April 17, 2015
Jakarrey Deanthony Chambers
State of Alabama
Corrected April 30, 2015.
from Mobile Circuit Court. (CC-12-890; CC-12-1227).
Appellant: Christine C. Hernandez, Mobile.
Appellee: Luther Strange, atty. gen., and Beth Slate Poe,
asst. atty. gen.
appellant, Jakarrey Deanthony Chambers, was convicted of two
counts of murder, a violation of § 13A-6-2, Ala. Code
1975. The circuit court sentenced Chambers to 99 years'
imprisonment on each count, to be served consecutively.
evidence presented at trial established the following
pertinent facts. On January 29, 2011, Tasha Reed went to
check on Roy Ezell and Sherley Ezell after she was unable to
reach them by telephone. Reed considered Roy and Sherley to
be her " godmomma" and " goddaddy." (R.
244.) Reed decided to leave a note at the Ezells' house
after she was unable to reach them by telephone. When Reed
arrived at the Ezells' house, she noticed that their
newspaper was in the front yard and that the mailbox was
full. Reed, who had a key to the " burglar bar
door" of the Ezells' house, testified that the door
could be locked only from the outside with a key. While
attempting to open the door to the house, Reed looked through
broken blinds in the window next to the door and saw Roy and
Sherley lying on the floor with blood around them. Reed
immediately ran to the neighbor's house to telephone the
police. Reed informed police that the door was locked when
she arrived at the Ezells' house.
Zack Davis with the Mobile Police Department was dispatched
to the Ezell residence and arrived at approximately 5:30 p.m.
When Davis arrived he saw Sherley Ezell lying face down in
the doorway, covered in blood. Sherley did not initially
appear to be breathing but gasped for air after officers
secured the scene. She was immediately transported to the
hospital for treatment but died days later from her injuries.
Officer Davis also saw Roy Ezell lying face down and covered
in blood with a knife embedded in his back. Autopsies
performed on Roy and Sherley indicated that both had
blunt-force trauma to the head consistent with having been
struck with a baseball bat.
scene, officers found a pipe, similar to one used for smoking
crack, and a lighter on the electrical box in an unfinished
area of the garage. While photographing the scene, Ronnie
Myers, a crime-scene investigator with the Mobile Police
Department at the time, rolled Roy's body over and found
" a [finger]tip of
a plastic latex glove underneath his body." (R. 307.)
Forensic testing on a sample of blood taken from the latex
glove indicated a mixture of blood with a " major [DNA]
profile and a minor contributor." (R. 425.) The major
DNA profile belonged to Roy, and Chambers was included as a
possible minor contributor. According to the DNA profile, 1
in 209,000 random unrelated African-American individuals have
a DNA profile that would be included as a possible
contributor. Officers also discovered a bloody shoe print
near Roy's body that one of the officers believed was
made by a Nike Air Force One athletic shoe. Photographs and
measurements of the shoe print were sent to the Federal
Bureau of Investigation for analysis. The results of the
analysis indicated that the shoe imprint found at the scene
most closely corresponded to a Nike Air Jordan Fusion
later searched a black Kia automobile owned by the Ezells and
found in the possession of Chambers at Chambers's
residence. Using luminal, police detected blood on the right
front floorboard mat, as well as a small amount of blood on
the steering wheel. Underneath the floorboard mat, police
found a dark red area that was dry, but not "
scaly" and did not appear to be very old. (R. 315.)
Forensic testing indicated that Sherley's blood matched
the blood found on the floorboard mat. Officers also found a
pair of black Nike Air Force One athletic shoes in the trunk
of the vehicle and various clothing.
their investigation, police learned that Chambers had free
access to the Ezells' house. Reed testified that Chambers
knew the Ezells and was around their house often around the
time of the murders. In the early morning hours on the day of
the murder, Roy telephoned Chambers at least 44 times.
gave six statements to police. Chambers gave his first
statement to police on January 29, 2011. During his
statement, Chambers confirmed that he was close to the Ezells
and that he regularly drove the black Kia. Investigator
Charles Bagsby testified that there were some inconsistencies
in Chambers's first statement to police. Police
confronted Chambers a second time the following day regarding
the inconsistencies in his first statement. Bagsby questioned
Chambers a third time in June 2011 after the forensic testing
had been completed. Chambers gave Bagsby several inconsistent
versions of what had happened. Initially, Chambers stated
that a third person entered the Ezells' house, robbed
them, and killed them with a baseball bat. Then Chambers
stated that a Frye Park gang was involved and named two
members who had allegedly committed the crime. Chambers next
alleged that a man named Michael Glenn was responsible for
the murders. Chambers claimed Glenn was armed with a 9-mm.
handgun and described Glenn wearing " school
clothes" during the murder, but denied seeing
Glenn's shoes. (R. 485.) Bagsby testified that at times
during the interview Chambers admitted being present when the
murders occurred and on at least one occasion Chambers told
Bagsby the location of Sherley's body. Bagsby testified
that at other times Chambers denied being present at the
Ezells' house when the murders occurred.
