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September 16, 1994


PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Talladega Circuit Court, CC-91-340, Court of Criminal Appeals, CR-91-881). Jerry L. Fielding, TRIAL JUDGE.

Rehearing Denied December 16, 1994. As Corrected February 10, 1995. Released for Publication March 25, 1995.

Maddox, Steagall, Kennedy, and Ingram, JJ., concur. Houston, J., concurs specially. Hornsby, C.j., concurs in the result. Almon and Shores, JJ., Dissent.

The opinion of the court was delivered by: Maddox


Derrick Anthony DeBruce was convicted of the capital offense of murder committed during the course of robbery in the first degree. § 13A-5-40(a)(2), Ala. Code 1975. In a separate sentencing phase of the trial, DeBruce was sentenced to death. The Court of Criminal Appeals affirmed. This Court automatically granted DeBruce's petition for a writ of certiorari. See Rule 39(c), Ala.R.App.P.

DeBruce raises several issues in his certiorari petition and argues each in his brief to this Court. The issues are the same as were argued in the Court of Criminal Appeals. DeBruce v. State, 651 So. 2d 599 (Ala. Crim. App. 1993).

The facts are enumerated in considerable detail in the opinion of the Court of Criminal Appeals; therefore, we will not restate them in detail, but we will outline the essential facts for a better understanding of the issues we address. The evidence tended to show that DeBruce and five other men were in the course of robbing a Talladega Auto Zone store and its customers when Doug Battle, unaware of the robbery, entered the store. After the men had completed robbing the store and its customers, the men began to leave the store. As they started out the door of the store, DeBruce allegedly shot Battle in the back as he lay face down on the floor.

Some of the other customers were later able to identify photographs of the men involved in the robbery. The investigation that followed led to DeBruce's indictment and subsequent trial for the capital murder of Battle. At trial, DeBruce contended that it was Lujuan McCants, another of the robbers, who had shot Battle. DeBruce argued that McCants had bragged to two people about killing Battle. McCants, on the other hand, testifying in exchange for a sentence of life imprisonment, said it was DeBruce who had killed Battle.

DeBruce raises numerous issues in his petition for certiorari review. However, we have not limited our review to the issues he raises, but have reviewed the proceeding to see if there is any plain error or defects. *fn1 Rule 39(k), Ala.R.App.P.

We have reviewed the opinion of the Court of Criminal Appeals, which addresses each of the issues raised by DeBruce. In addition, as Rule 39(k), Ala. R. App. P., requires, we have searched the record of both the guilt-determining phase and the sentencing phase of DeBruce's trial for any plain error or defect that has or probably has adversely affected DeBruce's substantive rights. We find no plain error to reverse or any other error in DeBruce's trial that requires us to reverse either his conviction or his sentence of death. Even though we find no error to reverse, we elect to address one issue on which the Judges of the Court of Criminal Appeals disagreed, that is, whether DeBruce's absence from a hearing on pretrial motions violated his rights under the Alabama Constitution, or his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In the Court of Criminal Appeals, there was a Dissenting view on this issue. See, DeBruce v. State, 651 So. 2d 599 (Ala. Crim. App. 1993) (Montiel, J., Dissenting "from the majority's holding ... that the appellant's absence from a pretrial hearing and a number of motion hearings [was] not reversible error").

The Court of Criminal Appeals addressed DeBruce's absence from what it described as "a pretrial hearing at which a number of motions were considered," as follows:

"In Harris v. State, 632 So.2d 503, 512 (Ala.Cr.App. 1992), this Court held that in a capital case, 'if the appellant's presence ... would have been useless to her defense and if the [pretrial] hearing was not considered to be a "critical stage" of her trial, then we can find no error in the appellant's absence from the hearing.' Here, as in Harris, 'the appellant has been unable to suggest or demonstrate any possibility of prejudice resulting from [his] absence.' Id.

"... Although this Court is extremely reluctant to make a finding of harmless error in any case in which the death penalty has been imposed, here it is clear beyond any reasonable doubt that the appellant's absence at the pretrial hearing on various legal motions in no way prejudiced him. Here, as in Ex parte King, 564 So.2d 928, 931 (Ala. 1990), the 'hearing necessitated only arguments of law.'"

