Appeal from Houston Circuit Court CC-08-1656
WINDOM, Presiding Judge.
Tawuan Townes appeals his conviction for capital murder and his sentence of death. Townes was convicted of murder made capital for intentionally killing Christopher Woods during the course of a burglary. See § 13A-5-40(a)(4), Ala. Code 1975. The jury, by a vote of 10-2, recommended that Townes be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Townes to death.
Townes had plans to rob Woods, a known drug dealer. Woods lived in a house in Dothan with his girlfriend, India Starks. On November 13, 2008, Townes and Cornelius Benton drove to Woods's house. Townes was armed with a .22 caliber rifle, and Benton was armed with a .380 caliber pistol belonging to Townes's brother. Townes and Benton wore dark clothing and obscured their faces to conceal their identities. Townes was also wearing a toboggan cap.
Around 2 p.m., Starks heard Townes and Benton bang on the door, and, as Woods looked outside, they kicked the door in and entered the house. Woods said, "Please don't do this. ... Man, don't do this. Please don't do this." (R. 437.) Woods backed away and sat in a chair, at which point the men "told him to shut up and just tell [us] where it's at." (R. 437.) As Woods begged for his life and Starks's life, Benton repeatedly hit him in the face to force Woods to give them money. Townes shot Woods in the chest with the .22 caliber rifle and Benton continued to hit Woods. Benton then shot Woods in the leg, after which he resumed hitting Woods in the face and demanding money. Starks heard Woods screaming and begging, "Man, don't do this." (R. 450.)
After Woods was shot the second time, Starks ran to a neighbor's house to telephone emergency 911. As Starks was escaping, one of the men asked, "Where you going, bitch?" (R. 451.) While Starks was on the telephone with emergency 911, she saw the two men leave. Starks went back to Woods's house to attend to Woods. According to Starks, the room where the attack occurred was ransacked, Woods was slumped over in the chair, and her cellular telephone was missing. Woods died as a result of the bullet wound to the chest.
When Townes was arrested, he was in possession of the SIM card from Starks's cellular telephone. After Townes was arrested, he gave a statement to police. In his statement, Townes admitted that he and Benton went to Woods's house to rob him because Townes needed money. Townes, however, adamantly denied intending to kill Woods. Townes stated that he intended to scare Woods when he shot the .22 caliber rifle and that the rifle used only "little bullets." (C. 500.)
Townes's defense at trial centered on his alleged lack of intent to kill. In his opening statement, defense counsel argued that Townes had fired the gun to scare Woods but that there was "[n]o specific intent to kill." (R. 397.) To counter Townes's defense, the State asked numerous witnesses "what part of your body tells you to pull the trigger, " to which the witnesses responded, "[y]our brain." (R. 536.) Through these questions, the State sought to raise the inference that, because Townes's brain controlled his pulling the trigger of the gun, the fact that Townes pulled the trigger of the gun established that he intended to kill Woods.
During closing arguments, defense counsel again argued that Townes shot Woods to scare him. According to defense counsel, Townes intended to rob a drug dealer who, because of his occupation, would not call the police to report a robbery. Defense counsel then argued that Woods refused to give Townes and Benton money, so Townes fired a shot to scare him. Defense counsel argued that Townes did not have the intent to kill; therefore, he was guilty of felony murder as opposed to capital murder.
In response, the State argued:
"[Defense counsel] says [the State] can't prove intent. Well, once again, just -- it's simple. What part of your body tells you to pull the trigger? It's the brain."
After closing arguments, the circuit court instructed the jury on the elements of capital murder. Regarding specific intent, the court instructed the jury as follows:
"A specific intent to kill is an essential ingredient of capital murder as charged in this indictment, and may be inferred from the character of an assault, the use of a deadly weapon, or other attendant circumstances. Such intent must be inferred if the act was done deliberately and death was reasonably to be apprehended or expected as a natural and probable consequence of the act. But the facts upon which such inference is drawn must be proved so clearly as to leave no reasonable ...