12, 2011, Chambers initiated contact with police and gave his
fifth statement in the investigation. Chambers informed
police that Glenn was wearing a pair of black Nike Air Force
One shoes and blue jeans when he murdered the Ezells.
Chambers also alleged that Glenn was armed with a baseball
bat, which Chambers stated Glenn retrieved from behind the
door of the Ezells' house. Chambers
denied ever wearing gloves inside the Ezells' house.
his sixth and final statement to police, Chambers told Bagsby
that he went to the Ezells' house after work to make sure
that they were " okay" but found them dead inside
the house. (R. 493.) Chambers stated that he then went to
CiCi's Pizza with his girlfriend. Bagsby testified that
Chambers did not telephone police upon finding the
Ezells' bodies because " he said he was scared,
[and] that was pretty much it." (R. 493.) Chambers was
unable to explain how the door was locked after he left the
both sides rested and the circuit court instructed the jury
on the applicable principles of law, the jury found Chambers
guilty of two counts of murder. Chambers subsequently filed a
motion for a new trial that the circuit court denied. This
first contends that the circuit court erred when it denied
his motion for a judgment of acquittal because, he argues,
the State presented circumstantial evidence that was
insufficient to overcome the presumption of innocence and
reasonable doubt. Chambers contends that the State failed to
prove that he intended to cause the death of the
" '" In determining the sufficiency of the
evidence to sustain a conviction, a reviewing court must
accept as true all evidence introduced by the State, accord
the State all legitimate inferences therefrom, and consider
all evidence in a light most favorable to the
prosecution." ' Ballenger v. State, 720
So.2d 1033, 1034 (Ala.Crim.App. 1998), quoting Faircloth
v. State, 471 So.2d 485, 488 (Ala.Crim.App. 1984),
aff'd, 471 So.2d 493 (Ala. 1985). '" The test
used in determining the sufficiency of evidence to sustain a
conviction is whether, viewing the evidence in the light most
favorable to the prosecution, a rational finder of fact could
have found the defendant guilty beyond a reasonable
doubt." ' Nunn v. State, 697 So.2d 497, 498
(Ala.Crim.App. 1997), quoting O'Neal v. State,
602 So.2d 462, 464 (Ala.Crim.App. 1992). '" When
there is legal evidence from which the jury could, by fair
inference, find the defendant guilty, the trial court should
submit [the case] to the jury, and, in such a case, this
court will not disturb the trial court's decision."
' Farrior v. State, 728 So.2d 691, 696
(Ala.Crim.App. 1998), quoting Ward v. State, 557
So.2d 848, 850 (Ala.Crim.App. 1990). 'The role of
appellate courts is not to say what the facts are. Our role
... is to judge whether the evidence is legally sufficient to
allow submission of an issue for decision [by] the jury.'
Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978).
" 'The trial court's denial of a motion for
judgment of acquittal must be reviewed by determining whether
there was legal evidence before the jury at the time the
motion was made from which the jury by fair inference could
find the defendant guilty. Thomas v. State, 363
So.2d 1020 (Ala. Cr. App. 1978). In applying this standard,
this court will determine only if legal evidence was
presented from which the jury could have found the defendant
guilty beyond a reasonable doubt. Willis v. State,
447 So.2d 199 (Ala. Cr. App. 1983). When the evidence raises
questions of fact for the
jury and such evidence, if believed, is sufficient to sustain
a conviction, the denial of a motion for judgment of
acquittal does not constitute error. McConnell v.
State, 429 So.2d 662 (Ala. Cr. App. 1983).'"
Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.
2003), cert. denied, 891 So.2d 998 (Ala. 2004)(quoting
Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.
" '" Circumstantial evidence alone is enough to
support a guilty verdict of the most heinous crime, provided
the jury believes beyond a reasonable doubt that the accused
is guilty." White v. State, 294 Ala. 265, 272,
314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46
L.Ed.2d 288 (1975). " Circumstantial evidence is in
nowise considered inferior evidence and is entitled to the
same weight as direct evidence provided it points to the
guilt of the accused." Cochran v. State, 500
So.2d 1161, 1177 (Ala. Cr. App. 1984), affirmed in pertinent
part, reversed in part on other grounds, Ex parte
Cochran, 500 So.2d 1179 (Ala. 1985).'"
Hollaway v. State, 979 So.2d 839, 843 (Ala.Crim.App.
