Appeal from Jefferson Circuit Court. CC-92-4671
Bowen, Presiding Judge. All Judges concur.
The opinion of the court was delivered by: Bowen
Michael Jeffrey Land, the appellant, was convicted of two counts of capital murder involving the death of Candace Brown. A jury found him guilty of murder during a burglary in the first degree and murder during a kidnapping in the first degree. By a vote of 11 to 1, the jury recommended that he be sentenced to death. The circuit court followed the jury's recommendation and sentenced the appellant to die in the electric chair. The appellant raises 12 issues on this direct appeal of those convictions.
On the evening of May 18, 1992, Candace Brown went to her parents' home to pick up her two-year-old son. Ms. Brown's mother and brother followed her home because her residence had been burglarized five days earlier. After ascertaining that the house was secure, Ms. Brown's family members left about 9:00 p.m.
The following morning, Ms. Brown did not report to work. Her landlord came to the residence to oversee the installation of a fence. He noticed that a window near the rear entry had been broken, that the telephone wires had been cut, and that the driver's side window of Ms. Brown's automobile, which was parked in the driveway, had been shattered. He notified the police at 8:30 a.m.
When officers from the Birmingham Police Department arrived, they found that all the doors to the house were locked, and that a storm window had been removed and several window panes had been cut and stacked by a rear entry to the house. In the dust on one of the panes of glass was what appeared to be a shoe imprint with a distinctive tread design bearing the letters "USA."
The police found a two-year-old child alone and unharmed in the house. They also found a note with the name and telephone number of the appellant and the appellant's mother on a bulletin board in the house. The appellant's mother was a Birmingham police officer. Officers telephoned her and ascertained where the appellant worked.
About 2:00 p.m. on May 19, Detectives Steven B. Corvin and Larry Fowler went to the Riverchase Galleria, where the appellant was repairing the mall roof. Corvin and Fowler told the appellant that they wanted to ask him some questions relating to the disappearance of Candace Brown and the appellant agreed to accompany the detectives to the police station. The appellant was taken to an interrogation room and informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He signed a waiver of rights form and agreed to have his statement tape-recorded.
In a statement beginning at 2:42 p.m., the appellant stated that he knew Candace Brown but that he had not seen her in about a week, had no idea where she was, and had no knowledge about a burglary of her residence on May 18. However, he admitted that he had burglarized her house on May 13, 1992, and that during that burglary he had "cut the phone lines." *fn1 R. 23. When asked where he had been the night before, the appellant stated that he had visited with his girlfriend, Shelly Wade, until shortly before midnight. He said that after he left Ms. Wade he fell asleep in his car in the parking lot at Ms. Wade's apartment complex, and that he awoke and left the parking lot at 4:00 a.m. and drove to his grandfather's house. The appellant claimed that he reported to work at the Galleria before 6:00 a.m. on the morning of May 19. The appellant told police that he had had lunch that day with Marie Fortis, who he claimed was another girlfriend, and that his car was at Ms. Fortis's house in Bessemer.
During the course of the interview with the appellant, Detective Fowler noticed what appeared to be bloodstains on the appellant's tennis shoes. After the appellant completed his statement, Fowler asked to see the appellant's shoes. At that point, Fowler noticed that the tread design on the bottom of the shoes appeared to match the imprint on the window glass at Candace Brown's house. In the meantime, Birmingham Police Lt. Carl M. Quinn had telephoned Marie Fortis. Ms. Fortis denied having had lunch with the appellant and stated that his car was not, and had never been, at her house.
After conferring with Detective Fowler and Lt. Quinn, Detective Corvin informed the appellant that his statement was incompatible with the evidence found at the scene of the burglary. The detective also told the appellant that Ms. Fortis had denied having lunch with him or having his car. Corvin told the appellant that he needed to tell the truth about the disappearance of Candace Brown and the burglary of her home.
At that time, the appellant agreed to make a statement but refused to permit it to be tape-recorded. Once again the appellant was informed of and waived his Miranda rights. In his second statement, the appellant claimed that he met two men at a service station on May 19. The appellant identified these men only by the names "Tony" and "Edward." According to the appellant, Tony and Edward asked him if he knew an easy mark for a burglary and the appellant suggested Candace Brown's house. The appellant said that Tony and Edward paid him $20 to cut the window glass of Ms. Brown's residence and that all three of them entered the kitchen.