___ So.2d at ___.

We have examined the transcript of the pre-trial hearing that is the subject of this claim of error, to determine whether the defendant's presence was required by the Constitution of the State of Alabama, the Constitution of the United States, or any law or rule of practice and procedure.

The pertinent portions of the record show that the following occurred when the several pre-trial motions were heard by the trial court, with the Honorable Jerry L. Fielding, presiding. Appearing at the hearing were District Attorney Robert Ramsey and attorneys Erskine Mathis and William K. Delgrosso, both of Birmingham, for the defendant.

At the beginning of the hearing the following transpired:

"THE COURT: For the record, this is Case Number CC-91- 340 in the matter of State of Alabama v. Derrick Anthony DeBruce. This is really a discovery matter, I assume, isn't it?

"MR. MATHIS: Yes, sir.

"MR. RUMSEY: Which one are we on?

"THE COURT: It is 'Motion for Ballistics Test and Fingerprinting.'

"MR. RUMSEY: It is my understanding and what I told Erskine a few minutes ago, basically what I'm doing is having my whole file copied, including the witnesses' statements. I'm just going to turn over the whole file."

During the hearing, defendant's counsel stated that he might wish to file a motion, claiming indigency, although he had hired his counsel, if he needed to some experts to do some independent testing, and ask for the State to pay for those experts. *fn2

The court next considered the defendant's "Motion To Prohibit Death-Qualification of Prospective Jurors." The substance of the motion was the defendant's contention that being conscientiously opposed to the death penalty should not exclude a prospective juror from the guilt phase of the trial. In essence, the defendant asked for separate juries for the guilt and penalty phases of the trial, if necessary. On this motion, the trial Judge said:

"THE COURT: I'll just reserve my rulings on this matter until the time comes for the voir dire examination. I'll have plenty of time to resolve it if it comes up."

The next motion considered at the hearing was the defendant's "Motion for Appointment of Juristic Psychologist." By this motion, the defendant sought to get an expert to assist him in picking a jury and to have the State pay for the expert. After a brief statement by the defendant's counsel in support of the motion and a statement by the district attorney to the effect that he did not think the law mandated it, the trial Judge said:

"I'll reserve a ruling on that for the time being. It is all going to depend upon whether or not the pauper status is granted. Then I will have to look and see whether or not it will be appropriate."

The next motion considered was the defendant's "Motion for Witness List." The record shows the following:

"MR. MATHIS: I guess, based on what Robert [the district attorney] told me a while ago, if he is going to open his file to us, we are going to have it. Is that correct, Robert?

"MR. RUMSEY: Sure. I don't know that I will have a witness list per se in the file that would state every witness that I will call. My only thing there is I may not have a chain witness down or I may not have somebody coming until they are ultimately called. My witness list should be the same as the subpoena list. I just don't want to be caught saying you gave me this witness list and now you are calling somebody that -- there may be a chain witness."

From the colloquy in the record, it appears that the district attorney, although not required to give defendant his witness list, agreed to do so, but did not want to "get in a trap where I do something that is above and beyond what the rules require and then there is some allegation that I did not have a particular person on there and them start moving to ... a witness starts to take the witness stand and they move to exclude that witness's testimony because it wasn't on the witness list." Defense counsel's concern was that he wanted to "to be able to assure my client and assure anybody looking down the road after [a] while that we gave this as good an opportunity as we possibly could have given it to find [any] exculpatory evidence whatsoever."

The next motion considered was one by the defendant styled a "Motion in Limine," which sought to prevent the State from mentioning that the defendant could be subsequently released if he was not convicted of capital murder and sentenced to death. The trial Judge granted the motion.

The next motion discussed was a "Motion for Discovery of Impeaching Testimony." Defense counsel said, "I guess I would be referring to co-defendants who may have made arrangements with you to testify in this matter against my client for whatever carrot may have been offered." The district attorney responded, saying that there had been an offer but no formal agreement. The district attorney then mentioned the names of individuals and the arrangements that had been made with each, as he understood them at that time.

The next motion presented was a "Motion to Suppress." Defense counsel said:

"MR. MATHIS: We are not going to be able to do anything on that without him here, Judge.

"THE COURT: All right, we will carry this over, either later on this afternoon or sometime during the trial.

"MR. MATHIS: Yes, sir."

