Appeal
from Blount Circuit Court (CC-15-75)
MCCOOL, JUDGE.
Tim
Odus Clevenger appeals his convictions for (1) producing
obscene matter containing a visual depiction of a person
under the age of 17 years, a violation of § 13A-12-197,
Ala. Code 1975; and (2) possessing, with intent to
disseminate, obscene matter containing a visual depiction of
a person under the age of 17 years, a violation of §
13A-12-192, Ala. Code 1975. Clevenger was sentenced to 18
years' imprisonment for the production-of-obscene-matter
conviction and 7 years' imprisonment for the
possession-of-obscene-matter-with-intent-to-disseminate
conviction, the sentences to be served concurrently.
Facts
and Procedural History
Because
Clevenger does not challenge the sufficiency of the evidence
supporting his convictions, a brief recitation of the facts
will suffice. In February 2015, Clevenger, who at the time
was an assistant principal at a high school in Blount County,
submitted his school-issued laptop computer to the technology
department of the Blount County School System for repairs.
While attempting to repair the computer, employees of the
technology department discovered that the computer contained
two video recordings of M.R. that had been filmed while M.R.,
who was a friend of Clevenger's daughter, was spending
the night at Clevenger's house. M.R. was 14 years of age
when the videos were filmed, and, according to an
investigator with the Blount County Sheriff's Department,
the videos had been filmed "through some blinds and a
window into a bathroom" and depicted M.R.
"undressing for taking a shower. It depicted breast and
genital nudity on the first video and breast nudity on the
second video." (R. 159.)
At
trial, after the State rested, defense counsel informed the
trial court that it intended to call Clevenger's son to
testify. Defense counsel proffered that it expected the son,
who was 10 years of age when the videos of M.R. were filmed,
to testify that he filmed the videos and that he then
uploaded the videos to Clevenger's computer. However,
outside the presence of the jury, the son informed the trial
court that, if he was called to testify, he would assert his
Fifth Amendment right against self-incrimination with respect
to any questions regarding who had filmed the videos or who
had then uploaded the videos to Clevenger's
computer.[1] (R. 235.) In response, defense counsel
requested that it be allowed to elicit the son's
invocation of the Fifth Amendment in the presence of the jury
and argued that the failure to do so would result in "a
fundamental unfairness to [Clevenger] whereby a fair trial
will not be possible." (R. 315.) Although the trial
court permitted the son to testify to matters that would not
be self-incriminating, it refused to allow defense counsel to
elicit the son's invocation of the Fifth Amendment in the
presence of the jury.
The son
briefly testified during Clevenger's case-in-chief but,
pursuant to the trial court's ruling, was not asked any
incriminating questions and thus was not required to invoke
the Fifth Amendment in the jury's presence. Clevenger
also took the witness stand in his own defense and testified
that his son "told me that he videoed [M.R.] outside the
bathroom window"; that Clevenger "asked [his son]
why he did it"; and that his son "said he was
curious." (R. 405.)
On June
15, 2018, the jury returned guilty verdicts on both charges,
and the trial court sentenced Clevenger on September 18,
2018. Clevenger filed a motion for a new trial, which the
trial court denied, and Clevenger subsequently filed a timely
notice of appeal.