2007)(quoting White v. State, 546 So.2d 1014, 1017
" 'In reviewing a conviction based on circumstantial
evidence, this court must view the evidence in the light most
favorable to the prosecution. The test to be applied is
whether the jury might reasonably find that the evidence
excluded every reasonable hypothesis except that of guilt;
not whether such evidence excludes every reasonable
hypothesis but guilt, but whether a jury might reasonably so
conclude. United States v. Black, 497 F.2d 1039 (5th
Cir. 1974); United States v. McGlamory, 441 F.2d 130
(5th Cir. 1971); Clark v. United States, 293 F.2d
445 (5th Cir. 1961).'"
Bradford v. State, 948 So.2d 574, 578-79
(Ala.Crim.App. 2006)(quoting Cumbo v. State, 368
So.2d 871, 874-75 (Ala.Crim.App. 1978)).
person commits murder if " [w]ith intent to cause the
death of another person, he causes the death of that
person." § 13A-6-2(a)(1), Ala. Code 1975. With
regard to the intent element, this court has stated:
" Normally there is no direct evidence of intent.
'" 'Intent, we know, being a state or condition
of the mind, is rarely, if ever, susceptible of direct or
positive proof, and must usually be inferred from the facts
testified to by witnesses and the circumstances as developed
by the evidence.'" Ex parte C.G., 841 So.2d
292, 301 (Ala. 2002), quoting Pumphrey v. State, 156
Ala. 103, 106, 47 So. 156, 157 (1908).'"
Brown v. State, 11 So.3d 866, 914 (Ala. Crim. App
2007). " 'The question of intent is hardly ever
capable of direct proof. Such questions are normally
questions for the jury.'" 11 So.3d at 914 (quoting
Payne v. State, 946 So.2d 930, 935 (2006)(other
viewing the evidence in the light most favorable to the
State, we find that the evidence presented at trial, albeit
circumstantial, was sufficient to establish a prima facie
case of murder. The evidence presented at trial indicated
that Chambers knew the Ezells and that he had free access to
the Ezells' house. Roy Ezell telephoned Chambers numerous
times immediately before the murders. At the time the
Ezells' bodies were found, the door to the Ezells'
house was locked. Testimony indicated that the door could be
locked only from the outside with a key. Once inside,
officers observed Sherley Ezell lying face down in the
doorway and Roy Ezell also lying face down in the house. Both
sustained blunt-force trauma
consistent with having been struck by a baseball bat.
processing the scene, officers discovered the fingertip of a
latex glove under Roy Ezell's body that contained a
mixture of blood; tests indicated the presence of Roy's
blood and that of another person. Forensic testing
subsequently indicated a 1 in 209,000 probability that
Chambers was the minor contributor in the mixture sample.
police located the Ezells' black Kia automobile in
Chambers's possession. Testing of the interior of the car
revealed the presence of blood that did not appear to be very
old. The blood found on the floormat was Sherley's blood.
the course of the investigation, Chambers gave six statements
to police. In his third statement to police, Chambers told
police that a third person had entered the Ezells' house
and had killed them with a baseball bat. In that very same
statement, Chambers claimed that two members of a Frye Park
gang committed the murders. Chambers subsequently changed his
story again when he told police that a man named Glenn was
responsible for the murders and that Glenn was armed with a
gun. In yet another statement to police, Chambers stated that
Glenn was armed with a baseball bat. Finally, in his sixth
statement to police, Chambers stated that he went to the
Ezells' house, found them dead inside, then left and went
out to eat with his girlfriend. In his interviews with
police, Chambers admitted to being present when the murders
occurred and on at least one occasion described for police
the location of Sherley's body in the house.
Court's duty is to determine whether there was legally
sufficient evidence to support Chambers's convictions for
two counts of murder. See Gavin, 891 So.2d at 974. Given the
evidence presented at trial and the standard by which this
Court reviews that evidence, we conclude that there was
sufficient evidence presented from which the jury could find
Chambers guilty of murder. Accordingly, the circuit court did
not err when it denied Chambers's motion for a judgment
also contends that the circuit court erred when it denied his
" motion to exclude the results of questionable DNA
mixture samples alleged to have been recovered from the tip
of a latex glove located under the body of Roy Ezell."
(Chambers's brief, p. 13.) Specifically, Chambers
contends that the evidence proffered by the State did not
meet the standard set forth in Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993), because the methodology used in testing
the DNA samples was not properly analyzed using the Daubert
standard. Chambers further contends that the admission of the
scientific test results on the DNA samples was improper
because Donna Gibbons, the scientist who testified at trial,
" was not present during the testing, [did] not actually
handle the DNA evidence, [was] not the supervisor of
[Patrick] Goff [who actually conducted the test on the DNA
evidence] and was not at the time the testing was
conducted." (Chambers's brief, p. 18.) Chambers
claims that Patrick Goff's failure to testify violated
Chambers's right to confront and to cross-examine
witnesses called to testify against him.
Ex parte Ware, [Ms. 1100963] 181 So.3d 409, (Ala.
