly, a jury would be especially

susceptible to passion, prejudice or some other

arbitrary factor. Scottsboro is an idyllic commu

nity nestled by the Tennessee River in rural Jack-

son County. Here, the jury recommended death

pursuant to passion, prejudice or other similar

factors. Thus, the Court should, at a minimum,

remand this case with instructions to sentence the

Defendant to hfe without the possibility of parole

pursuant to Ala. Code § 13A-5-53(d) (3)

Vi

THIS COURT SHOULD REVERSE THE

DECISION OF THE COURT OF CRIMINAL

APPEALS BECAUSE THE TRIAL COURT

ERRED IN NOT FINDING THAT THE

SENTENCE OF DEATH IS EXCESSIVE OR

DISPROPORTIONATE TO THE PENALTY

IMPOSED IN SIMILAR CASES

This court should determine that the sentence

imposed is excessive or disproportionate to the

penalty imposed in similar cases, considering

Brownfield and his crime. A review of cases simi-

lar to this shows that the sentence of death here is

indeed disproportionate.

110a

IN THE

Alahama Gourt of Criminal Appeals

CASE NUMBER 04-0743

ES ie

JAMES BEN BROWNFIELD.

Appellant, :

FILED Jun 2, 2005

V Clerk

ALA Court

STATE OF ALABAMA, Criminal Appeals

Appellee

ON APPEAL FROM CIRCUIT COURT OF JACKSON COUNTY

HON. JENIFER C. HOLT, JUDGE

CASES NUMBER CC-02-99, 100, 101

DEATH PENALTY

BRIEF OF APPELLANT

STEPHEN P. BUSSMAN

212 Alabama Avenue South

Fort Payne, AL 35967

(256) 845-7900

Counsel for James Ben Brownfield

L. JAYSON CARROLI

P.O. Box 399

Rainsville, AL 35986

(256) 638-1129

Attorneys for Appellant

ORAL ARGUMENT REQUESTED

llla

ARGUMENT

ALABAMA’S STATUTORY SCHEME FOR

IMPOSING THE DEATH PENALTY VIOLATES

THE RIGHT OF THE APPELLANT TO A JURY

DETERMINATION OF WHETHER

AGGRAVATING CIRCUMSTANCES OUT-

WEIGH MITIGATING CIRCUMSTANCES, AND

THEREBY DEPRIVED THE APPELLANT OF

HISRIGHT TO A JURY TRIAL ON THE

SENTENCE OF DEATH

In Alabama, the legislature has adopted a

scheme for the imposition of the death penalty

wherein the final determination is made by the

trial judge. Ala. Code § 13A-5- 47. Prior to the trial

judge’s determination of a sentence, a defendant is

allowed a jury hearing, which renders an “advisory

verdict “ to the trial judge. Ala. Code § 13A-5-46.

This Court has held that the advisory nature of

a jury in the sentencing phase does not violate the

right to a jury trial established by Ala. Const., Art.

I §11.' Edwards v. State, 515 So.2d 86

(Ala.Crim.App. 1987). However, in making that

determination, this Court underscored the advi-

sory-only nature of the jury’s role:

Contrary to appellant’s argument, the

death penalty is not invoked on the basis

of the jury’s recommendation. The jury’s

role in sentencing under our bifur-

cated trial process is merely advisory

in nature, 515 So.2d at 9.

“(We declare] ... that the right of trial by jury shall

remain inviolate.”

112a

The Alabama Supreme Court has held that it is

necessary, under Alabama’s statutory scheme, that

the trial judge must determine that at least one of

the aggravating circumstances enumerated in Ala.

Code § 13A-5-49 exists in order to impose a death

sentence: “The whole catalog of aggravating cir-

cumstances must outweigh mitigating circum-

stances before a trial court may opt to impose the

death penalty by overriding the jury’s recommen-

dation.” Ex parte Jones, 456 So.2d 380, 382 (Ala.

1984). If there is no aggravating circumstance,

then, by necessity, the aggravating circumstances

cannot outweigh the mitigating circumstances.

