Appeal from Jefferson Circuit Court (CC-96-5162)
The opinion of the court was delivered by: Fry, Judge
On Application for Rehearing
The opinion of March 31, 2000, is withdrawn, and the following is substituted therefor.
In October 1996, a Jefferson County grand jury returned an indictment against the appellant, Donald Broadnax, charging him with four counts of capital murder, including murder of two or more persons pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975; murder by a defendant who has been convicted of another murder in the 20 years preceding the crime, see § 13A-5-40(a)(13); murder during a kidnapping in the first degree, see § 13A-5-40(a)(1); and murder of a victim less than 14 years old, see § 13A-5-40(a)(15). On June 6, 1997, a jury found Broadnax guilty of each of the four counts of capital murder. At the penalty-phase of the trial, the jury, by a vote of 12 to 0, recommended that Broadnax be sentenced to death. On September 12, 1997, the trial court, after a sentencing hearing, followed the jury's recommendation and sentenced Broadnax to death. On October 9, 1997, Broadnax filed a motion for new trial. On August 14, 1998, the trial court denied Broadnax's motion for new trial. *fn1 This appeal followed.
The evidence tended to show the following. In April 1996, Donald Broadnax, who had been convicted in 1978 for murder and who was serving a sentence of 99 years' imprisonment, was residing at a work release center in Alexander City and working at Welborn Forest Products in Alexander City. In 1995 Broadnax married Hector Jan Stamps Broadnax, who at the time of the marriage had a three-year-old grandson, DeAngelo Stamps. Broadnax and Jan were having marital problems and Broadnax believed that Jan was partially responsible for a recent denial of parole. The evidence indicated that after 6:00 p.m. on April 25, 1996, Jan and DeAngelo delivered food to Broadnax at his workplace. Johnny Baker, an inmate at the work release center and Broadnax's co-worker at Welborn, testified that he saw Broadnax driving Jan's car at Welborn that evening. According to Baker, Broadnax stopped to talk with him and he saw a child in a child's safety seat in the backseat. Baker testified that he was "pretty sure" the child was alive when he talked with Broadnax.
At approximately 10:45 p.m. that same night, Mark Chastain, a security guard at Welborn, found Broadnax inside a building while securing the building for the night. Chastain testified that he told Broadnax that the alarm had been set and that they had to exit the building. According to Chastain, when he asked Broadnax why he was still in the building, Broadnax stated that the work release van had dropped him off. As they left the building, Broadnax called the work release van to pick him up. Chastain did not leave the area until the work release van picked Broadnax up.
Kathy Chastain, Mark Chastain's wife, testified that while she was outside the building waiting for her husband to secure the building, she saw an individual matching Broadnax's description get out of a light-colored truck and run into the building.
On April 25, 1996, Robert Williams and his wife were living across the street from a house in Birmingham that had in the past been used as a "crack-house" and for prostitution. On that evening as Williams and his wife left their house at approximately 8:20 p.m., they noticed no cars were parked at the house across the street. When they returned at approximately 8:50 p.m., they saw a white Dodge Aries automobile parked behind the house. Because of the previous illegal activities occurring at the house, Williams telephoned the police and reported the presence of the car.
Alondo McCurdy and Donna Smith, officers for the Birmingham Police Department, responded to the call and arrived at the residence at approximately 9:00 p.m. When they approached the parked car, they noticed blood on the ground behind the car and on the bumper. Based on their observations, they immediately radioed their supervisor and the paramedics, and secured the scene. It was later determined that the car belonged to Jan Broadnax.
When the paramedics arrived, they opened the locked trunk and found the bodies of Jan and DeAngelo in the trunk. Both Jan and DeAngelo had been beaten. According to Dr. Robert Brissie, the forensic pathologist who performed the autopsies on the victims, blunt-force trauma, which could have been caused by the use of a piece of lumber such as the one found in the trunk with the bodies, caused the deaths of Jan and DeAngelo.
On April 27, 1996, Lawrence Hardnette, an inmate resident at the work release center in Alexander City, found a work uniform that did not belong to him stuffed under his bunk. At about the same time, James Smith, another inmate resident of the work release center, found a pair of Red Wing brand work boots under his bunk. The uniform and the boots were turned over to the supervisors and were later identified as belonging to Broadnax. Broadnax was the only one at the work center who wore Red Wing work boots; there were also identifying marks on the work uniforms indicating that the uniforms had been issued to Broadnax. When the work uniform and the boots were examined, bloodstains were found on the uniform. The analysis of the bloodstains indicated that the deoxyribonucleic acid ("DNA") in these bloodstains matched the DNA of Jan and DeAngelo.
On the grounds at Welborn near a finishing products storage facility, employees found an earring that matched an earring found on the rear floorboard of Jan's car. The evidence appeared to indicate that Jan was killed at Broadnax's workplace in Alexander City, that her body was placed in the trunk of the car, and that the car was driven to Birmingham. Officer Vince Cunningham of the Birmingham Police Department testified that while conducting the investigation, he traveled from the location where the bodies were found in Birmingham to Broadnax's workplace in Alexander City. According to Cunningham, Broadnax could have easily travelled the distance between the two locations within the time frame set out by the evidence.
In his brief to this Court, Broadnax raises several issues, which were not presented to the trial court. Because Broadnax was sentenced to death, his failure to raise these claims at trial does not prevent our review. It does, however, weigh against him as to any claim of prejudice he now makes. See Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App. 1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).
"Additionally, this Court has said:
"`"[This] plain error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)).'
"`In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.'
"Rule 45A, Ala.R.App.P." Minor v. State, [Ms. CR-95-1968, October 29, 1999] ___ So.2d ___, ___ (Ala.Cr.App. 1999).
Broadnax contends that the trial court's failure to have certain portions of the trial proceedings transcribed requires a reversal of his convictions because, he says, it prevented him from obtaining a full review of the critical portions of his trial. Specifically, he argues that a transcript of the pre-trial proceedings, the bench conferences, and the hearing on the motion for a new trial should have been included in the record on appeal. Our review of the record indicates that Broadnax did not move to have all portions of the proceedings transcribed. Thus, our review is subject to the plain-error standard. See Rule 45A, Ala.R.App.P.
In Ex parte Land, 678 So.2d 224 (Ala. 1996), cert. denied, 519 U.S. 933, 117 S.Ct. 308, 136 L.Ed.2d 224 (1996), this Court addressed a similar issue, stating:
"The portions of the trial that Land says were not transcribed involve selection of the jury venire and striking the jury; bench conferences among the trial judge, the prosecution, and defense counsel; or the polling of the jury. Regarding transcription of a capital murder trial ... Rule 19.4(a), Ala.R.Crim.P., states:
"`In all capital cases (criminal trials in which the defendant is charged with a death penalty offense), the court reporter shall take full stenographic notes of voir dire of the jury and of the arguments of counsel, whether or not such is ordered by the judge or requested by the prosecution or defense. This duty may not be abrogated by the judge or waived by the defendant.'"
"(Emphasis added in [Land].)
"In Ex parte Harris, [632 So.2d 543 (Ala. 1993),] this Court noted that the phrase `arguments of counsel,' as it is used in Rule 19.4(a), does not refer to `every incidental discussion between counsel and the trial judge that occurs at the bench,' but, rather, refers only to counsel's opening and closing arguments. 632 So.2d at 545. Thus, it is clear that Rule 19.4(a) did not require the court reporter to transcribe the various bench conferences now placed in issue by Land. Although Land claims error in the lack of a transcript of the court's selection of the venire and of the actual striking of the jury, Rule 19.4(a) requires only transcription of the `voir dire of the venire,' which was transcribed in full and which is part of the record in this case. Nor does Rule 19.4(a) require transcription of the polling of the jury."
678 So.2d at 245 (footnote omitted).
The record indicates that Broadnax filed a motion to supplement the record with the trial court and this Court on April 21, 1999. This Court ordered the trial court to dispose of Broadnax's motion within 21 days from the date of the order. On April 27, 1999, the trial court denied the motion stating that there were no transcripts of the pre-trial proceedings or the proceeding on the motion for a new trial. Broadnax filed an additional motion to supplement the record on May 17, 1999, and based on the trial court's order indicating that there were no transcripts of the proceedings, the motion to supplement was denied.
In this case, Broadnax claims that transcripts of a suppression hearing and a Frye *fn2 hearing were omitted from the record. Although the case action summary indicates that there were preliminary hearings set for certain dates, the record does not indicate that any preliminary hearings were actually conducted.
Additionally, Broadnax claims that a "previous discussion" between the trial court and the venire was not recorded. (Broadnax's brief to this Court at p. 2.) However, the record contains a transcript of the voir dire proceedings from the trial court's introduction of the case through the striking of the jury. Thus, we find no support for Broadnax's contention.
The case action summary also indicates that a hearing on the motion for a new trial was set for August 14, 1998, and that the motion for a new trial was denied on that date. However, there are no notations in the case action summary indicating that a hearing on the motion for a new trial occurred.
Broadnax argues that "it is quite possible the trial court [during the hearing on his motion for a new trial] evaluated the effectiveness of Mr. Broadnax's trial counsel at the motion for [a] new trial, or that the trial court evaluated possible juror misconduct issues." (Broadnax's brief to this Court at p. 3.) The record does not support this argument. First, we note that these issues were not filed in Broadnax's motion for a new trial filed on October 9, 1997. Additionally, the record does not contain any amended or supplemental filings concerning his motion for a new trial; therefore, we question whether these issues were presented to the trial court. The record, however, does indicate that Broadnax's trial counsel was not permitted to withdraw until December 1, 1998, when appellate counsel was appointed. The hearing on his motion for a new trial, according to Broadnax, occurred on August 14, 1998, when he was represented by trial counsel. Indeed, an argument by trial counsel that trial counsel had been ineffective, made at a hearing on his motion for a new trial, if a hearing was in fact conducted, would be untimely and absurd. Furthermore, Broadnax does not allege any specific claims of error from the record that were adversely determined at the alleged hearing. Thus, we fail to find, and Broadnax fails to show, any prejudice with regard to the trial court's denial of his motion for a new trial.
Our review of the trial proceedings indicates that the court reporter transcribed all portions of the record required by Rule 19.4(a), Ala.R.Crim.P., to be transcribed. Furthermore, there is no indication in the case action summary that any pre-trial or post-trial hearings were conducted. Based on the record before us and the trial court's response to our order dated April 27, 1999, we conclude that Broadnax's argument is based on mere speculation. We note that Broadnax does not assert that in any of his requests or motions for transcription of these proceedings or offer support with an affidavit from trial counsel that these proceedings occurred or that a court reporter was present. We cannot conclude from such a silent record and such a minimal showing from Broadnax that plain error occurred. Thus, after reviewing the record at the point of each transcript omission referenced by Broadnax and in light of the fact that transcription of the entire proceedings pursuant to Rule 19.4, Ala.R.Crim.P., occurred, we conclude that the alleged lack of a complete transcript has not adversely affected his substantial rights. Therefore, we find no plain error.
