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Brownfield v. State

Alabama Court of Criminal Appeals

December 15, 2017

James Ben Brownfield
v.
State of Alabama

         Appeal from Jackson Circuit Court (CC-02-99.60; CC-02-100.60; and CC-02-101.60)

          KELLUM, JUDGE.

         James Ben Brownfield appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his capital-murder convictions and sentence of death.

         Facts and Procedural History

         In 2004, Brownfield was convicted of three counts of capital murder in connection with the murders of his sister, Brenda McCutchin ("Brenda"), his brother-in-law, Latham McCutchin ("Latham"), and Brenda's three-year-old grandson, Joshua Hodges ("Joshua"). Specifically, Brownfield was convicted of murdering Latham during the course of a burglary, see § 13A-5-40(a)(4), Ala. Code 1975, of murdering Latham, Brenda, and Joshua during one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975, and of murdering Joshua, who was under 14 years of age, see § 13A-5-40(a)(15), Ala. Code 1975. By a vote of 11-1, the jury recommended[1] that Brownfield be sentenced to death for his capital-murder convictions. The trial court followed the jury's recommendation and sentenced Brownfield to death. This Court affirmed Brownfield's convictions and sentence on direct appeal, Brownfield v. State, 44 So.3d 1 (Ala.Crim.App.2007), the Alabama Supreme Court affirmed this Court's judgment, Ex parte Brownfield, 44 So.3d 43 (Ala. 2009), and the United States Supreme Court denied certiorari review, Brownfield v. Alabama, 562 U.S. 1003 (2010). This Court issued a certificate of judgment on May 26, 2010.

         The facts of the case were set out in this Court's opinion on direct appeal:

