Appeal from St. Clair Circuit Court (CC-98-67)
The opinion of the court was delivered by: McMILLAN, Presiding Judge
The appellant, Mario Centobie, was charged with capital murder for intentionally causing the death of Officer Keith Turner, a police officer, while he was on duty, see § 13A-5-40(a)(5), Ala. Code 1975. On the appellant's motion for a change of venue, venue was changed from St. Clair County to Elmore County. After testifying in his own behalf and admitting to having committed all of the elements of the charged offense, the appellant was found guilty as charged. Following a sentencing hearing, the jury returned an advisory verdict recommending death by electrocution. The final sentencing hearing was held before the trial court, which accepted the jury's recommendation and sentenced the appellant to death by electrocution.
On appeal from his conviction, the appellant raises 17 issues, many of which he did not raise by timely objection in the trial court. Because the appellant was sentenced to death, his failure to object at trial does not bar this Court's review of these issues; however, it does weigh against any claim of prejudice he now raises on appeal. See Whitehead v. State, 777 So. 2d 781 (Ala.Crim.App. 1999); Dill v. State, 600 So. 2d 343 (Ala.Crim.App. 1991), aff'd, 600 So. 2d 372 (Ala. 1992), cert. denied, 507 U.S. 924, 113 S. Ct. 1293, 122 L.Ed.2d 684 (1993); Kuenzel v. State, 577 So. 2d 474 (Ala.Crim.App. 1990), aff'd, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886 (1991).
Rule 45A, Ala.R.App.P., provides:
"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."
This court has recognized that "`the 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."'" Whitehead v. State, supra, at 794, quoting Burton v. State, 651 So. 2d 641, 645 (Ala.Crim.App. 1993), aff'd, 651 So. 2d 659 (Ala. 1994), cert. denied, 514 U.S. 1115 (1985).
A summary of the facts surrounding this offense is set out in the trial court's sentencing order and findings of fact, issued pursuant to § 13A-5-47(d), Ala. Code 1975. That order states, as follows:
"On the 25th day of June, 1998, Sheriff Maurice Hooks of Jones County Mississippi and an assistant, Ray Butler, were transporting Mario Centobie and Jeremy Granberry from Parchman Prison to court hearings in Jones County. In the small town of Richland, Mississippi, Hooks stopped to allow the inmates to use the restroom and Hooks and Butler were overpowered by the two inmates. Centobie pulled Hooks's Ruger .45 automatic pistol from his holster and forced Hooks and Butler at gunpoint to an isolated area where they were both left tied to poles. Centobie kept Hooks's .45 Ruger as he and Granberry fled the area in Hooks's marked sheriff's car, which coincidentally, was without a rear bumper due to an earlier accident involving Sheriff Hooks.
"Several hours later in the evening hours of June 25th Capt. Cecil Lancaster of the Tuscaloosa Police Department was returning home after attending a meeting after work. He noticed Hooks's marked patrol car being driven by two individuals proceeding on I-359. The fact that the marked vehicle had no bumper or tag attracted Lancaster's attention. As the vehicle passed, Lancaster's suspicions were further raised by the fact that neither occupant of the vehicle acknowledged him. Lancaster pulled the vehicle over. As he approached the vehicle shots were fired by one of the occupants from within the vehicle through the back driver's side window striking Lancaster twice. The bullets fired into Lancaster were consistent with having been fired from the .45 Ruger belonging to Sheriff Hooks. While Lancaster lay on the ground, after being shot, the vehicle began to back up as if to run over him. He managed to fire shots into the rear window of the vehicle, which then immediately fled the scene.
"After shooting Officer Lancaster, Centobie and Granberry then abandoned the Sheriff's patrol vehicle and stole a 1981 Mercury vehicle belonging to Brandon Blake from Marguerite's Lounge in Tuscaloosa.
"On June 27th, at about 10:30 P.M. Lori Mullins, working Central Dispatch and 911, received a radio transmission from Officer Keith Turner who was on duty in a marked Moody patrol car, that Turner had stopped a vehicle. Inside Blake's stolen vehicle Centobie told his companion Granberry 'I ain't going back to Parchman.' As Centobie exited the vehicle he placed the .45 against the back of the front seat and left the door open. Centobie approached Turner. After Turner asked Centobie, 'Hey, what are y'all doing?' Centobie returned to the front seat of the vehicle under the guise of getting his license and registration. Turner continued to approach the vehicle and when he was next to Centobie and the vehicle, Granberry jumped from the vehicle. Centobie pulled the .45 and shot Turner three times. One shot lodged in Turner's vest, one shot hit Turner in the hip area, and a third shot was fired directly into the back of Turner's head. Turner's death was immediately caused by the fatal shot to the back of the head.