This Court has further held that, in addition to

the finding of at least one aggravating circum-

stance, the trial judge (and this Court, de novo on

appeal pursuant to Ala. Code § 13A-5-53) must find

that the aggravating circumstances outweigh the

mitigating circumstances to impose the death

penalty:

In deciding upon the sentence, the trial

court shall determine whether the aggra-

vating circumstances it finds to exist out-

weigh the mitigating circumstances it

finds to exist... Ala. Code § 13A-5-47 (e);

see, Stallworth v. State, 868 So.2d 1128

(Ala.Crim.App. 2001).

Into this statutory scheme has burst the land-

mark ruling of the United States Supreme Court

in the case of Ring v. Arizona, 122 S.Ct. 2428

(2002). Earlier, the Supreme Court, in Apprendi v.

New Jersey, 530 U.S. 466 (2000), had ruled that

the jury trial right of the U.S. Constitution,

Amendment VI, required that a defendant not be

ll3a

“expose|d]... to a penalty exceeding the maximum

he would receive if punished according to the facts

reflected in the jury verdict alone.” 530 U.S. at

483. However, the Supreme Court, in Walton v.

Arizona, 497 U.S. 639 (1990), had previously ruled

that there was no Sixth Amendment Jury Clause

violation in the Arizona regime.

Under the Arizona regime, the jury made the ini-

tial determination of guilt, and then went home.

The trial judge then conducted the sentencing

phase, and made a determination of the existence

vel non of an aggravating circumstance. Upon find-

ing one or more aggravating circumstances, the

trial judge then weighed those aggravating cir-

cumstances against any mitigating circumstances:

In determining whether to impose a sen-

tence of death or life imprisonment, the

court shall take into account the aggra-

vating and mitigating circumstances

included in subsections G and H of this

section and shall] impose a sentence of

death if the court finds one or more of the

aggravating circumstances enumerated in

subsection G of this section and that there

are no mitigating circumstances suffi-

ciently substantial to call for leniency

Ariz. Rev.Stat. §13-703F.

In Ring, the Supreme Court overruled Walton,

and held that the right to a jury trial required that

the jury make the determination of the existence of

an aggravating circumstance in the Arizona statu-

tory scheme.

For the reasons stated, we hold that Wal-

ton and Apprendi are irreconcilable; our

ll4a

Sixth Amendment jurisprudence cannot be

home to both. Accordingly, we overrule

Walton to the extent that it allows a sen-

tencing judge, sitting without a jury, to

find an aggravating circumstance neces-

sary for imposition of the death penalty.

See 497 U.S., at 647-49, 110 S.Ct. 3047.

Because Arizona’s enumerated aggravat-

ing factors operate as the “functional

equivalent of an element of a greater

offense,” Apprendi, 530 U.S., at 494, n. 19,

120 S.Ct. 2348, the Sixth Amendment

requires that they be found by a jury.

122 8.Ct. at 2443.

Justice Scalia, in his concurring opinion, correctly

stated that:

I believe that the fundamental meaning of

the jury-trial guarantee of the Sixth

Amendment is that all facts essential to

imposition of the level of punishment that

the defendant receives—whether the

statute calls them elements of the offense,

sentencing factors, or Mary Jane—-must be

found by the jury by a reasonable doubt.

122 8.Ct. at 24485.

There are only two differences between the Ari-

zona and Alabama statutory schemes. The first is

that Alabama interposes the purely advisory jury

recommendation. The second is that Arizona’s

statute, by referring to mitigating circumstances

as “leniency,” seems to place something of a bur-

den of persuasion, if not of proof, on the defendant.

For purposes of this case, each of these is a

ll5a

“distinction without a difference,” Henry Fielding,

Tom Jones, Bk. VI, Ch. 13.