"The trial court set out the following statement of the evidence, which we adopt:
"'At some time in the late evening hours of December 23, 2001, or the early morning hours of December 24, 2001, Brenda Whitehead McCutchin, Joshua Dewayne Hodges, and Latham Durwood McCutchin were murdered in their homes in Scottsboro, Alabama. At the time of their deaths, Brenda was forty-seven years old, Joshua was three years old, and Latham was sixty-four years old.
"'After consuming Xanax pills on the night of December 23, 2001, the twenty-seven year old defendant, James Ben Brownfield, Jr., became enraged with his sister, Brenda Whitehead McCutchin, over drugs and money. While Brenda and her grandson, Joshua Dewayne Hodges, were sleeping in their bed, the defendant decided to kill his sister and her estranged husband, Latham Durwood McCutchin. The defendant took a claw hammer into the room where Brenda and Joshua were sleeping and hit Brenda with it. When the defendant hit Brenda, Joshua awoke crying. At that time, the defendant began hitting both Brenda and Joshua with the claw hammer. Brenda suffered approximately twenty forceful blows to the head and other injuries to her body. Joshua suffered approximately sixteen blows to the head and other injuries to his body. Both Brenda and Joshua died from multiple blunt-force injuries. Before he left Brenda's house, the defendant attempted to burn the house with kerosene and a cigarette.
"'After killing Brenda and Joshua, the defendant took the claw hammer and a set of clean clothes and drove across town to the residence of his brother-in-law, Latham Durwood McCutchin. The defendant initially pretended a friendly visit with Latham but later inside the residence, the defendant informed Latham that he was going to kill him. The defendant and Latham struggled for the claw hammer with the defendant subduing Latham by hitting him with his fists and the hammer. Latham suffered numerous injuries. He suffered at least ten forceful blows to the head with the claw hammer, bruising to the lower chest, arms, and hands, fractured ribs and a fractured vertebra. Later, the defendant stabbed Latham in the heart and cut his throat with a knife. Latham died from multiple blunt-force injuries. After killing Latham, the defendant showered and dressed in the clean clothes. He gathered the soiled clothes, claw hammer, and knife and placed them in a garbage bag that he found at Latham's house.
"'The defendant left Latham's house and went to a Christmas party where he saw friends and acquaintances. He told his friend, Nick Logan, that he was moving to Tennessee because he and Brenda had argued and she had kicked him out of the house. Later, the defendant left the party and drove toward Tennessee to Stevenson, Alabama. He placed the garbage bag of evidence in a dumpster in Stevenson and drove back to Scottsboro. The defendant had contact with friends throughout the day of December 24, 2001. The night of December 24, 2001, the defendant went to Tammy Farmer's apartment. During conversations with Tammy, his girlfriend, the defendant confessed to the murders of Brenda, Joshua, and Latham.
"'Concerned about his father, Rodney McCutchin traveled to Latham McCutchin's house. Rodney and his son found the body of Latham and called 911. The Scottsboro Police Department immediately began an investigation into the death of Latham. During the investigation, they obtained information that implicated Brenda McCutchin and her brother, the defendant, James Ben Brownfield, Jr. On the morning of December 25, 2001, the Scottsboro Police Department obtained a search warrant to search the home of Brenda McCutchin. Upon searching the home, the police discovered the bodies of Brenda and her grandson, Joshua. The Scottsboro Police Department intensified their search for Brenda's car and the defendant.
"'At approximately 10:00 A.M. on December 25, 2001, the Scottsboro Police Department located Brenda's car and the defendant at the apartment of defendant's girlfriend, Tammy Farmer. The defendant was apprehended and transported to the Scottsboro Police Department. On December 25 and 26, 2001, the defendant gave Investigators Robert Petty and Doug Hood of the Scottsboro Police Department a statement of confession to the murders.'
"(C. 345-347.) The trial court also noted that the evidence indicated that Brownfield wrote messages on the walls of both residences: At Latham's house Brownfield wrote 'This was necessary Ben. I'm sorry for your family. They deserved it.' (C. 351) and at Brenda's residence those messages were throughout the house and included comments such as '"Fuck this God, " "Fuck this world, " "I'll be dead too, " "It's about to pick up, " "Don't look for me, " "Tammy I love you Always Never 4-get Baby, " "Killing is my business, " and "My whole life I have been ran over. It's stopping now."' (C. 353.)
"The evidence further indicated that although Brenda McCutchin and Latham McCutchin were married, they were separated and no longer lived together, and that Brownfield lived with Brenda and Joshua at Brenda's house on Wallace Lane in Scottsboro. The evidence also indicated that the victims did not die immediately upon the striking of the first blows; rather, they survived for some period before succumbing to their injuries. Further, each of the victims had what were characterized as defensive wounds, indicating that they attempted to ward off at least some of the blows from the hammer. Finally, Brownfield presented evidence indicating that he had consumed seven or eight Xanax pills on the night of the murders and that he had also used crystal methamphetamine a number of times in the week preceding the murders."

Brownfield, 44 So.3d at 6-8 (footnote omitted).[2]

         On February 14, 2011, Brownfield timely filed the instant Rule 32 petition, raising numerous claims, including claims of ineffective assistance of trial counsel and appellate counsel.[3] On October 3, 2011, the State filed an answer to Brownfield's petition. Brownfield filed an amended petition on January 9, 2012.[4] The State filed an answer to the amended petition on March 13, 2012, and a motion to dismiss the amended petition on April 25, 2012. Brownfield also filed several discovery requests, which the State responded to. After conducting a hearing on the State's motion to dismiss and Brownfield's discovery requests on July 22, 2012, the circuit court issued an order on October 9, 2012, summarily dismissing several of the claims in Brownfield's petition but ordering an evidentiary hearing on Brownfield's claims of ineffective assistance of trial counsel and appellate counsel and his claims of juror misconduct and prosecutorial misconduct.[5]

         The evidentiary hearing was conducted over the course of five days in July and August 2013, and the circuit court permitted the parties to file post-hearing briefs. Brownfield filed his post-hearing brief on May 8, 2014. The State did not file a post-hearing brief but, instead, on July 21, 2014, filed what it styled as an "Answer to Post-Hearing Brief and Proposed Order on James Ben Brownfield's Amended Rule 32 Petition for Post-Conviction Relief." (C. 1045.) The State's answer was a single paragraph followed by a 127-page proposed order. Brownfield filed a reply to the State's proposed order on August 27, 2014. On February 24, 2015, the circuit court adopted almost verbatim the State's proposed order as its final order denying Brownfield's petition. On March 18, 2015, Brownfield filed a written objection to the circuit court's adopting the State's proposed order. The circuit court did not specifically rule on Brownfield's written objection; therefore, that objection was deemed denied by operation of law 30 days after the circuit court's final order disposing of Brownfield's petition. See, e.g., Loggins v. State, 910 So.2d 146, 148-49 (Ala.Crim.App.2005) (recognizing that postjudgment motions are permissible in Rule 32 proceedings but holding that a circuit court retains jurisdiction to modify a judgment in Rule 32 proceedings for only 30 days after the judgment is entered).