"After fleeing the area of the shooting, Centobie avoided an extensive manhunt for several days. On July 4th, Centobie kidnapped Daniel Alexander in the parking lot of a small store at about 9:30 P.M. in order to effect his escape from the Moody area. After kidnapping Alexander, Centobie forced him to drive to Mobile. Alexander escaped from Centobie at a rest area near the Alabama-Mississippi state line west of Mobile and alerted law enforcement to Centobie's presence in the area. Centobie was finally captured by Mississippi authorities on July 5, 1998. Lt. Obie Wells found Centobie riding in a van on I-10 near Biloxi. At the time of his capture, Centobie was still armed with Sheriff Hooks's .45 Ruger."
The appellant argues that his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution were violated by the trial court's admission into evidence of his confession, made following his capture in Pascagoula, Mississippi. Specifically, he alleges that his confession was obtained through custodial interrogation, and that before the interrogation, he had requested and been denied an attorney. The appellant further argues that the erroneous admission of his confession, which he says was not voluntary and knowing, prejudiced him at trial. In support of his argument, the appellant relies on the court reporter's transcription, recorded during the suppression hearing, which, he argues, indicates that he had requested an attorney before his interrogation and subsequent confession. Specifically, he alleges that the following excerpt based on the transcription of the audiotape made by Agent Borghini, indicates that he had requested an attorney:
"[Agent Borghini]: And you wish to stop answering questions and request a lawyer?
"[Centobie]: (Inaudible response.)"
"It has long been the law that a confession is prima facie involuntary and inadmissible, and that before a confession may be admitted into evidence, the burden is upon the State to establish voluntariness and a Miranda predicate. Jackson v. State, 562 So. 2d 1373, 1380 (Ala.Crim.App. 1990). A two-pronged test is used to determine whether an accused's statement is admissible. First, the trial court must determine whether the accused was informed of his Miranda rights. Second, the trial court must determine whether the accused voluntarily and knowingly waived his Miranda rights before making his statement. Holder v. State, 584 So. 2d 872, 878 (Ala.Crim.App. 1991); Carpenter v. State, 581 So. 2d 1277, 1278 (Ala.Crim.App. 1991)." Wigfall v. State, 710 So. 2d 931, 934-35 (Ala.Crim.App. 1997).
At the suppression hearing, Investigator Michael Manlief, an Alabama State Trooper assigned to the criminal investigative division of the Alabama Bureau of Investigation, testified that he and Federal Bureau of Investigation ("FBI") Agent Lawrence Borghini, along with FBI Special Agent Ricky Maxell and Jackson County Sheriff's Deputy Rob Carew, had interviewed the appellant on July 5, 1998, in a Pascagoula, Mississippi, jail. Investigator Manlief stated that an audiotape was made of the appellant's interrogation; the interrogation lasted approximately four hours. He testified that the tape was originally inserted in the wrong direction, and that by the time the error was corrected and the tape had been restarted (approximately 15 seconds), Agent Borghini and the appellant were in the middle of the Miranda warnings. Cf. Smith v. State, 756 So. 2d 892, 931 (Ala.Crim.App. 1999) (The officer's failure to record that portion of the interrogation when he advised the appellant of his Miranda rights would not render the statement inadmissible. Rather, it would be taken into consideration by the jury in determining the weight and credibility to assign to the officer's testimony regarding the appellant's confession.).
Investigator Manlief testified that Agent Borghini informed the appellant of his Miranda rights and that the appellant indicated that he understood his rights and agreed to speak to them. He further testified that the appellant knowingly and voluntarily signed a waiver of rights form. He testified that the appellant was not threatened, coerced, or promised anything in return for his statement. Investigator Manlief testified that the appellant indicated that he did not wish to have an attorney present. After ascertaining that neither the State nor defense counsel intended to offer the audiotape or a transcript of the tape into evidence, the trial court found that, based on the testimony at the suppression hearing, the appellant's statement had been voluntarily given of his own free will, with a knowing waiver of his right to remain silent. See Jackson v. State, 516 So. 2d 726, 741 (Ala.Crim.App. 1985) ("The trial judge need only be convinced from a preponderance of the evidence to find a confession to have been voluntarily made.").
A review of the audiotape of the appellant's interrogation indicates that the question asked by Agent Borghini was "And [do] you wish to stop answering questions and request a lawyer?" The appellant's response was non-verbal. The next statement Agent Borghini made was "You have the right to stop answering questions." The appellant openly acknowledged to the officers that he did not want an attorney present and that he would talk with them, but that he wanted the right to refuse to answer certain questions. That request was granted. Cf. Smith v. State, supra, at 932. The defendant did not clearly and unequivocally invoke his Miranda rights or his constitutional right to remain silent by stating that he did not want to tell an interviewing officer who had altered the gun used in the shooting. The officer was justified in questioning the defendant further regarding the alteration; moreover, the defendant did not request to have an attorney present before he answered the question. A review of the entire tape indicates the appellant's willingness to discuss the case with law-enforcement officials. Based on the foregoing, the trial court was correct in finding that the appellant knowingly and voluntarily gave a statement.