The death sentence in this case is not “saved” by

the fact that the jury convicted the defendant of

capital murder, thereby making an implied finding

that the murders were committed pursuant to one

scheme or course of conduct, and/or in the course of

a burglary. For example, the State may argue that

the conviction on the count involving burglary,

made capital by Ala. Code 13A-5-40(a)(4), also con-

stitutes a finding of a burglary aggravating

circumstance under Ala. Code § 13A-5-49(4). How-

ever, the ultimate sentencing decision is required

to be based not on the existence vel non of one or

more aggravating circumstances, but on the find-

ing that those aggravating circumstances outweigh

the mitigating circumstances. On such = an

outweighing, or even on the existence of vel non

mitigating circumstances, the guilt phase verdict

is silent.

Nor will it “save” the sentence in this case that

the jury voted 11-1 in favor of a death sentence

(R.332°34). Criminal jury verdicts in Alabama

are required to be unanimous under Ala.R.Crim.

F. 20.1 (a):

(a) Form of Verdict. The verdict of the jury

shall be unanimous, shall be in writing,

signed by the foreman, and shall be

returned in open court.

As the official comment to this portion of the Rule

further states: “Rule 23. 11 (a) provides that the

jury’s verdict must be unanimous. Alabama case

law clearly states that this is a fundamental

requisite of a jury. Baader v. State, 201 Ala 76,

116a

77 So. 370 (1917); Dixon v. State, 27 Ala.App. 64,

167 So. 340 (1936).”

Thus, one member of the jury either determined

that the mitigating circumstances outweighed the

aggravating circumstances under Ala.Code § 13A-

5-46, or that there were no aggravating circum-

stances. Therefore, the requirement that a

criminal jury be unanimous under the Rule and

Ala. Const. Art. I §11, was not satisfied. With

Ring, Ala.R.Crim. P. 23.1(a), and the established

jurisprudence of Ala. Const. Art. | §11 taken

together, it is clear that the jury vote in the sen-

tencing phase of the Appellant’s trial does not sup-

port the sentence of death.

It is also clear that the Appellant is entitled to

have Ring applied to the holding in this appeal. As

the United States Supreme Court held in Griffith

v. Kentucky, 479 U.S. 314 (1987):

We therefore hold that a new rule for the

conduct of all criminal prosecution s Is t be

applied retroactively to all cases, state or

federal, pending on direct review or not

yet final, with no exception for cases in

which the new rule constitutes a “clear

break “ with the past. 479 U.S. at 328.

The Appellant filed a Motion for New Trial in his

death penalty case on November 22, 2004. (C. 991).

That Motion specifically alleges that the sentences

in this case are contrary to the law. (/d.9 5). The

Motion for New ‘Trial specifically invoked the

rights of the Appellant under U.S. Const., Amend.

VI, and Ala. Const., Art, 1 § 11 to a trial by raised

before the trial court, and the denial by lapse of

time of the new trial motion under Ala.R.Crim. P

24.4 preserved this issue for appeal

if the Court wa to hold the

trict tandard ot plain crro!

tandard 18 clearly

However, even

Appellant to the

under Ala.R.App.P. 45A, that

met

In all cases in which the death penalty ha

been imposed the

appeals shall notice any plain

defect in the proceedings under ré

court of criminal

SrrQi (7

Vié

whether or not brought to the attention of

the trial court, and take appropriate

appellate action by reason thereof, when

ever such error has or probably ha

adversely affected the substantial right of

the appellant

The Alabama Supreme Court made the manda

tory nature of this review clear in Lx parte Carroll

627 So.2d 874 (Ala. 1993)

In reviewing a death pe nalty case, thi

Court will notice any plain error or defe

in the proceeding under review, regardle:

of whether it was brought to the attention

of the trial court. This Court will take

appropriate appellate action whenever the

error “has or probably has adversely

affected the substantial right of the appel

lant.” 627 So.2d at 875 (citations omitted

emphasis added)

The denial of the right to have a jury determine

that aggravating circumstances outweighed mit!