2014), the Alabama Supreme Court addressed the issue whether
Ware's Sixth Amendment right to confront witnesses
against him was violated when the circuit court admitted into
evidence a DNA-profile report that was based on the work of
laboratory technicians who did not testify at trial. The
Court analyzed the United States Supreme Court's decision
in Crawford v. Washington, 541 U.S. 36, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004), and the decisions following
" The Sixth Amendment of the United States Constitution
provides in part that, '[i]n all criminal prosecutions,
the accused shall enjoy the right ... to be confronted with
the witnesses against him....' In Ohio v.
Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597
(1980), the United States Supreme Court held that the
Confrontation Clause does not bar admission of an unavailable
witness's statement against a criminal defendant if the
statement bears 'adequate " indicia of
" In Crawford, the United States Supreme Court overruled
Roberts, rejecting the 'reliability' standard and
holding that the right to confront witnesses applies to all
out-of-court statements that are 'testimonial.' 541
U.S. at 68, 124 S.Ct. 1354. Although the Crawford Court did
not arrive at a comprehensive definition of
'testimonial,' it noted that 'the principal evil
at which the Confrontation Clause was directed was the
civil-law mode of criminal procedure, and particularly its
use of ex parte examinations as evidence against the
accused.' 541 U.S. at 50, 124 S.Ct. 1354.
" Since Crawford, the Supreme Court has released three
decisions addressing the application of the Confrontation
Clause to forensic-testing evidence. In Melendez--Diaz v.
Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d
314 (2009), the Supreme Court held that a sworn certificate
of analysis attesting that certain materials were cocaine was
a testimonial statement. The Court in Melendez--Diaz declined
to create a forensic-testing exception, and it rejected the
argument that the certificate at issue there was not
testimonial because it was not 'accusatory.'
" In Bullcoming v. New Mexico, 564 U.S. 647,
131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the Supreme Court
held that the Confrontation Clause applied to an unsworn
forensic-laboratory report certifying the defendant's
blood-alcohol level, where the report was specifically
created to serve as evidence in a criminal proceeding and
there was an adequate level of formalities in the creation of
" In Williams v. Illinois, __ U.S. __, 132
S.Ct. 2221, 183 L.Ed.2d 89 (2012), the United States Supreme
Court held, in a plurality opinion, that the Confrontation
Clause was not violated where an expert was allowed to offer
an opinion based on a DNA-profile report prepared by persons
who did not testify and who were not available for
cross-examination. Williams involved a bench trial in which a
forensic specialist from the Illinois State Police laboratory
testified that she had matched a DNA profile prepared by an
outside laboratory to a profile of the defendant prepared by
the state's lab. The outside lab's DNA report was not
admitted into evidence, but the testifying analyst was
allowed to refer to the DNA profile as having been produced
from the semen sample taken from the victim.
" The plurality opinion concluded that the analyst's
testimony was not barred
by the Confrontation Clause for two independent reasons,
neither of which received the concurrence of a majority of
the Court. First, the plurality concluded that the
expert's testimony was not admitted for the truth of the
matter asserted but was admitted only to provide a basis for
the testifying expert's opinions. Second, the plurality
concluded that the DNA-profile report was not testimonial
because its primary purpose was not to accuse the defendant
or to create evidence for use at trial, but 'for the
purpose of finding a rapist who was on the loose.'
Williams, __ U.S. at __, 132 S.Ct. at 2228. The Williams
plurality also noted the inherent reliability of DNA-testing
protocols and the difficulties in requiring the prosecution
to produce the analysts who actually did the testing."
Ex parte Ware, __ So.3d at __, Id. at*14-*15
light of the fractured decisions of the United States Supreme
Court on this issue, our Supreme Court in Ware concluded that
a case could be " made for both sides of the issue
whether the DNA-profile report in [Ware's] case was
'testimonial' under the 'holdings' of
Melendez-Diaz, Bullcoming, and Williams." __ So.3d at
__. However, the Court did not resolve the issue because, it
concluded that " the Confrontation Clause was satisfied
by the testimony" of Jason E. Kokoszka, an employee of
Orchid Cellmark Laboratory " who supervised and reviewed
the DNA testing and who signed the DNA-profile report."
__ So.3d at __. The Court concluded
" that Kokoszka's testimony in this case satisfied
the purpose of the Confrontation Clause. Kokoszka signed the
DNA-profile report and initialed each page of Cellmark's
'case file' that was also admitted into evidence.
Kokoszka testified that he was one of the individuals taking
responsibility for the work that resulted in the report and
that he had reviewed each of the analyses undertaken to
determine that they were done according to standard operating
procedures and that the conclusions drawn were accurate and
appropriate. Kokoszka's testimony at trial provided Ware
with an opportunity to cross-examine Kokoszka about any
potential errors or defects in the testing and analysis,
including errors committed by other analysts who had worked
on the case."