The appellant argues that it was error for the trial court to permit Brandi Turner, the victim's wife, to testify concerning incriminating statements the appellant made to her while he was awaiting trial. More particularly, he argues that Mrs. Turner's testimony disclosing the contents of his conversation with her violated his Fifth Amendment privilege against self-incrimination, his Sixth Amendment right to counsel, and the protections afforded by Miranda v. Arizona, 384 U.S. 436 (1966).
"'Miranda warnings are not required in instances where inculpatory or otherwise admissible statements are made to persons who are not law enforcement officers or their agents. Hinshaw v. State, 398 So. 2d 762 (Ala.Crim.App. 1981), writ denied, 398 So. 2d 766 (Ala. 1981); Truex v. State, 282 Ala. 191, 210 So. 2d 424 (1968); Ellis v. State, 338 So. 2d 428 (Ala.Crim.App. 1976); Bedingfield v. State, 47 Ala.App. 677, 260 So. 2d 408 (1972).' Warrick v. State, 460 So. 2d 320 (Ala.Cr.App. 1984). See also State v. McDevitt, 484 So. 2d 543, 547 (Ala.Cr.App. 1985). Miranda does not apply when the inculpatory statement is made to a private citizen, but only to the custodial interrogation of a suspect by the police. Traylor v. State, 439 So. 2d 178, 180-81 (Ala.Cr.App. 1983)." Rankin v. State, 541 So. 2d 577, 579 (Ala.Crim.App. 1988).
To succeed on any of his claims, the appellant must establish that Brandi Turner was acting as an agent of the State of Alabama. In determining whether Mrs. Turner was acting as an agent of the police department, "we must look to the circumstances surrounding the giving of the confession." Woodson v. State, 392 So. 2d 551, 552-53 (Ala.Crim.App. 1980), cert. denied, 392 So. 2d 554 (Ala.1981). The record contains no evidence that Brandi Turner was, in fact, acting as an agent of the State. The record indicates that on the day the appellant was returned to the Etowah County jail following his capture after the murder of Officer Turner, the victim's widow, Brandi Turner, was at the sheriff's department searching for information concerning her husband's death. She was unaware that the appellant was being returned that particular day. After being informed that the appellant was at the jail, Mrs. Turner requested and was granted permission to speak with him. Although she was escorted to the appellant's cell by law-enforcement officers, she was left alone with the appellant after he requested that the officers leave. Evidence was presented indicating that the appellant initiated the conversation with Mrs. Turner, asking if she was Brandi Turner. The only question Brandi Turner asked in the presence of the law-enforcement officials was "Why?" The appellant sent the law-enforcement personnel away and answered her question. Mrs. Turner did not inform the authorities of the content of their conversation until several days later. At that time, she told them that when she asked the appellant, "Why did you murder my husband?" and that the appellant replied that he did not murder Officer Turner, he merely shot him. Upon further questioning, the appellant informed Mrs. Turner that he shot Officer Turner in the head because "he had to."
The appellant cites Peoples v. State, 615 So. 2d 1265 (Ala.Crim.App. 1992), in support of his argument that Brandi Turner was acting as an agent for the State when he spoke with her. In Peoples, this Court reversed the trial court's judgment based on a finding that the police presence at Peoples's confession to soneone who is not an agent did not constitute error. However, the facts of Peoples are clearly distinguishable. In that case, K-mart employees were questioning the appellant extensively, in the presence of a police officer who had just arrested her companion, as to her culpability concerning her possession of store merchandise. Although he initially did little of the questioning, he became more involved after she confessed. In holding that the police presence was significant, this Court in Peoples noted that the police officer was present during the entire interrogation and that the surroundings emphasized that officer's presence. This Court further concluded, in addition to believing that the defendant was answering a private citizen's question, the appellant could have reasonably believed that she was answering the police, as well.
In the present case, Brandi Turner was acting as a private citizen when she spoke with the appellant. There was no indication that Brandi Turner was speaking to the appellant as part of an arrangement with law-enforcement authorities. Although the police escorted her to the appellant, he said nothing until the officers left at his insistence. Additionally, the record does not indicate that Mrs. Turner or the authorities made any threats, promises, or inducements to the appellant in exchange for his statement to her. "In the Miranda case the Court defined interrogation as `question initiated by law enforcement officers.' Because of this and also because of the general doctrine that State action is a prerequisite to application of constitutional protections, its is clear that Miranda does not govern interrogation by private citizens acting on their own." LaFave and Israel, Criminal Procedure, § 6.10(b) (1984) (footnotes omitted). See also Annot., 31 A.L.R.3d 565 at 671 (1970). Rankin v. State, supra, at 580. Moreover, since the appellant gave testimony concerning the conversation at trial, any error would have been harmless. Rule 45, Ala.R.App.P.