         Standard of Review

         "On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence." Ferguson v. State, 13 So.3d 418, 424 (Ala.Crim.App.2008). See also Mashburn v. State, 148 So.3d 1094, 1104 (Ala.Crim.App.2013).

"'The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.' Davis v. State, 9 So.3d 514, 519 (Ala.Crim.App.2006), rev'd on other grounds, 9 So.3d 537 (Ala. 2007). '[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.' Wilson v. State, 644 So.2d 1326, 1328 (Ala.Crim.App.1994). Rule 32.3, Ala. R. Crim. P., specifically provides that '[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.'"

Wilkerson v. State, 70 So.3d 442, 451 (Ala.Crim.App.2011).

         "[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). Also, "where a trial court does not receive evidence ore tenus, but instead makes its judgment based on the pleadings, exhibits, and briefs, ... it is the duty of the appellate court to judge the evidence de novo." Ex parte Horn, 718 So.2d 694, 705 (Ala. 1998). Likewise, when a trial court makes its judgment "based on the cold trial record, " the appellate court must review the evidence de novo. Ex parte Hinton, 172 So.3d 348, 352 (Ala. 2012).

         "However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, '[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.'" Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App.2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992)). "When conflicting evidence is presented ... a presumption of correctness is applied to the court's factual determinations." State v. Hamlet, 913 So.2d 493, 497 (Ala.Crim.App.2005). This is true "whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence." Parker Towing Co. v. Triangle Aggregates, Inc., 143 So.3d 159, 166 (Ala. 2013) (citations omitted). "The credibility of witnesses is for the trier of fact, whose finding is conclusive on appeal. This Court cannot pass judgment on the truthfulness or falsity of testimony or on the credibility of witnesses." Hope v. State, 521 So.2d 1383, 1387 (Ala.Crim.App.1988). Indeed, it is well settled that, in order to be entitled to relief, a postconviction "petitioner must convince the trial judge of the truth of his allegation and the judge must 'believe' the testimony." Summers v. State, 366 So.2d 336, 343 (Ala.Crim.App.1978). See also Seibert v. State, 343 So.2d 788, 790 (Ala. 1977).

         Analysis

         I.

         Brownfield first contends on appeal, as he did in his postjudgment objection, that the circuit court erred in adopting almost verbatim the State's proposed order as its final order disposing of his petition. Specifically, Brownfield argues that the circuit court's order contains the same typographical errors as did the State's proposed order --such as using the wrong names when referring to Brownfield and his trial counsel -- which, he says, indicates that the court "failed to carefully and independently review the State's arguments and conclusions." (Brownfield's brief, p. 49.) Brownfield also argues that the order is "pervaded by the State's adversarial language, " indicating, he says, that the findings and conclusions were not those of the circuit court. (Brownfield's brief, p. 50.)

         "Alabama courts have consistently held that even when a trial court adopts verbatim a party's proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous." McGahee v. State, 885 So.2d 191, 229-30 (Ala.Crim.App.2003). "[T]he general rule is that, where a trial court does in fact adopt the proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court." Ex parte Ingram, 51 So.3d 1119, 1122 (Ala. 2010). Only "when the record before this Court clearly establishes that the order signed by the trial court denying postconviction relief is not the product of the trial court's independent judgment" will the circuit court's adoption of the State's proposed order be held erroneous. Ex parte Jenkins, 105 So.3d 1250, 1260 (Ala. 2012).