Ex parte Ware, __ So.3d at __.
instant case, Patrick Goff, a forensic scientist with the
Alabama Department of Forensic Sciences (" DFS" )
performed a DNA analysis on the blood mixture taken from the
tip of the latex glove. Goff was unable to testify at trial,
and Donna Gibbons, a forensic scientist also employed by DFS,
testified on his behalf. Gibbons was not Goff's immediate
supervisor and was not present when Goff tested the sample,
but testified that she had reviewed Goff's test results
and the case packet Goff had used when he made his
interpretation about whether Chambers was included in the DNA
mixture sample. Gibbons explained that DFS took a " team
approach" and that a " certain individual will
screen evidence and then they will cut it, put it into a tube
and then the next individual will take that to the DNA
testing process and they will run that, and then another
individual ... will come behind them and actually take the
case packet, which is all the DNA testing process paperwork
and write a report from all of that paperwork." (R.
403.) Gibbons continued to explain that once a report is
prepared, a second scientist will " come behind you and
review all of that paperwork and come to their own
conclusions and interpretations to see if the reporting
scientist reported it out correctly." (R. 403.) Gibbons
testified that she was the secondary scientist who reviewed
Goff's work and the data in Chambers's case. Gibbons
testified that she had to review the materials because it was
standard procedure and it also was necessary in cases such as
Chambers's where the person who reported it was not
available. Gibbons testified that the reviewing scientist
" takes sole responsibility for [the report] also, so
[he or she] is able to come testify ... about the
evidence." (R. 404.)
reviewing Goff's work, Gibbons conducted two reviews.
Gibbons testified that " [o]ne is a technical review to
make sure the actual technical process was done correctly and
administrative reviews, checking the case number, periods in
the report ... making sure the names match in the case
filed." (R. 414-15.) Gibbons noted that there was no
indication of an error in the population-frequency
calculations that were performed in this case.
testified that she made her own interpretations and
conclusions based on the information in the case packet and
compared her interpretations and conclusions with Goff's
report. Gibbons testified that her conclusions were her own
and that her conclusions in the DNA analysis matched those of
Goff, who had been at DFS for approximately the same amount
of time as her. Gibbons stated that Goff followed the rules
and best practices in this case.
testimony about the DFS processes, including her technical
and administrative review of Goff's work that included
the entire case packet and her independent conclusions based
on her review of the entire case packet provided Chambers
with ample opportunity to cross-examine Gibbons regarding the
DNA-analysis report. Therefore, we find that Chambers right
to confront the witnesses against him was not violated when
Gibbons testified on Goff's behalf regarding the
Chambers's contention that the Daubert standard was not
met in this case, § 36-18-30, Ala. Code 1975, provides
that the Daubert standard applies to the admissibility of DNA
evidence. In determining whether DNA evidence is admissible,
circuit courts are to assess the reliability or validity of
the evidence using the flexible analysis set forth in
Daubert, which employs the following factors: (1) testing;
(2) peer review; (3) rate of error; and (4) general
acceptance. Blackmon v. State, 7 So.3d 397
(Ala.Crim.App. 2005); and Turner v. State, 746 So.2d
355, 361 (Ala. 1998).
Turner the Alabama Supreme Court set out the following
guidelines for the admission of DNA evidence:
" [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[, Ala. Code 1975],
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 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 [Ex parte]
Perry, 586 So.2d  at 251 [(Ala. 1991)]; [United States
v.] Beasley, 102 F.3d  at 1448 [(8th Cir. 1996)]
(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)] (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."
Turner, 746 So.2d at 361-62 (footnotes omitted).
Alabama, we have adopted a " liberal test of relevancy,
which states that evidence is admissible 'if it has any
tendency to lead in logic to make the existence of the fact
for which it is offered more or less probable than it would
be without the evidence.'" Hayes v. State,
717 So.2d 30, 36 (Ala.Crim.App. 1997)(quoting C. Gamble,
Gamble's Alabama Evidence § 401(b)(1st ed.
1995)(emphasis original)). In the instant case, the evidence
from the mixture was relevant to the issue whether Chambers
was involved in the murder of the two victims, including Roy
Ezell, under whom the tip of the latex glove with blood on it
was found. If believed, the blood evidence on the glove
placed Chambers at the scene of the murder and did not
exclude Chambers as a possible perpetrator of the crime.
