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Creque v. State

Alabama Court of Criminal Appeals

February 9, 2018

Jordaan Stanly Creque
State of Alabama

         Appeal from Morgan Circuit Court (CC-11-844)

          WELCH, JUDGE.

         Jordaan Stanly Creque[1] was charged with and convicted of the intentional murders of Jeffrey Mark Graff and Jessie Jose Aguilar, made capital because the murders occurred during the commission of a robbery (Counts II and III), see § 13A-5-40(a)(2), Ala. Code 1975, and because Graff and Aguilar were murdered by one act or pursuant to one scheme or course of conduct (Count I), see § 13A-5-40(a)(10), Ala. Code 1975. The jury recommended, by a vote of 11-1, that the trial court sentence Creque to death. The Morgan Circuit Court sentenced Creque in accordance with the jury's recommendation. This appeal, which is automatic in a case involving the death penalty, follows. See § 13A-5-53, Ala. Code 1975.


         Creque admitted at trial that he and two friends, Cassandra Eldred and Ezekiel Gholston, made a plan to steal money from the Krystal fast-food restaurant where Creque and Eldred were employed. Creque purchased a 9mm handgun and ammunition on August 23, 2011, the day before the murders. In the early morning hours of August 24, 2011, Eldred drove the two men to the restaurant. Creque had been scheduled to work the overnight shift but had failed to do so. Two employees were working at the restaurant that morning -- Graff, the manager, and Aguilar. Creque got Graff's attention by knocking on the drive-thru window, and Graff opened the side door to let him in. Creque and Gholston rushed into the restaurant; Gholston was armed with Creque's 9mm gun. They gathered money from the cash registers, and they took the money from the store's safe, which Creque had forced Graff to open. Graff attempted to diffuse the situation and told Creque and Gholston that they could leave and he would wait 10 minutes before he called the police. Creque and Gholston planned to force Graff and Aguilar into the restaurant's cooler. Graff asked if he could get a jacket for Aguilar, and he was allowed to do so.

         Creque gave a statement to the police on the morning of the murders, and he admitted that he had intentionally shot and killed both men. At trial Creque admitted that he shot Graff, but claimed it was unintentional and that he had fired the shot while wrestling over the cooler door with Graff, who was pulling on the cooler door in an attempt to keep it closed. Creque shot Graff one time, in the neck; the bullet pierced his spinal column, and he was paralyzed immediately. Aguilar was shot four times. Creque alleged at trial that after he shot Graff, Gholston took the gun from him and shot Aguilar. Both men died at the scene. Eldred drove them from the scene, and the three divided the money.

         Creque went to the apartment he shared with his girlfriend, Brittany Orr. Creque put his share of the stolen money in a stereo speaker, and he told her that someone had been shot at the restaurant. He was not injured when he arrived at the apartment but, while at the apartment, with the intention that it would appear that he had been assaulted and forced to take part in the crimes, he cut himself with a razor on his arms and chest and had Orr hit him on the head and chest with a can of peaches. Orr and Creque went to the emergency room. A nurse contacted the police after Creque told medical personnel that he had been assaulted by men who had shot one or more employees at a fast-food restaurant.

         Creque was interviewed at the hospital by police officers as a possible witness to the shootings at the restaurant. He initially told the lead investigator, Sgt. Rick Archer, [2] that he had been riding around with "Taurus, " "Quincy, " and "Wodie, " and that he had been showing them the gun he had purchased earlier that day. He said that they had taken his gun, tortured him, and had forced him to take part in their plan to steal money from the restaurant. However, when the police received additional information from officers investigating the crime, including the fact that Gholston had been at the restaurant, Archer presented that information to Creque and, Archer said, Creque's story "evolved" to account for that information. In Creque's final version of the events, he said that he, Gholston, and Eldred had planned the robbery and that Eldred drove them to and from the restaurant. He described the crime in detail, and admitted that he intentionally shot Graff and Aguilar.

         The police recovered cash from Eldred's residence and from the apartment Creque shared with Orr. Gholston led the police to a lake where he had disposed of the gun Creque had purchased, and forensic testing established that the recovered gun was the one from which the fatal shots were fired.

         The trial court instructed the jury on the three counts of capital murder charged in the indictment. The court also instructed the jury on felony-murder and robbery as lesser-included offenses. The jury found Creque guilty of the three counts of capital murder as charged in the indictment.

         At the penalty phase, Creque presented a variety of evidence offered as support for the imposition of a sentence of life imprisonment without the possibility of parole, including: testimony about his chaotic upbringing that included physical and emotional abuse; evidence about his learning disabilities, educational deficiencies, and the lack of appropriate parental role models; evidence of his chronic abuse of drugs and alcohol; and evidence that he had sustained numerous concussions and other physical injuries during his childhood. The jury recommended that the trial court sentence Creque to the death, and the trial court imposed the death sentence.

         Standard of Review

         Many of the issues Creque raises on appeal were not raised in the circuit court. Rule 45A, Ala. R. App. P., however, requires this Court to review the circuit court proceedings for plain error. That rule provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

         In discussing the scope of plain-error review, this Court stated in Floyd v. State, [Ms. CR-13-0623, July 7, 2017] ___ So.3d ___ (Ala.Crim.App.2017):

"'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.' Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala. 2001). Plain error is 'error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.' Ex parte Trawick, 698 So.2d 162, 167 (Ala. 1997), modified on other grounds, Ex parte Wood, 715 So.2d 819 (Ala. 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.' Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala. 2000). 'The plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant.' Ex parte Trawick, 698 So.2d at 167. '[P]lain error must be obvious on the face of the record. A silent record, that is a record that on its face contains no evidence to support the alleged error, does not establish an obvious error.' Ex parte Walker, 972 So.2d 737, 753 (Ala. 2007). Thus, '[u]nder the plain-error standard, the appellant must establish that an obvious, indisputable error occurred, and he must establish that the error adversely affected the outcome of the trial.' Wilson v. State, 142 So.3d 732, 751 (Ala.Crim.App.2010). '[T]he plain error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."' United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982))."


         Creque argues that the trial court erred when it denied his motion to suppress his statements. Specifically, he argues: that he did not receive warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), before he gave his first statement; that a second statement was involuntary because, he says, he did not knowingly, intelligently, and voluntarily waive his Miranda rights after they were read to him; and that a partial audio recording of the second statement was unreliable and should not have been admitted.

         In reviewing a circuit court's ruling on a motion to suppress a confession, we apply the standard set out in McLeod v. State, 718 So.2d 727, 729 (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 (1961); Hubbard v. State, 215 So.2d 261 (1968)."