         After thoroughly reviewing the record, we conclude that the circuit court's findings in this case were its own and were not merely an unexamined adoption of the proposed order submitted by the State. Unlike Ex parte Ingram, supra, in which the circuit court made patently erroneous statements that it had personal knowledge of the case and had "'presided over Ingram's capital murder trial and personally observed the performance of both lawyers throughout Ingram's trial and sentencing, '" 51 So.3d at 1123 (citation and emphasis omitted), when, in fact, it had not, the circuit court's order here contains no such patently erroneous statements.[6] In addition, unlike Ex parte Scott, [Ms. 1091275, March 18, 2011] __So. 3d__, __(Ala. 2011), in which the circuit court adopted verbatim as its order the State's answer to the petition, which, "by its very nature, is adversarial and sets forth one party's position in the litigation, " the court here adopted the State's proposed order, not the State's answer. "The 'adversarial tone' of the adopted order and the typographical errors contained in it do not, in and of themselves, establish that the circuit court's order ... was not the product of the court's own independent judgment." Van Pelt v. State, 202 So.3d 707, 723 (Ala.Crim.App.2015).

         Therefore, we find no error on the part of the circuit court in adopting verbatim the State's proposed order.

         II.

         Brownfield also contends that the circuit court erred in denying his claim of juror misconduct. Specifically, Brownfield argues that Juror B.J. failed to disclose during voir dire that she had been the victim of a crime, thereby denying him a fair trial.

         The record from Brownfield's direct appeal reflects that the venire was questioned in 4 panels of 15 prospective jurors each. After a lunch recess during the State's questioning of panel one, the prosecutor asked:

"Now, has anyone ever been interviewed by a policeman? And I'm not referring to just a traffic stop where they might have stopped you and asked you about your license and that kind of thing but something further than that where you either went to the police department or they might have come to your business or your home to interview you over a matter, you know, either as a possible suspect in something or as a witness about something. Now, has anyone ever talked to the police in that regard?"

(Record on Direct Appeal ("RDA"), R. 371.) The record indicates that two prospective jurors responded, but before those jurors could provide oral answers, the prosecutor asked if anyone had, over the lunch recess, thought of a question that had been asked earlier that they should have answered but did not. There was no response. The prosecutor then stated: "Now, we had a couple of responses about interviewing or talking to police at different times, and let's see who responded to that." (RDA, R. 372.) At that point, two prospective jurors again responded. One juror stated that he had been interviewed by police three to four weeks before voir dire as a possible witness to a string of robberies in an area where he had delivered appliances. Another juror stated that approximately three years before voir dire, the police had interviewed him regarding the whereabouts of his neighbor. When the prosecutor asked if "there was anyone else, " no one responded. (RDA, R. 375.) The prosecutor then asked the following question: "I was asking you about personally whether you had been interviewed in some respect by a police officer or an investigator, but do you have a relative or a close friend that you know that has been interviewed or questioned by police?" (RDA, R. 375.) At that point a third juror responded, stating that he had been interviewed by police in 1996 when he "had some things stolen." (RDA, R. 375.) Juror B.J. did not respond to the prosecutor's questioning.

         The record reflects that the prosecutor asked similar questions of the second panel and the fourth panel without using the words "witness" or "suspect" and that defense counsel asked panel three whether anyone had had any contact with law enforcement. A total of nine jurors responded to those questions; two of those jurors sat on Brownfield's jury, although neither had indicated that they had been the victim of a crime. Neither party directly asked panels one and two whether anyone had been the victim of a crime. Defense counsel did directly ask panels three and four whether anyone had been the victim of a crime, and six jurors responded affirmatively, one of whom sat on Brownfield's jury.

         At the Rule 32 hearing, Brownfield presented evidence indicating that in September 2000, approximately three and a half years before his trial began, Juror B.J. had been interviewed by police after she had been the victim of a crime. Marty May, an investigator with the Jackson County Sheriff's Department, testified that in September 2000 he was the chief of police of Pisgah, Alabama, and that he had interviewed Juror B.J. after it had been reported that food had been stolen from a freezer on Juror B.J.'s property. Inv. May testified that he did not remember who had reported the crime, nor could he recall whether he spoke with Juror B.J. at the police department or at Juror B.J.'s home. Inv. May stated that because the crime was a felony, he ultimately turned it over to the Jackson County Sheriff's Department. According to Inv. May, no arrests were made in relation to the incident, and the case was, at the time of the Rule 32 hearing, still open. Brownfield introduced into evidence the offense report from September 2000, which indicated that approximately $600 worth of food items had been stolen from Juror B.J.'s freezer. The report is signed by Juror B.J. and specifies the crimes as theft and burglary, although Inv. May testified that he did not remember the location of Juror B.J.'s freezer and that it was possible that there had been no burglary.