Therefore, the first part of the Daubert test was satisfied.
second part of the Daubert test addressing the reliability of
the evidence was also satisfied. In determining the
reliability and scientific validity of DNA evidence, courts
should consider several guiding factors that include whether
the theory or technique has been tested, whether the theory
or technique has been subjected to peer review, whether the
theory or technique has a known rate of error that is
acceptable, and whether the theory or technique has gained
general acceptance. Daubert, 509 U.S. at 593-94; Turner, 746
So.2d at 361. These factors do not represent an exhaustive
list but are generally appropriate to consider in determining
reliability. Daubert, 509 U.S. at 593.
pretrial hearing, Gibbons testified regarding the DNA testing
of the sample and was admitted without objection as an expert
in DNA. Gibbons testified that there was not a single
national standard for testing and interpreting DNA mixtures
but that there were generally accepted guidelines for testing
mixtures. Gibbons explained that DFS followed the guidelines
of the Scientific Working Group on DNA Analysis Methods
(" SWGDAM" ) and that SWGDAM advocates the
imposition of written guidelines. Gibbons testified that
there was not a standard way of testing
and interpreting mixtures because " with mixtures it can
vary widely and there is not a -- it's hard to say you
got to do it this way -- or it's hard to figure out every
possible way a mixture can happen to define in just one set
of interpretation guidelines" given that every DNA
mixture is different and there can be different amounts from
different contributors in each sample. (R. 84.) Gibbons
explained that the variances in the mixtures made it very
difficult to construct a universal framework that would
provide a standard for mixed interpretation. Gibbons noted,
however, that there were interpretation guidelines in the DFS
standard operating procedure and explained the procedure in
testified that DFS had one of the better guidelines for
mixture interpretation. Gibbons testified that DFS employed
internal proficiency procedures and that an external audit
was performed by individuals from outside laboratories within
the United States every other year. According to Gibbons,
these outside agencies reviewed DFS mixture interpretations
and conducted file reviews. Gibbons described DFS standards
as " rigorous" and testified that DFS scientists
were more " conservative" in their interpretations
of mixtures. (R. 90.)
review of the record convinces us that the State presented
sufficient evidence at the pretrial hearing that the DNA
evidence in this particular case satisfied both the
reliability and relevance requirements of Daubert. Therefore,
we hold that the circuit court did not err in denying
Chambers's motion to exclude this evidence.
next contends that the circuit court erred by denying his
motion for a mistrial based on the circuit court's
improper jury instruction on accomplice liability.
Specifically, Chambers argues that " [i]n essence, the
accomplice liability charge was a fatal variance and
constructively amended the indictment well after the original
jury instruction and an Allen [v. United States, 164 U.S.
492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)] charge ... [and] was
unsupported by the evidence." (Chambers's brief, p.
record indicates that during deliberations, the jury sent a
question to the circuit court asking " i[s] a person who
is present at a murder but does not actually do the killing
by law [sic] still guilty of murder or a lesser charge? Does
inaction cause/intent?" (R. 691, 704.) After a lengthy
discussion and deliberation with counsel, the circuit court
decided to charge the jury on accomplice liability as well as
that mere presence at the scene does not equate to guilt.
Defense counsel subsequently moved for a mistrial based on
the circuit court's instruction on accomplice liability.
The circuit court denied the motion for a mistrial.
" '[A] mistrial " specifies such fundamental
error in a trial as to vitiate the result," Diamond
v. State, 363 So.2d 109, 112 (Ala. Cr. App. 1978), and
should be granted only when a " high degree of
'manifest necessity'" is demonstrated,
Wadsworth v. State, 439 So.2d 790, 792 (Ala. Cr.
App. 1983), cert. denied, 466 U.S. 930, 104 S.Ct. 1716, 80
L.Ed.2d 188 (1984).' Garnett v. State, 555 So.2d
1153, 1155 (Ala. Cr. App. 1989)."
Levett v. State, 593 So.2d 130, 135 (Ala.Crim.App.
" A mistrial is an extreme measure that should be taken
only when the prejudice cannot be eradicated by instructions
or other curative actions of the trial court. Nix v.
State, 370 So.2d 1115, 1117 (Ala. Crim. App.), cert.
denied, 370 So.2d 1119 (Ala. 1979). If an error can be
effectively cured by an instruction, a mistrial is too
drastic a remedy and is
properly denied. Thompson v. State, 503 So.2d 871,
877 (Ala.Crim.App. 1986)."
Ex parte Lawrence, 776 So.2d 50, 55 (Ala. 2000).
" Alabama courts have repeatedly held that a mistrial is
a drastic remedy, to be used sparingly and only to prevent
manifest injustice. The decision whether to grant a mistrial
rests within the sound discretion of the trial court and the
court's ruling on a motion for a mistrial will not be
overturned absent a manifest abuse of that discretion."
Peoples v. State, 951 So.2d 755, 763 (Ala.Crim.App.
extent that Chambers is arguing that reversible error
occurred because the accomplice-liability instruction created
a fatal variance with the indictment, the record indicates
that Chambers abandoned this claim below. When the parties
returned from a break, defense counsel conceded that the
circuit court was correct that complicity did not have to be
alleged in the indictment and that charging on complicity did
not create a fatal variance. Nevertheless, we note that it is
well settled that the " 'State is not required to
notify the defendant in the indictment or otherwise that it
is proceeding under a complicity theory.'"
McGowan v. State, 990 So.2d 931, 985 (Ala.Crim.App.
