from Lee Circuit Court (CC-2013-813)
Eugene Russell was convicted of one count of capital murder
for causing the death of Anniston Police Officer Justin David
Sollohub while Officer Sollohub was on duty, see
§ 13A-5-40(a)(5), Ala. Code 1975. During the penalty
phase of Russell's trial, the jury, by a vote of 8 to 4,
recommended that Russell be sentenced to life imprisonment
without the possibility of parole. After receiving a
presentence-investigation report and conducting a sentencing
hearing, the circuit court overrode the jury's
recommendation, finding that the aggravating circumstances
"far outweigh[ed]" the mitigating circumstances,
and sentenced Russell to death.Russell filed a motion for a new
trial, which the trial court denied. This appeal, which is
automatic in a case involving the death penalty, followed.
See § 13A-5-53, Ala. Code 1975.
evidence at trial established the following: At approximately
10:30 A.M. on August 24, 2011, Russell visited Darrell Dorsey
at Dorsey's mother's house on Moore Street in
Anniston. Dorsey and Russell had a brief conversation, and
while they were speaking Dorsey noticed Russell was carrying
a gun on his hip. Russell left and went to a house at the
corner of Moore Avenue and 19th Street around 11:00 A.M.
Russell spoke to the people sitting on the front porch, and,
as he walked away from the house, Officer Sollohub pulled up
in his patrol car and stopped Russell. Officer Sollohub put
out a call on his radio that he was "out with a black
male" at Moore Avenue and 19th Street. Officer William
Bostick heard Officer Sollohub's radio call and responded
to that location. Officer Sollohub was conducting a pat-down
search of Russell when Officer Bostick arrived. As Officer
Bostick approached Russell and Officer Sollohub, Russell said
to Officer Bostick, "I know you, don't I?, " to
which Officer Bostick replied, "Yes, you do." At
that point, Russell "took off running, " and
Officer Sollohub followed Russell on foot. Officer Sollohub
put out a call that he was in a foot pursuit of a black male.
After hearing the call, several officers made their way to
Officer Sollohub's general location to provide
assistance. Officer Bostick returned to his patrol car to
Sollohub chased Russell down an alleyway and into the
backyard of a nearby residence where Karen Mason and her son,
Justin Beard,  were washing a car. While in the backyard,
Russell pulled out a gun and shot Officer Sollohub once in
the head. Russell then fled the scene and attempted to enter
a house on McCoy Avenue where Margaret Gilley and her
daughter, Tyler, resided. Gilley told Russell that he could
not come into the house, so Russell ran into a vacant house
across the street.
Investigators Justin Hartley and Kyle Price of the Anniston
Police Department ("APD") arrived at the scene of
the shooting, Beard was standing in the alleyway behind the
backyard where Officer Sollohub had been shot, frantically
pointing toward the house. Officer Sollohub was lying on the
ground motionless and unresponsive, and his firearm remained
in its holster. Emergency medical personnel transported
Officer Sollohub to the University of Alabama at Birmingham
("UAB") Hospital,  where he later died.
arriving at the scene of the shooting, Officer Bostick was
ordered "to go out and get the guy" who shot
Officer Sollohub. Officer Bostick began driving around the
neighborhood, and, while driving on 20th Street, Officer
Bostick saw Russell run out of and back into a nearby wooded
area. Shortly thereafter, officers created a perimeter around
the wooded area where Officer Bostick had last seen Russell.
he fled the scene, Russell telephoned Shandrika Dotson and
asked her if she had heard what happened. Dotson responded
that she heard that Russell had shot a police officer.
Russell replied "sort of, kind of" and then hung
up. Russell also called his sister, Cheryl Bush. Russell told
Bush that he was scared because someone was chasing him, and
he asked her to come get him. Bush then went to her and
Russell's father's apartment, where police officers
subsequently appeared and asked Bush to contact Russell. Bush
attempted--unsuccessfully--to persuade Russell to turn
David Cash, the district attorney's investigator assigned
to the Calhoun-Cleburne drug and violent-crime task force,
participated in the search for Russell. Investigator Cash
"Investigator NeSmith and [I] were walking the fence
line. We saw what we believed to be a body lying against the
edge of the fence. We started giving loud verbal commands to
show hands, so he got up and ran. We gave chase through the
wood line, and he was apprehended just down from where he had
(R. 1116-17.) After Russell was apprehended, Investigator
Cash discovered the firearm--a .22 caliber Taurus brand
pistol--used to shoot Officer Sollohub lying
"approximately 10 feet out of reach from where [Russell]
was taken into custody." The thumb safety on the pistol
was on when it was discovered.
was transported to the Anniston City jail, where he gave a
video-recorded statement to Sgt. Chris Sparks and
Investigator Tom Suits of the APD. The State played for the
jury a redacted version of Russell's statement, which is
summarized as follows:
Russell had left a friend's house and was walking down
the street when Officer Sollohub stopped him and asked him if
he knew a particular person. Russell did not know why Officer
Sollohub stopped him, but Officer Sollohub asked Russell for
his identification and began conducting a pat-down search.
Russell explained that when Officer Sollohub stopped him he
had outstanding warrants and that the gun, a .22 caliber
Taurus brand pistol, was stolen. Russell stated:
"I just take off running, I run down the street, I
running around the house, he run around the house. You know,
I had a gun, know what I'm saying, I ain't, I just
held it up. I was goin' scare his ass, but, like, by the
time I held it up and he came around the corner, like, it
like, he grabbed and I jerked, and he just got hit."
(State's Exhibit No. 29.)
Sgt. Sparks told Russell that he did not believe that Officer
Sollohub had grabbed the gun, to which Russell replied that
Officer Sollohub "turned the corner and I held the gun
up at the same time" and that Officer Sollohub "was
trying to brace himself." Russell stated: "I
didn't think he was that close on me, I thought he was
still coming around from the other side .... I was just
goin' scare him." Russell explained that his
reasoning behind scaring Officer Sollohub with the gun
stemmed from an earlier incident in which he pointed a
cellular telephone at a police officer as if the telephone
was a gun. Russell stated: "I seen the way he reacted so
I just figured maybe if I do [Officer Sollohub] the same way,
this'll make him run on and I can go about my
business." Russell could not recall whether Officer
Sollohub had his firearm drawn during the chase.
After Russell shot Officer Sollohub, he picked the gun up off
the ground before running across the street and hiding in a
field, where he was apprehended approximately seven hours
later. While Russell was hiding, he could see the officers
searching for him; Russell stated that he "started to
shoot some more but I didn't." Russell further
"I really coulda got away for real.... I was running
away and I turned around to look at [Officer Sollohub]. I
hesitated, I started to run back to him, and I was like,
'Fuck that, hell nah. I be a damn fool.' But I kind
paused for a minute. I was debating should I keep going or
should I go back and help his ass .... I don't want
nobody to die."
(State's Exhibit No. 29.) Russell apologized "for
what happened" and stated, "I was wrong but at the
same time, [Officer Sollohub] knows what he did." When
asked to elaborate, Russell said, "He knows how it all
went down. I can't really explain. It would take both of
us to explain but he knows how it went down, though he's
in the hospital, wherever he at .... He asked me my
information, I gave it to him."
Mark Osburn of the APD crime-scene unit collected a spent
cartridge casing from the scene of the shooting, and he
collected the pistol and Russell's cellular telephone
from where Russell was apprehended. Investigator Osburn
forwarded the pistol and the cartridge casing to the Alabama
Department of Forensic Sciences ("ADFS"), and he
forwarded the cellular telephone to the U.S. Secret Service.