         An appellate court "may consider the evidence adduced both at the suppression hearing and at the trial." Smith v. State, 797 So.2d 503, 526 (Ala.Crim.App.2000). "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 (1969); Greenwald v. Wisconsin, 390 U.S. 519 (1968)." Id. See also Jones v. State, 987 So.2d 1156, 1164 (Ala.Crim.App.2006).

         Creque filed a pro forma motion to suppress all testimony or other evidence regarding statements he gave to law-enforcement officers. He alleged, among other things, that the statements were not given voluntarily; were coerced or made under duress or as a result of deception; and were taken in violation of his Miranda rights. (C. 511-14.) The trial court held a bifurcated suppression hearing. Before trial, Creque presented the testimony of Dr. Jack Kalin, a forensic-toxicology consultant, who testified about the effects of Ativan, a drug Creque had been given before Archer questioned him at the hospital. Kalin also testified about opinions he had formed from listening to an audio recording of part of Archer's interrogation of Creque at the hospital and from watching a video of Archer reviewing Creque's written statement at the county jail. At trial, Detective Todd Pinion, Archer, and Creque testified about the circumstances surrounding Creque's statements. After considering the testimony, listening to the audio recording of part of the interrogation at the hospital, and viewing the video recording of the interrogation at the police department, the trial court denied Creque's motion to suppress. As to the statements Archer took, the trial court stated:

"I'm finding that the statement was made freely and voluntarily. There's no indication to me that Mr. Creque was under the influence of any kind of drugs legal or otherwise. And, you know, he was very chatty. He was tired and he was sleepy, but that didn't impact his ability to make coherent statements. I just don't think there's any basis for excluding the statement."

(R. 2065-66.)

         A. Creque argues that "the initial interrogation" took place at the hospital while he was in custody and that he should have been read his Miranda rights. He says that Pinion, who questioned him initially, knew that he was a suspect and not merely a witness. He further argues that he was "in custody" because a second officer was guarding the door to his hospital room. The record does not support either argument.

         Miranda warnings are required only before a custodial interrogation. Miranda, 384 U.S. at 444. "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. (footnote omitted). The Supreme Court also explained:

"[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited."

Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

         As legal principles developed following Miranda, the United States Supreme Court acknowledged, "'[C]ustody' is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." Howes v. Field, 565 U.S. 499, 508-09 (2012).

"In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of 'the objective circumstances of the interrogation, ' Stansbury v. California, 511 U.S. 318, 322-323, 325 (1994) (per curiam), a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.' Thompson v. Keohane, 516 U.S. 99, 112 (1995). And in order to determine how a suspect would have 'gauge[d]' his 'freedom of movement, ' courts must examine 'all of the circumstances surrounding the interrogation.' Stansbury, supra, at 322, 325 (internal quotation marks omitted)."


         Two nurses working in the emergency room at Decatur General Hospital, Melanie Boyer and Kathy Groover, testified at trial that they were working at the hospital when Creque arrived there a little before 6:00 a.m. Creque told them that he had been assaulted by the men who had committed the murders at the Krystal restaurant. Boyer and Groover observed that Creque had some bruising and that he had some superficial cuts -- all on the left side of his body -- with no significant bleeding. Boyer testified that she telephoned the police a few minutes after Creque arrived because it was hospital policy to contact law enforcement to report an assault. Pinion testified that he was at the crime scene when another officer received information from the police dispatcher that a man at the hospital reported that he had seen someone get shot at Krystal. Pinion went to the hospital. When he arrived, the nurses relayed the same information -- that Creque had seen something happen at Krystal. Pinion observed that Creque had small cuts on his left arm and chest and that he was breathing heavily and rapidly. He considered Creque a "victim/witness, " and he wanted to determine what had happened. (R. 1584.) Pinion testified, "We had a double homicide and he knew some information about it. That's what I was trying to find out." (R. 1585.)

         When Pinion testified that he asked Creque what had happened, defense counsel objected on the ground that Creque had not been advised of his Miranda rights before questioning began. The trial court said, "He wasn't in custody, was he?" (R. 1583.) The prosecutor stated that Creque was not in custody at that time, but defense counsel argued that the evidence would show that the investigation was already focused on Creque and that hospital personnel were told that he could not leave. Pinion then testified that he had gone to the hospital because he had been told that a man at the hospital had said he had seen someone get shot at Krystal, and that when he arrived at the hospital the nurses confirmed that Creque had told them that he had seen something happen at the restaurant. Defense counsel then asked the trial court for permission to question Pinion on voir dire, and the trial court allowed him to do so. In response to defense counsel's questions, Pinion testified that Creque was not in custody during the interview and that, if Creque had wanted to leave the hospital, Pinion would have had to allow him to do so. Defense counsel asked Pinion whether he would have stopped Creque if he had tried to leave, and Pinion said he did not know what would have happened. Defense counsel asked Pinion how many additional police officers were at the hospital, and Pinion testified that an officer arrived after he did but, he said, "I did not see him until I got through interviewing Mr. Creque." (R. 1586.) The trial court overruled Creque's objection to Pinion's testimony about his statement, and Pinion testified about what Creque had told him.

         Pinion testified that when he asked Creque what had happened, Creque told him that he had seen someone get shot at Krystal. Pinion said he asked Creque how he had seen the shooting, and he testified about the version of events Creque gave him:

"He said that he was walking down the street late at night. A guy by the name of 'T' or Taurus had picked him up, and he had two other black males in the car with him.
"He also stated that he knew one of the other guys by the name of Quincy, but the other guy he didn't know. He gave a general description of him. I asked him a little bit further, you know, and he said that 'T' knew that he worked at Krystals, that Mr. Creque worked at Krystals, and that he wanted to -- 'T' wanted to go hit a lick, which you know, is basically go rob Krystals that night.
"Mr. Creque then told me basically that, you know, they made me give him information and he said that they beat the information out of him about the ins and outs of Krystals. I asked Creque how he got the cuts, and he said that Quincy was the person who cut him, but he wasn't worried about that at that point in time."

(R. 1587-88.)

         Pinion testified that he contacted Archer, his supervisor, and told him what Creque had said. Pinion testified that he knew that Creque "had information to the case that was pretty pertinent, " so he instructed another officer to detain Creque if he tried to leave the hospital. (R. 1590.) Pinion said that he told medical personnel that when Archer arrived at the hospital, they would need to move Creque to a private room so Archer could speak with him there.

         Pinion's testimony about Creque's statement to him in the hospital was properly admitted. The record does not support Creque's assertion that he was in custody when he was questioned by Pinion.

"The test for custody is whether there was a restraint on freedom of movement of the degree associated with a formal arrest. See Campbell v. State, 718 So.2d 123, 135 (Ala.Crim.App.1997) ('In determining whether a suspect is in custody, a court must examine the totality of the circumstances of the situation using the perspective of a reasonable person in the suspect's position.'). Stone v. City of Huntsville, 656 So.2d 404, 408 (Ala.Crim.App.1994)('"[C]ustody arises only if the restraint on freedom [reaches] the degree associated with [a] formal arrest."')."