2003)(quoting Johnson v. State, 612 So.2d 1288, 1297
Chambers's contention that the complicity charge
impermissibly constructively amended the indictment, Alabama
law provides that the giving of a complicity charge does not
constructively amend an indictment. See Howell v.
State, 618 So.2d 134, 139 (Ala.Crim.App. 1992)(" A
conviction under an indictment charging a substantive offense
on proof showing complicity does not constitute an amendment
of the indictment." ). Therefore, Chambers is not
entitled to relief on this claim.
Chambers is not entitled to relief on his claim that the
circuit court erred in denying his motion for a mistrial
following its instruction on accomplice liability. As he did
at trial, Chambers argues on appeal that the complicity
instruction was error because the instruction was unsupported
by the evidence. Chambers maintains that the State proceeded
at trial under the theory that Chambers alone murdered the
Ezells. A jury instruction is properly given if it is
supported by the evidence, regardless of who requests the
charge. See Apicella v. State, 809 So.2d 841, 857
(Ala.Crim.App. 2000). The record indicates that the decision
to give the complicity instruction was not based on the
State's theory of the case but, instead, was based on
evidence presented at trial demonstrating that Chambers may
not have acted alone. Particularly, in his statements to
police, Chambers claimed that another man -- Glenn -- was
responsible for murdering the Ezells, but Chambers admitted
to being present during the murders. The evidence presented
at trial, therefore, supported a complicity instruction.
Given the drastic nature of a mistrial and the evidence
presented at trial, we find no error on the part of the
circuit court in denying Chambers's motion for a mistrial
on the basis that it was error for the circuit court to
instruct the jury on accomplice liability.
Chambers contends that the circuit court erred when it
refused to give his requested Smiley v. State, 655
So.2d 1091 (Ala. 1995), jury charge and that the circuit
court's failure to give the Smiley instruction combined
with the court's improper
jury instruction as to reasonable doubt constituted
outset, we note that the record indicates that Chambers's
challenge to the circuit court's jury instruction on
reasonable doubt is raised for the first time on appeal.
Alabama law has long held that " [a]n issue raised for
the first time on appeal is not subject to review because it
has not been properly preserved and presented." Pate
v. State, 601 So.2d 210, 213 (Ala.Crim.App. 1992).
" [T]o preserve an issue for appellate review, it must
be presented to the trial court by a timely and specific
motion setting out the specific grounds in support
thereof." McKinney v. State, 654 So.2d 95, 99
(Ala.Crim.App. 1995)(citation omitted). " The purpose of
requiring a specific objection to preserve an issue for
appellate review is to put the trial judge on notice of the
alleged error, giving an opportunity to correct it before the
case is submitted to the jury." Ex parte Works,
640 So.2d 1056, 1058 (Ala. 1994). This is particularly true
when an appellant challenges a circuit court's jury
instructions. Rule 21.3, Ala. R. Crim. P., provides, in
" No party may assign as error the court's giving or
failing to give a written instruction, or the giving of an
erroneous, misleading, incomplete, or otherwise improper oral
charge, unless the party objects thereto before the jury
retires to consider its verdict, stating the matter to which
he or she objects and the grounds of the objection."
order to preserve an issue regarding jury instructions for
appellate review, the defendant must object before the jury
retires to deliberate. See Davis v. State, 747 So.2d
921, 924 (Ala.Crim.App. 1999); Hinton v. State, 632
So.2d 1345, 1350 (Ala.Crim.App. 1993). Chambers did not
specifically object to the circuit court's jury
instruction on reasonable doubt; therefore, this issue is not
properly preserved for our review.
turn to Chambers's contention that the circuit court
erred by not giving his requested Smiley instruction.
Although the record does not contain copies of defense
counsel's written requested jury instructions, the
circuit court read defense counsel's requested Smiley
charge on the record during the charge conference. At the
charge conference, the following exchange took place:
" THE COURT: As to [Chambers's] requested charge on
the Smiley case, I've been given the case, and [defense
counsel], you may have a copy. I've been given the other
case, a more recent case of [Ex parte] Carter [889 So.2d 528
(Ala. 2004)], and I couldn't remember the cite last
night, but I'm familiar with this Carter opinion
suggesting that the Smiley rule, so to speak, really is not
an accurate statement of law at this point. Have you seen the
" [DEFENSE COUNSEL]: Your Honor, I did have a chance to
read over it. What I would point out to the Court is what
they seem to be saying in that opinion and I wrote it down,
the only logical conclusion is that the defendant committed
the crime, right. And if logic [and] common sense shows
that's the only conclusion the jury could come to, then a
failure to give the circumstantial evidence charge that
I've requested is not reversible error. Okay. What
I've read from the opinion, the flip side of it is if the
evidence supports any other reasonable hypothesis of guilty
other than that of the defendant then he's entitled to
the circumstantial evidence charge as outlined in Smiley.