Emily Ward, a state medical examiner for the ADFS,
conducted an autopsy on Officer
Sollohub's body. Dr. Ward testified that Officer Sollohub
died as a result of the gunshot wound to his head and that
the gun was "probably no more than three inches away
when the trigger was pulled. Maybe four, but less than six
Headley, a forensic scientist for the firearm and tool-mark
section of the ADFS, examined the Taurus pistol and the fired
.22 caliber cartridge casing. Headley explained that the
pistol has three types of safeties--a thumb safety that
blocks the trigger from being pulled and blocks the slide
from functioning; a magazine safety that prevents the gun
from firing if the magazine is not inserted; and an internal
safety that disconnects the sear from the hammer so that the
user must pull the trigger each time he fires the gun.
Headley stated that the user "has to actively do
something to disallow [the thumb and magazine] safeties to
work" and that the Taurus has a nine-pound trigger pull.
"A. ... [T]o give you an idea about how much pound--one
thing is hard to figure out how much nine pounds would be. If
you've ever picked up a gallon of milk or a gallon of
water with your finger, with just one finger, a gallon of
water weighs approximately eight pounds. So with a gun with a
nine pound trigger pull, it will take little more force than
what it will take for you to pick up a gallon of water to
pull that trigger back to make it go off."
"Q. You take this gun, one in the chamber, safety off,
magazine in place, in your hands?
"A. Something would have had to pull back nine pounds
worth of the pressure on the trigger.
"Q. With my hitting the gun, grabbing the gun, have made
that gun go off?
"A. I would not expect it to, no.
"Q. Would my hitting your arm, grabbing your arm, have
made that gun go off?
"A. I wouldn't expect it, but I can't say that
"Q. Ultimately, somebody is going to have to put one
pound more than a gallon of water's pressure right here
(pointing) for this gun to expel a bullet?
cross-examination, Headley elaborated on his testimony that
he could not rule out the possibility that the gun fired
"Q. ... [I]f somebody was holding that gun and somebody
grabbed it, the person who is holding his arm, grabbed at his
arm, you couldn't rule out that the gun could
accidentally go off. Did I hear you say that?
"A. Yes. There are--I can't say that there is no way
for the gun to inadvertently go off. To put that in
perspective, the gun when I tested it in my laboratory, the
gun worked as it was suppose[d] to, the safeties as they were
designed to. And it did not accidentally or inadvertently
discharge on me. I had to manually do something, I had to
physically do something to the gun to make it discharge. I
had to remove the safeties, pull the trigger, etc., for that
"Q. But you can't rule that out?
"A. I can't say with 100 percent certainty that a
gun could not be accidentally discharged."
Poore testified that his .22 caliber pistol was stolen from
his truck at some point between 6:00 P.M. on August 8, 2011,
and 3:30 P.M. on August 9, 2011. Brendan Morgan, then of the
United States Secret Service electronic-crimes task force,
analyzed Russell's cellular telephone and discovered a
photograph of a pistol that had been taken at 1:48 P.M. on
August 9, 2011.
McCurdy, who was dating Russell's cousin in August 2011,
testified that about a week before the shooting, he and
Russell had a conversation during which Russell stated,
"I'm not going back to jail." On
cross-examination, McCurdy clarified that their conversation
was positive in nature and that it was "[j]ust a general
conversation about anything that had happened prior in
[Russell's] life that he would make changes to keep from
going back to jail."
close of the evidence, both the State and Russell presented
closing arguments, and the trial court charged the jury. The
jury returned a verdict of guilty as charged in the
appeal from his conviction and sentence, Russell raises
numerous issues, including some that were not raised in the
trial court. Because Russell has been sentenced to death,
however, this Court must review the trial-court proceedings
under the plain-error doctrine. See Rule 45A, Ala.
R. App. P.
"'"Plain error is defined as error that has
'adversely affected the substantial right of the
appellant.' The standard of review in reviewing a claim
under the plain-error doctrine is stricter than the standard
used in reviewing an issue that was properly raised in the
trial court or on appeal. As the United States Supreme Court
stated in United States v. Young, 470 U.S. 1, 105
S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine
applies only if the error is 'particularly egregious'
and if it 'seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.' See Ex
parte Price, 725 So.2d 1063 (Ala. 1998), cert. denied,
526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012
"Ex parte Brown, 11 So.3d 933, 935-36 (Ala.
2008)(quoting Hall v. State, 820 So.2d 113, 121-22
(Ala.Crim.App.1999)). See also Ex parte Walker, 972
So.2d 737, 742 (Ala. 2007); Ex parte Trawick, 698
So.2d 162, 167 (Ala. 1997); Harris v. State, 2 So.3d
880, 896 (Ala.Crim.App.2007); and Hyde v. State, 778
So.2d 199, 209 (Ala.Crim.App.1998)('To rise to the level
of plain error, the claimed error must not only seriously
affect a defendant's "substantial rights, " but
it must also have an unfair prejudicial impact on the
jury's deliberations.'). Although the failure to
object in the trial court will not preclude this Court from
reviewing an issue under Rule 45A, Ala. R. App. P., it will
weigh against any claim of prejudice made on appeal. See
Dotch v. State, 67 So.3d 936, 965
(Ala.Crim.App.2010)(citing Dill v. State, 600 So.2d
343 (Ala.Crim.App.1991)). Additionally, application of the
"'"'is to be "used sparingly, solely
in those circumstances in which a miscarriage of justice
would otherwise result."'" Whitehead v.
State, [777 So.2d 781], at 794 [(Ala.Crim.App.1999],
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, 115 S.Ct. 1973, 131 L.Ed.2d 862
"Centobie v. State, 861 So.2d 1111, 1118
(Ala.Crim.App.2001)." Phillips v. State, [Ms.
CR-12-0197, December 18, 2015]__ So. 3d__,
contends that the trial court erred during the jury-selection
process. Specifically, Russell contends that the trial court
erred by death-qualifying the jury, by failing to excuse a
veniremember for cause, and by failing to recognize that the
State used its peremptory strikes in a racially
discriminatory manner in violation of Batson v.
Kentucky, 476 U.S. 79');">476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986). We address each of Russell's issues in turn.
contends that "death-qualifying the jury produced a
conviction prone jury." (Russell's brief, p. 94.)
Russell did not raise this issue in the trial court;
therefore, we review this claim for plain error only.
See Rule 45A, Ala. R. App. P.
"'In Davis v. State, 718 So.2d 1148
(Ala.Crim.App.1995)(opinion on return to remand), aff'd,
718 So.2d 1166 (Ala. 1998), cert. denied, 525 U.S. 1179, 119
S.Ct. 1117, 143 L.Ed.2d 112 (1999), we stated:
"'"A jury composed exclusively of jurors who
have been death-qualified in accordance with the test
established in Wainwright v. Witt, 469 U.S. 412, 105
S.Ct. 844, 83 L.Ed.2d 841 (1985), is considered to be
impartial even though it may be more conviction prone than a
non-death-qualified jury. Williams v. State, 710
So.2d 1276 (Ala. Cr. App. 1996). See Lockhart v.
McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137
(1986). Neither the federal nor the state constitution
prohibits the state from ... death-qualifying jurors in
capital cases. Id.; Williams; Haney v.
State, 603 So.2d 368, 391-92 (Ala. Cr. App. 1991),
aff'd, 603 So.2d 412 (Ala. 1992), cert. denied, 507 U.S.
925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993)."
"'718 So.2d at 1157. There was no error in allowing
the State to death qualify the prospective jurors.'"
Phillips, __So. 3d at __(quoting Brown v.
State, 11 So.3d 866, 891 (Ala.Crim.App.2007)).
trial court did not commit any error--plain or otherwise--in
death-qualifying the prospective jurors. Accordingly,
Russell's claim is without merit, and he is not entitled
to relief on this issue.
contends that the trial court erred when it failed to sua
sponte remove potential juror J.J. for cause because, he
says, J.J. "indicated he would automatically vote for
the death penalty" and that such error "unfairly
restricted [his] peremptory strikes and violated his right to
a fair jury selection process." (Russell's brief, p.