Broadnax contends that the trial court "reversibly erred to permit the state to proceed against [him] on four capital charges for two deaths." (Issue XXI in Broadnax's brief to this Court at p. 91.) He argues that the four-count indictment violated his Fifth Amendment and Fourteenth Amendment protection against double jeopardy. Broadnax did not object at trial to the four-count indictment; therefore, we review for plain error. Rule 45A, Ala.R.App.P.
This Court addressed the merits of a claim similar to Broadnax's claim in Williams v. State, 710 So.2d 1276 (Ala.Cr.App. 1996), aff'd, 710 So.2d 1350 (Ala.), cert. denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998), stating:
"[T]he test in determining whether the charges run afoul of the Double Jeopardy Clause is whether each crime contains a statutory element not contained in the other. Blockburger v. United States, 284 U.S. 299 (1932); see also United States v. Dixon, 509 U.S. 688 (1993)(a plurality of the United States Supreme Court reaffirmed the Blockburger test as the sole criterion for judging double jeopardy claims); Seritt v.State, 647 So.2d 1 (Ala.Cr.App.), cert. denied, 647 So.2d 1 (Ala. 1994). In this case, each capital offense charge required proof of an element that the other did not. Proof of the murder-robbery charge required proof of a robbery in the first degree, which the multiple murder charge did not require.
...We therefore conclude that under the Blockburger test, the appellant was properly indicted and convicted for two separate and distinct capital offenses `notwithstanding a substantial overlap in the proof offered to establish the crimes,' Iannelli v. United States, 420 U.S. 770, 785 n. 17 (1975); Jackson v. State, 518 So.2d 726, 761 (Ala.Cr.App. 1985), rem'd on other grounds, 516 So.2d 768 (Ala. 1986). Therefore, the charges were not multiplicitous and the appellant's convictions for both offenses did not violate the Double Jeopardy Clause."
Because each capital offense charged in Broadnax's indictment required proof of an element the other did not, we find no error, plain or otherwise.
Broadnax contends that the trial court erred when it allowed the jury to separate each evening. (Issue XX in Broadnax's brief to this Court.) Specifically, he argues that sequestration of the jury was necessary because of the great amount of publicity surrounding this case. He further argues that the trial court's allowing the jury to separate without his consent denied him of his right to a fair trial and denied him of his right to due process under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, and under the Alabama Constitution and Alabama law.
The trial court, in allowing the jury to separate, acted pursuant to §12-16-9, Ala.Code 1975, amended effective June 15, 1995, which provides:
"In the prosecution of any felony case the trial court in its discretion may permit the jury hearing the case to separate during the pendency of the trial. The court may at any time on its own initiative or on motion of any party, require that the jury be sequestered under the charge of a proper officer whenever they leave the jury box or the court may allow them to separate."
Broadnax argues that jury separation at the time of his trial, however, should be governed by Rule 19.3, not § 12-16-9, Ala. Code 1975. At that time, Rule 19.3 required sequestration of a jury in a death-penalty case, unless all parties agreed to allow the jury to separate. Broadnax claims that, pursuant to Rule 19.3, sequestration of the jury is necessary to avoid "the improper injection of arbitrary passion [or] prejudice" in cases such as his, where "the offense [charged] received an extraordinary amount of publicity, and where many of the jurors were familiar with the offense." (Broadnax's brief to this Court at p. 91).
The Alabama Supreme Court recently addressed this issue in Ex parte Stewart, 730 So.2d 1246 (Ala. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 119, 145 L.Ed.2d 101 (1999). In Stewart the Court held:
"Where two provisions directly conflict, this Court may presume that the Legislature intended to repeal the earlier provision by adopting the later one. The version of Rule 19.3 in effect at the time of Stewart's third sentencing hearing became effective on January 1, 1991. The amended version of § 12-16-9 became effective on June 15, 1995. The irreconcilable language of that later provision compels us to conclude, as the Court of Criminals Appeals did, that the Legislature intended to change the effect of Rule 19.3 insofar as it conflicted with § 12-16-9. When the Legislature, through a general act, changes the procedural rules promulgated by this Court, we are bound by the Constitution and the laws of this state to give effect to the Legislature's changes. Therefore, we conclude that the Court of Criminal Appeals correctly held that § 12-16-9 overrode the conflicting portions of Rule 19.3." *fn3
730 So.2d at 1250. See also Drinkard v. State, [Ms. CR-95-0055, December 18, 1998] ___ So.2d ___ (Ala.Cr.App. 1998), rev'd on other grounds, [Ms. 1980662, Nov. 19, 1999] ___ So.2d ___ (Ala. 1999). Accordingly, pursuant to § 12-16-9, Ala. Code 1975, as amended, the trial court had complete discretion to sequester the jury.
At the beginning of the presentation of the evidence, the trial court instructed the jury as follows:
"In the meantime [the jury] is going to be in recess. While you're in recess do not discuss the case with anyone. Do not allow anyone to discuss it with you. And also, do not discuss it among yourselves. Do not read, watch or listen to any news accounts concerning this case or go by any locations for the purposes of testing your observation against the testimony and recollection of witnesses."
(R. Vol. IV at 158.) Throughout the course of the trial, the trial court periodically reminded the jury of those instructions. Moreover, no incidents regarding improper jury influence were brought to the trial court's attention during the course of Broadnax's trial and Broadnax presents no such incident on appeal. What Broadnax has presented to this Court is only bare allegations of prejudice that, he says, resulted from the trial court's failure to sequester the jury; he offers no concrete factual basis to support these claims. We will not base error on speculation and conjecture. In deciding to allow the jury to separate, the trial court in this case did so with great caution, providing adequate instructions to the jury. Therefore, we conclude that the trial court did not abuse its discretion when it permitted the jury to separate.
Broadnax claims that "[t]he trial court reversibly erred when it denied [him] access to records essential to mounting a defense and rebutting the state's case." (Issue XI in Broadnax's brief to this Court at p. 73.) Specifically, Broadnax argues that the trial court's denial of access to materials requested in paragraphs 7.a and 9 of his request for production was reversible error. Broadnax cites Ex parte Monk, 557 So.2d 832 (Ala. 1989), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 102 L.Ed.2d 215 (1963), in support of his argument.
On May 9, 1997, Broadnax filed a request for production. (C.R. 128-30.) The record indicates the trial court reviewed each paragraph of the request and indicated whether each paragraph should be granted or denied. According to Broadnax, the following requests were erroneously denied:
"7. To permit the Defendant to analyze, inspect, and copy or photograph any and all books, papers, documents, tangible objects, controlled substances, buildings or places, or portions of any of these things which are in the possession, custody and control of the state and:
"a. Which are material to the preparation of the defense, including made by the district attorney or his agents, or by law enforcement agents, in connection with this investigation or prosecution of the case, or statements made by state witnesses or prospective state witnesses, including police incident reports and supplemental reports; and
"9. Any and all material in the possession of the state, or which through due diligence may be learned by the state, which might exculpate the Defendant, negate the charges against him, or lead to a reasonable doubt as to his guilt. This includes, but is not limited to, promises or agreements as to treatment afforded state witnesses, information having to do with witnesses's incorrect identification, results of scientific, physical or medical tests which might exculpate the Defendant."
Rule 16.1(e), Ala.R.Crim.P., states, in pertinent part:
"[T]he discovery or inspection of reports, memoranda, witness, lists, or other internal state/municipality documents made by the prosecutor or the prosecutor's agents, or by law enforcement agents, in connection with the investigation or prosecution of the case, or of statements made by state/municipality witnesses or prospective state/municipality witnesses, is not authorized."
This Court stated in Maples v. State, [Ms.CR-97-0548, Mar. 26, 1999] ___ So.2d ___, ___ (Ala.Cr.App. 1999), aff'd, [Ms. 1981451, Dec. 10, 1999] ___ So.2d ___ (Ala. 1999):
"`In Alabama, there is no constitutional right to discovery in a criminal case. Rule 19, Ala.R.Crim.P., affords an accused, a limited right of discovery in a pending criminal action. The extent of discover is within the discretion of the trial court. As this court stated in Mason v. State, [Ms.CR-94-2143, March 6, 1998] ___ So.2d ___, ___ (Ala.Cr.App. 1998):
"`"While [Ex parte]Monk[, 557 So.2d 832 (Ala. 1989),] does encourage liberal discovery in capital murder cases, it does not mandate that the state disclose to a defendant the name and address of every individual who has furnished information to the state in the investigation of a crime; rather, `Monk made it clear that whether to order discovery beyond that required by the constitution or by state law or rule is discretionary with the trial court.' Council v. State, 682 So.2d 500, 501 (Ala. 1996)(Hooper, C.J., concurring specially in denial of certiorari review)."'"
"Ex parte Land,[Ms.CR-97-1473, July 2, 1998] ___ So.2d ___, ___ (Ala.Cr.App. 1998)(emphasis original). A trial judge may order more extensive discovery when a defendant is facing the death penalty, but Monk does not require that the judge do so. Rather, the extent to which discovery will be allowed lies within the discretion of the trial court."
We find little direction in Broadnax's brief regarding specifically what discovery he was denied or how he was prejudiced by the state's alleged failure to produce the information. We note that during a hearing regarding the admission of some telephone records, the state indicated that it had an open-file policy with Broadnax. (R. Vol. VII at 12.) There is no indication in the record on appeal other than bare allegation and speculation by Broadnax that the state withheld any information to which he was entitled. *fn4
In addition, Broadnax presents a bare claim that the denial of his discovery request prevented him from gathering and presenting mitigating evidence. However, Broadnax fails to provide this Court with any example or offer any proof of what the suppressed evidence might be or how the trial court's ruling prejudiced him. We simply refuse to engage in speculation to find the reversible error Broadnax urges.
Moreover, we have reviewed the trial court's ruling in light of the entire record, and we conclude that the trial court did not abuse its discretion in denying Broadnax's general requests for discovery in paragraphs 7.a and 9 of his motion for production.
Broadnax contends that the trial court erred in admitting into evidence photographs of the victims at the crime scene and during their autopsies. (Issue IX in Broadnax's brief to this Court.) Specifically, he argues that because there were so many photographs admitted and because they were so horrendous, the force of these pictures overwhelmed the emotions of the jury and resulted in prejudice against him.
Initially, we note that at the outset of the trial Broadnax stated that his objection to the crime scene photographs was based upon the grounds that such pictures were repetitive, "horrendous" and prejudicial to his case. (R. Vol. III at 10.) The trial court reviewed the crime scene photographs and the state agreed to remove at least four because they were repetitive. Broadnax did not enter another objection to the crime scene photographs. Additionally, we find no objection from Broadnax when either the crime scene or the autopsy photographs were admitted. Because Broadnax did not receive an adverse ruling upon which to predicate error, we conduct a plain error review. Rule 45A, Ala.R.App.P.