State v. Thomas, 843 So.2d 834, 839-40 (Ala.Crim.App.2002). See also Nelson v. State, 623 So.2d 432, 434-35 (Ala.Crim.App.1993)("Generally, questioning of a patient-suspect in the hospital does not amount to custodial interrogation when the suspect is not under formal arrest. 3 W. Ringel, Searches and Seizures, Arrests and Confessions § 27.-3(a)(3), at 27-16 (2d ed. 1992). '[T]he particular detention or restriction of movement [of a hospital patient-suspect] must rise to the level of a de facto arrest before an individual will be deemed "in custody" for purposes of Miranda.' People v. Ripic, 182 A.D.2d 226, 587 N.Y.S.2d 776, 779 (1992), appeal dismissed, 81 N.Y.2d 776, 594 N.Y.S.2d 712, 610 N.E.2d 385 (1993). '[C]onfinement to a hospital bed is insufficient alone to constitute custody.' People v. Miller, 829 P.2d 443, 445 (Colo.App. 1991). See also United States v. Martin, 781 F.2d 671 (9th Cir. 1985)(accused, who had been making bombs in his apartment, had been injured in explosion, and had gone to hospital, was not 'in custody' when officers went to hospital and questioned him); State v. Clappes, 117 Wis.2d 277, 344 N.W.2d 141, 145-46 (1984)(accused, who was questioned by police officers in the hospital following an automobile accident, was not 'in custody' because, although he was surrounded by an 'atmosphere of restraint, ' the restraint was not 'created by the [law enforcement] authorities')".

         Lockett v. State, 489 So.2d 653 (Ala.Crim.App.1986), presented circumstances virtually identical to those in this case. In Lockett, Officer Harry Renfroe went to a hospital emergency room following the report that a shooting victim, Lockett, was being treated there. When Officer Renfroe arrived, he asked Lockett what had happened, and Lockett reported that he been shot at a house when Raymond Jude came to rob him. Lockett told Renfroe that he had returned fire and had shot Jude. Renfroe then contacted Officer James Parker, who was investigating a homicide in the same area as the alleged robbery, and told Parker that the homicide victim might be Raymond Jude. Lockett was released into police custody that night and was transported to the city jail, where he was advised of and waived his Miranda rights and gave a statement to Parker. Lockett gave another statement to Renfroe, and Parker came into the room during Renfroe's 333questioning. Lockett objected at trial to the admission of all of the statements he made to police officers. As to the statement to Renfroe, we held:

"The appellant's statements to Officer Renfroe in the emergency room were not in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The appellant, at this time, was not the subject of custodial interrogation. He was merely being questioned by Renfroe as a victim of a gunshot wound. Therefore, this statement was properly admitted into evidence."

Lockett v. State, 489 So.2d at 657-58.

         As in Lockett, the trial court here correctly determined that Creque was not in custody when he spoke to Pinion, and that Pinion was not required to advise Creque of his Miranda rights before questioning him about what had happened. A reasonable person in Creque's position would not have felt that he was not at liberty to terminate Pinion's questioning and leave. Therefore, we reject Creque's argument that his statement to Pinion was inadmissible.

         B. Creque argues that the Miranda waiver he gave to Archer was involuntary because, he says, the "[p]olice capitalized on [his] drug-induced state, deceived him about the purpose of their questioning, and ignored his repeated pleas for medical assistance." (Creque's brief at p. 20.) More specifically, he argues that the post-waiver statement was involuntary because, he says, he was under the influence of Ativan and the drugs and alcohol he had ingested before he went to the hospital and he was coerced. He also argues that he was "drowsy and incapacitated" at the police station when Archer went over his statement with him.

         A defendant may waive his Miranda rights "provided the waiver is made voluntarily, knowingly and intelligently." Miranda, 384 U.S. at 444. A waiver of Miranda rights is considered voluntary when the totality of the circumstances reveals that "it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421 (1986).

         Archer testified at the suppression hearing that he went to the hospital to question Creque after he received information from Pinion about Creque's statement. Archer testified that medical personnel told him when he arrived at the hospital that Creque had received an injection of Ativan a short time earlier, and Archer conducted a Miranda colloquy approximately 30 minutes after Creque received the injection. Archer testified that he advised Creque of his Miranda rights from a printed card because he did not have a waiver-of-rights form with him and that Creque indicated that he understood his rights. Archer testified that he had taken statements in several hundred investigations during his many years as an investigator and that he always assessed people during the initial stages of his contact with them to determine whether they could voluntarily waive their Miranda rights. He said that he had encountered people who, he determined, could not voluntarily waive their Miranda rights and he did not try to take a statement from those people at that time. Archer also testified that he was familiar with Ativan and its effects. Archer said that, based on his education and experience, and on his assessment of Creque at the hospital, he determined that Creque was able to knowingly and voluntarily waive his Miranda rights and to give a statement. Creque did not give any indication that he was unaware of what he was saying or doing; rather, Creque discussed details of the crime extensively with him, Archer said. Archer stated that he did not threaten, coerce, or promise anything to Creque to make him give a statement. As part of the Miranda colloquy, Archer told Creque: "'You understand I'm not threatening or promising you anything to get you to talk to me. I'm anxious to hear what you've got to say, but I'm not promising you anything. With these rights in mind do you wish to talk to me and tell me what you know.'" (R. 2038-39.) Creque said that he did.

         Archer said that Creque initially told him the same story he had told the nurses and Pinion -- that he had been forced by others to go to the restaurant where the shooting took place and that he had been injured by those people. Creque also told Archer that he had been forced to shoot both victims. When Archer confronted Creque with information gained at the scene or from other witnesses that conflicted with certain details in that story, Creque changed his story. During that time, Archer said, Creque "had the wherewithal to follow along with what I was saying and actually correct me in places." (R. 1976.) By the time Creque finished his statement, someone from the police department had brought preprinted Miranda waiver forms to the hospital, so Archer again advised Creque of his rights. Creque signed the form and again waived his Miranda rights. Archer reduced Creque's statement to a writing. Afterward, Archer went over the statement with Creque, and Creque signed it.