According to the appellant, Candace Brown appeared in the kitchen and either Tony or Edward slapped her and knocked her to the floor. The appellant told Detective Corvin that Ms. Brown's nose and mouth began to bleed. He said that as Ms. Brown fell down, she grabbed his hand and he may have gotten "some blood on his gloves from that." R. 1010. When Corvin informed the appellant that police evidence technicians had found no trace of blood in Ms. Brown's house, the appellant said that "one of the guys [Tony or Edward] cleaned it up with some paper towels and put [the towels] in his pocket." R. 1010. The appellant said that after Ms. Brown was knocked down he got scared and left the residence, and that he did not know what happened after that. The appellant admitted that his car was in the parking deck at the Galleria mall. Detective Corvin said the police "needed to look in his car," and the appellant replied, "What if I have something in there I'm not supposed to have?" R. 1012. Corvin said that the police were looking for evidence concerning the disappearance of Candace Brown and asked if the appellant was referring to drugs. The appellant replied that he had "a gun . . . [a] .45 automatic," and that "the only way he would sign a paper consent [for] us to search the car is [if] we wouldn't charge him for carrying a gun." R. 1012-13. Without agreeing to the appellant's condition, Detective Corvin asked the appellant where his car keys were. The appellant handed the keys to Corvin.
Detective Fowler located the appellant's car in the Galleria mall parking deck, opened the trunk, and "made an inventory of what [he] could see visually without moving or handling any objects." R. 791. Fowler observed a .45 caliber automatic pistol in the trunk. The automobile was towed to a secure lot at 4:45 p.m. on May 19. It was searched on May 21 and a number of items were seized pursuant to a search warrant issued that same date.
The appellant was formally arrested at 6:20 p.m. on May 19, 1992, after giving his second statement. The following day, hikers discovered the body of Candace Brown in a rock quarry on Ruffner Mountain. Ms. Brown had been shot in the back of the head.
The prosecution presented a strong and compelling case of the appellant's guilt. The State's expert testimony tended to show that a pair of wire cutters found during a search of the appellant's vehicle had made the cuts on two pieces of telephone wire leading into the victim's residence, R. 1770; that glass fragments found on a pair of gloves seized from the appellant's automobile were consistent with the glass in the shattered driver's side window of the victim's car and with the glass in the broken window at the rear entry of the victim's residence, R. 1699; that the sole of the appellant's right shoe had the same distinctive tread design as a shoe imprint on a pane of glass from the victim's residence, R. 1721; that the projectile recovered from the victim's head was fired from the .45 caliber pistol found during a search of the appellant's car, R. 1777; and that the DNA profile of a semen stain on the victim's blouse matched the appellant's known blood sample, with a probability that only one in 20,620,000 white males. R. 1602.
The appellant contends that his cross-examination of Birmingham Police Detective Larry Fowler was improperly curtailed when the circuit court would not allow him to question Fowler about the contents of an internal police memorandum outlining an anonymous tip that two suspects other than the appellant had been named in the Candace Brown murder investigation.
The trial court correctly ruled that the content of the memorandum was inadmissible hearsay.
"Under Alabama law, . . . 'other suspect' information is not admissible. 'It is recognized that an accused is not entitled to prove, without more, that another has been suspected of committing the crime for which the accused is being tried.' C. Gamble, McElroy's Alabama Evidence § 48.01(9)(4th ed. 1991). Most recently, in Tomlin v. State, 591 So.2d 550, 558 (Ala.Cr.App. 1991), this court stated that 'the general rule in Alabama is that an accused is not entitled to introduce testimony that someone else was suspected of committing the crime for which he is being tried.'"
Johnson v. State, 612 So.2d 1288, 1293 (Ala.Cr.App. 1992) (emphasis in original).
The circuit court correctly excluded evidence concerning the content of the memorandum.
The appellant claims that 25 photographs depicting the position of the victim's body and the area in which it was discovered were unnecessarily repetitious and inflammatory and should not have been admitted in evidence.