Broadnax first disputes the admission into evidence of nearly 75 photographs of the crime scene. Approximately one-half of the photographs were of the victims and the other half depicted other aspects of the crime scene. In Pilley v. State, [Ms. CR-96-1781, Aug. 14, 1998] ___ So.2d ___, ___ (Ala.Cr.App. 1998), rev'd on other grounds, [Ms. 1980132, Jan. 28, 2000) ___ So.2d ___ (Ala. 2000), we addressed the issue of the admissibility of photographs: "Photographic evidence is admissible in a criminal prosecution if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence. Kuenzel v. State, 577 So.2d 474 [(Ala.Cr.App. 1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991)]."
___ So.2d at ___. See also Rule 402, Ala.R.Evid. Photographs that depict the crime scene are relevant and, therefore, admissible. Aultman v. State, 621 So.2d 353 (Ala. Cr. App. 1992), cert. denied, 510 U.S. 954, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993); Ex parte Siebert, 555 So.2d 780, 783-84 (Ala. 1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990); Hill v. State, 516 So.2d 876 (Ala. Cr. App. 1987).
"`The fact that a photograph is gruesome and ghastly is no reason to exclude it from evidence, so long as the photograph has some relevancy to the proceedings, even if the photograph may tend to inflame the jury. Magwood v. State, 494 So.2d [124,] 141 [(Ala.Cr.App. 1985)]. See also Hutto v. State, 465 So.2d 1211 (Ala.Cr.App. 1984); Jones v. State, 439 So.2d 776, (Ala.Cr.App. 1983); Godbolt v. State, 429 So.2d 1131 (Ala.Cr.App. 1982).'"
Gentry v. State, 689 So.2d 894, 907 (Ala.Cr.App. 1994), rev'd on other grounds, 689 So.2d 916 (Ala. 1996)(quoting Bankhead v. State, 585 So.2d 97 (Ala.Cr.App. 1989), rev'd on other grounds, 625 So.2d 1146 (Ala. 1993)). Moreover, "`[t]his rule of law applies not only to photographs, but to photographic slides as well. Goffer v. State, 430 So.2d 896 (Ala.Cr.App. 1983).'" Lee v. State, 562 So.2d 657, 663 (Ala.Cr.App. 1989).
"`"Photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors." Ex parte Siebert, 555 So.2d 780, 784 (Ala. 1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990). See generally C. Gamble, McElroy's Alabama Evidence, §207.01(2) (4th ed. 1991). "The photographs of the victim were properly admitted into evidence. Photographic exhibits are admissible even though they may be cumulative, ... demonstrative of undisputed facts, ... or gruesome...." Williams v. State, 506 So.2d 368, 371 (Ala. Cr. App. 1986), cert. denied, 506 So.2d 372 (Ala. 1987).'
"DeBruce v. State, 651 So.2d 599, 607 (Ala. Cr. App. 1993). See also Ex parte Bankhead, 585 So.2d 112 (Ala. 1991)."
Hutcherson v. State, 677 So.2d 1174, 1200 (Ala.Cr.App. 1994), rev'd on other grounds, 677 So.2d 1205 (Ala. 1996) (emphasis added.) See also Giles v. State, 632 So.2d 568 (Ala.Cr.App. 1992), aff'd, 632 So.2d 577 (Ala. 1993), cert. denied, 512 U.S. 1213, 114 S.Ct. 2694, 129 L.Ed.2d 825 (1994); Haney v. State, 603 So.2d 368 (Ala. Cr. App. 1991), aff'd, 603 So.2d 412 (Ala. 1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993).
However, in some cases, even relevant evidence is excluded on other grounds.
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Rule 403, Ala.R.Evid. (Emphasis added.)
We conclude from our review of the record and the photographs that the admission of the crime scene photographs does not constitute reversible error. These pictures were offered to assist the jury in its understanding of the testimony of one of the detectives who investigated the crime scene and the testimony of the crime scene evidence technician. (R. Vol. IV at 253, 285-93). Therefore, despite the number of gruesome photos, they constituted an essential part of the state's case and were necessary to the jury's comprehension of the witnesses' testimony.
Broadnax also argues that the admission of over 70 graphic photographs taken during the autopsies of the victims was prejudicial to his case.
The history of the admission of autopsy photographs is extensive:
"With regard to photographs of the victim, . . . even though they are cumulative and pertain to undisputed matters, generally photographs that depict the external wounds on the body of the victim are admissible. Bankhead, 585 So.2d at 109. As we held in Jenkins v. State, 627 So.2d 1034 (Ala. Crim. App. 1992), aff'd, 627 So.2d 1054 (Ala. 1993), '[t]he state [has] the burden of proving that the victim [is] dead, and [photographs are] direct evidence on that point. . . .'"
Sockwell v. State, 675 So.2d 4, 21 (Ala. Cr. App. 1993), aff'd, 675 So.2d 38 (Ala. 1995), cert. denied, 519 U.S. 838, 117 S.Ct. 115, 136 L.Ed.2d 67 (1996) (emphasis added.) Moreover, autopsy photographs depicting the internal views of wounds are likewise admissible. In Dabbs v. State, 518 So.2d 825, 829 (Ala.Cr.App. 1987), we stated that even though autopsy photographs of a victim's head injuries, as viewed internally, may be gruesome, admission of such photos is sometimes necessary to demonstrate the extent of the victim's injuries. See Dabbs, supra.
Our review of Dr. Brissie's testimony indicates that the autopsy photographs that were admitted into evidence during his testimony depicted pictures of the victims, their blood, bruising, and both external and internal views of their wounds. Although the autopsy photographs may have been disturbing, we agree with the trial court that the photos were indeed relevant to illustrate the extent of the victims' injuries and they were necessary to corroborate the testimony of Dr. Brissie. The pictures taken during the autopsies obviously "shed light" on such crucial issues as the deaths of the victims and the manner and method of their deaths. See Dabbs, supra. Thus, we agree their admission into evidence was not plain error.
In conclusion, we agree with the trial court's determination that despite the nature and number of pictures admitted, the admission of both the crime scene photographs and the autopsy photographs was necessary to assist the jury in its understanding of the various witnesses' testimonies. The trial court committed no plain error in this regard.
Broadnax maintains that the trial court erred in failing to order a change of venue for his trial because, he says, many of the jurors had heard about the case through what he says was extensive media coverage and, he says, this exposure prevented him from receiving a fair trial. (Issue XVII in Broadnax's brief to this Court.)
Our review of the record indicates that Broadnax did not move for a change of venue; therefore, his claim will be reviewed only for plain error. Rule 45A, Ala.R.App.P.
During the voir dire examination of potential jurors, the veniremembers were asked whether they had read or heard anything concerning this case. The record indicates that although some of the jurors stated that they had heard about the case, none of the potential jurors indicated that they could not put what they had heard out of their minds.
In Boyd v. State, 715 So.2d 825 (Ala.Cr.App. 1997), this Court stated:
"'"[A] change of venue must be granted only when it can be shown that the pretrial publicity has so `pervasively saturated' the community as to make `the court proceedings nothing more than a "hollow formality"' ... or when actual prejudice can be demonstrated. The burden of showing this saturation of the community or actual prejudice lies with the appellant."'
"George v. State,  So.2d  at 833 [(Ala.Cr.App. 1996)], quoting Oryang v. State, 642 So.2d 979, 983 (Ala.Cr.App. 1993).
"`The defendant is not entitled to jurors who are totally ignorant of the facts and issues involved in the case or to jurors who never entertained a preconceived notion as to the defendant's guilt of innocence. Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985). A defendant is entitled to a trial by jurors who can lay aside any preconceived impressions or opinions and render a verdict based on the evidence which is presented at trial, id. The record in this case indicates that the appellant received such a trial. See also Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961). Because the appellant has failed to show that the pre-trial publicity in this case was "inherently prejudicial," Holladay v. State, [549 So.2d 122 (Ala.Cr.App. 1988)], or "presumptively prejudicial," Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App. 1990), affirmed, 577 So.2d 531 (Ala. 1991), and the appellant has also failed to show that there was actual juror prejudice, we find no abuse of discretion by the trial court or manifest error in his finding of impartiality and his denial of the appellant's motion for change of venue. Irvin v. Dowd, 366 U.S. at 724, 81 S.Ct. at 1643; Ex parte Grayson, 479 So.2d at 80.'
"Oryang v. State, 642 So.2d at 993-94." 715 So.2d at 848.
"`Newspaper articles or widespread publicity, without more, [is] insufficient to grant a motion for change of venue.'" Harris v. State, 632 So.2d 503, 517-18 (Ala.Cr.App. 1992), aff'd, 632 So.2d 543 (Ala. 1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995), quoting Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985).
The voir dire conducted by the trial court and by counsel clearly showed that none of the prospective jurors were prejudiced by pretrial publicity. Therefore, Broadnax has failed to show that any actual prejudice resulted from the pretrial publicity. Boyd v. State, supra; Williams v. State, supra; Oryang v. State, 642 So.2d 989, 993 (Ala.Cr.App. 1994). Cf. Ex parte Neal, 731 So.2d 621 (Ala. 1999); Hyde v. State, [Ms. CR-95-2036, January 30, 1998] ___ So.2d ___ (Ala.Cr.App. 1998), aff'd, [Ms. 1971109, Mar. 10, 2000] ___ So.2d ___ (Ala. 2000); and Price v. State, 725 So.2d 1003 (Ala.Cr.App. 1997), aff'd, 725 So.2d 1063 (Ala. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1809, ___ L.Ed.2d ___ (1999). Thus, the trial court did not commit plain error in conducting the trial in Jefferson County.
Broadnax contends that the trial court erred in denying his motion for individual voir dire. (Issue XVI in Broadnax's brief to this Court.) Specifically, he argues that because he was required to conduct voir dire in a group setting, he was not given ample opportunity to question individual veniremembers' knowledge of this case, resulting in a denial of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and under the Alabama Constitution and Alabama law.
The record indicates that Broadnax filed a pretrial motion requesting individualized voir dire on the grounds that this case involved such sensitive issues as the death penalty and pre-trial publicity, that individual questioning was required to select a fair and impartial jury. (R. Vol. I at 119-120.) Although the trial court denied this motion, it made certain accommodations to limit the possibility of any prejudice, stating that it would allow individual questioning of any potential jurors who had a fixed opinion regarding the death penalty or who exhibited prior knowledge about the case. (R. Vol. I at 120.) The record reveals that potential jurors who indicated that they had any reservations about capital punishment were sequestered and questioned individually. (R. Vol. I at 41, 64-66, 127-57.) The record also reveals that when the trial court asked the venire whether anyone had prior knowledge about the facts of this particular case, several people answered affirmatively. However, when the trial court asked those people whether their prior knowledge would prevent them from being able to listen to the evidence in this case and base their verdict solely upon that evidence as introduced at trial, no one responded. (R. Vol. I at 42-43, 84-87, 125-27.) Thus, no further individualized questioning was conducted or required as to that particular publicity issue.