         Archer read the statement into the record:

"'My name is Jordaan Creque. I grew up in Augusta, Georgia. I moved to Hartselle, Alabama about two years ago with my mother. I met Brittany Orr in April of 2010 and we started dating. I moved in with her and her parents in Hartselle. Brittany's cousin, Megan Orr, lived on 7th Street Southeast. About two months ago we moved in with Megan. I turned 21 this past July. I had been wanting a handgun and was finally old enough to get one. Yesterday, Monday, August 23rd, me and Brittany went to Tucker's Pawn Shop in Priceville. I bought a Luger .9 millimeter and a box of bullets. We went back home and stopped in Hartselle on the way. We were on Patillo Street and I saw Ezekiel Gholston out walking. I've known him for about a year. I call him EZ. We picked him up and went back to my house. We stayed there about 30 or 40 minutes. We started talking about hitting a lick. Brittany drove me and EZ to some apartments on Cedar Lake Road to visit EZ's cousin. His cousin wasn't at home. Brittany had dropped us off. So we hung around outside there for about 30 minutes. EZ's girlfriend showed up and gave us a ride to East Acres. She dropped us off by my house. I don't know her name. We went walking. We were smoking weed and talking again about hitting a lick. I had a bag with me and I had the gun in it. I didn't want my girlfriend to get it because she was mad at me. A guy I know rolled up in a gray Lumina [automobile]. I only know him as Taurus. EZ knew Taurus better than I did. He asked if we wanted a ride, and we got in with him. EZ got in the front seat and I got in the back behind him. We started talking about hitting a lick. Taurus brought up the fact that I work at Krystals, and he started asking me questions about it. I could tell that he was thinking about robbing Krystals, and I didn't want to do that. We got in an argument about it, and he hit me in the side of the head. I decided to go ahead and tell him what I knew. I told him about the employees' schedule, the security cameras, and the safe. I told him there could be $8, 000 to $10, 000 in the safe. They started making a plan and going over the details. They knew I had a gun. The plan was for me to walk up and get them to unlock the door for me because they knew me. .... Once we got in the plan was to get the money out of the safe and the cash registers. We rolled over toward Krystal sometime after 2:00 a.m. Taurus parked on the road behind Krystals and we all got out. I was wearing a cap, a black shirt, and camo shorts. Taurus was wearing black pants, a black shirt, and black cap. EZ was wearing a black shirt, black shorts, a black hat, and a black bandanna over his face. I had gave the gun to Taurus, and he ended up giving it to EZ. I walked up by the drive-through window and I saw the manager, Jeff, in the drive-through window. Jeff saw me and I motioned like I needed to use the phone. Jeff got the phone and walked over and opened the side door for me. When he opened it Taurus and EZ came running up and ran inside, and I went in behind them. I saw Jessie working inside also. EZ grabbed Jessie. EZ told me to take them to the safe. I got the gun from EZ and I told Jeff and Jessie to go to the office. Jeff opened the safe for me. Jeff was trying to joke with me to calm everybody down and talk us out of it. I told Jeff they were serious. I got the money. It was in two bank bags: a clear bag and a green bag. I told Jessie and Jeff to go get in the cooler. Jessie went in the cooler. Jeff asked to get a coat for Jessie and I told him to get it. I forgot before I took them to the safe EZ had Jeff open the registers. After Jeff got a coat he walked back to me at the cooler. I was about to put them in the cooler. Jeff said to me he didn't know how I got wrapped up in all this but he would give us ten minutes to leave before he called the police.
I put them both in the cooler and Taurus was yelling at me to finish the job. I opened the cooler door. Jeff was trying to hold the door shut. So when I opened it he came out of the cooler with it. I shot Jeff once or twice and he fell down. I turned the gun on Jessie and fired at him several times. We ran back and got in the car. I threw the gun in the car. Taurus had the money bags. Taurus took off and he was driving crazy. I jumped out of the car on 7th Street and ran home. Brittany opened the door for me. I told Brittany what we had done. She broke down crying. I got in the shower. I had a cut on my left arm from when I fell down as we were leaving. I took a razor and cut my arms and my chest. I decided to go to the hospital and say that I was tortured and forced into doing this. I don't know where Taurus or EZ went. I don't know what they did with my gun or the money."

(R. 1989-95.)

         Archer testified that Creque was then placed under arrest and was taken to the police department. He was placed in an interview room that had audio- and video-recording equipment, and Archer reviewed Creque's written statement with him. That statement was videotaped. Archer said that Creque appeared drowsy or tired at that time and that, if he saw Creque's attention wander or saw him close his eyes for an extended period of time, he drew Creque's attention back. After drawing Creque's attention back a few times during the review of the written statement, Archer asked Creque to stand up and move around a bit so he could pay attention as they continued to review the statement. When they completed the review of the statement, Creque again acknowledged to Archer that the statement they had reviewed was the statement he wanted to make. Archer asked Creque additional questions and Creque responded orally and then wrote out answers to those questions on the written statement.

         On cross-examination, Archer acknowledged that, during the interview at the hospital, Creque complained of leg cramps at one point and on another occasion he said, "My high is fucking gone, " that he felt "weird" from the shot of Ativan, and that his hands were going numb. (R. 2022.) Archer did not ask medical staff to check on Creque after he made those complaints, though he noted that medical personnel were in and out of the room and that Creque did not tell them about his symptoms. On redirect examination, Archer testified that some of Creque's physical complaints appeared to be "manufactured, " and were made in conjunction with certain areas of questioning that got "outside of his pre-rehearsed story that he had [come] there prepared to tell." (R. 2039-40.) Archer's testimony was consistent with that of Melanie Boyer, the nurse who performed the initial assessment of Creque in the emergency room. She testified that she believed that Creque was exaggerating his pain level.

         Creque testified at the suppression hearing held during the trial. He said that before he received the Ativan injection, Pinion was in his hospital room. He remembered seeing Archer and two other people in the room for brief moments during the rest of the day. Creque testified that after he received the Ativan injection his hands and legs went numb. He said he did not remember giving the statement at the hospital or later signing the written statement. Creque further testified that he did remember being transported to the police department, but he remembered Archer coming into the interrogation room and asking him to sign some papers. He said he did not recall Archer reading the statement to him. Creque said he did not knowingly and intelligently waive his Miranda rights that day. He said he drank alcohol and smoked as much as a half-ounce of marijuana laced with a synthetic marijuana during the day of the shooting, including right before he went to the hospital. At the portion of the suppression hearing held before trial, Dr. Kalin, a forensic toxicology consultant, testified that he had reviewed the audio recording and the video recording of Creque's statements and that he had reviewed some hospital records related to Creque. He testified that "the only thing of note" in the audiotape was that Creque initially appeared agitated or anxious, but that he then spoke freely for the remaining 50 minutes of the interview. (R. 203-04.) With regard to the videotape, Dr. Kalin stated that "the Defendant appeared tired or sleepy or lethargic, which can be an effect ... that's the intended effect of the drug Ativan." (R. 206.) He said that Creque's sleepiness "can also be explained by his lack of sleep." (R. 207.) On cross-examination, Dr. Kalin acknowledged that, because he did not see or examine Creque when the statements were taken, he could not state whether Creque was feigning any of the symptoms or signs he had testified to, including Creque's apparent hyperventilation during the audio-recorded statement. He further acknowledged that the hospital records contained an entry stating a clinical impression that Creque's wounds were self-inflicted. On redirect examination, Dr. Kalin testified that sleepiness he observed in the video could have been caused by the Ativan and that, if Creque was under the influence of any other drugs, that could have impacted his behavior during the audio and video recordings.