was Clearly violated in thi

yatinyg circumstances

case. Therefore, the Appellant’ death sentence |

chile te) tye Vacated and Liye l¢ ty ePrncernnce

ynprsonment without parole imposed, This is the

construction given the similar provisions of N.J

Rev. Stat. &§2C: 11-3 1n the case of State vo. Hurt

IIS Nod Op). A \ Yd 1959 (1989

Ina capital ca e unlike the ordinary crin

inal prosecution, juror need not reach

unanimou verdict (for bid without

parole] Thu a decision not Loavree |

leyally acceptable outcome, which re i}t

notina mistrial, butun a final verdict. For

this reason, trial court hould not charge

jure in the pp nalty phase on Lhe bm po!

tance of reaching wa unanimou verdict

lhid. As long as one juror belteves that

the aggravating factors do not out

weigh the mitivating factors, the jury

must not impose the death penalty. 55+

A.2d at 1286 (citations omitted, empha

added)

This is also the interpretation piven the miilas

(,eorvia statute. Gu. Code Ann. X17-10-30 (bh) (7)

[I}n a murder cause, after conviction, where

only two sentences can be imposed, lif

Imprisonment or death, tf the convicting

jury ts unable to agree on which of

those two sentences to impose, the trial

judge must impose the lesser, life

imprisonment, Hill v. State, 250 Ga. 82)

301 S.B.2d 269, 270 (1983) (emphasi

added)

In the alternative. the caus hould be remanded

for retrial on the entence

120a

Number 60

INDICTMENT

THE STATE OF ALABAMA CIRCUIT COURT

JACKSON COUNTY SPRING TERM 2002

STATE OF ALABAMA vs. James Ben

Brownfield, Jr.

The Grand Jury of Said County charge that before

the finding of this indictment, James Ben Brown

field Jr., Whose name(s) to the Grand Jury is/are

otherwise unknown than as stated did knowingly

and unlawfully enter or remain unlawfully in a

dwelling, to-wit: the residence of Latham Durwood

McCutchin, with the intent to commit a crime

therein; to-wit: Murder, and in effecting entry or

while in the dwelling or 1n immediate flight there-

from did use a dangerous instrument in violation

of Section 13A-7-5 of the Code of Alabama, and in

the course of committing said burglary did inten-

tionally cause the death of Latham Durwood

McCutchin, by hitting him in the head with a

hammer, in violation of Section 13A-5-40 (a) (4) of

the Code of Alabama, subsequent to the passage of

said Section 13A of the Code of Alabama, contrary

to law, and against the peace and dignity of the

people of the State of Alabama.

/s/ CHARLES R. RHODES

CHARLES R. RHODES

Disrict Attorney of the Thirty-

Fight Judicial Circuit

Charge: Capital Murder

12V2a

Number 6]

INDICTMENT

THE STATE OF ALABAMA CIRCUIT COURT

JACKSON COUNTY SPRING TERM 2002

STATE OF ALABAMA vs. James Ben

Brownfield, Jr.

The Grand Jury of Said County charge that before

the finding of this indictment, James Ben Brown

field Jr., Whose name(s) to the Grand Jury is/are

otherwise unknown than as stated, by one act or

pursuant to one scheme or course of conduct, did

intentionally cause the death of Brenda White-

head McCutchin by hitting her in the head witha

hammer, and did intentionally cause the death of

Joshua Dewayne Hodges by hitting him in the

head with a hamer, and did intentionally cause

the death of Latham Durwood McCutchin by hit-

ting him in the head with a hammer, in violation

of Section 13A-5-40 (a) (4)(10) of the Code of

Alabama, subsequent to the passage of said Sec-

tion 13A of the Code of Alabama, contrary to law,

and against the peace and dignity of the people of

the State of Alabama.

/ls/ CHARLES R. RHODES

CHARLES R. RHODES

Disrict Attorney of the Thirty-

Kight Judicial Circuit

Charge: Capital Murder

A TRUE BILI

Number 62

INDICTMENT

THE STATE OF ALABAMA CIRCUIT COURT

JACKSON COUNTY SPRING TERM 2002

STATE OF ALABAMA vs. James Ben

Brownfield, Jr.