74.) Further, Russell claims that his use of a peremptory
strike to remove J.J. did not cure the trial court's
error because, he says, "several biased veniremembers
ended up on the jury." (Russell's brief, p. 76.)
Because Russell raises this claim for the first time on
appeal, we review this issue for plain error only.
See Rule 45A, Ala. R. App. P.
"A juror who will automatically vote for the death
penalty in every case will fail in good faith to consider the
evidence of aggravating and mitigating circumstances as the
instructions require him to do. Indeed, because such a juror
has already formed an opinion on the merits, the presence of
absence of either aggravating or mitigating circumstances is
entirely irrelevant to such a juror. Therefore, based on the
requirement of impartiality embodied in the Due Process
Clause of the Fourteenth Amendment, a capital defendant may
challenge for cause any prospective juror who maintains such
Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct.
2222, 2229-30, 119 L.Ed.2d 492 (1992).
"'"[T]he Alabama Supreme Court has held that
the failure to remove a juror for cause is harmless when that
juror is removed by the use of a peremptory strike.
Bethea v. Springhill Mem'l Hosp., 833 So.2d 1
(Ala. 2002)." Pace v. State, 904 So.2d 331, 341
(Ala.Crim.App.2003). Cf. Ex parte Colby, 41 So.3d 1
(Ala. 2009)(may not be harmless when multiple challenges for
cause are involved).
"'"To justify a challenge for cause, there must
be a proper statutory ground or '"some matter which
imports absolute bias or favor, and leaves nothing to the
discretion of the trial court."' Clark v.
State, 621 So.2d 309, 321 (Ala. Cr. App. 1992)(quoting
Nettles v. State, 435 So.2d 146, 149 (Ala. Cr. App.
1983)). This court has held that 'once a juror indicates
initially that he or she is biased or prejudiced or has
deepseated impressions' about a case, the juror should be
removed for cause. Knop v. McClain, 561 So.2d 229,
234 (Ala. 1989). The test to be applied in determining
whether a juror should be removed for cause is whether the
juror can eliminate the influence of his previous feelings
and render a verdict according to the evidence and the law.
Ex parte Taylor, 666 So.2d 73, 82 (Ala. 1995). A
juror 'need not be excused merely because [the juror]
knows something of the case to be tried or because [the
juror] has formed some opinions regarding it.' Kinder
v. State, 515 So.2d 55, 61 (Ala. Cr. App. 1986)."
"'Ex parte Davis, 718 So.2d 1166, 1171-72
"'"The test for determining whether a strike
rises to the level of a challenge for cause is 'whether a
juror can set aside their opinions and try the case fairly
and impartially, according to the law and the evidence.'
Marshall v. State, 598 So.2d 14, 16 (Ala. Cr. App.
1991). 'Broad discretion is vested with the trial court
in determining whether or not to sustain challenges for
cause.' Ex parte Nettles, 435 So.2d 151, 153
(Ala. 1983). 'The decision of the trial court "on
such questions is entitled to great weight and will not be
interfered with unless clearly erroneous, equivalent to an
abuse of discretion."' Nettles, 435 SO. 2d
"'Dunning v. State, 659 So.2d 995, 997
"'"The qualification of a juror is a matter
within the discretion of the trial court. Clark v.
State, 443 So.2d 1287, 1288 (Ala. Cr. App. 1983). The
trial judge is in the best position to hear a prospective
juror and to observe his or her demeanor." Ex parte
Dinkins, 567 So.2d 1313, 1314 (Ala. 1990).
"'[J]urors who give responses that would support a
challenge for cause may be rehabilitated by subsequent
questioning by the prosecutor or the Court.' Johnson
v. State, 820 So.2d 842, 855 (Ala.Crim.App.2000)."
Sharifi v. State, 993 So.2d 907, 926
"'"It is well to remember that the lay persons
on the panel may never have been subjected to the type of
leading questions and cross-examination techniques that
frequently are employed ... [during voir dire].... Also,
unlike witnesses, prospective jurors have had no briefing by
lawyers prior to taking the stand. Jurors thus cannot be
expected invariably to express themselves carefully or even
consistently. Every trial judge understands this, and under
our system it is that judge who is best situated to determine
competency to serve impartially. The trial judge may properly
choose to believe those statements that were the most fully
articulated or that appeared to be have been least influenced
"'Patton v. Yount, 467 U.S. 1025, 1039, 104
S.Ct. 2885, 81 L.Ed. 847 (1984).'"
Phillips, __So. 3d at __(quoting Thompson v.
State, 153 So.3d 84, 115-16 (Ala.Crim.App.2012)).
voir dire, the prosecutor stated:
"So, what makes a case a capital-murder case? There are
certain offenses, about 14 of them, that are set out by law,
by the legislature. They include the intention[al] killing of
a child, intentional killing during a rape or sodomy,
intentional killing during a robbery or a burglary, and the
intentional killing of [a] law-enforcement officer in the
conduct of his duties."
(R. 254.) The prosecutor subsequently asked, "Anybody
feel like 'I would always give the death penalty?' If
there's a murder, and it's one of these
circumstances, we ought to give the death penalty every time?
Anybody feel that way?" The prosecutor and potential
juror J.J. had the following exchange:
"[J.J.]: What you said, would you give it in any of
those cases you mentioned, I don't know all 14, 16, or
however you said it, but yeah, I would say, the ones you
mentioned that for policeman, rape or sodomy of a child, I
would be for it.
"[The State]: Always?
"[J.J.]: Yeah, I can't see any mitigating
circumstances." (R. 262.) The trial court, the State,
and Russell's counsel later questioned J.J. during
individual voir dire:
"THE COURT: We just have a question. When you were
having a discussion during the panel on voir dire, you said
that you would vote for the death penalty.
"[J.J.]: Yes, sir.
"THE COURT: As a matter of fact, you said that death
would always be a possibility. What I need to find out is by
the same token, let's say that the State presented the
testimony, and obviously, both sentences would be an option,
either death or life without parole. Could you give equal
consideration to both of those, or are you saying that you
would automatically vote for the death penalty regardless
of--let's say that the defendant put forth mitigating
evidence, mitigation or something to lessen him qualifying
for the death penalty.
"What I mean by that, let's say he had an awful
upbringing. Let's say there was drug use in his family,
that, you know, he was beat by his mom and dad and all this
different stuff. I'm not saying that's here in this
case. I'm just talking hypothetically.
"So if those were all factors, could you still consider
life without as a possibility, or are you saying you'd
still vote for the death penalty regardless of any mitigation
that was presented?
"[J.J.]: I would have to consider anything that was
presented, obviously, but what I was trying to say, I cannot
envision in my mind, like right now, any mitigating
circumstance that would rise to the level of precluding that
judgment. I mean, I find it very difficult to believe
that--can I expound?
"THE COURT: Yes, please. That's why we got you in
here by yourself. Tell us what you think.
"[J.J.]: Mainly, because my view on that one I feel very
strongly about personal responsibility and regardless of
things that happen, it was a decision that was made. I mean,
maybe there is something that I haven't thought about,
but when you asked the question, I'm like I can't
think of any mitigating circumstances, given that type of
crime, that the district attorney mentioned. I mean, he
mentioned two or three. I can't imagine a single one of
those that would--
"THE COURT: But let's say as the Judge, that I
direct you that the law says that you must consider life
without, give it equal consideration to the death penalty,
that you must consider both of those. Could you consider and
could you find yourself under some circumstances voting for
life without in this case rather than just automatically
saying, 'I don't want to hear anything.'
"[J.J.]: I wouldn't say that. I mean, I'd have
to think about it, but I mean, my tendency--my beginning
point would be very difficult. It would be almost--my
beginning point would be very difficult to say I was
extremely--exactly neutral at the beginning. Does that make
"THE COURT: It does. It makes perfect sense.
But could you--I guess--
"[J.J.]: Yeah, you're welcome to. Yes, sir.
Yes, sir, I would.