         We agree with the trial court's finding that Creque's statement was made freely and voluntarily. (R. 2065.) As the trial court observed, even though Creque was tired and sleepy, "that didn't impact his ability to make coherent statements" and, in fact, "he was very chatty." (R. 2065-66.) Nothing in the record indicates that Creque was so impaired by the injection of Ativan and by the drugs and alcohol he said he consumed before he went to the hospital that he was unable to understand and voluntarily waive his Miranda rights and give a statement.

"'"[U]nless intoxication, in and of itself, so impairs a defendant's mind that he is 'unconscious of the meaning of his words, ' the fact that the defendant was intoxicated at the time he confessed is simply one factor to be considered when reviewing the totality of the circumstances surrounding the confession." Carr v. State, 545 So.2d 820, 824 (Ala.Crim.App.1989). "The intoxicated condition of an accused when he makes a confession, unless it goes to the extent of mania, does not affect the admissibility in evidence of the confession, but may affect its weight and credibility." Callahan v. State, 557 So.2d 1292, 1300 (Ala. Crim. App.), affirmed, 557 So.2d 1311 (Ala. 1989).'
"White v. State, 587 So.2d 1218, 1227-28 (Ala.Crim.App.1990), aff'd, 587 So.2d 1236 (Ala. 1991). See also Merrill v. State, 741 So.2d 1099, 1108 (Ala.Crim.App.1997) ('[U]nless the accused is intoxicated to the extent of mania, intoxication affects the weight and credibility of a statement rather than its admissibility.') Hubbard v. State, 500 So.2d 1204, 1218 (Ala. Crim. App.), aff'd, 500 So.2d 1231 (Ala. 1986)('"Intoxication, short of mania or such impairment of the will and mind as to make an individual unconscious of the meaning of his words, will not render a statement or confession inadmissible."' (quoting Tice v. State, 386 So.2d 1180, 1185 (Ala.Crim.App.1980)))."

Floyd v. State, [Ms. CR-13-0623, July 7, 2017] ___ So.3d ___, (Ala.Crim.App.2017). In Nelson v. State, 623 So.2d 432, 435 (Ala.Crim.App.1993), the defendant, Nelson argued, in relevant part, that a statement given to a law-enforcement officer at a hospital was inadmissible because he was in pain and was under the influence of Demerol when he gave it. This Court disagreed and held that Nelson's statement to the officer at the hospital was admissible, even though Nelson was in pain and receiving medication. We noted that the officer testified that Nelson did not appear to be under the influence of any drugs and that he was alert, coherent, and responsive. We stated, further:

"'[A] defendant's confession [i]s not involuntarily made merely because he was in pain as a result of a gunshot wound at the time he made his confession.' Holladay v. State, 549 So.2d 122, 127 (Ala.Crim.App.1988)('although the appellant's wounds were possibly life-threatening, [the police officer testified that] the appellant was conscious, alert, and responsive' when he made his statement), affirmed, 549 So.2d 135 (Ala. 1989); Klingel v. State, 518 So.2d 853, 856 (Ala.Crim.App.1987) (same); Thompson v. State, 462 So.2d 777, 778-79 (Ala.Crim.App.1984)(fact that defendant's statement was made while he was in pain at hospital did not render confession involuntary).
"Statements made under the influence of sedatives, pain-killers, or other drugs are voluntary unless the drug renders 'the mind of the defendant ... substantially impaired ... [so] as to make [the] individual unconscious of the meaning of his words.' Watkins v. State, 495 So.2d 92, 99 (Ala.Crim.App.1986). The trial court was warranted in finding that the appellant did not establish that he was under the influence of Demerol to the degree that it rendered his statements involuntary. See Cleckler v. State, 570 So.2d 796, 804 (Ala.Crim.App.1990); Holladay v. State, 549 So.2d 122, 127 (Ala.Crim.App.1988), affirmed, 549 So.2d 135 (Ala. 1989); Cross v. State, 536 So.2d 155, 158-59 (Ala.Crim.App.1988)."

Id. at 435.

         Creque, like the appellants in the above-cited cases, was not so impaired as to make him unconscious of the meaning of his words so as to render his Miranda waiver or his statement involuntary. To the contrary, it is clear from the testimony and from Creque's own statement that he was so alert and so aware of the circumstances and the meaning of his words that he adjusted his version of events to respond to Archer's questions and comments about information from the investigation that conflicted with what Creque had initially told Archer.[3] Furthermore, Creque did not request that Archer stop the review of his written statement because he was tired and incapable of continuing, and he engaged in further discussion with Archer about certain details of statement and wrote additional information on the statement at the conclusion of the review of the written statement.

         Finally, we note that Allison Balesteros, a registered nurse, testified that she gave Creque his discharge instructions when he was released from the hospital into police custody. She told Creque to wash his wounds daily and to return to the hospital if needed. Balesteros testified that Creque appeared to understand what she said, and that she had no difficulty communicating with him. The prosecutor asked: "Did he appear to be under the influence of any kind of drugs or anything so he appeared to not be able to pay attention or not communicate with you?" (R. 1873.) Balesteros said that he did not. Finally, she testified that Creque rated his pain level as a 2 out of 10, and that Creque signed the discharge document.

         A defendant's allegation that his statement was coerced or was otherwise involuntary because he had consumed drugs and alcohol and was sleep-deprived is a circumstance to be taken into consideration as part of a trial court's review of the totality of circumstances. E.g., Doster v. State, 72 So.3d 50, 78 (Ala.Crim.App.2010); Barber v. State, 952 So.2d 393, 435 (Ala.Crim.App.2005); Grayson v. State, 824 So.2d 804, 832-33 (Ala.Crim.App.1999); and Callahan v. State, 557 So.2d 1292, 1298-99 (Ala. Crim. App.), aff'd, 557 So.2d 1311 (Ala. 1989). Having reviewed the videotape, this Court agrees with the trial court's determination that Creque was obviously tired and sleepy, but not to the degree that it rendered his statement involuntary.[4]

         As for Creque's argument that the officers "deceived him about the purpose of their questioning and ignored his repeated pleas for medical assistance, " Creque's brief at p. 20, this claim is not supported by the record.