The next motion was a "Motion for Aggravating and Mitigating Circumstances." By this motion, defense counsel was "primarily looking forward to the penalty phase of this trial if there is one, and in trying to prepare for it as best we possibly can." There was a colloquy between the trial Judge, the district attorney, and defense counsel, which essentially culminated in the district attorney's stating that he thought the defendant had a prior robbery conviction, although he could be wrong about that, but that the indictment charged the aggravating circumstance of murder during the course of a robbery and that the only mitigating circumstance that he knew about would be the defendant's age.

The next motion was a "Motion for Individual Voir Dire and Sequestration of the Jury." The colloquy regarding this motion suggests that the defendant did not want to be forced to ask certain questions to the whole group of jurors. The trial Judge stated that he sometimes allowed specific questions to panels of 15 or so, but that "we will look at [the request] when we get started." The effect of his ruling was to reserve a ruling on the motion until the selection of the jury began, which appears to be what defense counsel was requesting.

The next motion was a "Motion for Discovery." In view of the "open file" statement made by the district attorney at the beginning of the hearing, and in view of the colloquy between the district attorney and defense counsel relating to specific items of evidence, it appears that defense counsel was satisfied that he would be able to discover items of evidence that the district attorney had or would introduce at trial.

The next motion was a "Motion for Complete Recordation and for Daily Transcripts During the Trial." The trial Judge said that he would have those provided and made another offer, to which defense counsel replied, "I can't ask for any more than that."

The next motions dealt with defense counsel's concern about the State's use of gruesome photographs of the scene or from the medical examiner's office. From the record it appears that defense counsel was satisfied that he could see the photographs that were taken and was satisfied with the district attorney's statement that "we possibly will just use the Polaroids."

The next motion was a "Motion to Require Disclosure of any and all Information Concerning Prospective Jurors which may be Favorable to the Defense." The substance of the motion was to require the district attorney to voluntarily notify defense counsel of any fact concerning a prospective juror, even if defense counsel had not asked a specific question to elicit the information. The trial Judge denied the general request, but from the colloquy it appears that he thought that the parties, at voir dire, should ask specific questions touching a juror's qualifications to serve.

The next motion was a "Motion for Grand Jury Transcript." The district attorney stated, "We do not have a Grand Jury -- we do not record the routine Grand Jury proceedings."

Several of the motions discussed could be classified as being on matters that could come up during the trial, and defense counsel was seeking an advance ruling, such as a "Motion to Disqualify all Potential Jurors That Knew or Were Acquainted With the Victim or His Family," which the Court suggested would have to wait until the jury was being selected. Defense counsel also wanted, in his "Motion for Introductory Instructions," to find out what the trial Judge usually used to instruct the jury in a capital case. He also wanted to have the instructions go to the jury. The trial Judge refused to give a prior ruling on what he would or would not do during the actual trial of the case.

The defendant's "Motion to Preclude the Death Penalty on the Grounds of Racial Discrimination for Discovery" was designed to raise the issue of disproportionate sentencing of blacks to death. The district attorney stated that there had been 15 whites sentenced to death in Talladega County and four blacks. The court said: "I deny the motion at this time and reserve a ruling if I change my mind."

Another motion considered was a "Motion to Bar the Death Penalty as Cruel, Unusual and Degrading Punishment." As the trial Judge noted, this was a constitutional challenge to the imposition of the death penalty, and the court noted that defense counsel was "preserving the constitutional challenge on that."

The next motion considered was a "Motion to Prohibit the District Attorney from Exercising Discriminatory Peremptory Challenges and For Discovery." This was a Batson-type motion filed before actual jury selection began. The trial Judge properly stated, "We will have a hearing on that, I would imagine, if it is brought to my attention."

The defendant also wanted to have witnesses sequestered before voir dire began, and to have jurors also sequestered after they were selected. The record seems to indicate that the trial Judge said he would grant both requests if the matter was brought to his attention at the appropriate times during the proceeding.

The defendant also wanted to have the court give him a standing objection to certain matters so that he would not have to object and state the grounds during the trial. The trial Judge did not formally grant this request, but did say that with regard to particular matters he would allow counsel to say "for the same reasons I assigned earlier or something," which indicated that as long as he knew the nature of the ...

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