"THE COURT: Okay. Well, let me ask--[defense counsel],
"[Defense counsel]: What I hear you saying, [J.J.], is
that what you know about that case right now--
"[J.J.]: Yes, sir.
"[Defense counsel]: --if you found and if you return a
verdict beyond a reasonable doubt of capital murder, that you
would vote to impose the death penalty?
"[J.J.]: From what I know right now?
"[Defense counsel]: Yes, sir.
"[J.J.]: And I did say I read some about it on AL.com
[an Internet site devoted to Alabama news].
"[Defense counsel]: That was going to be my next
question. Can you tell us what you know about it?
"[J.J.]: What I know is very little. What I understand,
there was a shooting, I believe in Anniston, if I remember
correctly. And the defendant supposedly had shot a police
officer, shot and killed a police officer.
"[Defense counsel]: And you got that from AL.com.
"[J.J.]: AL.com. I don't remember which, Birmingham
or Huntsville or which said that.
"[Defense counsel]: Do you remember when--did you get it
"[J.J.]: I mean, when it happened, it was on there for
several days. I don't--a year ago, year and a half ago
"[Defense counsel]: All right. When you got your jury
questionnaire, did you then inquire about what the case was
"[J.J.]: Not with the questionnaire. I did when I got
the initial summons. I said, like, I don't want to be on
a capital murder trial. I was, like, what capital crimes are
in Lee County, and I saw the name. I got the questionnaire,
and obviously, I saw. The summons came before the
questionnaire. So when I saw that, I was, like, oh. This one
had been transferred here. I knew the Auburn University
football player that got shot at the apartment complex. I
knew that one. I mean, there are several that would be tried
here, and that's all I knew. So definitely, I recognized
the name when the questionnaire came through.
"[Defense counsel]: I appreciate your honesty.
"THE COURT: [J.J.], let me ask you this, too: Now,
knowing what you know and what you've read, however scant
and however involved, could you put that aside, whatever
you've read or any prior knowledge you may have of the
case if you were chosen as a juror based solely from the
testimony from this witness stand and from the documents or
evidence that were introduced--or let's say you knew
something that wasn't presented for whatever reason,
could you put that out of your mind and make a determination
on the guilt or the innocence of the defendant based solely
on what comes from this courtroom, or are you still going to
have that lingering thought in your mind about something you
didn't know that may come up during the trial?
"[J.J.]: I think I'd have to. I don't know if I
know enough detail about it to--I mean, the level of detail
that I know is what I just told you guys.
"THE COURT: Very scant.
"[J.J.]: Yeah, and I can't imagine that it
wouldn't come out that that would be the argument that
was given that the trial is a capital murder trial.
"[The State]: Judge, again, using the same language the
Court has used previously. If the Court ordered you to
consider life without and death and to take certain
aggravators and certain mitigators and weigh and make a
decision, you could consider both?
"[J.J.]: Yes, sir. If the Court ordered me, yes, I
could--"[The State]: And you said you can't think of
anything, but at this point, you don't know a single clue
of what those things might be; right?
"[J.J.]: That is true.
"[The State]: I mean, it could be--it could be something
amazing, that would be, like, wow, that explains it to me?
"[J.J.]: That's true, but again, my prior belief
would be that, I can't--I just can't--
"[The State]: But you could follow the Court's
"[J.J.]: Yes, sir, I would."
"To successfully remove a juror for cause the challenge
must be based on the statutory grounds set out in §
12-16-150, Ala. Code 1975, or related to a matter that
imports absolute bias on the part of the juror.
See Tomlin v. State, 909 So.2d 213, 235-36
(Ala.Crim.App.2002), rev'd on other grounds, 909 So.2d
283 (Ala. 2003)."
Sneed v. State, 1 So.3d 104, 137
review of the record on appeal demonstrates that J.J. was not
due to be removed for cause under any of the statutory
exclusions of § 12-16-150, Ala. Code 1975. Moreover,
J.J. did not demonstrate "absolute bias." Russell
correctly points out that J.J. repeatedly acknowledged that
he would be in favor of imposing the death penalty for a
person convicted of killing a police officer and that he
could not, based on his knowledge of Russell's case at
that time, entertain any possible mitigating
circumstances. J.J. also stated, however, that he
"would have to consider anything that was
presented" at trial, and he mentioned the possibility of
circumstances he had not yet considered. J.J. then
acknowledged that he would follow the trial court's
orders and that, if so ordered, he would appropriately weigh
the aggravating and mitigating factors and would consider
both life imprisonment without the possibility of parole and
the death penalty as possible sentences. Accordingly, the
trial court did not commit error, plain or otherwise, when it
did not sua sponte remove potential juror J.J. for cause.
noted above, Russell's counsel did not challenge J.J. for
cause, and he used a peremptory strike to remove J.J. from
the venire. Any error, therefore, was harmless. See
Albarran v. State, 96 So.3d 131, 162-63
(Ala.Crim.App.2011)(quoting Pace v. State, 904 So.2d
331, 341 (Ala.Crim.App.2003))("[T]he failure to remove a
juror for cause is harmless when that juror is removed by the
use of a peremptory strike."). Russell, however,
contends that any error was not harmless because he "was
forced to use a peremptory strike" to remove J.J., and,
as a result, "several biased veniremembers ended up on
the jury." (Russell's brief, p. 76.) Specifically,
Russell argues that, "[g]iven the circumstances of the
case, the inclusion of jurors [D.C. and D.E. who had] family
in law enforcement was particularly prejudicial."
(Russell's brief, p. 76.)
support his argument, Russell cites Ex parte Colby,
41 So.3d 1 (Ala. 2009), for the proposition that a trial
court's error in failing to grant for-cause strikes is
not harmless where the jury ultimately includes "jurors
who would likely have been the subject of peremptory
challenge if challenges were available." (Russell's
brief, p. 76.) The Supreme Court of Alabama described
Colby as follows:
"Colby made separate motions for the removal of
[potential jurors] C.F., M.B., and R.M. from the jury, and
the trial court denied each motion separately. Each of those
denials was error. The State ... argues that any error was
harmless, because, according to the State, an impartial jury
was ultimately seated. However, '[i]n each instance in
which we have applied the harmless-error rule, we have been
presented with only one erroneous ruling on a
challenge for cause.' General Motors[ Corp. v.
Jernigan], 883 So.2d [646, ] 672 [(Ala. 2003)]."
41 So.3d at 7.
Colby, which involved a challenge to the denial of
motions to remove three jurors for cause, Russell's case
involves only one juror who Russell claims the trial
court should have removed, sua sponte, for cause. Thus,
Russell's case is distinguishable from Colby.
See General Motors, 883 So.3d at 672 ("Because
Ross[ v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101
L.Ed.2d 80 (1988)], United States v.
]Martinez-Salazar[, 528 U.S. 304, 120 S.Ct. 774, 145
L.Ed.2d 792 (2000)], Bethea[ v. Springhill Memorial
Hospital, 883 So.2d 1 (Ala. 2002)], and Turner[ v.
State, 160 Ala. 55, 49 So. 304 (1909)], all involved
only one juror, those cases can be distinguished" from
cases involving trial courts' multiple errors denying
challenges for cause.). Accordingly, Russell is not entitled
to relief on this claim.
contends that the State used its peremptory strikes in a
racially discriminatory manner in violation of Batson v.
Kentucky, 476 U.S. 79');">476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986). Because Russell did not raise this claim
at trial, we question whether this issue is properly before
Court has stated:
"[A] review of caselaw indicates that 'both the
federal and state courts have consistently held that the
failure to make a timely [Batson or J.E.B.]
objection effectively waives any arguments based on
improprieties in jury selection which the defendant might
urge pursuant to Batson.' Brian J. Serr &
Mark Maney, Racism, Peremptory Challenges and the
Democratic Jury: The Jurisprudence of a Delicate
Balance, 79 J. Crim. L. and Criminology 1, 19 (1988).