"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 (1897). In Culombe [v. Connecticut, ] 367 U.S. [568, 602 (1961)], 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)."

McLeod v. State, 718 So.2d 727, 729 (Ala. 1998)(footnote omitted).

         Nothing in the record supports even an inference that Creque's will was overborne. During the interrogation, Creque commented about physical sensations that he attributed to the injection of Ativan, but he continued to give his statement and did not ask for medical assistance. He certainly did not make any "pleas for medical assistance, " and officers did not mislead him about their purpose for interrogating him. Pinion went to the hospital shortly after Creque arrived there claiming to be a witness to the crime, and he testified that he viewed Creque as a victim and a witness. Archer went to the hospital to question Creque as a witness or a possible suspect, and he told Creque that he was interested in what Creque had to say, but that he was not sure whether Creque was just a witness or whether he had done something wrong. No officer promised Creque anything, forced him to say anything, or threatened him in any way to waive his Miranda rights or to make a statement. There is no support for Creque's claim of coercion.

"'[A]ny conflicts in the testimony or credibility of witnesses during a suppression hearing is a matter for resolution by the trial court. Absent a gross abuse of discretion, a trial court's resolution of [such] conflict[s] should not be reversed on appeal.' Sheely v. State, 629 So.2d 23, 29 (Ala.Crim.App.1993)(citations omitted). '[A] trial court's ruling based upon conflicting evidence given at a suppression hearing is binding on this Court, ... and is not to be reversed absent a clear abuse of discretion.' Jackson v. State, 589 So.2d 781, 784 (Ala.Crim.App.1991). 'When there is conflicting evidence of the circumstances surrounding an incriminating statement or a confession, it is the duty of the trial judge to determine its admissibility, and if the trial judge decides it is admissible his decision will not be disturbed on appeal "unless found to be manifestly contrary to the great weight of the evidence."' Ex parte Matthews, 601 So.2d 52, 53 (Ala. 1992), quoting Williams v. State, 456 So.2d 852, 855 (Ala.Crim.App.1984). '"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 772 (Ala. 1986)."

Eggers v. State, 914 So.2d 883, 899 (Ala.Crim.App.2004). The circuit court based its ruling on testimony from Creque, two police officers, and a forensic-toxicology consultant. The court's decision was also based on its review of the audiotape of the statement and the videotape of Archer's review of the written statement with Creque. Much of Creque's testimony conflicted with the officers' testimony. Because "a trial court's ruling based upon conflicting evidence given at a suppression hearing is binding on this Court, ... and is not to be reversed absent a clear abuse of discretion, " Jackson v. State, 589 So.2d 781, 784 (Ala.Crim.App.1991), and because the court's ruling was not manifestly contrary to the great weight of the evidence, we will not disturb the court's ruling. Considering all of Creque's arguments as to the voluntariness of his Miranda waivers and statements in light of the totality of the circumstances, we hold that the trial court did not err in ruling that Creque's statements were voluntary, so they were properly admitted into evidence. Creque is due no relief on this claim of error.

         C. Creque argues that the 56-minute audiotape, a partial recording of the longer interrogation at the hospital, was unreliable and inadmissible. Creque did not raise this argument at trial, so the trial court did not have the opportunity to rule on it; we now review the argument for plain error, and we find no plain error. The audiotape was properly admitted at trial.

         Archer testified that he used the recording feature on his cell phone to record Creque's statement at the hospital. He said that he had never used the recording feature on his phone before and he was not aware that the cell phone would record for only approximately one hour and then stop recording. Archer testified that he started recording before he advised Creque of his Miranda rights, and that he was unaware that the recording feature had stopped while he was questioning Creque. Archer testified that he arrived at the hospital at approximately 6:30 a.m. and began questioning Creque at 7:00 a.m. He and Creque spoke until approximately 10:30 a.m., and for the two hours after that, Archer reduced the statement to writing. Creque argues that Alabama courts have repeatedly held that partial confessions are inherently unreliable and that confessions should be considered in their entirety. He argues that, during the recorded portion of his statement, he conceded involvement in the crime, but that it was during the unrecorded portion that, according to the State, he admitted that he shot both victims. Creque testified at trial, however, that he accidentally shot Graff and that Gholston shot Aguilar. The admission of the partial recording was highly prejudicial because, he says, it invited the jury to speculate about the contents of the remainder of the recording, "guided by the testimony of the officers." (Creque's brief at p. 25.)

         Creque cites King v. State, 355 So.2d 1148 (Ala.Crim.App.1978), as support for his argument. The State correctly argues, however, that King directly contradicts his argument. King objected on appeal because the trial court admitted a tape recording of his statement even though the recording was not a complete recording of King's interview with the interrogating officer. King argued that the recording did not contain exculpatory statements he made during the interview. We rejected King's claim and stated:

"If a part of a conversation is adduced in evidence by the state as proving the defendant's declarations or confessions of guilt, the defendant has the right to call for the whole of what was said in that conversation relative to the subject matter of the issue. Chambers v. State, 26 Ala. 59 (1855); William v. State, 39 Ala. 532 (1865); Mullis v. State, 62 So.2d 451 (Ala. 1953). The accused is entitled, on cross examination, to bring out all that he said, at the same time and on the same subject. Parke v. State, 48 Ala. 266 (1872).
"However, the rule which frowns upon incomplete confessions is designed to cover cases where an accused, after admitting commission of the criminal act, is prevented from going further and saying anything which might explain or justify his act. No such situation exists in this case for the appellant was permitted to examine the officer as to the remainder of the confession which contained exculpatory statements concerning the shooting.
"We know of no rule which would require a written or recorded confession or statement to contain the entire conversation between the accused and the person to whom the confession was made. A confession should be considered in its entirety. If the state introduced into evidence only a portion of an alleged confession, a defendant is entitled to introduce the remainder of what was said to and by him, including any exculpatory statements which would bear upon the matter in controversy. Furthermore, where an accused has been interrupted or otherwise prevented from completing his confession, that confession is not admissible in evidence.
"These rules were not violated in this case. The appellant was permitted to prove the entire conversation and every exculpatory remark made by her at that time both in the cross examination of the state's witnesses and in her own testimony. For these reasons the admission of the confession was not error."

King, 355 So.2d at 1150-51 (emphasis added, internal citations omitted).

         As in King, Creque was permitted to cross-examine Archer about the substance of the entire interrogation and elicit every exculpatory remark he alleges he made. He was able to do the same thing during his own testimony and, in fact, he did so. Creque went so far as to acknowledge on cross-examination that the version of events he testified to on direct examination was his third version. No plain error occurred when the trial court admitted the recording into evidence. See also Ex parte Morrow, 915 So.2d 539, 544-45 (Ala. 2004)("[T]he fact that a portion of [the defendant's] interview may not have been recorded does not affect the admissibility of the recording. See Avery v. State, 589 So.2d 1313, 1315 (Ala.Crim.App.1991)('The fact that parts of the tape recording were inaudible would not affect the admissibility of the recording but the weight which the jury places on the evidence.')").