The appellant argues that the trial court committed reversible error in admitting evidence regarding his second escape from custody; that escape occurred while he was awaiting trial for the murder of Officer Turner. Specifically, the appellant contends that "flight evidence" does not include an escape from jail following arrest to avoid prosecution for a charged crime, and, therefore, that the prejudicial effect of the evidence of escape substantially outweighed its probative value. Additionally, the appellant argues that his earlier escape from Parchman Prison in Mississippi, following his conviction in Mississippi, makes it unreasonable to now argue that he escaped from custody in Alabama out of a consciousness of guilt.
The appellant's argument regarding evidence of flight directly conflicts with this Court's decision in Minor v. State, 780 So. 2d 707, 767 (Ala.Crim.App. 1999). That case states:
"'The trial court may exclude relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. Spellman v. State, 473 So. 2d 618 (Ala.Cr.App. 1985); C. Gamble, McElroy's Alabama Evidence, § 21.01(4) (4th ed.1991). Whether such evidence should be excluded because of its prejudicial nature is largely within the discretion of the trial court, and its determination in that regard will not be disturbed absent a clear showing of abuse. Spellman v. State; Ward v. State, 440 So. 2d 1227 (Ala.Cr.App. 1983).' "Graves v. State, 632 So. 2d 30, 31 (Ala.Cr.App. 1992), aff'd in pertinent part, 632 So. 2d 33 (Ala. 1993).
"`"In a criminal prosecution the state may prove that the accused engaged in flight to avoid prosecution. This principle is based upon the theory that such is admissible as tending to show the accused's consciousness of guilt. The flight of the accused is admissible whether it occurred before or after his arrest.
"`"The state is generally given wide latitude or freedom in proving things that occurred during the accused's flight. This is especially true of those acts of the accused which tend to show that the flight was impelled by his consciousness of guilt.
"'C. Gamble, McElroy's Alabama Evidence § 190.01(1) (4th ed. 1991) (citations omitted). See also 2 Wigmore, Evidence § 276(4) (Chadbourn rev.1979); Chandler v. State, 555 So. 2d 1138 (Ala.Cr.App.1989).' "Sartin v. State, 615 So. 2d , 137 (Ala.Cr.App. 1992). (Emphasis added); C. Gamble, McElroy's Alabama Evidence, § 190.01 (5th ed.1996); and DeSilvey v. State, 245 Ala. 163, 16 So. 2d 183 (1943)."
The record indicates that three months after being taken into custody for the murder of Officer Turner, the appellant escaped from the Etowah County jail. He was captured in DeKalb County, Georgia. During the trial proceedings, the trial court instructed the State not to refer to the flight as a separate offense. The trial court further stated that it intended to charge the jury on flight as circumstantial evidence in the case, rather than as evidence of a separate offense. Subsequently, the trial court gave the following jury instruction:
"In this case, evidence has been introduced indicating that the defendant escaped after being charged and confined for this offense. Now escape from a confinement or other evasions or attempts to evade justice by a person charged with a crime is circumstantial evidence from which the jury may infer a consciousness of guilt on the part of the defendant. The weight to which such evidence is entitled is up to you ladies and gentlemen of the jury. It is within your province to determine what weight you will give this evidence of escape or flight. You, the jury, may consider evidence of other factors or reasons which may have caused the flight or escape of the defendant in making your decision whether the flight or escape of the defendant in this case was a result of his consciousness of guilt of the offense charged."
The trial court did not err in admitting evidence of the appellant's escape from the Etowah County jail. The testimony at trial was limited to the facts surrounding his escape from jail, which occurred approximately three months after the murder of Officer Turner. The trial court did not allow testimony about the appellant's subsequent indictment for escape. Moreover, the record indicates that the trial court's instruction did not create, as the appellant argues, an impermissible inference that the only reasonable conclusion to be formed from the appellant's escape was that it was an attempt to avoid prosecution, but rather, as possible circumstantial evidence of consciousness of guilt. The trial court did not abuse its discretion. Ex parte Clark, 728 So. 2d 1126, 1136-37 (Ala. 1998).
The appellant argues that the trial court erred in admitting evidence of his actions from the time he escaped from Sheriff Hooks's custody in Mississippi until he was taken into custody on July 5, 1998. More particularly, he argues that the trial court erred in admitting evidence of uncharged collateral robberies because, he says, these offenses bore no relevance to the charged crime, were highly prejudicial, and did not fall under any of the recognized exceptions to Rule 404(b), Ala.R.Evid. Additionally, he argues that the trial court failed to state on the record the specific Rule 404(b) exception under which it was admitting evidence of other crimes at trial. Lastly, the appellant argues that the admission of such evidence, without a limiting instruction from the trial court, prejudiced him and denied him a fair trial.