The Eleventh Circuit has explained:
"'In United States v. Rodriguez, 917 F.2d
1286 (11th Cir. 1990), this court recognized that the Supreme
Court's Batson[ v. Kentucky, 476 U.S. 79');">476 U.S. 79 (1986),
] analysis envisioned a "timely objection" and thus
held that "an inquiry into the government's exercise
of its peremptory challenges is initiated by a
defendant's timely objection." Rodriguez,
917 F.2d at 1288 n.4. The failure to make a timely
Batson objection results in a waiver of the
"United States v. Cashwell, 950 F.2d 699, 704
(11th Cir. 1992).
" White v. State, 179 So.3d 170, 198
(Ala.Crim.App.2013)(questioning whether White's
J.E.B. v. Alabama, 511 U.S. 127 (1994), issue was
proper for plain-error review).
Russell failed to raise his Batson objection at
trial. Therefore, this issue does not appear to be properly
before this Court for review. Even if, however, a
Batson issue is subject to plain-error review,
Russell is not entitled to any relief.
"'To find plain error in the context of a
Batson or J.E.B. violation, the record must
supply an inference that the prosecutor was "engaged in
the practice of purposeful discrimination."'
Blackmon v. State, 7 So.3d 397, 425
(Ala.Crim.App.2005)(quoting Ex parte Watkins, 509
So.2d 1074, 1076 (Ala. 1987)). See also Saunders v.
State, 10 So.3d 53, 78 (Ala.Crim.App.2007)('For an
appellate court to find plain error in the Batson
[or J.E.B.] context, the court must find that the
record raises an inference of purposeful discrimination by
the State in the exercise of peremptory challenges.').
"In evaluating a Batson or J.E.B.
claim, a three-step process must be followed. As explained by
the United States Supreme Court in Miller-El v.
Cockrell, 537 U.S.322, 123 S.Ct. 1029, 154 L.Ed.2d 931
"'First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the basis
of race. [Batson v. Kentucky, ] 476 U.S. [79, ]
96-97[, 106 S.Ct. 1712, 1723 (1986)]. Second, if that showing
has been made, the prosecution must offer a race-neutral
basis for striking the juror in question. Id., at
97-98. Third, in light of the parties' submissions, the
trial court must determine whether the defendant has shown
purposeful discrimination. Id., at 98.'
"537 U.S. at 328-29.
"With respect to the first step of the process--the step
at issue here--'[t]he party alleging discriminatory use
of a peremptory strike bears the burden of establishing a
prima facie case of discrimination.' Ex parte
Brooks, 695 So.2d 184, 190 (Ala. 1997)(citing Ex
parte Branch, 526 So.2d 609, 622 (Ala. 1987)). 'A
defendant makes out a prima facie case of discriminatory jury
selection by "the totality of the relevant facts"
surrounding a prosecutor's conduct during the
defendant's trial.' Lewis v. State, 24 So.3d
480, 489 (Ala.Crim.App.2006)(quoting Batson, 476
U.S. at 94, aff'd, 24 So.3d 540 (Ala. 2009). 'In
determining whether there is a prima facie case, the court is
to consider "all relevant circumstances" which
could lead to an inference of discrimination.' Ex
parte Branch, 526 So.2d at 622 (citing Batson,
476 U.S. at 93, citing in turn Washington v. Davis,
426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). In
Ex parte Branch, the Alabama Supreme Court
specifically set forth a number of 'relevant
circumstances' to consider in determining whether a prima
facie case of race discrimination has been established:
"'The following are illustrative of the types of
evidence that can be used to raise the inference of
"'1. Evidence that the "jurors in question
share[d] only this one characteristic--their membership in
the group--and that in all other respects they [were] as
heterogeneous as the community as a whole." [People
v.] Wheeler, 22 Cal.3d  at 280, 583 P.2d  at
764, 148 Cal.Rptr.  at 905 [(1978)]. For instance,
"it may be significant that the persons challenged,
although all black, include both men and women and are a
variety of ages, occupations, and social or economic
conditions, " Wheeler, 22 Cal.3d at 280, 583
P.2d at 764, 148 Cal.Rptr. At 905, n.27, indicating that race
was the deciding factor.
"'2. A pattern of strikes against black jurors on
the particular venire; e.g., 4 of 6 peremptory challenges
were used to strike black jurors. Batson, 476 U.S.
at 97, 106 S.Ct. At 1723.
"'3. The past conduct of the state's attorney in
using peremptory challenges to strike all blacks from the
jury venire. Swain [v. Alabama, 380 U.S. 202, 85
S.Ct. 824, 13 L.Ed.2d 759 (1965)].
"'4. The type and manner of the state's
attorney's questions and statements during voir dire,
including nothing more than desultory voir dire.
Batson, 476 U.S. at 97, 106 S.Ct. at 1723;
Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148
Cal.Rptr. at 905.
"'5. The type and manner of questions directed to
the challenged juror, including a lack of questions, or a
lack of meaningful questions. Slappy v. State, 503
So.2d 350, 355 (Fla. Dist. Ct. App. 1987); People v.
Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656
(1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d
748, 764, 148 Cal.Rptr. 890 (1978).
"'6. Disparate treatment of members of the jury
venire with the same characteristics, or who answer a
question in the same or similar manner; e.g., in
Slappy, a black elementary school teacher was struck
as being potentially too liberal because of his job, but a
white elementary school teacher was not challenged.
Slappy, 503 So.2d at 355.
"'7. Disparate examination of members of the venire;
e.g., in Slappy, a question designed to provoke a
certain response that is likely to disqualify a juror was
asked to black jurors, but not to white jurors.
Slappy, 503 So.2d at 355.
"'8. Circumstantial evidence of intent may be proven
by disparate impact where all or most of the challenges were
used to strike blacks from the jury. Batson, 476
U.S. at 93, 106 S.Ct. At 1721; Washington v. Davis,
426 U.S.  at 242, 96 S.Ct.  at 2049 [(1976)].
"'9. The state used peremptory challenges to dismiss
all or most black jurors. See Slappy, 503 So.2d at
354, Turner, supra.' "Id.
White, 179 So.3d at 198.
after a number of veniremembers were disqualified, excused,
deferred, or stricken for cause, 81 qualified veniremembers
remained--61 were Caucasian, 17 were African American, and 2
were Hispanic. Therefore, the 17 African-American
veniremembers constituted 21% of the venire. The State used
11 of its 34 peremptory strikes to remove African-American
veniremembers. Russell used 2 of his 33 peremptory strikes to
remove African-American veniremembers. Russell's jury
consisted of 4 African-American jurors and 8 Caucasian
jurors. Therefore, the 4 African-American jurors
comprised 33.33% of Russell's jury. At the conclusion of
voir dire, Russell's defense counsel did not indicate,
and the circuit court did not believe, that a Batson
violation had occurred. The circuit court asked: "Do we
have any issues or anything we need to take up before I seat
the jury?" and Russell's counsel responded:
"Not from the defense."
appeal, Russell claims for the first time that the
State's use of peremptory strikes established a prima
facie case of discrimination against the African-American
veniremembers. Specifically, Russell argues: (1) that the
State removed a disproportionate number of African-American
veniremembers compared to Caucasian veniremembers; (2) that
the African-American veniremembers removed by the State were
heterogeneous to the community as a whole; and (3) that the
State completely failed to question 6 of the 11
African-American veniremembers it ultimately struck.
disagree with Russell's argument that the statistical
evidence supports his claim of a prima facie case of racial
discrimination. As noted above, the African-American
veniremembers constituted 21% of the venire, and, after the
State exercised its peremptory strikes, African-American
jurors constituted 33.33% of the final jury. Although the
State used 11 peremptory strikes to remove 11 of the 17
African-Americans remaining on the venire after excusals and
challenges for cause, this fact does not establish a prima
face case of racial discrimination. See Johnson v.