"`A trial court is vested with great discretion in determining how voir dire examination will be conducted, and that court's decision on how extensive a voir dire examination is required will not be overturned except for an abuse of that discretion. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Lane v. State, 644 So.2d 1318 (Ala.Cr.App. 1994); Harris v. State, 632 So.2d 503 (Ala.Cr.App. 1992), affirmed, 632 So.2d 543 (Ala. 1993), affirmed, 513 U.S. 504, 115 S.Ct. 1031 (1995).' Ex parte Land, 678 So.2d 224 (Ala. 1996), cert. denied,  U.S. , 117 S.Ct. 308, 136 L.Ed.2d 224 (1996).
"`As the general rule, the decision whether to voir dire perspective jurors individually or collectively is in the sound discretion of the trial court. Waldrop v. State, 462 So.2d 1021 (Ala.Cr.App. 1984), cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed 2d 618 (1988). This discretion is limited, however, by the requirements of due process. United States v. Hawkins, 658 F.2d 279 (5th Cir. 1981); Waldrop v. State. Individual questioning may be necessary under some circumstances to ensure that all prejudice has been exposed. United States v. Hurley, 746 F.2d 725 (11th Cir. 1984).'"
Boyd v. State, 715 So.2d at 848-49, quoting Haney v. State, 603 So.2d at 402.
"Even in capital cases, there is no requirement that a defendant be allowed to question each prospective juror individually during voir dire examination, and it is within the trial court's discretion whether to allow such a request. Bell v. State, 475 So.2d 601 (Ala.Cr.App. 1984), aff'd, 475 So.2d 609 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985); Raines v. State, 429 So.2d 1104 (Ala.Cr.App.), aff'd, 429 So.2d 1111 (Ala. 1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983)." Hallford v. State, 548 So.2d 526, 538 (Ala.Cr.App.1988), aff'd, 548 So.2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed. 2d 342 (1989) (emphasis added.) See also Taylor v. State, 666 So.2d 36 (Ala.Cr.App.), aff'd on return to remand, 666 So.2d 71 (Ala.Cr.App. 1994), aff'd, 666 So.2d 73 (Ala. 1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996).
A complete review of the voir dire indicates that the method of the examination and the precautions taken by the trial court "provided reasonable assurance that prejudice would have been discovered if present." Haney v. State, 603 So.2d at 402. We view these precautionary measures implemented by the trial court under its discretion as an effort to limit the possibility of prejudice. See Fletcher, 291 Ala. 67, 277 So.2d 882 (1973). The questioning that was conducted by the state, by Broadnax's counsel, and by the trial court afforded the potential jurors ample opportunity to voice their opinions as to issues both of capital punishment and of pre-trial publicity. We note that Broadnax does not allege any specific instance when a veniremember's response during voir dire may have "tainted" the venire. Moreover, the trial court, through its allowance of further, individualized questioning when necessary, allowed counsel plenty of opportunity to explore those opinions. Having made adequate concessions for detailed -- and when necessary, individualized -- questioning, the trial court properly denied Broadnax's pre-trial motion for individual voir dire.
Broadnax argues that the trial court improperly granted the State's challenges for cause of certain jurors. (Issue XVIII in Broadnax's brief to this Court.) The record indicates that the trial court granted six of the state's challenges for cause. A review of the individual questioning of the jurors regarding their views of capital punishment indicates that these potential jurors stated that they would not be able to put aside their personal views or religious beliefs and follow the law in a case involving the death penalty.
"`A prospective juror may not be excluded from a capital case for personal opposition to the death penalty unless the juror's beliefs would "`prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (footnote omitted). On the other hand, "[a] venire member who believes that the death penalty should automatically be imposed in every capital case should be excused." Martin v. State, 548 So.2d 488, 491 (Ala.Cr.App. 1988), affirmed, 548 So.2d 496 (Ala.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). Accord, Bracewell v. State, 506 So.2d 354, 358 (Ala.Cr.App. 1986).'
"Kuenzel v. State, 577 So.2d 474, 484-85 (Ala.Cr.App. 1990), affirmed, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).
"`The proper standard for determining whether a prospective juror may be excluded for cause because of his or her views on capital punishment is "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 2051, 95 L.Ed.2d 622 (1987). "The crucial inquiry is whether the venireman could follow the court's instructions and obey his oath, notwithstanding his views on capital punishment." Dutton v. Brown, 812 F.2d 593, 595 (10th Cir.), cert. denied, Dutton v. Maynard, 484 U.S. 836, 108 S.Ct. 116, 98 L.Ed.2d 74 (1987). A juror's bias need not be proved with "unmistakable clarity" because "juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism." Id.
"`A trial judge's finding on whether or not a particular juror is biased "is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province." Witt, 469 U.S. at 429, 105 S.Ct. at 855. That finding must be accorded proper deference on appeal. Id. "A trial court's rulings on challenges for cause based on bias [are] entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion." Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala. 1981).'
"Martin v. State, 548 So.2d 488, 490-91 (Ala.Cr.App. 1988), affirmed, 548 So.2d 496 (Ala. 1989), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). `[A] blanket declaration of support of or opposition to the death penalty is not necessary for a trial judge to disqualify a juror.' Ex parte Whisenhant, 555 So.2d 235, 241 (Ala. 1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990)."
Taylor v. State, 666 So.2d at 46-7.
Each of the six potential jurors who the state challenged for cause stated that their opposition to the death penalty would not allow them to put their personal views aside and follow the law. Each potential juror clearly indicated that he or she would not be able to fairly perform his or her duties as a juror. The record supports the trial court's granting the state's challenges for cause with regard to these potential jurors. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (Ala. 1985).
Broadnax contends that the trial court erred in allowing the indictment to be read before the jury, in informing the jury that the district attorney had signed the indictment, and in allowing the indictment to be sent to the jury room during the jury's deliberation of this case. (Issue XIV in Broadnax's brief to this Court.) He argues that each of these events prejudiced him before the jury.
Initially, we note that Broadnax did not object to any of the instances where the state read the indictment to the jury, when the trial court informed the jury that the indictment had been signed by the district attorney, or when the indictment was sent to the jury room during its deliberations. Therefore, because he did not properly preserve these contentions, we are limited to reviewing this issue for plain error. Rule 45A, Ala.R.App.P.
In Boyd v. State, supra, we addressed this same issue, stating:
"[T]he district attorney's noting in reading the indictment to the jury, that it was signed by him, is not an injection of his personal belief or otherwise improper. Similarly, in Arthur v. State, 711 So.2d 1031 (Ala.Cr.App. 1996), the appellant argued that the prosecutor improperly inserted his credibility in an attempt to bolster the possibility of conviction by stating that the indictment had been signed by him in his capacity as district attorney. This Court stated:
"`Despite the appellant's argument to the contrary, there was no implication by the prosecutor in this case that he believed the appellant to be guilty and, therefore, was prosecuting the case. The jury was amply instructed that an indictment is not an indication of guilt but rather a vehicle for bringing an individual to trial and the prosecutor's acknowledgment that he signed the indictment in his capacity as district attorney was a statement of fact rather than an opinion or insertion of credibility.'
"Arthur, 711 So.2d at 1054." 715 So.2d at 841-42.
The record reveals that the trial court first read the indictment to the potential jurors before the attorneys conducted voir dire in an attempt to see if any potential jurors had any prior knowledge of the matters alleged in the indictment. (R. Vol. III at 16.) When the trial court concluded reading the indictment aloud, it stated that the document was signed by the district attorney. (R. Vol. III at 18.) We conclude that as was the case in Boyd, the reading of the indictment and the notation that the district attorney had signed the document were both narrated to the jury as statements of fact. We, therefore, reject Broadnax's claims of error.
After the jury had begun its deliberations, it requested that the trial court send the indictment back to the jury room because the jurors needed the indictment to differentiate between the counts alleged in the four verdict forms. (R. Vol. VIII at 297.) Broadnax did not object when the trial court granted the request. (R. Vol. VIII at 298.) We have reviewed the four verdict forms contained in the record; we note that each form merely states that the jury has determined that Broadnax is guilty as charged in "Count ___" of the indictment. (R. Vol. I at 108-11.) Because these forms do not themselves differentiate between the charges against Broadnax in the different counts in the indictment, we can understand the jury's confusion and consequent need to examine the actual indictment. Thus, we conclude that the trial court did not commit plain error in sending the indictment back to the jury room at the jury's request.
Moreover, the risk that the trial court erred by allowing the jury to have the indictment during deliberation is lessened when the trial court instructs the jury that the indictment is not evidence in the case. Wiggins v. State, 347 So.2d 543 (Ala.Cr.App. 1977). When the trial court began to charge the jury, it instructed it that Broadnax was clothed with the presumption of innocence, despite the crimes with which he was charged in the indictment. (R. Vol. VIII at 253.) Furthermore, the trial court instructed:
"[T]he fact that this indictment was returned by a grand jury is not a circumstance to be considered against the defendant. This indictment is merely the means by which this prosecution was brought into court and it states, on the one hand, the formal charge that's brought against the defendant. And it advises him of those charges that he will be called upon to defend against at the time that this case is reached for trial.
"Now, to these charges that are set out in this indictment the defendant has entered a plea of not guilty. And in legal terminology, this puts the issue at bar, and these are the issues we are trying to resolve by the trial of this case.
"The charges of capital murder as set out in Counts 1, 2, 3, and 4, of the indictment, on the one hand, and his plea of not guilty on the other.
"As jurors, you are the triers and the finders of the facts in this case from the evidence. And in determining and deciding the guilty or the innocence of this defendant, you are confined to the evidence that has been presented to you in the form of testimony from this witness stand to my immediate right, plus any exhibits that were introduced into evidence."
(R. Vol. VIII at 256-57.) The trial court then again read the indictment to the jury, specifically setting out the different counts with which Broadnax was charged. (R. Vol. VIII at 265-68.) We conclude that the trial court made clear, through its instructions, that the indictment was not to be considered as evidence against Broadnax and that the charges contained in it should not have weighed into its deliberation of the evidence presented in court. See Wiggins, supra. Jurors are presumed to follow the trial court's instructions. See Perkins v. State, [Ms. CR-93-1931, Nov. 19, 1999] ___ So.2d ___ (Ala.Cr.App. 1999); Holland v. State, 588 So.2d 543 (Ala.Cr.App. 1991). Thus, in light of these specific instructions, we conclude that the trial court did not commit plain error in reading the indictment to the jury, in telling the jury that the document had been signed by the district attorney, or in sending the indictment to the jury room upon its request.
