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Callen v. State

Alabama Court of Criminal Appeals

August 11, 2017

Dontae Callen
v.
State of Alabama

         Appeal from Jefferson Circuit Court (CC-11-2047)

          ON RETURN TO REMAND

          WELCH, Judge.

         This case is before this Court on return to remand after we affirmed Dontae Callen's three capital-murder convictions for the murders of Bernice Kelly, Quortes Kelly, and Aaliyah Budgess and remanded the case to the circuit court for that court to amend its sentencing order to make specific findings of facts concerning the aggravating circumstances set out in § 13A-5-49(3), Ala. Code 1975, and § 13A-5-49(8), Ala. Code 1975. See Callen v. State, [Ms. CR-13-0099, April 28, 2017] __ So.3d __ (Ala.Crim.App.2017). The circuit court has complied with our instructions on remand, and we now address the propriety of Callen's sentences of death.

         Application of § 13A-5-53, Ala. Code 1975

         Callen was indicted for, and convicted of, three counts of capital murder for murdering Bernice Kelly, Quortes Kelly, and Aaliyah Budgess pursuant to one act or course of conduct, for murdering the three victims during the course of an arson, and for murdering a victim who was under 14 years of age; offenses defined as capital by § 13A-5-40(a)(9); 13A-5-40(a)(10); and 13A-5-40(a)(15). The jury, by a vote of 11 to 1, recommended that Callen be sentenced to death. The circuit court followed the jury's recommendation and sentenced Callen to death. The record reflects that Callen's sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. See § 13A-5-53(b)(1), Ala. Code 1975.

          The circuit court found the existence of three aggravating circumstances: (1) that the act that constituted the capital offense did create "a great risk of death to many persons" during its commission, § 13A-5-49(3), Ala. Code 1975; (2) that the murders were especially heinous, atrocious, or cruel as compared to other capital murders, § 13A-5-49(8), Ala. Code 1975; and (3) that Callen did intentionally cause the death of two or more persons by one act or pursuant to one scheme or course of conduct, § 13A-5-49(9), Ala. Code 1975.[1]

         In applying § 13A-5-49(3), Ala. Code 1975, the circuit court made the following findings of fact on remand:

"Aggravating circumstance number 3 -- § 13A-5-49(3) -- does apply as the act which comprised the capital offense did create a great risk of death to many persons during its commission. The evidence and testimony presented at trial and during the sentencing phase of the trial was that the location of the incident was an apartment house. The building wherein [Callen] set fire to the victim's murdered bodies and then walked away was home to several people. The fire was set in one apartment but could have easily spread throughout the building, per the evidence, where several other people were sleeping as it was the night time/early morning hours. Had it not been for a vigilant neighbor, Jerreli Williams, who smelled the smoke of the fire from the victims' apartment more people would very likely have died from smoke inhalation, while they slept or been burned to death. Williams was able to wake his family and other building residents to get them up and out of the building. But for his actions there may have been more than three deaths as a result of Callen's criminal conduct."

(Remand record, C. 39.)

         Our neighboring State of Florida has a similar aggravating circumstance.[2] In applying this aggravating circumstance to a defendant setting a fire at the scene of a murder, the Florida Supreme Court stated:

"We agree with the trial court's finding that defendant created a great risk of death to many persons when he set fire to the victim's bed. Setting the fire was clearly conduct surrounding the capital felony for which he is being sentenced. Mines v. State[, 390 So.2d 332 (Fla. 1980)]. There were six elderly people asleep in the building in which the victim's condominium was located. This can be classified as many persons. Cf. Kampff v. State, 371 So.2d 1007 (Fla. 1979). In King v. State, 390 So.2d 315 (Fla. 1980), we held that by setting fire to the house in which the murder victim resided and in which no other person was present, the defendant had knowingly created a great risk of death to many persons because he should have reasonably foreseen that the blaze would pose a great risk to the neighbors as well as the firefighters and the police who responded to the call. In the present case, the fire posed a direct threat of death to those six elderly persons residing in the building as well as the neighbors, firefighters, and police responding to the call."

Welty v. State, 402 So.2d 1159, 1164 (Fla. 1981). This aggravating circumstance was properly applied in this case.

         The circuit court made the following findings of fact when applying the aggravating circumstance that the murders were especially heinous, atrocious, or cruel when compared to other capital murders:

"Aggravating circumstance number 8 -- ยง 13A-5-49(8) -- does apply in that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses. The testimony at trial concerning each victim's death was as follows: Dr. Gary Simmons with the Jefferson County Coroner/Medical Examiner's Office testified that Bernice Kelly had a total of 18 stab wounds. All of the wounds were above the chest area and on the front and back areas of her body. Dr. Simmons testified that none of these wounds would have been rapidly fatal but all would have resulted in significant blood loss. Ms. Kelly also had superficial burn areas. Dr. Simmons could not testify as to whether the burns occurred before or after her death. However, he ...

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