We rejected a similar argument in Hill v. State, 516 So.2d 876 (Ala.Cr.App. 1987):
"The appellant argues that the trial court erred in allowing 24 color photographs into evidence. The photographs in question depicted the position or location of the victim's body, the injuries she suffered, the location of the [murder weapon], and the condition of the bedroom in which the victim was killed.
". . .'The photographs were not immaterial but were illustrative of the crime scene and corroborative of the testimony of . . . the first policeman to arrive on the scene. . . . A photograph "is competent evidence of anything, of which it is competent and relevant for a witness to give a verbal description." 23 C.J.S. Criminal Law § 852(1)(a)(1961).' Harrell v. State, [470 So.2d 1303, 1307 (Ala.Cr.App. 1984), affirmed, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 88 L. Ed. 2d 276, 106 S. Ct. 269 (1985)]."
Hill v. State, 516 So.2d at 881.
The courts of this state have repeatedly held that photographs that accurately depict the crime scene and the nature of the victim's wounds are admissible despite the fact that they may be gruesome or cumulative.
"Photographs showing external wounds of a deceased victim are admissible even if the evidence is gruesome, cumulative, and relates to undisputed matters. Ex parte Siebert, 555 So.2d 780 (Ala. 1989) [, cert. denied, 497 U.S. 1031 (1990)]. Moreover, photographs that depict the position and location of a victim's body at the scene of an offense have been held to be proper. Hill v. State, 516 So.2d 876 (Ala.Cr.App. 1987)."
Oryang v. State, 642 So.2d 979, 989 (Ala.Cr.App. 1993). The circuit court did not err by admitting the photographs.
The appellant argues that his second statement to the police was involuntary.
"The oft-stated rule is that a confession is prima facie involuntary and inadmissible and the state must show voluntariness and a Miranda predicate in order for it to be admitted. Whether there was a waiver of the right to remain silent and the right to counsel and whether it was knowingly, voluntarily, and intelligently made must be decided from the particular facts and circumstances of each case, including the background, experience, and conduct of accused -- the totality of the circumstances. The question of whether a confession was voluntary is initially to be determined by the trial court. Thereafter, the voluntariness as affecting the credibility and weight to be given any statement that an accused has made is a determination for the jury. The finding of the trial court will not be disturbed on appeal unless it appears contrary to the great weight of the evidence or is manifestly wrong. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial Judge need only be supported by substantial evidence and not to a moral certainty. The trial court need only be convinced from a preponderance of the evidence to find a confession to have been voluntarily made. The fundamental requirements for voluntariness are that the court must conclude, in order to find a defendant's confession voluntary, that he made an independent and informed choice of his own free will, that he possessed the capability to do so, and that his will was not overborne by pressures and circumstances swirling around him."
Lewis v. State, 535 So.2d 228, 234-35 (Ala.Cr.App. 1988) (citations omitted).
Through the testimony of Detectives Corvin and Fowler, the prosecution completely established the Miranda predicate. The appellant does not dispute the fact that he was given the Miranda warnings and that he waived his rights before making his second statement. He challenges the admission of the statement solely on the ground that it was coerced and that his will was overborne when, he alleges, during interrogation, he was "stripped of his clothing, shouted at, called the classic Southern 'boy,' manhandled, and frightened into assuming the fetal position." Appellant's Brief at 74.
The appellant did not testify in connection with the motion to suppress his statement. The testimony of Lt. Carl M. Quinn, Detective Steven B. Corvin, and Detective Larry Fowler concerning what occurred during their interview with the appellant was unrefuted. See Jackson v. State, 549 So.2d 616, 620 (Ala.Cr.App. 1989); Grayson v. State, 479 So.2d 69, 75 (Ala.Cr.App. 1984), affirmed, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 88 L. Ed. 2d 157, 106 S. Ct. 189 (1985). All three officers stated that the appellant was not threatened in any way in order to make him confess. All testified that during interrogation the appellant's clothes were taken and that he was given an orange jail uniform to wear. However, there is nothing in the record to indicate that the change of clothes was accompanied by any force or was in any way humiliating to the appellant. There is also nothing in the record to substantiate the appellant's allegation that he was "shouted at."