Broadnax maintains that the trial court erred in admitting into evidence three statements he made to law enforcement officers. (Issue IV in Broadnax's brief to this Court.)
The record indicates that Broadnax has raised this issue for the first time on appeal. Thus, we will review this issue under the plain-error standard. Rule 45A, Ala.R.App.P.
Broadnax asserts that he should have been informed during his initial interview of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, he argues that the interview with Vince Cunningham, an investigator with the Birmingham Police Department, at a work release center was a custodial interrogation and that he was not advised of his Miranda rights before the interview.
"Miranda warnings are not necessarily required to be given to everyone whom the police question. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977). Miranda is only applicable when an individual is subjected to custodial interrogation. Davis v. Allsbrooks, 778 F.2d 168, 170 (4th Cir. 1985); Primm v. State, 473 So.2d 1149, 1158 (Ala.Crim.App.), cert. denied, 473 So.2d 1149 (Ala. 1985). `By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way.' Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612.
"There is a distinction which must be made between general interrogation and custodial interrogation since Miranda is inapplicable when interrogation is merely investigative rather than accusative. Kelley v. State, 366 So.2d 1145, 1148 (Ala.Crim.App. 1979); Primm, supra, at 1158; Johnston v. State, 455 So.2d 152, 156 (Ala.Crim.App.), cert. denied, 455 So.2d 152 (Ala. 1984). This distinction should be made on a case-by-case basis after examining all of the surrounding circumstances. United States v. Miller, 587 F.Supp. 1296, 1299 (W.D.Pa. 1984); Johnston, supra, at 156; Warrick v. State, 460 So.2d 320, 323 (Ala.Crim.App. 1984); Hall v. State, 399 So.2d 348, 351-52 (Ala.Crim.App. 1981); Kelley, supra at 1149."
534 So.2d at 347-48 (Ala.Cr.App. 1987). See State v. Smith, 715 So.2d 925 (Ala.Cr.App. 1998).
In deciding whether the questioning of a suspect is a custodial interrogation, the following factors should be considered:
"`(1) the language used to summon the individual, (2) the extent to which the defendant is confronted with evidence of guilt, (3) the physical surroundings of the interrogation, (4) the duration of the detention, and (5) the degree of pressure applied to detain the individual. United States v. Crisco, 725 F.2d 1228, 1231 (9th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984)'"
Hooks v. State, 534 So.2d at 348 (some citations omitted), quoting United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985). See also State v. Smith, 715 So.2d at 927.
In Click v. State, 695 So.2d 209 (Ala.Cr.App. 1996), cert. denied, 522 U.S. 1001, 118 S.Ct. 570, ___ L.Ed.2d ___ (1997), this Court stated:
"It is well established that `the prosecution may not use statements, whether exculpatory or inculpatory, of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). However, the safeguards required by Miranda are required only if the defendant is in custody when questioned. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Landreth v. State, 600 So.2d 440, 444 (Ala.Cr.App. 1992).
"Also, the fact that the questioning occurred at the police station does not necessarily lead to a conclusion that appellant was in custody for Miranda purposes.
"`[P]olice officers are not required to administer Miranda warnings to everyone they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.'
"Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50
L.Ed.2d 714 (1977)." 695 So.2d at 216-17.
Additionally, courts in other jurisdictions have addressed whether questioning an inmate is a custodial interrogation. A prison inmate is not automatically in "custody" within the meaning of Miranda. United States v. Conley, 779 F.2d 970, 972-73 (4th Cir. 1985), cert. denied, 479 U.S. 830, 107 S.Ct. 114, 93 L.Ed.2d 61 (1986). "For Miranda purposes, custody does not exist unless a public official questions the defendant 'in a context where [the defendant's] freedom to depart [is] restricted.'" Garcia v. Singletary, 13 F.3d 1487, 1492 (11th Cir.), cert. denied, 513 U.S. 908, 115 S.Ct. 276, 130 L.Ed.2d 193 (1994), quoting United States v. Conley, 779 F.2d 970 (4th Cir. 1985), cert. denied, 479 U.S. 830, 107 S.Ct. 114, 93 L.Ed.2d 61 (1986) (citations omitted); see also U.S. v. Menzer, 29 F.3d 1223, 1230-32 (7th Cir.), cert. denied, 513 U.S. 1002, 115 S.Ct. 515, 130 L.Ed.2d 422 (1994); State v. Owen, 1 Neb.Ct.App. 1060, 510 N.W. 2d 503 (1993). In order to determine whether a reasonable person would believe that his freedom had been diminished, the following factors must be considered: (1) the language used to summon the individual; (2) the physical surroundings of the interrogation; (3) the extent to which prison officials confronted the individual with evidence of his guilt; and (4) whether officials exerted any additional pressure to detain the individual. Garcia v. Singletary, 13 F.3d at 1490, citing Cervantes v. Walker, 589 F.2d 424 (9th Cir. 1978). In making the distinction between custodial and non-custodial interrogation, the most compelling question is whether the focus of the investigation has finally settled on the defendant. C. Gamble, McElroy's Alabama Evidence, § 201.02 (5th ed. 1996).
At trial, Cunningham testified that, on April 26, 1996, he went to the work release center in Alexander City and spoke to Broadnax about the last time Broadnax saw his wife. Cunningham stated that the interview was conducted in a large conference room, and that another law enforcement officer was present during the interview. According to Cunningham, Broadnax was not a suspect at that time and he was free to leave the interview. Cunningham testified that Broadnax talked to him voluntarily, that he answered in a coherent manner, and that no threats, promises, or inducements were made to him. Cunningham stated that Broadnax told him that Jan and DeAngelo visited him at his workplace on April 25 around 6:30 p.m. and that they left around 8:20 p.m. Additionally, Cunningham stated that Broadnax indicated that he telephoned his brother around 9:00 p.m., and that he telephoned Jan around 10:00 p.m.
Given that Cunningham testified that Broadnax was not a suspect, that the focus of the investigation had not centered on him, that he was free to leave the interview, that he spoke in a coherent manner, and that no threats, promises, or inducements were made for him to give a statement, the evidence indicates that the interview between Cunningham and Broadnax was not a custodial interrogation and that Broadnax's statement was voluntary. Thus, there was no plain error in the admission of Broadnax's initial statement.
Broadnax argues that his second statement to Cunningham should not have been admitted because, he says, the statement was not voluntary. Specifically, he argues that when he refused to sign the waiver-of-rights form, he essentially was invoking his right to remain silent.
"The Miranda right to counsel attaches only when a suspect invokes his right during custodial interrogation." Coral v. State, 628 So.2d 954, 973 (Ala.Cr.App. 1992), aff'd, 628 So.2d 1004 (Ala. 1993), cert. denied, 511 U.S. 1012, 144 S.Ct. 1287, 128 L.Ed.2d 61 (1994). "[T]he failure of the defendant to sign a written waiver form does not invalidate an otherwise valid waiver." Sabiar v. State, 526 So.2d 661, 667 (Ala.Cr.App. 1988), citing Inzer v. State, 447 So.2d 838 (Ala.Cr.App. 1983).
Cunningham testified that Broadnax was taken into custody and was transported from the Alexander City Work Release Center around 4:30 p.m. on April 29, 1996. *fn5 Cunningham further testified that, in an office at the Birmingham Police Department building around 7:00 p.m. on April 29, Broadnax made a statement. Cunningham stated that before Broadnax made the statement he read him his Miranda rights. According to Cunningham, although Broadnax refused to sign the waiver-of-rights form, he did not indicate that he wanted a lawyer. Additionally, Cunningham testified that Broadnax indicated that he wished to talk to him. The record does not reveal the content of the statement.
In this case, Cunningham testified that he read Broadnax his Miranda rights, that Broadnax indicated that he wished to speak to him, and that he did not request a lawyer. Because there is no evidence that Broadnax's Miranda rights were violated, the admission of the statement did not rise to the level of plain error. Additionally, because the content of the statement was not admitted into evidence, any error in the admission of testimony mentioning the circumstances surrounding the statement did not contribute to the verdict. Thus, any error in referring to the second statement was harmless. See Coral v. State, 628 So.2d at 973; Rule 45A, Ala.R.App.P.
Broadnax argues that his third statement, in which he stated that he sold his work boots a year ago to a white man and that his uniform had been missing for several months, was not voluntary.
In Hyde v. State, supra, this Court stated:
"Although extra-judicial confessions are prima facie involuntary, this court discussed the showing necessary for a trial court to determine whether a confession in voluntary in Johnson v. State:
"`"For a confession to be admissible, the state must present evidence that the defendant was informed of his Miranda rights and that the confession was voluntarily given." Mann v. State, 581 So.2d 22, 23 (Ala.Cr.App. 1991).'
"680 So.2d 1005, 1007 (Ala.Cr.App. 1996).
"`"In determining whether a confession is voluntary, the trial court's finding of voluntariness need only be supported by a preponderance of the evidence. Seawright v. State, 479 So.2d 1362 (Ala.Cr.App. 1985). The trial court's decision will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence. `"The test for the voluntary nature of an extra-judicial confession or inculpatory statement is whether in light of all the surrounding circumstances, the statement was free from inducement, threat or promise, either expressed or implied, which would have produced in the mind of the accused any fear of harm or hope of favor."' Seawright, 479 So.2d at 1367, citing Rogers v. State, 365 So.2d 322 (Ala.Cr.App.), cert. denied, 365 So.2d 334 (Ala. 1978)."
"`Dixon v. State, 588 So.2d 903, 907 (Ala. 1991).'
"Howard v. State, 678 So.2d 302, 306 (Ala.Cr.App. 1996)." ___ So.2d at ___.
Cunningham testified that Broadnax made a statement to him around 2:30 p.m. on May 2, 1996, and that Broadnax was arrested that same day. We are unable to determine from the record whether Broadnax made the statement before or after he was arrested for the murders. Cunningham stated that he read Broadnax his Miranda rights and that Broadnax signed a waiver-of-rights form before making the statement. (R. Vol. II at 367.) According to Cunningham, Broadnax did not invoke his rights during the interview, and no threats, promises or inducements were made in an effort to coerce Broadnax into giving a statement. Cunningham testified that it appeared that Broadnax understood his constitutional rights and that he voluntarily made the statement. Given that Cunningham testified that he read Broadnax his rights before Broadnax made the statement, that he signed a waiver of rights form, that he appeared to understand his constitutional rights, and that he was neither threatened nor promised anything in exchange for his statement, the evidence indicates that Broadnax's statement was voluntary. Thus, the admission of the statement did not constitute plain error. Rule 45A, Ala.R.App.P.
Additionally, Broadnax contends that the trial court erred in failing to hold a suppression hearing concerning the admission into evidence of the three statements.