         Richard Fricks, one of Brownfield's two trial attorneys and the attorney who conducted the majority of voir dire examination, testified at the Rule 32 hearing that during voir dire he had ranked prospective jurors from one to five, with one representing the most desirable juror, whom he "would want" to keep on the jury, and five representing the least desirable juror, whom he "would want" to strike from the jury. (R. 259.) Brownfield introduced into evidence Fricks's notes from voir dire, which reflect that Fricks had ranked Juror B.J. a four. When asked how he would have ranked Juror B.J. if he had known that she had been interviewed by the police after she had reported being the victim of a crime, Fricks stated that he "[d]efinitely" would have ranked her a five. (R. 263.) On cross-examination, Fricks testified that, absent his notes, he did not have an independent recollection of voir dire or why he had ranked prospective jurors a certain way. He also agreed with the State that there are many factors, some intangible, that play a part in jury selection. When asked by the assistant attorney general if "it would be hard for you to definitively provide the Court information that based upon a hypothesis if a certain juror had answered a certain question differently, that you either would or would not have struck them, " Fricks responded: "I think I'm sure of how I would act given [the] example by petitioner's counsel. But in general I agree with you." (R. 315.)

         Initially, we point out that the circuit court first found in its order that Brownfield had abandoned his juror-misconduct claim at the evidentiary hearing when he did not call Juror B.J. to testify. We disagree. It is well settled "that a petitioner is deemed to have abandoned a claim if he fails to present any evidence to support the claim at the evidentiary hearing." Brooks v. State, 929 So.2d 491, 497 (Ala.Crim.App.2005) (emphasis added). See also Clark v. State, 196 So.3d 285, 313 (Ala.Crim.App.2015), and the cases cited therein. However, Brownfield did not fail to present any evidence to support his juror-misconduct claim. To the contrary, he presented both testimonial and documentary evidence to support the claim. The fact that Brownfield chose not to elicit testimony from the juror in question does not constitute an abandonment of the claim. Indeed, testimony from the juror in question is not necessarily required to prove a claim of juror misconduct, particularly where the misconduct alleged is the failure to answer questions truthfully during voir dire. See, e.g., Porter v. State, 196 So.3d 365 (Ala.Crim.App.2015) (reversing conviction on the ground that a juror failed to answer questions truthfully during voir dire even though the juror in question did not testify at the hearing on the motion for a new trial). Therefore, the circuit court erred in finding that Brownfield had abandoned his claim of juror misconduct.

         The circuit court also found in its order that Brownfield had failed to prove that Juror B.J. had committed misconduct answering voir dire questions. Although the circuit court did not expound on this conclusory finding in this portion of its order, it later found that the question asked was limited to suspects and witnesses and that, because Juror B.J. had been the victim of a crime, she was not a suspect or a witness and, thus, was not required to respond to the question. As explained more fully below, although the prosecutor mentioned suspects and witnesses when clarifying the initial question to the panel, we do not agree with the circuit court that the question was clearly limited to suspects and witnesses.

         Finally, the circuit court found in its order that Brownfield had failed to establish that he might have been prejudiced by Juror B.J.'s failure to respond. Specifically, the court found that Juror B.J. had not willfully failed to answer the question and that whether a prospective juror had been the victim of a burglary was not material because another juror who had been the victim of a burglary sat on Brownfield's jury and because Brownfield had failed to prove that had Juror B.J. responded to the question, his trial counsel would have removed her from the panel. Brownfield argues on appeal that each of these findings is incorrect and unsupported by the record, and that he proved by a preponderance of the evidence that he might have been prejudiced by Juror B.J.'s failure to answer the prosecutor's question.