The record indicates that on September 29, 1998, the State filed notice of its intention to offer "other crimes" evidence pursuant to Rule 404(b), Ala.R.Evid. The evidence consisted of: (1) the assault, robbery, and kidnapping of Sheriff Maurice Hooks and Ray Butler that occurred on June 25, 1998, in Rankin County, Mississippi, as well as the appellant's and Jeremy Granberry's escape from custody; (2) the attempted murder of Capt. Cecil Lancaster of the Tuscaloosa Police Department on June 25, 1998, as well as the theft of an automobile from Tuscaloosa, which was later found in Moody, Alabama; and (3) the kidnapping of Daniel Alexander from St. Clair County on July 4, 1998, in furtherance of the appellant's escape from St. Clair County to avoid prosecution. In its notice, the State argued that it intended to offer the acts "to show identity, motive, opportunity, intent, preparation, plan, knowledge, and flight by the defendant to avoid prosecution."
The appellant takes issue with the fact that the State was allowed to offer into evidence, through the testimony of Investigator Manlief, evidence suggesting that the appellant committed several uncharged burglaries while he was "within the perimeter of the manhunt." Investigator Manlief testified that the appellant gave a statement to him and that in the statement he admitted to breaking into several houses within the perimeter of the manhunt and stealing food from the back of the refrigerators in those houses where it would not be missed.
The record reveals, however, that prior to Investigator Manlief's testimony regarding the uncharged crimes, or "bad acts," the trial court conducted a bench conference in response to defense counsel's objection to the admission of the evidence. The trial court held that anything unrelated to Officer Turner's shooting must be kept out of the trial, but allowed Investigator Manlief's testimony, stating that "it [was] part of this action, dealing with the escape from Sheriff Hooks through Tuscaloosa through the incident dealing with Mr. Alexander, all that is part of this same transaction, and can be used."
"'On the trial for the alleged commission of a particular crime, evidence of the accused's having committed another act or crime is not admissible if the only probative function of such evidence is to prove bad character and the accused's conformity therewith. This is a general exclusionary rule which prevents the introduction of prior acts or crimes for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question. ...
"'The foregoing exclusionary rule does not work to exclude evidence of all crimes or acts, only such as are offered to show the defendant's bad character and conformity therewith on the occasion of the now-charged crime. If the defendant's commission of another crime or misdeed is relevant for some other material purpose in the case then it may be admitted." "Charles W. Gamble, McElroy's Alabama Evidence, § 69.01(1) at 300-01 (5th ed. 1996) (footnotes omitted).
"'[E]vidence of collateral offenses may be admissible under certain exceptions to the exclusionary rule or for "other purposes" than to prove the accused's guilt.' Williamson v. State, 629 So. 2d 777, 780 (Ala.Cr.App. 1993). In Nicks v. State, 521 So. 2d 1018 (Ala.Cr.App. 1987), aff'd, 521 So. 2d 1035 (Ala.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948 (1988), this court discussed the exceptions to the general exclusionary rule:
"'Numerous Alabama cases list the exceptions to the general exclusionary rule, or tests for relevancy, whereby evidence of collateral crimes or acts may be admitted. These exceptions include the following:
"`"(1) Relevancy to prove physical capacity, skill, or means to commit the now-charged crime; (2) part of the res gestae or part of a continuous transaction; (3) relevancy to prove scienter or guilty knowledge; (4) relevancy to prove criminal intent; (5) relevancy to prove plan, design, scheme, or system; (6) relevancy to prove motive; (7) relevancy to prove identity; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes." "'Nelson v. State, 511 So. 2d 225, 233 (Ala.Cr.App. 1986). See also Twilley v. State, 472 So. 2d 1130 (Ala.Cr.App. 1985); Brewer v. state, [440 So. 2d 1155 (Ala.Cr.App.), cert. denied, 440 So. 2d 1155 (1983) ]; Miller v. State, 405 So. 2d 41 (Ala.Cr.App.1981); Thompson v. State, 374 So. 2d 377 (Ala.Cr.App. 1978), aff'd, 374 So. 2d 388 (Ala. 1979); McMurtrey v. State, 37 Ala.App. 656, 74 So. 2d 528 (1954); Wilkins v. State, 29 Ala.App. 349, 197 So. 75, cert. denied, 240 Ala. 52, 197 So. 81 (1940); [Charles W. Gamble,] McElroy's [Alabama Evidence] §§ 69.01(1-11) [(3d Ed. 1977) ]; Schroeder, Evidentiary Use in Criminal Cases of Collateral crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241 (1984).
All of the exceptions relate to the relevancy of the evidence, which means that evidence of separate and distinct crimes is admissible only when the evidence is relevant to the crime charged. Mason v. State, 259 Ala. 438, 66 So. 2d 557 (1953); Noble v. State, 253 Ala. 519, 45 So. 2d 857 (1950).