The Grand Jury of Said County charge that

before the finding of this indictment, James Ben

Brownfield Jr... Whose name(s) to the Grand Jury

is/are otherwise unknown than as stated, did

intentionally cause the death of Joshua Dewayne

Hodges, by hitting him in the head with a ham

mer, when Joshua Dewayne Hodges was less than

14 vears of age, in violation of Section 13A-005-

040 (a) (15) of the Code of Alabama, subsequent to

the passage of said Section 13A of the Code of

Alabama, contrary to law, and against the peace

and dignity of the people of the State of Alabama

/s/ CHARLES R. RHODES

CHARLES R. RHODES

Disrict Attorney of the Thirty-

Kight Judicial Circuit

Charge: Capital Murder

A

TRUE BILL

JURY VERDICT

\A + i, x ; " + | i ; r) le ; ' 4 r

Ve. Gaee PELE Yj ble. UE qgelendant Jame Be!

Brownfield, Jr., guilty of the offense of capit

JURY VERDICT

We, the jury, find the defendant, Jame Bi

Brownfield, Jr., guilty of the offense of capital

murder as charged in the indictment

Wanda Atchl

Foreper SOT

JURY VERDICT

Case No. CC-02-100

JURY VERDICT

VV@ Lne PUES recommend that t hye an

James fen brownfield ed} by ¢ pun) ned ry \

The vote is as follow:

Wanda Atchl

Foreper on

l3da

provided by law, the jury returned the following

verdict on February 25, 2004:

“We, the jury, find the defendant, James Ben

Brownfield, Jr., guilty of the offense of capital

murder as charged in the indictment.” The Jury

Verdict was signed by Wanda Atchley, as foreper-

son.

The jury was polled and the verdict was

unaminous in finding the defendant guilty of cap-

ital murder.

Subsequent to the jury finding the defendant

guilty of the capital offense, the court commenced

a sentence hearing before the said jury as

required by Section 13A-5-45 of the Alabama

Death Penalty Statute. After hearing the evidence

and being charged as to the applicable law and

upon consideration of the law and the evidence,

the jury returned the following advisory Jury Ver

dict on February 26, 2004:

“We, the jury, recommend that the defendant,

James Ben Brownfield, Jr., be punished by death.

The vote is as follows:

ce © Death lL Life without Parole

The Jury Verdict was signed by Wanda Atchley.

as foreperson.

The defendant is incarcerated in the Jackson

County Jail this date and shall remain incarcer-

ated pending sentencing hearing. Jackson County

Probation Officer, Mike Williamson, is directed to

conduct an investigation and prepare a written

pre-sentence investigation report for the court

with copies to the District Attorney and counsel

for the defendant. The sentencing hearing shall be

held April 29, 2004, at 1:15 P.M.

1362

STATE OF ALABAMA, JACKSON COUNTY

IN THE CIRCUIT COURT

JAMES BEN BROWNFIELD. JR.

ORDER

On February 9, 2004, the defendant appeared in

open court with counsel, Richard Fricks and Gary

Hartline, for the trial of this case.

The case proceeded to trial and a jury of four

teen (14) men and women duly empaneled and

sworn as required by law heard the evidence in

the case. After hearing the evidence and being

charged as to the applicable law and upon con-

sideration of the law and the evidence and the

number of the jury being reduced by two (2) as

4 ¢) FY

ota

provided by law, the jury returned the following

verdict on February 26, 2004:

“We. the jury, find the defendant, James Ben

Brownfield, Jr., guilty of the offense of capital]

murder as charged in the indicment.” The Jury

Verdict was signed by Wanda Atchley, as foreper

son.

The jury was polled and the verdict was unanl-

mous in finding the defendant guilty of capital

murder.