Lt. Quinn testified that during the interview the appellant changed positions, often curling up "almost into a fetal position," with his head in his hands and his feet pulled up into his chair. R. 167. Lt. Quinn interpreted the appellant's posture to mean that he was "avoiding [Quinn's] questions." R. 169. At one point, Quinn took the appellant's wrist, moved his hand away from his head, R. 21, and said "something to the effect, 'Boy, look up at me when I talk to you.'" R. 168. According to Detective Corvin, Quinn did not bend or twist the appellant's arm or "do anything inappropriate in talking with [the appellant]." R. 21-22.
The appellant is a 24-year-old white male. Lt. Quinn's addressing him as "boy" obviously was not a racial epithet, and given the appellant's relative youth, did not have the demeaning overtones it might in another situation. Quinn's touching the appellant by moving the appellant's hand away from his head so that the appellant would face Quinn during the interview was not brutal and did not amount to physical coercion. See State v. Joyner, 382 S.W.2d 683, 687 (Mo. 1964) (accused's confession not coerced when officer "touched defendant's jaw to cause defendant to turn his head so that he would be looking at the questioning officer").
The record indicates that the appellant assumed a "fetal position" before he was questioned or touched by Lt. Quinn and that he constantly shifted positions during the interrogation. The trial court was justified in concluding, as Lt. Quinn did, that the appellant's body language indicated an aversion to the questions rather than a fear of the questioner.
The trial court had substantial evidence upon which to conclude that, under the totality of the circumstances, the appellant's will was not overborne and his statement was not coerced. The court's finding that the statement was voluntary was not "manifestly contrary to the great weight of the evidence" and will be upheld on appeal. Ex parte Matthews, 601 So.2d 52, 53 (Ala.), cert. denied, ___ U.S. ___, 112 S.Ct. 2996 (1992).
The appellant contends that several items of physical evidence had no probative value and were admitted without the State's establishing a proper predicate and a complete chain of custody. Specifically, the appellant challenges the admission of the following items: State's Exhibits 40-42 (three rocks); Exhibit 97 (a pair of eyeglasses); Exhibits 77 and 105 (two gloves); Exhibit 13 (a piece of window glass); Exhibits 7 and 81 (wire and wire cutters); Exhibits 68 and 70 (jeans and a blouse removed from the body of Candace Brown); Exhibit 83 (jeans belonging to the appellant); and Exhibit 80 (a .45 caliber pistol).
Exhibits 40 through 42 were three rocks collected at the scene where the victim's body was found. They were offered but not admitted in evidence. R. 1731, C.R. 243.
Exhibit 97 was the pair of eyeglasses found next to the victim's body. The prosecution authenticated this item and established its relevance. The glasses were properly admitted over a chain of custody objection because no chain of custody was necessary.
A chain of custody for a tangible item of evidence must be established in only two instances: (1) "Where by its very nature, an item of evidence cannot be specifically identified,
"If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition."
McCormick on Evidence § 212 at 527 (E. Cleary 2d ed. 1972).
Steven Drexler, a trace evidence technician with the Department of Forensic Science-Birmingham laboratory [hereinafter, "DFS-Birmingham lab"], identified Exhibit 97 as a pair of eyeglasses he observed next to the victim's body in a rock quarry on Ruffner Mountain on May 20, 1992. R. 1662. Like the already admitted photographs of the scene, the eyeglasses served to illustrate Drexler's testimony concerning the condition and location of the victim's body.
"Under the liberal test of admissibility in Alabama, 'a fact is admissible if it has any probative value, however slight, upon a matter in the case.' McElroy's § 21.01 at 34. 'Evidence as to the scene of a crime, as to objects found thereat, and as to the condition of the body, is admissible and relevant evidence, when reasonably proximate to the scene in time and location.' Petty v. State, 40 Ala.App. 151, 154, 110 So.2d 319, 322 (1958), cert. denied, 269 Ala. 48, 110 So.2d 325 (1959). Evidence as to objects found at or near the scene of the crime charged within a reasonable time and proximity after the commission of the crime is 'always admissible.' Busbee v. State, 36 Ala.App. 701, 703, 63 So.2d 290, 292 (1953)."
Parker v. State, 587 So.2d 1072, 1090 (Ala.Cr.App. 1991).