In Nettles v. State, 731 So.2d 626 (Ala.Cr.App. 1998), this Court stated:
"The procedure for determining the voluntariness of confessions has been well-settled for over 30 years. The Alabama Supreme Court first outlined the procedure in Duncan v. State, 278 Ala.145, 176 So.2d 840 (Ala. 1965), in response to the United States Supreme Court's mandate in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In Duncan, the Court set out the following procedure:
"We are clear to the conclusion that whenever a motion is made for the question of the voluntariness of a confession to be determined outside the presence of the jury, the motion should be granted. In such a hearing, the trial judge sitting alone should make a determination upon a proper record of the issue of voluntariness. At such a hearing, the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained."
731 So.2d at 630. (Emphasis added.)
The clerk's record does not contain a motion to suppress the statements or a request for a suppression hearing. Additionally, our review of the record reveals that Broadnax did not object at trial to any failure of the court to hold a suppression hearing. Given that our review of the trial record indicates that testimony concerning the three statements was properly admitted, any error in failing to hold a suppression hearing did not substantially prejudice Broadnax and did not rise to the level of plain error. Rule 45A, Ala.R.App.P.
Broadnax claims that the trial court erred by admitting certain items into evidence before the state established a proper chain of custody. (Issue XIII in Broadnax's brief to this Court at p. 77.) Broadnax did not object to the admission of these items into evidence at trial; therefore, our review is limited to one for plain error. Rule 45A, Ala.R.App.P.
Section 12-21-13, Ala. Code 1975, states:
"Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence."
"`"`The pupose for requiring that the chain of custody be shown is to establish to a reasonable probability that there has been no tampering with the evidence.' Ex parte Jones, 592 So.2d 210, 212 (Ala. 1991); Harrell v. State, 608 So.2d 434, 437 (Ala.Cr.App. 1992); Smith v. State, 583 So.2d 990 (Ala.Cr.App. 1991), cert. denied, 583 So.2d 993 (Ala. 1991). Moreover, the evidence need not negate the remotest possibility of substitution, alteration, or tampering, but instead must prove to a reasonable probability that the item is the same as it was at the beginning of the chain. Harrell, at 437; Ex parte Williams, 548 So.2d 518 (Ala. 1989). Evidence has been held correctly admitted even when the chain of custody has a weak or missing link. Gordon v. State, 587 So.2d 427, 433 (Ala.Cr.App. 1990), rev'd, 587 So.2d 434 (Ala.), on remand, 587 So.2d 435 (Ala.Cr.App.), appeal after remand, 591 So.2d 149 (Ala.Cr.App. 1991); Shute v. State, 469 So.2d 670, 674 (Ala.Cr.App. 1984)."'
"Arthur v. State, 711 So.2d 1031, 1048 (Ala.Cr.App. 1996), aff'd, 711 So.2d 1097 (Ala. 1997), quoting Slaton v. State, 680 So.2d 879, 893 (Ala.Cr.App. 1995), aff'd, 680 So.2d 909 (Ala. 1996), cert denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997). See also, William v. State, 505 So.2d 1252 (Ala.Cr.App. 1986), aff'd, 505 So.2d 1254 (Ala. 1987). Finally, `evidence that an item has been sealed ... is adequate circumstantial evidence to establish the handling and safeguarding of the item.' Lane v. State, 644 So.2d 1318, 1321 (Ala.Cr.App. 1994)."
Perkins v. State, ___ So.2d at ___.
Because of the way this issue is presented in his brief to this Court, we seriously question Broadnax's sincerity in making this argument. Broadnax merely cites to three pages in the record where, he claims, the state did not establish through the testimony of Officer Bill Persons, an evidence technician with the Birmingham Police Department, a proper chain of custody for the admission of certain items into evidence. *fn6 Broadnax does not specifically state in his brief to this Court which items of evidence should not have been admitted. In addition, Broadnax does not explain how he was prejudiced by the introduction of this evidence. In light of § 12-21-13, Ala. Code 1975, and absent a showing by Broadnax regarding which evidence should not have been admitted, the reasons why that evidence was inadmissible, and the prejudice he suffered because of its admission, we refuse to conclude that plain error occurred.
Broadnax, however, specifically argues that the trial court erred by admitting into evidence an earring similar to the earring found in Jan's vehicle. Persons recovered the earring from Officer Whaley of the Alexander City Police Department. According to Broadnax, because Whaley did not testify at trial, a link in the chain of custody is missing. We disagree.
Pernell Cotney, a supervisor at Welborn, identified the earring at trial. He stated that he had received it from two other Welborn employees who had found it at the plant. Cotney testified that he turned the earring over to Whaley. Persons testified he received the earring from Whaley.
The chain of custody for an item of evidence does not begin at the time of the crime, but at the time the item comes into the state's possession. Burrell v. State, 689 So.2d 992 (Ala.Cr.App. 1996). In addition, "`[c]hain of custody requirements do not apply with the same force to items of evidence which are unique and identifiable in themselves.'" Ex parte Scott, 728 So.2d 172, 182 (Ala. 1998), cert. denied, ___ U.S. ___, 120 S.Ct. 87, 145 L.Ed.2d 74 (1999), quoting Magwood v. State, 494 So.2d at 144.
Although Whaley did not testify, we find no plain error in the trial court's admission of the earring into evidence. The earring was identified by Cotney as the earring he turned over to Whaley. Persons identified the earring as the one he received from Whaley. The failure of Whaley to testify is at worst a weak link in custody and does not require reversal. See Pou v. State, 557 So.2d 1314 (Ala.Cr.App. 1989).
Broadnax also claims that the state failed to establish a chain of custody regarding two pieces of blue fabric. The state admitted into evidence photographs of blue fabric found at the crime scene in Birmingham. The state also admitted into evidence samples of blue fabric, similar to the fabric in the photographs, seized from Welborn. Persons identified the two pieces of blue fabric at trial stating that they were the pieces of fabric he had personally collected at Welborn Forest Products. He further testified that the pieces of fabric had not changed since they had come into his possession. Therefore, there is no missing link in the custody of the pieces of fabric and Broadnax's argument is without merit.
Broadnax claims that a soil sample collected from Welborn was improperly admitted because, he says, a link in the chain was missing. Persons testified that he collected the soil sample. Persons testified that he took the sealed sample to the Alabama Department of Forensic Sciences (hereinafter "DFS") for analysis. When asked if the exhibit had changed since he had taken it to DFS, Persons stated:
"The only changes are Angelo's signature on the seal showing
me that he has opened it and analyzed it." (R. Vol. IV at 325.) In addition, Angelo Dellamanna, a scientist with DFS, testified he had received the soil sample, analyzed it, resealed it and returned to the police. Based on the testimony of Persons and Dellamanna, the state adequately established the chain of custody of the soil sample.
Broadnax further claims that the chain of custody as to the samples of Jan and DeAngelo's blood was never established. Dr. Brissie testified that he withdrew blood and other fluids from Jan and DeAngelo's bodies during the autopsies. According to Dr. Brissie, he gave the samples to one of his deputy coroners to be transferred to DFS. Dellamanna testified that he had received the blood samples of Jan and DeAngelo from Deputy Coroner Jack Parker. There was no testimony that the samples received by Dellamanna were altered or damaged. Therefore, at worst, the failure of Parker to testify constituted a weak link in the chain of custody. We find no plain error.
While conducting our plain-error review pursuant to Rule 45A, Ala.R.App.P., we note that the trial court did not instruct the jury, pursuant to § 12-21-13, Ala. Code 1975, about any breaks in the chain of custody of physical evidence. However, based on the foregoing analysis, we conclude that error in the omission of such an instruction, if any occurred, did not rise to the level of plain error.
"In Hyde v. State, [Ms. CR-95-2036, January 30, 1998] ___ So.2d ___ (Ala.Cr.App. 1998), we stated the following regarding plain-error review:
"`"The Alabama Supreme Court has adopted federal case law defining plain error, holding that `"plain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.' Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983)(quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. 1981)).
"`Haney v. State, 603 So.2d 368, 392 (Ala.Cr.App. 1991), aff'd, 603 So.2d 412 (Ala. 1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 112 L.Ed.2d 687 (1993). To rise to the level of plain error, the claimed error must not only seriously affect a defendant's "substantial rights," but it must also have an unfair prejudicial impact on the jury's deliberations. United States v. Young, 470 U.S. 1, 16-17 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1, 13 n. 14 (1985). Finally, a failure to object will weigh heavily against a claim of prejudice. Williams v. State, 601 So.2d 1062, 1066 (Ala.Cr.App. 1991), aff'd, 662 So.2d 929 (Ala.), cert. denied, 506 U.S. 957, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992). See also Brooks v. State, 695 So.2d 176 (Ala.Cr.App. 1996), aff'd, 695 So.2d 184 (Ala.), cert. denied, ___ U.S. ___, 118 S.Ct. 233, 139 L.Ed.2d 164 (1997).'"
Perkins v. State, ___ So.2d at ___.
We conclude that the trial court's failure to instruct the jury about any breaks in the chain of custody of the evidence did not seriously affect the fairness or integrity of the judicial proceeding.
Broadnax contends that the trial court erred by admitting into evidence an expert witness's testimony about the results of DNA testing without first determining the admissibility of the evidence in a hearing held outside the presence of the jury. (Issue VII in Broadnax's brief to this Court.) He further argues that the trial court erred by admitting the testimony because, he says, the results were "incompetent and unreliable." (Broadnax's brief to this Court at p. 44.) Broadnax neither requested a hearing outside the jury's presence nor objected to the admission of the DNA testimony on this ground; therefore, we review this issue for plain error. See Rule 45A, Ala.R.App.P.
Evidence was presented at trial that the DNA in a bloodstain found on a work shirt issued to Broadnax "matched" the DNA in Jan's blood and that the DNA in a bloodstain found on a pair of work pants issued to Broadnax "matched" the DNA in the blood of DeAngelo. According to the testimony concerning the "match" with Jan's blood, the probability of finding similar DNA was 1 in 4,447,000,000 African-Americans and 1 in 33,000,000,000 Caucasians. With regard to the "match" with DeAngelo's blood, the probability of finding similar DNA was 1 of 583,000,000 African-Americans and 1 of 3,825,000,000 Caucasians.
Broadnax argues that the trial court erred reversibly in not holding a hearing outside the presence of the jury to determine the admissibility of the DNA evidence. In Payne v. State, 683 So.2d 440, 455 (Ala.Cr.App. 1995), aff'd, 683 So.2d 458 (Ala. 1996), cert. denied, 520 U.S. 1146, 117 S.Ct. 1319, 137 L.Ed.2d 481 (1997), this Court held that the trial court did not err reversibly in not conducting an admissibility hearing outside the presence of the jury because Payne had not requested such a hearing. Indeed, it was Broadnax's responsibility to request the hearing. Because he did not, we conclude that the trial court did not commit plain error by not sua sponte conducting a hearing to determine the admissibility of the DNA evidence. See Simmons v. State, [Ms. CR-97-0768, September 17, 1999] ___ So.2d ___ (Ala.Cr.App. 1999).