"`"All evidence is relevant which throws, or tends to throw, any light upon the guilt or the innocence of the prisoner. And relevant evidence which is introduced to prove any material fact ought not to be rejected merely because it proves, or tends to prove, that at some other time or at the same time the accused has been guilty of some other separate, independent and dissimilar crime. The general rule is well settled that all evidence must be relevant. If evidence is relevant upon the general issue of guilt, or innocence, no valid reason exists for its rejection merely because it may prove, or may tend to prove, that the accused committed some other crime, or may establish some collateral and unrelated fact. Evidence of other acts to be available must have some logical connection and reveal evidence of knowledge, design, plan, scheme, or conspiracy of the crime charged; or circumstantial evidence of identity of the person charged with the crime; or tends to corroborate direct evidence admitted." "'Underhill, Criminal Evidence § 154 (3d ed. 1923).' "521 So. 2d at 1025-26.
'"The decision whether to allow or not to allow evidence of collateral crimes or acts as part of the State's case-in-chief rests within the sound discretion of the trial judge." Akin v. State, 698 So. 2d 228, 234 (Ala.Cr.App. 1996), cert. denied, 698 So. 2d 238 (Ala. 1997), quoting Blanco v. State, 515 So. 2d 115, 120 (Ala.Cr.App. 1987).'" Perkins v. State, [Ms. CR-93-1931, November 19, 1999], ___ So. 2d ___ (Ala.Crim.App. 1999), affirmed, [No. 1991016, March 30, 2001] ___ So. 2d ___ (Ala. 2001).
In Bradley v. State, 577 So. 2d 541, 547-48 (Ala.Crim.App. 1990), this Court stated:
"[E]ven though evidence of collateral crimes or acts may be relevant to an issue other than the defendant's character, it should be excluded if 'it would serve comparatively little or no purpose except to arouse the passion, prejudice, or sympathy of the jury.' Spellman v. State, 473 So.2d 618, 621 (Ala.Cr.App. 1985), or put another way, 'unless its probative value is "substantially outweighed by its undue prejudice."' United States v. Stubbins, 877 F.2d 42, 43 (11th Cir.), cert. denied, 493 U.S. 940, 110 S.Ct. 340, 107 L.Ed.2d 328 (1989) (quoting United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc, cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).)
"Rather than uphold the trial court by straining to neatly fit the evidence of the three prior incidents into the narrow confines of the traditionally recognized categories, we have chosen to review the court's ruling by determining whether the evidence was `material and logically relevant' to an issue or issues in the case."
In this case, the evidence of the uncharged crimes was material and logically relevant to show that all of the criminal acts committed by the appellant were part of one continuous criminal adventure. In Davis v. State, 740 So. 2d 1115 (Ala.Crim.App. 1998), aff'd, 740 So. 2d 1135 (Ala. 1999), this Court stated the following regarding the continuous-transaction exception to the exclusionary rule:
"In Rowell v. State, 570 So. 2d 848 (Ala.Cr.App. 1990), we held that evidence of uncharged crimes may properly be admitted under the following circumstances:
"`"Evidence of the accused's commission of another crime is admissible if such other crime is inseparably connected with or is a part of the res gestae of the now-charged crime. This rule is often expressed in terms of the other crime and the now-charged crime being parts of one continuous transaction or one continuous criminal occurrence." C. Gamble, McElroy's Alabama Evidence (3d ed. 1977), § 69.01(3). See also Orr v. State, 462 So. 2d 1013, 1015 (Ala.Cr.App. 1984). "Evidence of other crimes is properly admissible as part of the res gestae if all of the criminal acts are part of one continuous criminal adventure by the same party occurring within a matter of hours."'" 740 So. 2d at 1130.
Here, it was not error to admit evidence, through the testimony of Investigator Manlief, of other uncharged criminal acts by the appellant because they were a part of a continuous criminal adventure by the same parties. Therefore, the trial court did not abuse its discretion in admitting this evidence.
The appellant argues that he was denied a fair trial because "numerous additional" law-enforcement officers were present in the courtroom during his trial. The appellant argues that the State's interest in maintaining numerous officers around the courtroom for security purposes was slight, in comparison to the highly prejudicial effect of their presence.
The record indicates that the appellant made an oral motion at trial "to not have so many officers standing in here.... They are all standing along the wall and that is highly prejudicial." In response to the motion, the trial court ordered the officers standing along the wall to be seated. Because the record is silent as to the exact number of officers in the courtroom, and because the trial court granted the appellant's motion, his argument is subject to plain-error review. See Rule 45A, Ala.R.App.P.
This Court has written in Goodwin v. State, 495 So. 2d 731, 733 (Ala.Crim.App. 1986):
"The degree of restraint necessary has historically and wisely been left to the discretion of the trial court. Faire v. State, 58 Ala. 74 (1877); Martin v. State, 51 Ala. App. 405, 286 So. 2d 80 (1973).