Subseguent to the jury finding the defendant

guilt of the capital offense, the court commenced a

sentence hearing before the said jury as required

by Secion 13A-4-45 of the Alabama Deat Penalty

Statue. After hearing the evidence and being

charged as to the applicable law and upon con-

sideration of the law and the evidence, the jury

returned the following advisory durv Verdict on

February 26, 2004:

“We, the jury, find the defendant. James Ben

Brownfield, Jr., be punished by death. The vote is

as follows:

—_1l]1 Death | Jaufe without Parole

The Jury Verdict was signed by Wanda Atchley.

as foreperson.

The defendant is incarcerated in the Jackson

County Jail this date and shall remain incarcer

ated pending sentencing hearing. Jackson County

Probation Officer, Mike Williamson, is directed to

conduct an investigation and prepare a written

pre-sentence investigation report for the court

with copies to the District Attorney and counsel

for the defendant. The sentencing hearing shall be

held April 29, 2004, at 1:15 P.M

139a

STATE OF ALABAMA, JACKSON COUNTY

IN THE CIRCUIT COURT

Case No.: CC-02-101

STATE OF ALABAMA,

Plaintiff

JAMES BEN BROWNFIELD, JR.

Defendant

ORDER

On February 9, 2004, the defendant appeared in

open court with counsel, Richard Fricks and Gary

Hartline, for the trial of this case.

The case proceeded to trial and a jury of four-

teen (14) men and women duly empaneled and

sworn as required by law heard the evidence in

the case. After hearing the evidence and being

charged as to the applicable law and upon con-

sideration of the law and the evidence and the

number of the jury being reduced by two (2) as

140a

provided by law, the jury returned the following

verdict on February 26, 2004:

“We, the jury, find the defendant, James Ben

Brownfield, Jr., guilty of the offense of capital

murder as charged in the indicment.” The Jury

Verdict was signed by Wanda Atchley, as foreper-

son.

The jury was polled and the verdict was unant-

mous in finding the defendant guilty of capital

murder.

Subsequent to the jury finding the defendant

guilt of the capital offense, the court commenced a

sentence hearing before the said jury as required

by Secion 13A-4-45 of the Alabama Deat Penalty

Statue. After hearing the evidence and being

charged as to the applicable law and upon con-

sideration of the law and the evidence, the jury

returned the following advisory Jury Verdict on

February 26, 2004:

“We, the jury, find the defendant, James Ben

Brownfield, Jr., be punished by death. The vote is

as follows:

_ }) Death 1 Life without Parole

The Jury Verdict was signed by Wanda Atchley,

as foreperson.

The defendant 1s incarcerated in the Jackson

County Jail this date and shall remain incarcer-

ated pending sentencing hearing. Jackson County

Probation Officer, Mike Williamson, is directed to

conduct an investigation and prepare a written

pre-sentence investigation report for the court

with copies to the District Attorney and counsel

for the defendant. The sentencing hearing shall be

held April 29, 2004, at 1:15 P.M.

l4la

Done this 2nd day of March. 2004

is/ Jenifer C. Holt

JENIFER C. HOL’

Circuit Judve

142a

STATE OF ALABAMA, JACKSON COUNTY

IN THE CIRCUIT COURT

Case No.: CC-02-101. CC-02-99. CC-02-100

STATE OF ALABAMA,

Plaintiff

Defendani

ORDER

The defendant, James Ben Brownfield, Jr

appears in open court on April 29, 2004, with

counsel, Richard Fricks and Gary Hartline, for a

sentencing hearing.

The defendant, James Ben Brownfield, Jr., wa

charged by indictments of the Grand Jury of Jack

son County with three offenses of capital murder.

In case number CC-02-99 the indictment charges

the defendant with the capital offense of the mur

der of Latham Durwood McCutchin during a

burglary in the first degree. In case number

(C-02-100. the indictment charges the defen

143a

dant with the capital offense of the murder of

Latham Durwood McCutchin, Brenda Whitehead

McCutchin, and Joshua Dewayne Hodges wherein

two or more persons are murdered pursuant to one

act or pursuant to one scheme or course of con-

duct. In case number CC-02-101, the indictment

charges the defendant with the capital offense of

the murder of Joshua Dewayne Hodges when

Joshua Dewayne Hodges was less than fourteen

(14) years of age. The three cases were consoll-

dated for trial.