The eyeglasses were admissible without establishing a chain of custody because Drexler was able to specifically identify them, and their condition was not an issue in the case. Drexler testified that he recognized the glasses because of the distinctive reddish-brown smears on the lenses. R. 1666. See Ex parte Works, 640 So.2d 1056, 1059 (Ala. 1994) ("because the condition [of] the knife was not an issue in this case, and its authenticity was established by other means, it was not necessary to establish a chain of custody"); Pardue v. State, 571 So.2d 320, 329 (Ala.Cr.App. 1989) ("when the condition of the evidence is not at issue, . . . it is not always necessary to establish a chain of custody"), reversed on other grounds, 571 So.2d 333 (Ala. 1990). Compare Miller v. State, 602 So.2d 488, 494 (Ala.Cr.App. 1992) ("this Court finds that the opal ring was properly admitted into evidence, despite the broken chain of custody, because the ring was positively identified at trial and because there was no reasonable probability that the ring introduced at trial was different from the ring discovered in the appellant's pocket").
The State was required to establish a complete chain of custody for the cigarette butts and socks collected at the scene of the homicide in Ex parte Cook, 624 So.2d 511 (Ala. 1993), but not for the eyeglasses collected at the scene of this homicide because the items in Cook, unlike the eyeglasses here, were subjected to scientific analysis and their condition was at issue.
State's Exhibits 77 and 105 were two gloves found in the appellant's car. The admission of these exhibits required the prosecution to establish a complete chain of custody because the gloves contained glass particles and blood stains, both of which were the subject of an expert opinion linking the appellant to the victim. However, contrary to the appellant's argument, the the prosecution did establish an unbroken chain of custody for these gloves.
"The chain of custody is composed of 'links.' A 'link' is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link's possession of the item: '(1) [the] receipt of the item; (2) [the] ultimate Disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and Disposition.' Imwinklereid, The Identification of Original, Real Evidence, 61 Mil. L. Rev. 145, 159 (1973).
"If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a 'missing' link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the 'link,' as to one or more [of the] criteria or as to one or more links, the result is a 'weak' link. When the link is 'weak,' a question of credibility and weight is presented, not one of admissibility."
Ex parte Holton, 590 So.2d 918, 920 (Ala. 1991).
On May 21, pursuant to a search warrant, evidence technician Steven Drexler removed the gloves from the appellant's car. Drexler processed the gloves to remove surface debris and tested that debris. R. 1693. He then packaged the gloves, sealed the package, and marked the package with his identifying marks. R. 1688-89. The gloves remained in Drexler's care, custody and control until he delivered them, in sealed condition, to Phyllis Rollan, forensic serologist with the DFS-Birmingham lab. R.1691. Ms. Rollan performed tests on the gloves, R. 1517-18, and then resealed them and turned them over to Sgt. Dawn Lacey, supervisor in charge of the evidence collection unit of the Birmingham Police Department. R. 1273. Sgt. Lacey took a box containing State's Exhibits 77 and 105, still sealed, to the property room of the Birmingham Police Department, where the exhibits remained until trial. For State's Exhibits 77 and 105, the prosecution proved a complete chain of custody under Holton.
Birmingham police Officer Greg Bearden removed State's Exhibit 13, a piece of window glass, from the back porch of Candace Brown's residence, and kept it in his care, custody, and control until he took it to the DFS-Birmingham lab, R. 1173. Steven Drexler received the glass from Officer Bearden, R. 1696, performed tests on it, and then packaged it and sealed the package and turned it over to Sgt. Dawn Lacey of the Birmingham Police Department. Sgt. Lacey took the exhibit, still sealed, to the police department property room, R. 1276, where it remained until Officer Bearden retrieved it, still sealed, and brought it to trial. R. 1175-76. There was no break in the chain of custody under Holton for State's Exhibit 13.
State's Exhibit 7 was identified by Officer Greg Bearden as a piece of telephone wire he cut from outside the victim's residence on May 19, 1992. R. 1166. Bearden placed the wire in an envelope, sealed and initialled it, and took it to the DFSBirmingham lab. R. 1167. David Higgins at DFS received the wire from Officer Bearden, R. 1765, performed tests on it, resealed it, and turned it over to Sgt. Dawn Lacey, R. 1770, who took it to the Birmingham Police Department property room. Officer Bearden retrieved the envelope, still ...