Moreover, in this case, there is absolutely no implication of error, plain or otherwise, with regard to the admission of the DNA evidence. Broadnax argues that the results of the DNA testing do not meet the requirements of admissibility as set forth in Ex parte Perry, 586 So.2d 242 (Ala. 1991), Ex parte Hutcherson, 677 So.2d 1205 (Ala. 1996), and Turner v. State, 746 So.2d 355 (Ala. 1998). At the time of Broadnax's trial, § 36-18-30, Ala. Code 1975, provided the standard by which Alabama courts determined the admissibility of DNA evidence. Section 36-18-30, Ala. Code 1975, provides:
"Expert testimony or evidence relating to the use of genetic markers contained in or derived from DNA for identification purposes shall be admissible and accepted as evidence in all cases arising in all courts of this state, provided, however, the trial court shall be satisfied that the expert testimony or evidence meets the criteria for admissibility as set forth by the United States Supreme Court in Daubert, ..., decided on June 28, 1993." As this Court stated in Simmons v. State, supra, guidance as to how this statute should be interpreted in Turner, supra. "In Turner, the Alabama Supreme Court held:
"`[I]f the admissibility of DNA evidence is contested, the trial court must hold a hearing, outside the presence of the jury, and, pursuant to § 36-18-30, determine whether the proponent of the evidence sufficiently establishes affirmative answers to these two questions:
"`I. Are the theory and the technique (i.e., the principle and the methodology), on which the proffered DNA forensic evidence is based "reliable"?
"`II. Are the theory and the technique, (i.e., the principle and the methodology), on which the proffered DNA evidence is based "relevant" to understanding the evidence or to determining a fact in issue?
"`Trial courts should use the flexible Daubert [v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)], analysis in making the "reliability" (scientific validity) assessment. In making that assessment, the courts should employ the following factors: (1) testing; (2) peer review; (3) rate of error; and (4) general acceptance.
"`Trial courts should make the "relevance" assessment by addressing the "fit" between what the scientific theory and technique are supposed to show and what must be shown to resolve the factual dispute at trial. Whether otherwise reliable testing procedures were performed without error in a particular case goes to the weight of the evidence, not its admissibility. Only if a party challenges the performance of a reliable and relevant technique and shows that the performance was so particularly and critically deficient that it undermined the reliability of the technique, will evidence that is otherwise reliable and relevant be deemed inadmissible.
"`Of course, once a particular theory or technique has satisfied § 36-18-30, a court may take judicial notice of that theory or technique's reliability. See Perry, 586 So. 2d  at 251 [(Ala. 1991)]; [United States v.] Beasley, 102 F.3d  at 1448 [(8th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1856, 137 L.Ed.2d 1058 (1997)] (holding that reliability of the polymerase chain reaction ("PCR") method of DNA typing would be subject to judicial notice in future cases); [United States v.] Martinez, 3 F.3d  at 1197 [(8th Cir. 1993), cert. denied, 510 U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 697 (1994)] (holding that the reliability of the restriction fragment length polymorphism ("RFLP") procedure was subject to judicial notice). We recognize that the state of scientific theories and the techniques for producing DNA evidence is not static, and that the scientific community undoubtedly will produce new theories and techniques regarding DNA. Each new theory and technique will be subject to the test set out above until its reliability warrants judicial notice.'
"___ So.2d at ___ (footnotes omitted.)." Simmons v. State, ___ So.2d at ___.
At Broadnax's trial, the state offered DNA evidence and DNA population frequency statistical evidence to establish that the DNA in bloodstains found on the work clothes issued to Broadnax matched the DNA in the blood of Jan and DeAngelo. This evidence permitted the inference that Broadnax participated in the offenses. The record reflects that Dellamanna testified that he performed DNA analyses on the blood samples of Jan, DeAngelo, and the stains found on the work clothes issued to Broadnax. According to Dellamanna, the method of DNA analysis he performed is used by the DFS to determine whether two DNA samples match. He testified that the theory and technique used by the DFS's Birmingham DNA laboratory was generally accepted and was considered reliable by its scientific community. Moreover, Dellamanna testified that the type of DNA analysis he performed had been extensively published, subjected to peer review, and admitted into evidence in numerous courts of law. He explained the controls built into the testing process to further ensure the test's reliability and testified that his results in this case indicated no error or contamination. Dellamanna's testimony adequately established the reliability of the DNA analysis.
We reject Broadnax's argument that because Dellamanna did not state the name of the particular method of DNA analysis performed -- either PCR or RFLP -- the theory and technique of the method of DNA analysis testified to in his trial was unreliable. Based on the record before us, we are convinced that the jury had enough information before it to determine the reliability of the DNA analyses and the weight to be given the evidence. The failure of testimony to name the DNA method used goes to the weight of the evidence, not its admissibility. Moreover, the Alabama Supreme Court in Turner took judicial notice of the reliability of the theory and techniques used in the restriction fragment length method of DNA analysis. In Simmons v. State, supra, this Court took judicial notice of the reliability of the polymerase chain reaction method of DNA analysis. Both methods are considered to be reliable for admission into evidence in the courts of Alabama. While Broadnax argues that another method of analysis may have been performed by Dellamanna, he offers only bare allegation in support of his argument. We refuse to conclude that the method of DNA analyses used in this case was unreliable based on speculation and conjecture.
Additionally, the state established that the DNA evidence was relevant to determine a fact in issue, i.e., whether Broadnax had contact with Jan and DeAngelo and whether he participated in the offenses. Dellamanna testified that he analyzed the blood samples from Jan and DeAngelo and the bloodstains found on a pair of boots and a work uniform issued to Broadnax. Broadnax's defense attempted to establish that it was not possible for Broadnax to have committed the offenses the state alleged he had committed. Dellamanna's testimony that the DNA in the blood from Jan and DeAngelo matched the DNA in the bloodstains found on Broadnax's clothing was relevant to show that Broadnax participated in the offenses.
Because the record adequately establishes that the method of DNA analysis performed in this case is reliable and that the evidence provided by the analysis was relevant, the trial court committed no error, plain or otherwise, in admitting the evidence.
Furthermore, the trial court did not err in admitting into evidence DNA population frequency statistical evidence. Dellamanna testified that DNA population frequency statistical analysis evidence is used by the DFS to determine the frequency of a particular DNA profile in the population of various races. He further testified that the method he used in calculating the population frequency statistics in this case is commonly used in the scientific community. He stated that he performed the required controls in the calculation of the population frequency statistics, including a technical review by another scientist, to assure the accuracy of the results. According to Dellamanna, no errors were found in the calculation of the population frequency statistics in this case. This Court has found population frequency statistics evidence reliable in numerous cases. See Thomas v. State, [Ms. CR-96-0876, December 30, 1999] ___ So.2d ___ (Ala.Cr.App. 1999); Williams v. State, [Ms. CR-98-1734, December 10, 1999] ___ So.2d ___ (Ala.Cr.App. 1999); Hammonds v. State, [Ms. CR-97-0722, August 27, 1999] ___ So.2d ___ (Ala.Cr.App. 1999); and Maples v. State, supra.
Because the trial court had before it evidence regarding the reliability and the relevance of the population frequency statistic evidence, we conclude no plain error occurred in allowing that evidence to be submitted to the jury for its consideration.
Broadnax maintains that the trial court erred in permitting a coroner and a forensic scientist to testify concerning matters, that were, he says, outside their field of expertise. (Issue XII in Broadnax's brief to this Court.) Specifically, he argues the trial court should not have permitted Ronnie Williams and Angelo Dellamanna to testify concerning blood spatters found at the crime scene.
Our review of the record indicates that, although defense counsel timely objected to Dellamanna's testimony, he did not object to Williams's testimony concerning the blood spatters. Thus, we will review Williams's testimony for plain error. Rule 45A, Ala.R.App.P. Additionally, we will address whether the trial court abused its discretion in admitting Dellamanna's testimony concerning the blood spatters. See Holland v. State, 666 So.2d 547, 549 (Ala.Cr.App. 1995).
Rule 702, Ala.R.Evid., states:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
"'[A]ny objection to an expert witness on the ground that he or she lacks knowledge goes to the weight rather than to the admissibility of his or her testimony.'" Holland v. State, 666 So.2d at 548, quoting Smoot v. State, 520 So.2d 182, 189 (Ala.Cr.App. 1987). See also Smith v. State, 698 So.2d 189 (Ala.Cr.App. 1996), aff'd, 698 So.2d 219 (Ala.), cert. denied, 522 U.S. 957, 118 S.Ct. 385, 139 L.Ed.2d 300 (1997). Whether a witness will be allowed to testify as an expert is largely discretionary and the trial court's decision will not be disturbed "except for palpable abuse." Holland v. State, 666 So.2d at 549, quoting Sharp v. Argo-Collier Truck Lones Corp., 356 So.2d 147 (Ala. 1978).
In this case, Williams testified that during his 14 years as a Jefferson County Deputy Coroner he attended various schools on crime scene investigation and had received special training in interpreting bloodstain and blood drops. Because Williams had 14 years experience and training, the trial court did not abuse its discretion by admitting the expert testimony. See Robinson v. State, 574 So.2d 910 (Ala.Cr.App. 1990) (holding that trial court did not abuse its discretion in admitting expert testimony of coroner who had 15 years' experience performing blood spatter analysis). Furthermore, given that Williams testified that he received training on bloodstain interpretation, we conclude that the admission of Williams's testimony did not seriously affect the substantial rights of Broadnax and rise to the level of plain error. Rule 45A, Ala.R.App.P.
Additionally, Dellamanna testified that he had completed training workshops on the interpretation of bloodstains held by the FBI Academy and the International Association of Bloodstain Pattern Analysis. Defense counsel objected to Dellamanna's testifying about blood spatters on the ground that the testimony was beyond his field of expertise. The trial court determined that, because of Dellamanna's training, he was qualified to testify, and it overruled the objection. Based on the record before us, we conclude that the trial court did not abuse its discretion in determining that, based on Dellamanna's training, he was qualified to testify concerning his interpretation of the blood spatters.
No error occurred in the admission of the expert testimony of Williams and Dellamanna.
Broadnax claims that the state withheld "critical evidence" in violation of Brady v. Maryland, supra. (Issue VIII in Broadnax's brief to this Court.) Specifically, Broadnax argues that the state withheld telephone records that "directly undermined the veracity of [the] statement that he gave to police." (Broadnax's brief to this Court at p. 50.)