On February 9, 2004, the defendant appeared in

open court with counsel, Richard Fricks and Gary

Hartline, for the trial of this case. The case pro-

ceeded to trial and a jury of fourteen (14) men and

women duly impaneled and sworn as required by

law heard the evidence in the case. After hearing

the evidence and being charged as to the applica-

ble law and upon consideration of the law and the

evidence and the number of the jury being reduced

by two (2) as provided by law, the jury returned a

verdict on February 25, 2004 of guilty of the

offense of capital murder in each case. The jury

was polled and the verdict in each case was unan-

imous in finding the defendant guilty of capital

murder.

Subsequent to the jury finding the defendant

guilty of the capital offenses, the court commenced

a sentence hearing before the said jury as

required by Section 13A-5-45 of the Alabama

Death Penalty Statute. After hearing the evidence

and being charged as to the applicable Jaw

and upon consideration of the law and the evi-

dence, the jury returned an advisory verdict on

February 26, 2004 recommending that the defen-

144a

dant be punished by death. The vote was eleven

(11) for death and one (1) for life imprisonment

without parole. The jury was polled and the advi.

sory verdict in each case was unanimous in rec-

ommending by a vote of eleven (11) to (1) that the

defendant be punished by death.

A pre-sentence investigation report was ordered

and sentencing was set for hearing on April 29,

2004.

In keeping with the jury verdict, the court

hereby adjudges the defendant guilty of three

offenses of capital murder as charged in cases

numbered CC-02-99, CC-02-100, and CC-02-101.

The pre-sentence investigation report has been

made available to the parties The report is

marked as Court’s kxhibit A and made a part of

the record. The State of Alabama presented no

additional evidence at the sentencing hearing nor

did the defendant. ‘he attorneys were allowed to

be heard in argument as to the sentence to be

imposed and as to the aggravating and mitigating

circumstances. Following argument, the court

asked the defendant if he had anything to say in

his own behalf before sentencing. The defendant

said nothing.

SUMMARY OF THE CRIME AND

THE DEFENDANT'S PARTICIPATION IN IT

At some time in the late evening hours of

December 23, 2001, or the early morning hours

of December 24, 2001, Brenda Whitehead

McCutchin, Joshua Dewayne Hodges, and Latham

Durwood McCutchin, were murdered in their

homes in Scottsboro, Alabama At the time of their

45a

deaths, brenda was forty-seven years old Joshua

was three years old and Latham wa ixty-lour

years old

After con uminyv Xanax pill on the nivht of

December 23, Z001 the twenty-seven year old

defendant, James Ben Brownfield, J1 becam

enrayed with his” sister Brenda Whitehead

McCutchin, over drugs and money. While Brenda

and her grandson Joshua Dewayne Hodves, wert

leeping in their bed, the defendant decided to kill

his sister and her estranged husband, Latham

Durwood McCutchin. The defendant took a claw

hammer into the room where Brenda and Joshua

were sleeping and hit Brenda with it. When the

defendant hit Brenda, Joshua awoke crying. At

that time, the defendant beyan hitting both

srenda and Joshua with the claw hamme:

Brenda suffered approximately twenty forceful

blows to the head and other injuries to her body

Joshua sulfered approximately Ixteen blow te

the head and other injure to his body soth

Brenda and Joshua died from multiple blunt-fores

injuries. Before he left Brenda's house, the defen

dant atte mpted to bum he house with kerosene

and a cigarette

\fter killing Brenda and Jdoohua. the defendant

took the claw hammer and a set of clean clothe

and drove across town to the residence of hi

brother-in-law, Latham Durwood McCutchin. The

defendant initially pretended a friendly visit with

Latham but later inside the residence, the defen

dant informed Latham that he was voing to kill

him. The defendant and Latham struygled for the

Claw hammer with the defendant ubduins

Latham by hittine him with hj fst and the

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Latham McCutchin. Minutes after being invited