         For all the foregoing reasons, Creque is not entitled to relief as to any of his claims regarding the admissibility of his statements.


         Creque argues that R.R., a juror, was biased and initiated contact with the lead investigator, Archer, during the trial, and that she was permitted to serve on the jury in violation of Creque's state and federal constitutional rights. Specifically, he argues that R.R. misled the trial court during voir dire about her relationship with the prosecutor's office and whether she could render a fair and impartial verdict and that she failed to reveal that her nephew had been murdered. Creque argues that R.R.'s bias was revealed when the prosecutor informed the trial court that R.R. had initiated contact with Archer at a department store during a weekend break during the penalty phase of the trial. The trial court and Creque questioned Archer and R.R. under oath before the trial resumed. Creque moved for a mistrial after Archer and R.R. testified, but his motion was based on grounds other than those he now raises on appeal.[5] Therefore, his argument that he is due a reversal based on juror misconduct is reviewed for plain error.

         A. Creque argues that R.R. failed to divulge information about her alleged bias in favor of the prosecution, and that if she had properly disclosed that information, he would have exercised a peremptory strike to remove her from the jury. He argues that the trial court's failure to remove her from the jury requires a reversal.

         Creque acknowledges that, during voir dire, R.R. stated "that she had minimal familiarity with law enforcement officers and that her nephew had been a shooting victim." (Creque's brief at p. 27.) He argues that R.R. failed to disclose that she had a "close connection" to police officers or to members of the prosecutor's office, and that she had disclosed only that her nephew had been a crime victim but not that he had been murdered. (Creque's brief at pp. 29-31.) This omitted information, he alleges, demonstrates her bias against the defense, and, he says, if R.R. had disclosed that additional information during voir dire, he would have exercised a peremptory strike to remove her. Citing page 2762 of the record, Creque alleges that he sought to have R.R. removed from the jury when the new information was revealed. (Creque's brief at p. 31.) That page of the record contains no request by Creque for the removal of R.R. from the jury, and Creque never made that request.

         The Alabama Supreme Court in Ex parte Dobyne, 805 So.2d 763, 771-72 (Ala. 2001), stated:

"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). The 'might-have-been-prejudiced' standard, of course, casts a 'lighter' burden on the defendant than the actual-prejudice standard. See Tomlin v. State, ... 695 So.2d [157, ] 170 [(Ala.Crim.App.1996)]. For a more recent detailed discussion of the burden of proof required to make a showing under the 'might-have-been-prejudiced' standard, see Ex parte Apicella, 809 So.2d 865, 871 (Ala. 2001) ('It is clear, then, that the question whether the jury's decision might have been affected is answered not by a bare showing of juror misconduct, but rather by an examination of the circumstances particular to the case.' (Emphasis [on 'might'] original.)).
"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)...."

         If a defendant establishes that a veniremember's truthful answer during voir dire would have caused him or her to exercise a peremptory challenge to strike the juror, then the defendant has made a prima facie showing of prejudice. Id. at 773. The Alabama Supreme Court in Ex parte Dobyne further stated that some of the factors relevant to the determination of whether a party might have been prejudiced by a veniremember's failure to answer questions on voir dire truthfully include the "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." Id. at 772 (internal quotation marks and citations omitted).

         The record of voir dire does not support Creque's claim of error. During questioning by the prosecutor about whether any veniremember or a close friend or relative had been represented by one of the prosecutor's former law partners, R.R. stated, "Y'all defended my nephew last year in a case, the D.A.'s office." (R. 492.) She said her nephew had been the victim of a crime, and the prosecutor said he would at a later point get into more details about victims of crimes. In response to the prosecutor's later question about whether any veniremember or any of their family members or close friends or relatives had been robbed at gunpoint or otherwise assaulted with a gun, R.R. stated, "My nephew that I mentioned was shot at gunpoint." (R. 524.) The prosecutor then asked R.R. whether the shooting had been during the course of a robbery, and R.R. said it had not been. (R. 524-25.) When the prosecutor questioned veniremembers about their familiarity with various law-enforcement officers, R.R. stated that she worked in the city clerk's office as an account clerk and that she was familiar with some of the officers. R.R. further stated, "I know them all by name and face, but I don't interact with them daily." (R. 542.) R.R. provided the information during voir dire on the topics Creque now claims she failed to give.

         Creque argues that R.R. failed to disclose that she had a close relationship with the prosecutor's office and that she had failed to disclose that her nephew had murdered. R.R. testified under oath, outside the hearing of the jury, during trial after she had initiated a conversation with Archer during a weekend break.[6] R.R. testified that her nephew had been in a murder case. The trial court asked R.R. if her nephew had been a defendant, and she said that he had been. She also said: "But I had mentioned that a couple of times." (R. 2764.) In his motion for a new trial, Creque stated that R.R. had testified that she had told Archer that she knew the trial had been difficult for the victims' families because she had been through it. Creque argued:

"It made it sound like she was a family member of a victim of a murder. Then at some point she indicated that her brother [sic] had been shot. As it turns out, her brother [sic] was probably a criminal defendant that was involved being prosecuted by the District Attorney's office. I don't know. I'm not clear in that, and I don't think the record is clear.
"But regardless because of that conversation she had with Detective Archer and the fact that it was not clear and she was not clear during her voir dire as to what if any relationship she had with the District Attorney's office or her family had with the District Attorney's office and if she was indeed a member of a family in which a victim of a crime had been murdered or killed, then of course had we known that we would have certainly struck her. We were not given that information."

(R. 3057-58.)

         Creque continues to argue in this Court that, "[h]ad R.R. properly disclosed the information about her connection to the DA's office and the case involving her nephew, defense counsel would have struck her." (Creque's brief at p. 31.)[7] As discussed above, R.R. disclosed during voir dire that her nephew had been a shooting victim and that the prosecutor's office had "defended" him. If Creque had questions about whether R.R.'s nephew had been murdered, he failed to ask R.R. any questions to clarify the matter, and we decline to find that her answers prove that she failed to disclose relevant information during voir dire. Furthermore, R.R. had no other "connection" to the prosecutor's office, and Creque had all of the information that he now says would have formed the basis of his exercise of a peremptory challenge. Therefore, R.R.'s answers in voir dire were not dishonest or misleading, and they did not indicate any bias in favor of the prosecution. Nothing in the record established that the trial court should have sua sponte removed R.R. from the jury on this ground.