State, 823 So.2d 1 (Ala.Crim.App.2001)(State's use
of 6 peremptory strikes to remove 6 of 9 African-American
veniremembers insufficient to establish a prima facie case of
racial discrimination); Scheuing v. State, 161 So.2d
245, 260 (Ala.Crim.App.2003)("Here, the State's use
of peremptory strikes to remove 8 of 12 African-American
veniremembers does not raise an inference of racial
we disagree with Russell's argument that the diversity of
the stricken African-American veniremembers supports his
claim of a prima facie case of racial discrimination.
"[T]here is almost always going to be some variance
among prospective jurors who are struck; therefore, this
alone does not establish heterogeneity of the struck
veniremembers so as to support an inference of
discrimination. The question, as noted in both Ex parte
Branch[, 526 So.2d 609 (Ala. 1987), ] and Ex parte
Trawick, [698 So.2d 162 (Ala. 1997)] is whether the
struck jurors shared only the characteristic at
issue, in this case, [race]. The record here does not reflect
that the [African-American veniremembers] struck shared only
the characteristic of [race]. To the contrary, the record
reflects that many of the [African-American veniremembers]
shared similar characteristics other than [race]."
McCray v. State, 88 So.3d 1, 20 (Ala.Crim.App.2010).
example, seven of the African-Americans struck stated that
they or a family member had been charged with a criminal
offense; five indicated that they or a family member had been
a victim of a crime; three indicated that they had had an
unpleasant experience involving law enforcement; two had
served on a criminal jury before; seven indicated that they
watched television shows that focused on criminal cases;
seven indicated that they attended religious services on a
regular basis; and eight identified themselves as
Democrats. Based on these facts, the African
American veniremembers struck by the State in this case were
not heterogeneous in all respects but race; therefore, this
factor does not support an inference of discrimination.
Russell's claim that the State completely failed to
question 6 of the 11 African-American veniremembers who were
stricken is refuted by the record. Although Russell is
correct that potential jurors C.B., V.H., J.D., C.W., E.J.,
and R.K. answered no questions during voir dire, the record
reflects that several other veniremembers who were ultimately
struck and most of the final jurors also answered no
questions during voir dire. Moreover, the record contains
10-page jury questionnaires asking several different
questions that veniremembers returned to the trial court
before they appeared at voir dire. Both the State and
Russell's defense counsel received the jury
questionnaires in advance of voir dire and had the
opportunity to examine the veniremembers' responses
before conducting voir dire. Each party's voir dire with
respect to individual questioning was limited; the questions
focused on the veniremembers' abilities to remain
unbiased and to follow the trial court's orders,
veniremembers' beliefs with respect to the death penalty,
veniremembers' relationships to law-enforcement officers,
and veniremembers' attitudes toward firearms. Under these
circumstances, we do not find that the State's striking
six African-American veniremembers who answered no questions
during voir dire supports an inference of racial
discrimination. For the foregoing reasons, we find no error,
much less plain error, with respect to Russell's
contends that the trial court erred when it denied his motion
to suppress his video-recorded statement to
police. Russell claims that the totality of the
circumstances of August 24, 2011--specifically, he says,
sleep deprivation and the effects of smoking synthetic
marijuana, hiding in a drain pipe for seven to eight hours
after the shooting, and being "subjected to physical
violence and threats by police" during and after his
arrest--left him "unable to make an informed decision to
waive his Miranda rights, rendering his
statements involuntary and inadmissible." (Russell's
brief, p. 85-86.)
April 29, 2013, Russell filed a motion to suppress his
statement, claiming that he "was not effectively advised
of his constitutional rights"; that "he was not
informed of the charge pending against him"; that he
"did not have counsel and was not afforded the
opportunity to retain counsel prior to being
interviewed"; that he "was not in a mental or
physical condition that he could have been interviewed";
that he "could not have knowingly, intelligently and
voluntarily waived his constitutional right to remain silent,
and his statements were not voluntarily given"; and that
his statements should be excluded under Rules 401, 402, 403,
404(a) and (b), 801(c), and 802, Ala. R. Evid. (C. 132.)
Russell further argued that, if the trial court found his
statements to be admissible, "the video of [his]
statements must be redacted" because, he said,
"[t]here are portions of the video that are
inflammatory, prejudicial, irrelevant and contain
inadmissible hearsay, " and he requested "to review
the redacted statements to determine whether the redacted
statements contain any objectionable parts before the State
should be allowed to play the video for the jury." (C.
record includes a waiver-of-rights form signed by Russell at
7:00 P.M. on August 24, 2011. The form informed Russell that
he had the right to remain silent, the right to speak with a
lawyer before being questioned, and the right to have a
lawyer present during questioning. The form further stated
that anything Russell said could and would be used against
him in a court of law; that, if he decided to answer
questions, he had the right to stop answering at any time;
and that, if he could not afford a lawyer, one would be
appointed to represent him before questioning if he so
desired. Russell signed the form below a statement that
"I have read the statement of my rights and I understand
what my rights are. I am willing to answer questions at this
time. I do not want a lawyer at this time. I understand and
know what I am doing. No promises or threats have been made
to me and no pressure or coercion of any kind has been used
video-recorded statement shows that Sgt. Sparks briefly
entered the interview room to inform Russell that, at the
time Russell was interviewed, he was being charged with
attempted murder. While waiting to be interviewed, Russell
asked the officer sitting in the room with him if he could
telephone his family, to which the officer replied: "Not
right now." Without being questioned, Russell said:
"Damn weak ass police officers goin' try to jump on
me after I'm in handcuffs." The video does not
indicate that Russell was suffering from any obvious physical
Sgt. Sparks and Inv. Suits entered the room to conduct the
interview, they provided Russell with water, helped him
adjust his clothing, and wiped grass and leaves from his hair
and face. Before beginning the interview, Sgt. Sparks told
"What we're going to do, we're going to talk
about everything that's happened. I know you've been
in a bad place all day long. Listen, I want to help you
"You need someone in your corner right now. That's
our job. We're here for whoever comes in here and talks
to us, and we want to help you get through this. I know
you've had a bad day. I've had a bad day. I know
you're tired. We're all tired."
(State's Exhibit 29.) Sgt. Sparks asked Russell if he had
ever been informed of his Miranda rights, and
Russell nodded yes. Sgt. Sparks told Russell to stop him if
he had any questions, and Sgt. Sparks then read the
waiver-of-rights form to Russell. Sgt. Sparks asked Russell
if he understood those rights, and Russell nodded. Sgt.
Sparks then showed Russell the waiver-of-rights form and
explained that the form was an acknowledgment that Russell
was willing to talk to police officers at that time. Sgt.