"It is not necessary that there be a formal record of a certain type of misconduct to justify the posting of armed guards. Within constitutional limits, great weight must be accorded the discretion of the trial court. The trial judge is responsible for maintaining order in his courtroom. He understands infinitely better than we what is necessary to perform his duty."
Considering the fact that the appellant was charged with the capital offense of killing a police officer, along with overpowering, kidnapping, and beating two law-enforcement officers and shooting a third officer, we conclude that allowing an "additional" number of law-enforcement officers to be seated in the courtroom was not an abuse of the trial court's discretion. No plain error occurred in this regard.
The appellant argues that the trial court committed reversible error in allowing the State, during the sentencing phase, to use a trial aid listing all eight statutory aggravating factors enumerated in § 13A-5-49, Ala. Code 1975. For the first time, on appeal, he argues that the prosecutor's comment in his opening statement to the jury, during the sentencing phase, that evidence would be presented as to "at least" four of the aggravating circumstances violated the trial court's restriction on the use of the trial aid, and was an attempt to mislead the jurors into considering more than four aggravating circumstances. Because the appellant failed to raise this specific objection at trial, it is subject to plain-error review. Barnes v. State, supra; Rule 45A, Ala.R.App.P.
The record reveals that before the sentencing phase of the appellant's trial, the following colloquy occurred between defense counsel, the prosecutor, and the trial court:
"[Defense counsel]: This is a matter that has not been brought to the Court's attention. I do see that some trial aids that have been prepared by the District Attorney's Office that lists -- one exhibit appears to list the statutory or mitigating circumstances, and the other the aggravating. I would object to the use of trial aid listing --
"[Trial court]: I have not looked at those. Do you have one with statutory mitigating?
"[Trial court]: Okay, that is not to be displayed to the jury. What about the aggravating circumstances? Does it just list the ones you are relying on?
"[Prosecutor]: No. I have them all, but I will point out to the jury the four the State will be relying on.
"[Defense counsel]: I would request the others be removed.
"[Trial court]: What is the reason that you would want to present to the jury statutory mitigating circumstances if they claim there is no evidence of them?
"[Prosecutor]: Just for the purpose of argument. I don't understand how we can even argue to the jury this is a balancing procedure if we can't talk about statutory and non-statutory mitigating circumstances.
"[Defense counsel]: Your Honor, the Jury is not limited to the statutory mitigating circumstances. The case law is quite clear on that and Mr. Davis is aware of that. I object to it.
"[Prosecutor]: I know what the law is, Ms. Wilson. We have to argue the case to the jury and tell them what they can consider and what they can't consider. Are you telling me I am now limited to not to refer to non-statutory mitigating?
"[Trial court]: You only have to disprove by a preponderance of the evidence any mitigating circumstances, statutory or non-statutory, which are injected by the defendant. If they do not inject them, you can't disprove them. In other words, there is zero there.
"[Prosecutor]: Your Honor, just a minute ago, you said after we get into the hearing, if something arises, they can argue them. But you are telling me I can't. If they inject one after we have been denied the right to argue them, that puts the state to a--
"[Trial court]: In opening statements, and until they inject a statutory mitigating circumstance, I will not allow you to display all the possible statutory mitigating circumstances that any capital defendant anywhere in the State of Alabama might rely on to justify a sentence of life without parole. Because, by doing that, if there is no evidence of any of those, the Jury could infer the lack of such a mitigating circumstance, as in fact, an aggravating circumstance. I don't think that is fair. I will not allow you to argue statutory mitigating circumstances until they present in their evidence some -- inject it, and then you can present whatever you want to. In closing, you can argue it as long as you want before they go out.
"[Prosecutor]: So what you are telling me is that in my opening statement, I will be limited to reference to non-statutory mitigating?
"[Trial court]: That's correct. The Jury's duty will be to weigh your aggravating circumstances against any mitigating circumstances. We don't need to refer to them as statutory or non-statutory to the jury because they don't know there is such a fact. You have all of these statutory aggravating or just the ones you are relying on?
"[Prosecutor]: I have them all on the chart.
"[Defense counsel]: Your Honor, I would ask that any that are not intended to be relied on by the State be redacted or removed.
"[Prosecutor]: Judge, I'm not going to make reference to them. I'm only going to make reference to the ones the State is relying on. I'm not even going to read the others to them.
"[Defense counsel]: Your Honor, the exhibit, as I see it, has the listing of all statutory --
"[Trial court]: Overruled. If you don't refer to them -- you just check or do whatever around the ones you are relying on, then I'll instruct them that ones that we have gone over the only aggravating circumstances they are allowed to consider. All right, bring the jury in."