         B. Creque also argues that R.R.'s alleged bias was revealed when, during a break in the penalty phase of his trial, R.R. initiated contact with the lead investigator, Rick Archer, in violation of the trial court's order to avoid any contact with the parties or the witnesses. Creque argues that the trial court erred when, after the court learned of R.R.'s conversation with Archer, it failed to remove R.R. from the jury or even inquire whether she could be fair and impartial. We review this issue for plain error because, although Creque made a motion for a mistrial after the matter was raised in the trial court, he raised a claim other than the one he now raises. Furthermore, as noted above, although Creque claims that the trial court erred when it failed to remove R.R. from the jury, he made a motion for a mistrial on another ground, and he did not request that R.R. be removed from the jury.

         The jury separated for a weekend during the penalty phase of Creque's trial, and, before proceedings resumed in front of the jury on Monday, the prosecutor stated to the court:

"Judge, before we go further, I need to go on the record to let the Court and the defense know that yesterday Lieutenant Archer went to Academy [Sports, a retail store, ] during the evening. He was there, and I believe it's juror number 19 [R.R.] apparently works at Academy, came up to him and they had a conversation. There was no facts or evidence discussed.
"We can put Lieutenant Archer on the stand to tell the Court exactly his recollection of the conversation, which was about two or three minutes long, until he realized that it was a juror and he terminated the conversation. But I think they are entitled to know that."

(R. 2758.)

         The trial court called Archer to the stand and asked him to testify about what had happened at the store. Archer testified:

"I was at Academy Sports last night just before their closing time. I think it was just before 8:00 p.m. I was in there returning some merchandise and I was shopping, and a female employee walked up to me, and I did not recognize her as a juror. Her face seemed familiar to me. She had on a name tag and it said [R.R.], and she approached me and said, 'Hi, Rick.' And when somebody approaches me like that, I associate it with somebody I know personally and not professionally. So I just did not make that connection.
"And I made some notes and I can probably give a better representation of the conversation because I made notes immediately when I got home as best I could remember. If you would like, I'll refer to these notes and tell you how that conversation went."

(R. 2758.)

         The trial court permitted Archer to testify from his notes, and he stated:

"I extended my hand when she called me by name. I extended my hand just to greet her, and she said, 'Can I give you a hug, ' and I said, 'Sure, ' and gave a casual hug as in hello greeting type of hug. And she said, 'I just wanted you to know that you all did a great job on that case, ' which, again, is something that I've heard several times in the last few days. It didn't strike me as anything peculiar. I said, 'thank you very much. It hasn't been easy. It hasn't been easy. It hasn't been easy on anyone involved, particularly the families.' She said, 'Having gone through that before myself, I know how hard it is.' And, again, I was trying to process in my head exactly who she was. I didn't know if this was a victim that I had dealt with in one of my previous cases or what. And I said, 'Well, yeah, each case like this takes a little bit out of you.' And then I said, 'Now we just have to try to get ready and do it all over again.' I said, 'I don't know how the families are going to hold up doing it two more times.' She said, 'I'm glad I won't have to be a part of that.' At that point I realized this was -- could probably be -- one of the jurors in the case, and that's probably where she knew me and where I should be recognizing her from. And I began at that point immediately to think to cut this conversation off. But the next thing she said was, she said, 'Well, I have some questions just out of curiosity.' She said, 'Actually we all have some questions. I know there are things that you know but we just couldn't hear about, and we really want to know about some of that. Can I ask you those now or do we need to wait until after tomorrow?' And I said, 'Yeah, we don't need to talk about any of that until after everything is over.' I said, 'We always talk to the jurors if they want to talk after a case is over, and I know that we've already talked about doing that in this case, and we do plan to talk to everyone afterwards and answer any questions you all might have.' She asked, 'Well, do you think we'll finish up tomorrow?' And I told her that we might but I didn't know for sure.
"And at that point another customer had walked up approaching her who obviously had a question to ask her, and I used that opportunity to excuse myself and told her goodbye and we parted.
"At no time were the facts of the case or any testimony mentioned or discussed. There was no talk about anything that had been presented during the sentencing phase. There was no mention or any speak of any of the jury deliberations other than to say that she had questions that they wanted asked. And it was obvious to me that she didn't -- she didn't appear as though she was trying to be secretive. I think when she first approached me, I think she genuinely believed that she was doing nothing wrong at that point. It didn't appear as though she was coming up to me as hush-hush, kind of can I talk to you. It wasn't that manner at all. She came up to me very openly calling me by name and greeting me in that way."

(R. 2759-62.)

         The trial court asked defense counsel if he had any response to the testimony. Counsel said he would like to know what the juror actually said. He also stated:

"And I think that if they are going out asking questions and there's things that were unresolved in their mind, we would ask for a mistrial on the grounds that apparently the jury felt like they didn't get all the evidence. And if that is, in fact, the case, and then how could they have arrived at their decision if they feel like they've not gotten all the evidence. So we would ask for a mistrial."

(R. 2762.) The trial judge said, "Well, we're a long way from that right now, " and then questioned R.R. under oath. (R. 2762-63.) The court asked R.R. to state what was said during the encounter with Archer, and she stated, "I can't hardly remember. Nothing specific. At peace, comfortable with my decision, and will be happy when it's over. (R. 2763.) The court continued to question R.R.:

"THE COURT: [Archer] said something about you having gone through this before. Is that something -- what were you referring to?
[R.R.]: I've been on jury duty before, and then I also had a nephew that had been in a murder case before.
"THE COURT: Okay. Been in a murder case? Was he a defendant?
"[R.R.]: Defendant.[8]
"[R.R.]: But I had mentioned that a couple of times.
"THE COURT: I understand, I understand. What about questions? He said something about -- he said at first he didn't recognize you were a juror and then it became apparent to him that you were. And he said something to the effect that you have had unanswered questions as you thought some of the other jurors did too. But you knew that he probably couldn't answer them and maybe you would have to wait until after this is over to have those answered with --
"[R.R.]: It was nothing relevant of any evidentiary value at all, nothing like that. Just curiosity.
"[R.R.]: Curious questions.
"THE COURT: Does the Defense have any questions for [R.R.]?
"[DEFENSE COUNSEL]: Curiosity about what? What lingering questions do you have?
"[R.R.]: Nothing that was relevant, you know.
"[DEFENSE COUNSEL]: What was it you wanted to ask Detective Archer last night if you remember?
"[R.R.]: Well, and I'm not speaking for anyone else, just me personally. I had a -- there was a receipt, photo for Aretha Smith, and I was just wondering whatever happened to Aretha Smith. Which obviously it was not an issue for anyone else. I was just -- or it would have been brought up. Somebody would have mentioned her. But, you know, it's just one of those lingering questions ...

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