into Latham’s home, the defendant informed

Latham that he was going to kill him. Immedi-

ately. Latham tried to defend himself from the

defendant. He saw the defendant pull the claw

hammer from his jacket and grabbed at it. During

the struggle for the claw hammer. the defendant

elbowed Latham and punched him several times

with his fists. Dr. Embry testified that he

observed a 6's ineh by '% inch rib bruise on

Latham s lower chest. After punching Latham

with his fists. the defendant began to hit Latham

repeatedly with the claw hammer. Latham sul-

fered at least ten forceful blows to the head. He

had numerous lacerations to his head and frac-

tures on his skull. Dr. Embry described the lac-

erations as blunt-force injuries to the scalp. He

said some injuries extended all the way to the

bone and the bone was driven into the brain or

displaced. He described one 3 inch by 3 inch sec-

tion of bone missing from Latham’'s head. Latham

suffered defensive wounds to his arms and hands

in an attempt to ward off the defendant's blows.

According to Dr. Embry. Latham suffered bruising

to his forearm and hands. Latham also suffered

fractured ribs and a fractured vertebra. Latham

didn't die instantly. According to Dr. Embry, the

bleeding around the left kidney and blood in the

bladder indicates that Latham survived for a

period of time. The defendant stabbed Latham in

the heart with a knife leaving a 1'4 inch wound

over the heart and extending into it. The defen

dant cut Latham’s throat with the knife from one

side of his neck to the other. The defendant told

investigators that he stabbed Latham in the chest

ola

and cut his throat because he kept breathing and

making noises. He also told his girlfriend that

“they dont die instantly”. Clearly. Latham

MecCutchin suffered intense pain for a significant

period of time prior to his death. Additionally.

Latham McCutchin suffered psvchologically. The

court can only imagine the intense fear that

Latham must have felt when his brother-in-law

told him that he was going to kill him. Latham

was trapped in his own home having been awak

ened from sleep for the mght. Latham had no

weapon to defend himself against the much

vounger and stronger defendant. He saw the

defendant pull the claw hammer from his jacket

and was helpicss to prevent the attack on his hfe.

The murder of Latham MecCutchin was committed

under circumstances that caused fear and pain to

Latham before his death. Furthermore, while

Latham lay dying or dead in his living room floor.

the defendant wrote a message on a wall in the

house. He wrote. “This was necessary Ben. I’m

sorry for vour family. They deserved it.” After

ward, the defendant showered in the victim's

bathroom, gathered his dlood-soiled clothes, the

claw hammer, and knife, and left the residence to

dispose of the evidence. The court finds that

Latham’s murder was a conscienceless or pitiless

crime and unnecessarily torturous to the victim.

The court finds that the defendant's bruality to

Latham exceeds that which is normally present in

a capital case.

Brenda Whitehead McCutchin and her three-

vear-cld grandson, Joshua Dewayne Hodges were

murdered in their bed. Both Brenda and Joshua

were asleep when the defendant first struck

ld52a

Brenda witha claw hammer. After the defendant

hit Brenda with the claw hammer, Joshua woke

up crying. At that point, the defendant began

attacking both Brenda and Joshua with the claw

hammer. Brenda tried to defend herself and/or

Joshua. Dr. Embry testified that Brenda suffered

lacerations to her face, injuries to her shoulder

and right side of the body, broken jaw on both

sides of the face, and broken left middle and ring

fingers with extensive blunt-force injuries to the

hands. Both Brenda and Joshua suffered fractured

skulls. The defendant told his girlfriend that “they

don't die instantly”. Accordingly to Dr. Embry, a

person may live longer with a fractured skull

because the brain can swell. Qne autopsy photo-

eraph shows Brenda's herniated brain protruding

from the skull. in addition to a fractured skull,

Joshua suffered lacerations consuming a large

area around the right eye. He suffered injuries to

both sides of his face, the right side of his neck,

and the upper torso. Perhaps in an attempt to

ward off the blows, Joshua

This text is long and has been trimmed here. Open the source document for the complete record.