" THE COURT: Okay.
" [PROSECUTOR]: I just respond that Carter is a correct
statement issue of the law as well, Judge, and I don't
think based on that it's the duty of the State to exclude
every reasonable hypothesis other than that of the
defendant's guilt anymore.
" THE COURT: Based on the totality of evidence that
I've heard in the trial and having reviewed the Smiley
and Carter opinions, the Court is going to respectfully
refuse to give the requested charge provided by Counsel on
Smiley v. State. That charge I'll read it just for the
record, ladies and gentlemen of the jury, the evidence
presented to you by the State in this matter constitutes
circumstantial evidence. To find the defendant guilty, the
circumstantial evidence presented by the State must exclude
every reasonable hypothesis of guilty except that of the
Defendant. If you find that the State's evidence does not
exclude every reasonable hypothesis of guilty except that of
the defendant, beyond a reasonable doubt, it is your duty to
acquit the defendant. And as I say based on the totality of
the evidence and my review of the Smiley and Carter opinions,
I'm going to respectfully refuse to give that
(R. 556-58; emphasis added.)
Court has explained that:
" 'A trial court has broad discretion in formulating
its jury instructions, providing they are an accurate
reflection of the law and facts of the case.' Coon v.
State, 494 So.2d 184 (Ala.Crim.App. 1986). '"
When requested charges are either fairly and substantially
covered by the trial judge's oral charge or are
confusing, misleading, ungrammatical, not predicated on a
consideration of the evidence, argumentative, abstract, or a
misstatement of the law, the trial judge may properly refuse
to give such charges." ' Ward v. State, 610
So.2d 1190, 1194 (Ala.Crim.App. 1992) (quoting Ex parte
Wilhite, 485 So.2d 787 (Ala. 1986))."
Edwards v. State, 139 So.3d 827, 832 (Ala.Crim.App.
2013). Furthermore, the Alabama Supreme Court has explained
that " 'Generally speaking, the standard of review
for jury instructions is abuse of discretion.'"
Arthur v. Bolen, 41 So.3d 745, 749 (Ala.
2010)(quoting Pollock v. CCC Invs. I, LLC, 933 So.2d
572, 574 (Fla. Dist. Ct.App. 2006)).
Ex parte Smiley, supra, our Supreme Court reversed
Smiley's murder conviction, finding that there was
insufficient evidence to support the jury's verdict. In
so holding, the Court stated:
" The applicable test is whether a jury might reasonably
find that the evidence excluded every reasonable hypothesis
except that of guilt; not whether the evidence excludes every
reasonable hypothesis but guilt, but rather whether a jury
might reasonably conclude that it does. Ex parte
Mauricio, 523 So.2d 87, citing Cumbo v. State,
368 So.2d 871 (Ala.Crim.App. 1978), cert. denied, 368 So.2d
877 (Ala. 1979). Stated differently, to support the
jury's verdict of guilty, circumstantial evidence and
reasonable inferences therefrom have to be inconsistent with
any rational hypothesis of innocence."
655 So.2d at 1094.
Ex parte Carter, 889 So.2d 528 (Ala. 2004), Carter
appealed his conviction for unlawful possession of a
controlled substance on the basis that he was entitled to a
jury charge on circumstantial evidence. This Court affirmed
Carter's conviction and Carter appealed to the Alabama
Supreme Court. On appeal, our Supreme Court held that the
trial court properly instructed the jury in Carter's
case. In so finding, the Court recognized that "
a trial court may give a circumstantial-evidence instruction
if it finds the instruction appropriate or helpful in a
particular case, a trial court is not required to give the
jury such an instruction merely because all of the
State's evidence in a criminal case is
circumstantial." Carter, 889 So.2d at 533. Indeed, the
Court recognized that the trial court's failure to give
the circumstantial evidence charge did not injuriously affect
Carter's substantial rights because the trial court
" properly instructed the jury of the elements of the
crime and instructed the jury that it must find each of those
elements beyond a reasonable doubt before it c[an] find [the
defendant] guilty of the offense." 889 So.2d at 533.
instant case, the circuit court's decision to deny
Chambers's requested Smiley instruction was not error in
light of our Supreme Court's holding in Ex parte
Carter, 889 So.2d 528 (Ala. 2004). Although the circuit
court did not give the Smiley instruction, the record
indicates that the court did charge the jury on
circumstantial evidence, the presumption of innocence, and
reasonable doubt. Therefore, the circuit court did not err as
to this issue.
on the foregoing, the judgment of the circuit court is
P.J., and Welch, Burke, and Joiner, JJ., concur.
Chambers raised his challenge to the
sufficiency of the evidence in three separate issues in his
brief to this Court; however, we have consolidated those
issues for the purposes of review on appeal.
The record indicates that Goff had been
diagnosed with terminal colon cancer and was too weak
to testify at trial.