"The proper standard for determining whether juror misconduct warrants a new trial, as set out by this Court's precedent, is whether the misconduct might have prejudiced, not whether it actually did prejudice, the defendant. See Ex parte Stewart, 659 So.2d 122 (Ala. 1993); Campbell v. Williams, 638 So.2d 804 (Ala. 1994); Union Mortgage Co. v. Barlow, 595 So.2d 1335 (Ala. 1992), cert. denied, 506 U.S. 906, 113 S.Ct. 301, 121 L.Ed.2d 224 (1992). The 'might-have-been-prejudiced' standard, of course, casts a 'lighter' burden on the defendant than the actual-prejudice standard. See Tomlin v. State, supra, 695 So.2d [157, ] at 170 [(Ala.Crim.App.1996)]. ...
"It is true that the parties in a case are entitled to true and honest answers to their questions on voir dire, so that they may exercise their peremptory strikes wisely. See Fabianke v. Weaver, 527 So.2d 1253 (Ala. 1988). However, not every failure to respond properly to questions propounded during voir dire 'automatically entitles [the defendant] to a new trial or reversal of the cause on appeal.' Freeman v. Hall, 286 Ala. 161, 166, 238 So.2d 330, 335 (1970); see also Dawson v. State, supra, [710 So.2d 472');">710 So.2d 472, ] at 474 [(Ala. 1997)]; and Reed v. State, supra [547 So.2d 596 (Ala. 1989)]. As stated previously, the proper standard to apply in determining whether a party is entitled to a new trial in this circumstance is 'whether the defendant might have been prejudiced by a veniremember's failure to make a proper response.' Ex parte Stewart, 659 So.2d at 124. Further, the determination of whether a party might have been prejudiced, i.e., whether there was probable prejudice, is a matter within the trial court's discretion. Eaton v. Horton, 565 So.2d 183 (Ala. 1990); Land & Assocs., Inc. v. Simmons, 562 So.2d 140 (Ala. 1989) (Houston, J., concurring specially).
"'The determination of whether the complaining party was prejudiced by a juror's failure to answer voir dire questions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Some of the factors that this Court has approved for using to determine whether there was probable prejudice include: "temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror's inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about."'
"Union Mortgage Co. v. Barlow, 595 So.2d at 1342-43 (quoting Freeman v. Hall, supra (other citations omitted))....
"The form of prejudice that would entitle a party to relief for a juror's nondisclosure or falsification in voir dire would be its effect, if any, to cause the party to forgo challenging the juror for cause or exercising a peremptory challenge to strike the juror. Ex parte Ledbetter, 404 So.2d 731 (Ala. 1981); Warrick v. State, 460 So.2d 320 (Ala.Crim.App.1984); and Leach v. State, 31 Ala.App. 390, 18 So.2d 285 (1944). If the party establishes that the juror's disclosure of the truth would have caused the party either to (successfully) challenge the juror for cause or to exercise a peremptory challenge to strike the juror, then the party has made a prima facie showing of prejudice. Id. Such prejudice can be established by the obvious tendency of the true facts to bias the juror, as in Ledbetter, supra, or by direct testimony of trial counsel that the true facts would have prompted a challenge against the juror, as in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992)."

Ex parte Dobyne, 805 So.2d 763, 771-73 (Ala. 2001).

         After thoroughly considering the factors in Ex parte Dobyne, the record from Brownfield's direct appeal, and the evidence presented at the evidentiary hearing, we agree with the circuit court that Brownfield failed to meet his burden of establishing that he might have been prejudiced by Juror B.J.'s failure to disclose that she had been interviewed by the police because she had been the victim of a crime.

         Temporal Remoteness. The matter inquired about was not temporally remote.[7] The record indicates that Brownfield's case was tried in February 2004. The evidence presented at the evidentiary hearing indicated that the burglary and/or theft of property from Juror B.J. occurred in September 2000, approximately three-and-a-half years before Brownfield's trial. This is not a case in which the crime against the juror or juror's family member occurred decades before the trial, as in Marshall v. State, 182 So.3d 573 (Ala.Crim.App.2014) (matter inquired about occurred 35 years before the defendant's trial), and McWhorter v. State, 142 So.3d 1195 (Ala.Crim.App.2011) (matter inquired about ...


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