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Russell v. State

Alabama Court of Criminal Appeals

September 8, 2017

Joshua Eugene Russell
State of Alabama

         Appeal from Lee Circuit Court (CC-2013-813)

          JOINER, JUDGE.

         Joshua 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.[1]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.


         The 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 pursue Russell.

         Officer Sollohub chased Russell down an alleyway and into the backyard of a nearby residence where Karen Mason and her son, Justin Beard, [2] 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.

         When 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, [3] where he later died.

         After 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.

         After 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 himself in.

         Investigator 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 testified:

"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 ran."

(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.

         Russell 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.[4] 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 stated:
"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."

         Investigator 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.

         Dr. Emily Ward, a state medical examiner for the ADFS, [5]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 absolutely."

         Derrick 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. Headley testified:

"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 it can't.
"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?
"A. Correct."

(R. 1464-67.)

         On cross-examination, Headley elaborated on his testimony that he could not rule out the possibility that the gun fired inadvertently:

"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 to discharge.
"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."

(R. 1476-77.)

         Jesse 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, [6] 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.

         Terrence 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."

         At the 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 indictment.

         Standard of Review

         On 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 (1999)."'
"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 plain-error rule
"'"'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 (1995).'
"Centobie v. State, 861 So.2d 1111, 1118 (Ala.Crim.App.2001)." Phillips v. State, [Ms. CR-12-0197, December 18, 2015]__ So. 3d__, __(Ala.Crim.App.2015).


         Guilt-Phase Issues


         Russell 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.


         Russell contends that "death-qualifying the jury produced a conviction prone jury."[7] (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)).

         The 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.


         Russell 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."[8] (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 views. ..."

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 (Ala. 1998).
"'"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 at 153."
"'Dunning v. State, 659 So.2d 995, 997 (Ala.Crim.App.1994).
"'"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 (Ala.Crim.App.2008).
"'"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 by leading."
"'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)).

         During 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 sense?
"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], questions?
"[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 [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
"[J.J.]: I don't remember which, Birmingham or Huntsville or which said that.
"[Defense counsel]: Do you remember when--did you get it recently or--
"[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 maybe.
"[Defense counsel]: All right. When you got your jury questionnaire, did you then inquire about what the case was about?
"[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 order?
"[J.J.]: Yes, sir, I would."

(R. 422-31.)

"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 (Ala.Crim.App.2007).

         A 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.[9] 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.

         As 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.)

         To 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.

         Unlike 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.


         Russell 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).[10] Because Russell did not raise this claim at trial, we question whether this issue is properly before this Court.

         This 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 claim.'
"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).

         Here, 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 (2003):
"'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 discrimination:
"'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 [258] at 280, 583 P.2d [748] at 764, 148 Cal.Rptr. [890] 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. [229] at 242, 96 S.Ct. [2040] 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. at 622-23."

White, 179 So.3d at 198.

         Here, 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.[11] 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.[12] 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."

         On 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.

         We 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 discrimination.").

         Moreover, 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).

         For 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.[13] 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.

         Finally, 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 Batson claim.


         Russell contends that the trial court erred when it denied his motion to suppress his video-recorded statement to police.[14] 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[15] rights, rendering his statements involuntary and inadmissible." (Russell's brief, p. 85-86.)

         On 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. 133.)

         The 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 reads:

"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 against me."

(C. 430.)

         Russell's 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 injuries.

         When 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 Russell:

"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 through this.
"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.

         During 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 answer questions.

         On 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.)

         On the 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 possible.
"[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 before?
"[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 statements throughout.
"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."

(R. 862-67.)

         During 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 added).'
"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 (citations omitted)."

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 (Ala.Crim.App.2004).

         Here, 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 this issue.

         We 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.


         Russell 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."[16] (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 (Ala.Crim.App.2000).'
"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 1005."

Shanklin v. State, 187 So.3d 734, 781 (Ala.Crim.App.2014).

         A. Organ-Donation Testimony

         Russell argues that testimony regarding Officer Sollohub's organ donation was improper victim-impact testimony presented during the guilt phase of his trial.

         At a 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."

         When 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 case."

(R. 848.)

         Calhoun 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.

         Dr. 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 transplant.
"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 right?
"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 doctors/surgeons."

         We 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.[17]Accordingly, Russell's claim is without merit, and he is not entitled to relief on this issue.

         B. Jennifer Morris's Testimony

         Russell argues that the State introduced improper victim-impact evidence in the form of Jennifer Morris's[18] testimony and a close-up photograph[19] of Officer Sollohub that was introduced during Morris's testimony.

         Russell challenges the following testimony from Morris with regard to Officer Sollohub:

"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 baby.
"Q. A big boy?
"A. He was a big guy. ...

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