from Cullman Circuit Court (CC-13-224)
Leroy Davis was convicted of one count of intentional murder,
see § 13A-6-2(a)(1), Ala. Code 1975, and one
count of felony murder (robbery), see §
13A-6-2(a)(3), Ala. Code 1975, resulting from the killing of
Helen Mayo. Davis was sentenced to 99 years' imprisonment
on each conviction; the sentences were ordered to run
Davis does not challenge the sufficiency of the evidence,
only a brief recitation of the facts is necessary. On
December 3, 2012, emergency personnel found 87-year-old Mayo
with severe blunt-force trauma to the face inside her home in
Cullman County. Mayo stated that she had been "pistol
whipped" by a man that "had done work for
[Mayo's neighbor] in the past." (R. 485.) Mayo also
stated that the man wanted money for a "shot" for
"his eye." (R. 486.) Mayo later died as a result of
complications resulting from those injuries.
established that, the day before the attack, Davis, who was
known as a local handyman, visited several homes in the area
seeking either employment or money. On that day, Davis's
vehicle was seen parked in the driveway of Mayo's home.
Based on Mayo's statements and on interviews from
Mayo's neighbors, Davis was developed as a person of
interest. After he was located, Davis attempted to flee from
law enforcement. At the police station, Davis admitted to
having an artificial eye that caused him pain.
evidence, including certain DNA evidence that matched the DNA
profile of Davis, was recovered from the scene. Also, law
enforcement recovered from Davis's home a pistol
containing DNA evidence that matched the DNA profile of Mayo.
argues that the circuit court erred by denying his motion to
suppress the DNA evidence obtained from his person.
Specifically, Davis argues that the taking of his saliva was
a "critical stage" of the proceedings and that,
pursuant to Rule 16.2, Ala. R. Crim. P., he was entitled to
the presence of counsel when the evidence was collected.
(Davis's brief, pp. 43-44.)
trial, the State filed a request for the production of
Davis's saliva for the purpose of obtaining his DNA
profile. Both the State's request for production and the
circuit court's order permitting the seizure of a saliva
sample from Davis were served on Davis and his trial counsel.
There is nothing in the record showing that Davis filed an
objection to the taking of the DNA swab.
16.2(b), Ala. R. Crim. P., provides, in pertinent part:
"Upon motion of the state/municipality and solely in
connection with the particular offense with which the
defendant is charged, the court shall order the defendant to:
"(6) Permit the taking of samples of defendant's
hair, blood, saliva, urine, or other specified materials
which involve no unreasonable intrusions into the body;
"The defendant shall be entitled to the presence of
counsel at the taking of such evidence."
we note that Rule 16.2 does not require the presence of
counsel, but merely permits an accused, upon request, to have
counsel present at the taking of a saliva sample.
Davis was not entitled to have counsel present at the
execution of a search warrant permitting the collection of
Davis's saliva as evidence. Here, the record shows that
the taking of Davis's saliva in order to obtain his DNA
profile occurred before the initiation of formal
adversarial proceedings and, thus, was not a "critical
stage" of his proceedings. Therefore, the circuit court
did not err when it denied Davis's motion to suppress.
error, if any, was harmless. Davis admits that the State also
obtained a search warrant to collect his DNA profile via
fingernail clippings and scrapings. See Rule 45,
Ala. R. App. P. Accordingly, Davis is not entitled to relief
on this issue.
argues that the circuit court erred by allowing the admission
of State's Exhibits 68, 69, 70, 71, 72, and 122, all of
which were photographic evidence. Specifically, Davis argues
that there was a "missing link" in the chain of
custody for the identified photographic evidence.
(Davis's brief, p. 52.)
trial, an exchange occurred as follows:
"[Prosecutor]: I'm also going to show you some more
pictures here. Me and [defense counsel] have already
stipulated to State's Exhibits Number 67, 68, 69, 70, 71
and 72. I'll ask if you recognize these?
"(State's Exhibits Number 67 through 72 were marked
for identification and admitted into evidence.)
"[Officer Martin]: Yes, I do.
"[Prosecutor]: What are those pictures of?
"[Officer Martin]: These are photos from what we're
calling the foyer. Some of it is stains believed to ...