The record indicates that, during the sentencing phase, the prosecutor informed the jury in his opening statement that the State would present evidence "concerning at least four statutory aggravating circumstances." The prosecutor presented evidence of only four statutory aggravating circumstances. Additionally, in his closing argument to the jury, the prosecutor stated, "As the Judge told you, the State relies on four aggravating circumstances and I'll go over those with you now." During the State's rebuttal, the prosecutor again stated, "There are four aggravating circumstances up there you can consider." Moreover, the trial court, in instructing the jury, charged as follows:
"Now, in this case, the State of Alabama relies on four aggravating circumstances. That is they have submitted to you evidence, and from that evidence, it is their burden to convince you beyond a reasonable doubt of the existence of these four aggravating circumstances.... The four aggravating circumstances are as follows: (1) That the capital offense was committed by a person under sentence of imprisonment ... [(2)] that the defendant was previously convicted of a felony involving the use of threat of violence to a person ... [(3)] that the capital offense that [he has] previously engaged in or was an accomplice in or that the defendant was in an attempt to commit, or the defendant was in flight after committing a robbery or kidnapping ... [and (4)] that the capital offense was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody .... You may consider all of those four aggravating -- let me let me back up. You can consider any of the four of those aggravating circumstances that you find beyond a reasonable doubt does in fact exist ... as the jury in this case, you are limited to -- in the weighing of the aggravating and mitigating circumstances, you are limited to only considering these four aggravating circumstances that I have just listed for you ... [Y]ou may only consider those four aggravating circumstances that have been requested by the State in this case."
After reviewing the entire opening and closing statements of the prosecutor, along with his argument on rebuttal, we conclude that none of the statements rose to the level of plain error. Additionally, the appellant has failed to provide any evidence indicating that he was prejudiced by the prosecutor's arguments. Moreover, the trial court's instructions to the jury regarding the four aggravating circumstances imply that the appellant suffered no prejudice as a result of the State's use of the trial aid. Rule 45, Ala.R.App.P.; See Callahan v. State, 767 So. 2d 380 (Ala.Crim.App. 1999); Maples v. State, 758 So. 2d 81 (Ala.Crim.App. 1999); Smith v. State, supra (it is presumed that jurors followed the instructions of the trial court). No error occurred here.
The appellant argues that the trial court committed reversible error when it allowed Officer Turner's wife, Brandi Turner, and Alabama Bureau of Investigation Investigator Michael Manlief, to remain in the courtroom during trial. Because the appellant failed to object at trial to the presence of either Turner or Manlief, but merely questioned their presence and whether Rule 615, Ala.R.Evid. had been invoked, this argument is subject to review pursuant to the plain-error rule. See Rule 45A, Ala.R.App.P.
Generally, a trial court may exclude witnesses from the courtroom. See Rule 9.3(a), Ala.R.Crim.P. However, with regard to the right of family members of victims to be present in the courtroom, § 15-14-56(a), Ala. Code 1975, provides:
"Whenever a victim is unable to attend such trial or hearing or any portion thereof by reason of death ... the victim's family may select a representative who shall be entitled to exercise any right granted to the victim, pursuant to the provisions of this article." See also Wilson v. State, 777 So. 2d 856, 930 (Ala.Crim.App. 1999). (a victim of a criminal offense is entitled to be present in any court exercising any jurisdiction over the offense, and may not be excluded from any hearing or trial that pertains to the offense merely because the victim has been or may be subpoenaed to testify at such hearing or trial, § 15-14-51, Ala.Code 1975; additionally, the victim is "'exempt from the operation of rule of court, regulation, or statute requiring the separation or exclusion of witnesses from court in criminal trial or hearings,'" § 15-14-55, Ala.Code 1975).
Rule 615, Ala.R.Evid., provides:
"At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order of its own motion. This rule does not authorize exclusion of ... a victim of a criminal offense or the representative of a victim who is unable to attend...."
Additionally, no error occurred in allowing Investigator Manlief to remain in the courtroom because he was the official "law enforcement representative." See Rule 615, Ala.R.Evid. The record indicates that Investigator Manlief had been the State's case agent since the beginning of the case, and was in charge of the investigation. Therefore, the trial court did not abuse its discretion in allowing him to remain in the courtroom, despite the fact that he was going to testify at trial. In Ex parte Lawhorn, 581 So. 2d 1179, 1181 (Ala. 1991), the Alabama Supreme Court stated that "Alabama appellate courts have time and again refused to hold it an abuse of discretion on the part of the trial court to allow a sheriff, police chief, or similarly situated person who will later testify to remain in the courtroom during trial." See also Jackson v. State, 502 So. 2d 858 (Ala.Crim.App. 1986); Johnson v. State, 479 So. 2d 1377 (Ala.Crim.App. 1985); Chesson v. State, 435 So. 2d 177 (Ala.Crim.App. 1983), and authorities cited in those cases.
Based on the aforestated legal authority, the trial court did not err in allowing the witnesses to remain in the courtroom. Moreover, the appellant has failed to show that the presence of the witnesses prejudiced him or has or probably has affected his substantial rights. Rule ...