Sparks read aloud the statements from the waiver-of-rights
form as quoted above, and when asked if he understood,
Russell nodded and said "Yes." Sgt. Sparks asked
Russell if he wanted to talk to him, and Russell nodded yes
and signed the waiver-of-rights form.
the interview, Russell fidgeted constantly, yawned several
times, and indicated that he wanted to bathe, to change into
clean clothes, and to sleep. Russell, however, was able to
coherently answer Sgt. Sparks' questions and to relate
the details of the stop, the foot chase, the shooting, and
his attempt to evade capture. At no time during the interview
did Russell request to speak with an attorney or refuse to
August 14, 2013, the trial court held a pretrial status
conference during which the parties discussed Russell's
motion to suppress. The court did not conduct a hearing, and
neither party presented witnesses or other evidence aside
from Russell's statement itself. Russell agreed to the
admission of the video-recorded statement on the condition
that it be redacted to remove portions that showed: officers
bringing Russell into the interview room and his
"interaction with the police" at that time; Russell
placing a baggie of what was presumably marijuana into his
mouth; and any references to Russell's past criminal
activity and past contact with the police. Following the
hearing, the trial court issued a written order stating that
Russell's statement "shall be edited or redacted in
the form as set out in the hearing." (C. 165.)
morning before the third day of trial, the State brought to
the court's attention Russell's objection to the
redacted version of his statement:
"[The State]: This morning Mr. Moeller [prosecutor]
brought it in to play. Apparently--I was not privy to this
conversation--[he] ask[ed] the defense if they had any
problems with the redacted video and didn't get an answer
to my satisfaction. I think this question was we don't
know whether we do or we may have an issue. My concern is I
want to be confident that what I play with the Court's
instruction to the jury about redaction and obvious issues
where when you redact there's a slight lag time, longer
in the tape, you know, where the voice and things don't
match. That we then don't have an issue where something
pops out in front of the jury and a bell has been rung that I
can't unring. If there is an objection, I'd like to
hear it now so that we can fight about it and if it has to be
further redacted, we can get it done. That process takes at
least an hour to redact. So, I'm kind of running out of
time. I'm not trying to put anybody on the spot but I
kind of am. Because we have--it's obviously coming and
I'd like to have it come in a form that's as clean as
"[Defense counsel]: It's simply this: We got the
redaction yesterday. We couldn't look at it until last
night. There is something in there that we feel that was part
of our discussions early on, ruling to take certain things
out. It refers to a prior incident of which the defendant
indicated that he did this on a prior occasion and got away.
We discussed that at several of the hearings we had
addressing the statement and we were under the impression
that the Court ruled that that was to be taken out.
That's in. I mean, that one issue. It's not a
long--it's not a, you know, basically briefly a few
seconds, right, Jen [defense counsel]? Just a few seconds
where he says that. He really don't (sic) go into it any
further than he said it and really just moves on. But at
least kind of raises the question of, you know, that he goes
around pointing guns at a police officer. That's not the
case. That's not the case. There's not a prior
incident of him pointing a gun at a police officer.
"[The State]: [Defense counsel], we talking about where
he pointed a cell phone at Officer Husk?
"[Defense counsel]: Yeah.
"[The State]: When he said he tried to scare an officer
"[Defense counsel]: Yeah.
"[The State]: We had already had a hearing on that
issue. I think the Court, again, especially now in light of
the defense, the Court ruled that that was admissible because
he says, 'I was attempting to scare the officer
previously. I was doing the same thing in this case.'
"The defense is: 'I didn't intend to kill.'
The--he as part of his statement puts that out there. We
didn't redact that and the Court said it stays in at the
hearing. That's my recollection. Because he puts in as
part of his discussion as to why he would do this. On a
previous occasion, he had pulled a cell phone, pointed it at
the officer and the officer had run away. So he was just
trying to scare him. And that was consistent with his
"So we've taken out all the things the Court asked
us to regarding prior criminal contact, warrants out of
Oxford and all that stuff. I didn't know what the issue
was. That part, my understanding was to be left in because it
goes to his mental state and res gestae. He was intending to
scare. His excuse to the police that 'I've done it
before' obviously should be admissible.
"THE COURT: And we may have discussed this and--[defense
counsel], I'm not trying your case, but it sounds like
it's a--it works both ways. I mean, if he's saying
this was an accident that he pulled the gun to scare Officer
Sollohub just like he had in the past, but something
unfortunate went on or gun went off or whatever. I'm
leaving it in if it goes to mental operation of him and his
state of mind. All those things that he had done previously.
I mean, I see where it can serve either side. And I'm
leaving it in and it's his own statement. And something
he put in the statement. I don't know that it was ever
asked directly of him.
"[Defense counsel]: It wasn't. They didn't
question him about it. He brought it up. And that was the
only--that was the issue that we had and Jen [defense
counsel] and I debated it and her and I had some heated
discussions about it."
Sgt. Sparks's testimony on direct examination, the State
introduced Russell's redacted video-recorded statement to
police, and the statement was played for the jury. After
admitting the statement, the court noted Russell's
"earlier objection mentioned outside."
"In reviewing a trial court's ruling on a motion to
suppress a confession or an inculpatory statement, this Court
applies the standard discussed by the Alabama Supreme Court
in McLeod v. State, 718 So.2d 727 (Ala. 1998):
"'For a confession, or an inculpatory statement, to
be admissible, the State must prove by a preponderance of the
evidence that it was voluntary. Ex parte Singleton,
465 So.2d 443, 445 (Ala. 1985). The initial determination is
made by the trial court. Singleton, 465 So.2d at
445. The trial court's determination will not be
disturbed unless it is contrary to the great weight of the
evidence or is manifestly wrong. Marschke v. State,
450 So.2d 177 (Ala.Crim.App.1984)....
"'The Fifth Amendment to the Constitution of the
United States provides in pertinent part: "No person ...
shall be compelled in any criminal case to be a witness
against himself...." Similarly, § 6 of the Alabama
Constitution of 1901 provides that "in all criminal
prosecutions, the accused ... shall not be compelled to give
evidence against himself." These constitutional
guarantees ensure that no involuntary confession, or other
inculpatory statement, is admissible to convict the accused
of a criminal offense. Culombe v. Connecticut, 367
U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Hubbard
v. State, 283 Ala. 183, 215 So.2d 261 (1968).
"'It has long been held that a confession, or any
inculpatory statement, is involuntary if it is either coerced
through force or induced through an express or implied
promise of leniency. Bram v. United States, 168 U.S.
532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). In Culombe,
367 U.S. at 602, 81 S.Ct. at 1879, the Supreme Court of the
United States explained that for a confession to be
voluntary, the defendant must have the capacity to exercise
his own free will in choosing to confess. If his capacity has
been impaired, that is, "if his will has been
overborne" by coercion or inducement, then the
confession is involuntary and cannot be admitted into
evidence. Id. (emphasis added).
"'The Supreme Court has stated that when a court is
determining whether a confession was given voluntarily it
must consider the "totality of the circumstances."
Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138,
1139-40, 22 L.Ed.2d 433 (1969): Greenwald v.
Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20
L.Ed.2d 77 (1968); see Beecher v. Alabama, 389 U.S.
35, 38, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967). Alabama
courts have also held that a court must consider the totality
of the circumstances to determine if the defendant's will
was overborne by coercion or inducement. See Ex parte
Matthews, 601 So.2d 52, 54 (Ala.)(stating that a court
must analyze a confession by looking at the totality of the
circumstances), cert. denied, 505 U.S. 1206, 112 S.Ct. 2996,
120 L.Ed.2d 872 (1992); Jackson v. State, 562 So.2d
1373, 1380 (Ala.Crim.App.1990)(stating that, to admit a
confession, a court must determine that the defendant's
will was not overborne by pressures and circumstances
swirling around him); Eakes v. State, 387 So.2d 855,
859 (Ala.Crim.App.1978)(stating that the true test to be
employed is "whether the defendant's will was
overborne at the time he confessed")(emphasis
"718 So.2d at 729 (footnote omitted).
Osgood v. State, [Ms. CR-13-1416, October 21, 2016]
__So. 3d__, __(Ala.Crim.App.2016).
"[T]he test of involuntariness of a confession, or other
inculpatory statement, is not whether the defendant bargained
with the police, but whether in his discussions with the
police, which may have included bargaining, the
defendant's will was overborne by 'apprehension of
harm or hope of favor.' See [Ex parte] Gaddy,
698 So.2d [1150, ] 1154 [(Ala. 1997)](quoting Ex parte
Weeks, 531 So.2d 643, 644 (Ala. 1988));
Columbe, 367 U.S. at 602, 81 S.Ct. At 1879;
Jackson, 562 So.2d at 1380. To determine if a
defendant's will has been overborne, we must assess
'the conduct of the law enforcement officials in creating
pressure and the suspect's capacity to resist that
pressure'; '[t]he defendant's personal
characteristics as well as his prior experience with the
criminal justice system are facts to be considered in
determining [the defendant's] susceptibility to police
pressures.' Jackson, 562 So.2d at 1380-81
McLeod, 718 So.2d at 730.