In Williams v. State, supra, this Court stated:
"In Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197, the Supreme Court held that `the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' A Brady violation occurs where: (1) the prosecution suppresses evidence; (2) the evidence is favorable to the defendant and (3) material to the issues at trial. Stano v. Dugger, 901 F.2d 898, 899 (11th Cir 1989); United States v. Basco, 702 F.2d 1315, 1327 (11th Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 275, 276, 78 L.Ed.2d 256 (1983); Ex parte Kennedy, 472 So.2d 1106, 1110 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed. 325 (1985). The Supreme Court of the United States in United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)(plurality opinion by Blackmun, J.), defined the standard of materiality required to show a Brady violation as follows: `The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' See also Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Stanto v. Dugger, 901 F.2d at 899; Delap v. Dugger, 890 F.2d at 229; Coral v. State, 628 So.2d 954 (Ala.Cr.App. 1992); Thompson v. State, 581 So.2d 1216 (Ala.Cr.App. 1991), cert. denied 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992).
"The same standard of materiality and due process requirements apply whether the evidence is exculpatory or for impeachment purposes. United States v. Bagley; Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Ex parte Womack. `When the "reliability of a given witness may well be determinative of guilt or innocence," nondisclosure of evidence affecting credibility falls within the general rule.' Giglio, 405 U.S. at 154, 92 S.Ct. at 766 (quoting Napue v. Ilinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). In short, due process requires the prosecution to disclose material evidence, upon request by the defense, when that evidence would tend to exculpate the accused or to impeach the veracity of a critical state's witness."
After Broadnax's trial had commenced, the state provided defense counsel with telephone records that they intended to introduce into evidence to refute Broadnax's statement that he had called his brother around 9:00 p.m. on the evening of the murders. At a hearing challenging the admissibility of the records, the following occurred:
"THE COURT: ... You had one other motion this morning. what was that?
"[Defense counsel]: Judge, it relates to some phone records. We were presented some phone records, a number of pages by the [district attorney] this morning -- or Ms. Petro and Mr. Cochran this morning.
"This is the first time that we have seen these records. I suppose they relate to phone calls that someone may have made, possibly our client. These records have been in existence, obviously, since the phone call was made. This is the first time that we have seen them. We were entitled to them, along with all the other discovery, way ahead of this time. We are here in the third day of trial, and we just get them. We had no time to look at them. I don't know what they say. I don't know how to read them. I have not had a chance to consult someone who would be able to read them and tell us what they mean and how to read them. And thus, we have not been able to prepare to defend against these.
"And so, we would ask the Court to exclude these, as well, on those grounds.
"THE COURT: What says the State on the phone records?
"[Prosecutor]: Judge, several things:
"First, as to the relevance of the records. What the records will show is that the telephone call that Detective Cunningham testified [to] yesterday, that the defendant claimed to have made to his brother, Larry, up here in Birmingham, was not made or doesn't exist in the phone records. There is no record showing that call was ever made. So I think it is clearly relevant.
"As far as not being provided in the record, let me say a couple of things:
"First, the defense was provided a copy of their client's statement, which gave that information about the supposed phone call made, I think, some time ago. Of course, the ability to seek a subpoena as help to get those records, they were equally accessible to the defense.
"Also, I believe, as a matter of fact, [Ms.] Petro gave Mr. Brower those records. Earlier this week it showed that we had those records. I think he elected not to take a look at them at that point, but they were provided to the defense for the opportunity to look.
"And I think we've had an open file discovery policy, and that's been conveyed to the defense attorneys in this case. From the start of this case, those records have been in our files for --"[Defense counsel]: Judge, as far as the records being provided to me, my recollection is that last Friday, in preparation for this trial, I went down to the District Attorney's office and talked to Ms. Petro in the lobby down there, and asked her about a couple of copies of statements that our defendant allegedly made that we hadn't got and a couple of other things. And because I had seen a copy of a subpoena for phone records in the file and discovery materials that she gave me, I asked her about that. She indicated that they had done them, but there wasn't anything to them. She also indicated to me that she had given Mr. Bender other discovery materials that day. I did not specifically request that she provide me with those records at that time. They have not been shown to me or provided to me this week. I was under the impression that if she was going to use them, she would have given them to Mr. Bender when she gave him the other materials that day.
"It may have been a mistake or impression on my part, or that she was not going to use the materials because they were of no value. And that's my recollection of the phone records here.
"[Defense co-counsel]: Judge, if I might add, when I picked up that material that Ms. Petro provided me on Friday, they did not included these records. We do understand that there is open file discovery in this case. But obviously, the Court knows that we can't go in their files; they have to give us what is in their files.
"So, we again move that these phone records be excluded form evidence in this trial.
"THE COURT: Well, I think since they were both equally available to both sides, even if the State did have them, they have provided them now. So I am going to overrule. And if they are properly authenticated and offered, then I will let them in.
"[Defense co-counsel]: Yes, sir. We would like to have the Court note our exception.
"THE COURT: All right. I'll note your exception. Anything else before we give the jury a two-minute warning?
"[Defense co-counsel]: No, sir, Judge." (R. Vol. VII at 9-14.)
As the trial court noted, the phone records were equally available to Broadnax and the state; therefore, we fail to see how the state suppressed the evidence. Moreover, as the state points out in its brief to this Court, the phone records were used to attack the veracity of Broadnax's statement given to law enforcement officers. The phone records were not used to attack the credibility of a defense witness. That being the case, there is no indication that the phone records would have been favorable to the defense. Furthermore, the phone records were not material because there is no reasonable probability that, had the state provided Broadnax with a copy of the records before trial, the result of the proceedings would have been different. As Broadnax emphasized on cross-examination of the state's witness who testified about the phone records, the records do not refute the possibility that Broadnax did telephone his brother but his brother did not answer. We conclude that no Brady violation occurred.
Broadnax claims that the prosecutor repeatedly engaged in misconduct that denied him a fair trial. *fn7 (Issues III and X in Broadnax's brief to this Court.)
"`In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract. Whitlow v. State, 509 So.2d 252, 256 (Ala.Cr.App. 1987); Wysinger v. State, 448 So.2d 435, 438 (Ala.Cr.App. 1983); Carpenter v. State, 404 So.2d 89, 97 (Ala.Cr.App. 1980), cert. denied, 404 So.2d 100 (Ala. 1981). Moreover, this Court has also held that statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Orr v. State, 462 So.2d 1013, 1016 (Ala.Cr.App. 1984); Sanders v. State, 426 So.2d 497, 509 (Ala.Cr.App. 1982).'
"`"during closing argument, the prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference." Rutledge v. State, 523 So.2d 1087, 1100 (Ala.Cr.App. 1987), rev'd on other grounds, 523 So.2d 1118 (Ala. 1988) (citation omitted). Wide discretion is allowed the trial court in regulating the arguments of counsel. Racine v. State, 290 Ala. 225, 275 So.2d 655 (1973). "In evaluating allegedly prejudicial remarks by the prosecutor in closing argument, ... each case must by judged on its own merits," Hooks v. State, 534 So.2d 329, 354 (Ala.Cr.App. 1987), aff'd, 534 So.2d 371 (Ala. 1988), cert. denied, 488 U.S. 1050, 102 L.Ed.2d 1005, 109 S.Ct. 883 (1989) (citations omitted)(quoting Barnett v. State, 52 Ala.App. 260, 264, 291 So.2d 353, 357 (1974)), and the remarks must be evaluated in the context of the whole trial, Duren v. State, 590 So.2d 360 (Ala.Cr.App. 1990), aff`d, 590 So.2d 369 (Ala. 1991). "In order to constitute reversible error, improper argument must be pertinent to the issues at trial or its natural tendency must be to influence the finding of the jury." Mitchell v. State, 480 So.2d 1254, 1257-58 (Ala.Cr.App. 1985)(citation omitted). "To justify reversal because of an attorney's argument to the jury, this court must conclude that substantial prejudice has resulted." Twilley v. State, 472 So.2d 1130, 1139 (Ala.Cr.App. 1985)(citations omitted.)'"
"Coral v. State, 628 So.2d 954, 985 (Ala.Cr.App. 1992), aff'd, 628 So.2d 1004 (Ala. 1993), cert. denied, 511 U.S. 1012, 144 S.Ct. 1287, 128 L.Ed.2d 61 (1994)."
Wilson v. State, [Ms.CR-97-2569, November 19, 1999] ___ So.2d ___, ___ (Ala.Cr.App. 1999).
With these principles in mind, we will address each of Broadnax's claims of prosecutorial misconduct.
Broadnax claims that the state "incorrectly instructed the jury on the state's burden of proving guilt beyond a reasonable doubt" and "lowered the state's burden [of proof]." (Issue VI.B.ii. in Broadnax's brief to this Court at p. 41.)
Before conducting his voir dire examination, the prosecutor made the following comment to the jury:
"Now the burden of proof is just that. It's beyond a reasonable doubt. A doubt for which you the jury can give a good, sound, sensible reason. It's not a mystical doubt, it's not a magical doubt, it's not something you can pull form the sky, but it's a reasonable doubt."
Our review of the state's voir dire examination leads us to conclude that the prosecutor provided his "definition" of reasonable doubt to assist him in learning the veniremembers' opinions on the state's burden of proof. We do not find any plain error in this situation. Moreover, the trial court repeatedly instructed the jury that the comments and arguments of counsel were not the law and that they should follow only his instructions on the law. Thus, we find no plain error.
Broadnax claims that the "prosecutor repeatedly solicited inadmissible and improper testimony." (Broadnax's brief to this Court at p. 71.)
Broadnax argues that during the direct examination of Teresa Jemison, a friend of Jan's, the prosecutor improperly elicited the following testimony:
"[Prosecutor]: Okay. Did you ever see the defendant come to y'all's church with Jan?
"[Prosecutor]: All right. And what sort of image would he present when he came to church?
"[Jemison]: Well, he presented a good one."
(R. Vol. V at 406.) Broadnax failed to object at trial to the prosecutor's questions; therefore, our review is limited to plain error. Rule 45A, Ala.R.App.P.
While we agree with Broadnax that the prosecutor elicited opinion testimony from this witness, we fail to understand, and Broadnax does not show us, how the testimony was prejudicial or how allowing it denied him a fair trial. Therefore, we conclude no plain error occurred.
Broadnax argues that the prosecutor engaged in improper conduct during his direct examination of Janice McGee, Jan's neighbor and fellow church member. Broadnax alleges that error occurred during the following portion of the examination:
"[Prosecutor]: Okay. What was Jan's reaction to that denial of parole?
"[McGee]: She was very disgusted because of some things that she found out that she did not know.
"[Prosecutor]: Okay. And what [were] her intentions at that point? What did she intend to do?
"[Defense counsel]: Objection, Judge. That would --"THE COURT: Rephrase. Sustained as to the form of the question.
"[Prosecutor]: Did she tell you anything about her state of mind at that time and what she intended ...