"'"The question of whether a confession was
voluntary is initially to be determined by the trial
court."' Minor v. State, 914 So.2d 372, 388
(Ala.Crim.App.2004), quoting Jackson v. State, 562
So.2d 1373, 1381 (Ala.Crim.App.1990).... '"In
reviewing the correctness of the trial court's ruling on
a motion to suppress, this Court makes all the reasonable
inferences and credibility choices supportive of the decision
of the trial court."' Kennedy v. State, 640
So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley v.
State, 494 So.2d 750, 761 (Ala.Crim.App.1985),
aff'd, 494 So.2d 771 (Ala. 1986)."
Eggers v. State, 914 So.2d 883, 899
there was no hearing on Russell's motion to suppress. The
only evidence before the trial court was Russell's
video-recorded statement, which was redacted after the court
and the parties watched the recording in its entirety. We
note, however, that this Court may consider evidence adduced
at trial when reviewing a trial court's ruling on a
motion to suppress. See Smith v. State, 795 So.2d
788 (Ala.Crim.App.2000)(quoting Henry v. State, 468
So.2d 896 (Ala.Crim.App.1984)). At trial, Sgt. Sparks
testified that he interviewed Russell beginning at 7 P.M. on
August 24, 2011. Sgt. Sparks testified that he advised
Russell of his Miranda rights and that Russell
signed a waiver-of-rights form in his presence. As noted
above, that form is included in the record. In addition, the
record indicates that Russell had prior experience with the
criminal-justice system. After reviewing the video-recording
of Russell's statement, which corroborates Sgt.
Sparks's testimony, we cannot say that the trial court
abused its discretion when it denied Russell's motion to
suppress. Accordingly, Russell is not entitled to relief on
further note that Russell's objection at trial to
evidence that he once scared a police officer using a
cellular telephone was the basis of his argument against the
admission of the recording, but on appeal he does not raise
this issue as part of his challenge to the denial of his
motion to suppress. Russell does, however, challenge the
trial court's failure to sua sponte issue a limiting
instruction regarding collateral-bad-acts evidence, and he
attacks references to his statement regarding the cellular
telephone in that argument. Therefore, we address that
specific issue in Section VII.
contends that the trial court erred when it allowed the State
to introduce victim-impact evidence during the guilt phase of
his trial because, he says, such evidence "was not
relevant to any issues before the jury and likely interfered
with the jury's objective evaluation of the
evidence." (Russell's brief, p. 91.) Further,
Russell argues that certain statements the prosecutor made
during opening and closing arguments emphasized the
victim-impact evidence and "encouraged the jury to
consider the evidence for improper purposes."
(Russell's brief, p. 90.)
"'"It is well settled that victim-impact
statements 'are admissible during the guilt phase of a
criminal trial only if the statements are relevant to a
material issue of the guilt phase. Testimony that has no
probative value on any material question of fact or inquiry
is inadmissible.' Ex parte Crymes, 630 So.2d
125, 126 (Ala. 1993), citing Charles W. Gamble,
McElroy's Alabama Evidence, § 21.01 94th
ed. 1991). However, 'when, after considering the record
as a whole, the reviewing court is convinced that the
jury's verdict was based on the overwhelming evidence of
guilt and was not based on any prejudice that might have been
engendered by the improper victim-impact testimony, the
admission of such testimony is harmless error.'
Crymes, 630 So.2d at 126."
"'Jackson v. State, 791 So.2d 979, 1011
"Gissendanner v. State, 949 So.2d 956, 965
(Ala.Crim.App.2006). '[T]he introduction of victim impact
evidence during the guilt phase of a capital murder trial can
result in reversible error if the record indicates that it
probably distracted the jury and kept it from performing its
duty of determining the guilt or innocence of the defendant
based on the admissible evidence and the applicable law.'
Ex parte Rieber, 663 So.2d 999, 1006 (Ala. 1995).
However, 'a judgment of conviction can be upheld if the
record conclusively shows that the admission of the victim
impact evidence during the guilt phase of the trial did not
affect the outcome of the trial or otherwise prejudice a
substantial right of the defendant.' Id. at
Shanklin v. State, 187 So.3d 734, 781
argues that testimony regarding Officer Sollohub's organ
donation was improper victim-impact testimony presented
during the guilt phase of his trial.
pretrial hearing, Russell moved to exclude evidence
"that Officer Sollohub donated his organs" because,
he argued, such evidence was not relevant and "that kind
of testimony just kind of plays to the passions and sympathy
of the jurors." The trial court offered to issue a
limiting instruction to the jurors "that they're not
to make their ruling base[d] on bias, prejudice, sympathy,
compassion, emotion, and all that." The court further
instructed the State to limit the testimony to the fact that
Officer Sollohub had donated his organs and not to "go
into any great detail about this or anything."
asked whether she knew about Officer Sollohub's organ
donation, Dr. Sherry Melton of UAB Hospital testified:
"When someone is pronounced brain dead and their apnea
test is completed, they're left on the ventilator, and
they're on life support even though they've been
pronounced brain dead. And then Alabama Organ Center is
consulted, and they go to family and pursue, 'Did the
person want to give that gift?' And that happened in this
County Coroner Patrick Brown testified that "there was a
decision made for organ donation" and that he
"witnessed the actual procurement" of Officer
Sollohub's organs. Following the conclusion of Coroner
Brown's testimony, Russell renewed his objection to
evidence of Officer Sollohub's organ donation, and the
trial court overruled his objection.
Ward subsequently testified:
"A. We received the body from--it was identified by
Coroner Pat Brown. The body came to us from UAB after having
been pronounced dead at UAB and having organ procurement for
"Q. And the issue of organ procurement, you were
consulted in regards to that; is that correct?
"A. Yes, I was.
"Q. And it was based on your opinion and your decision
that that would be acceptable if that occurred; is that
"A. Yes, ma'am.
"Q. That would not have an affect on your ability to
perform an autopsy and arrive at a cause/manner of death?
"A. That's correct."
(R. 978.) Dr. Ward further testified that Officer Sollohub
"had an incision where they had taken his organs that
they were going to use for transplant. Because of that
procedure--that transplant procedure, he also had a tube in
his mouth that went into his throat." Dr. Ward again
testified, "You can see that incision going from the top
of his neck to his abdomen area, where the organs were
procured. That incision made by the transplant
agree with the State that the above statements were not
victim-impact testimony. "'Victim-impact statements
typically "describe the effect of the crime on the
victim and his family."'" Townes v.
State, [Ms. CR-10-1892, December 18, 2015] __So. 3d__,
__(Ala.Crim.App.2015)(opinion on return to remand)(quoting
Turner v. State, 924 So.2d 737, 770
(Ala.Crim.App.2002))(quoting, in turn, Payne v.
Tennessee, 501 U.S. 808, 821, 111 S.Ct. 2597, 115
L.Ed.2d 720 (1991)). Testimony with respect to Officer
Sollohub's organ donation did not describe the effect of
the crime on Officer Sollohub or his family. Moreover, after
a review of the record, it is apparent that the State
introduced such evidence in a limited context for the
purposes of establishing the chain-of-custody for Officer
Sollohub's body and of explaining the effect of the organ
donation upon Officer Sollohub's autopsy.Accordingly,
Russell's claim is without merit, and he is not entitled
to relief on this issue.
Jennifer Morris's Testimony
argues that the State introduced improper victim-impact
evidence in the form of Jennifer Morris's testimony and
a close-up photograph of Officer Sollohub that was
introduced during Morris's testimony.
challenges the following testimony from Morris with regard to
"Q. Tell us about your son, Justin Sollohub.
"A. The best description is he was just so full of life.
He lived life so big. He was born on
Valentine's Day, my first baby, and he was always my
"Q. A big boy?
"A. He was a big guy.