Discussion
The
sole issue Clevenger raises on appeal is that the trial court
erred by not allowing him to elicit the son's invocation
of the Fifth Amendment right against self-incrimination in
the presence of the jury. Clevenger concedes that the trial
court's ruling was "consistent with general Alabama
law," Clevenger's brief, at 14, noting that
"Alabama law generally prohibits calling a witness to
testify when the intent is to have that witness invoke [his
or her] Fifth Amendment privilege against
self-incrimination." Id. at 15. See Gobble
v. State, 104 So.3d 920, 956-57 (Ala.Crim.App.2010); and
Rule 512(b), Ala. R. Evid. (providing that "proceedings
shall be conducted, to the extent practicable, so as to
facilitate the making of claims of privilege without the
knowledge of the jury"). However, Clevenger also notes
that a defendant has a right, grounded in due-process
principles, "'to put on a defense and that that
right includes the opportunity to present evidence proving
that another person committed the offense for which [the
defendant] has been charged.'" Clevenger's
brief, at 18 (quoting Ex parte Griffin, 790 So.2d
351, 353 (Ala. 2000)). Relying on that principle, Clevenger
argues that, if the son had invoked the Fifth Amendment in
the presence of the jury, the jury could have inferred that
the son, not Clevenger, had filmed the videos of M.R. and
then uploaded the videos to Clevenger's computer. In
fact, Clevenger argues that "the only way to demonstrate
-- in an effective manner -- the possibility of [the
son's] guilt was to call him as a witness and have him
invoke his Fifth Amendment privilege in front of the
jury." Clevenger's brief, at 21-22. As a result,
Clevenger argues, by refusing to allow him to elicit the
son's invocation of the Fifth Amendment in the presence
of the jury, the trial court deprived Clevenger of evidence
crucial to his defense and, in doing so, violated his right
to a fair trial. Thus, although Clevenger concedes that the
trial court's ruling was technically correct, he
essentially argues that his right to present evidence proving
the son's guilt trumps the rule prohibiting a party from
calling a witness solely to have the witness invoke the Fifth
Amendment right against self-incrimination.
Clevenger
relies on Chambers v. Mississippi, 410 U.S. 284
(1973), and Griffin, supra, in support of
his argument. The Supreme Court of Alabama in Acosta v.
State, 208 So.3d 651 (Ala. 2016), aptly summarized the
facts and holdings of Chambers and Griffin:
"In Chambers, the United States Supreme Court
held that 'where constitutional rights directly affecting
the ascertainment of guilt are implicated, the hearsay rule
may not be applied mechanistically to defeat the ends of
justice.' 410 U.S. at 302. In Chambers, the
trial court's application of the rules of evidence
prohibited Leon Chambers, the defendant, from presenting
evidence of a third party's culpability. Chambers was
charged with killing Aaron Liberty. At trial, Chambers
maintained that he did not shoot Liberty. In support of his
defense, Chambers presented testimony from Gable McDonald,
who had given a sworn statement to Chambers's counsel,
that McDonald had shot Liberty. On cross-examination by the
State, McDonald repudiated his confession and testified that
he did not shoot Liberty and that he confessed to the crime
in order to receive favorable treatment from law enforcement.
When Chambers attempted to challenge McDonald's
renunciation of his confession by having him declared an
adverse witness, the trial court, applying Mississippi's
rules of evidence, denied Chambers's request.
Additionally, the trial court, applying Mississippi's
rules of evidence, refused to admit testimony from
individuals to whom McDonald had admitted that he shot
Liberty. In reaching its conclusion that the trial
court's application of the rules of evidence prevented
Chambers from developing his defense that another, not he,
shot Liberty, the United States Supreme Court stated that the
evidence the trial court refused to admit was critical to
Chambers's defense. The United States Supreme Court
reasoned that because the strict application of
Mississippi's rules of evidence had prohibited the
admission of critical evidence in Chambers's defense, the
trial court's strict application of those rules to
exclude the critical evidence denied Chambers a trial that
complied with due process. 410 U.S. at 302, 93 S.Ct. 1038.
"In Ex parte Griffin, 790 So.2d 351 (Ala.
2000), this Court applied Chambers. In Ex parte
Griffin, the State charged Louis Griffin with the murder
of Christopher Davis after he had admitted, while pleading
guilty to various offenses in federal court, that he had
participated in the murder. At trial, Griffin's defense
was that he did not kill Davis and that he had lied to the
federal court in his allocution to receive favorable
treatment. To support this defense, Griffin attempted to
present evidence indicating that two other men had been
charged with killing Davis; that one of the men, Anthony
Embry, had admitted under oath in court that he had killed
Davis; that Embry had been convicted of Davis's murder;
that Embry had been incarcerated for the conviction; and that
a state court had dismissed Embry's conviction ex mero
motu. The trial court, applying the Alabama Rules of
Evidence, refused to admit the evidence of Embry's
culpability. This Court, recognizing that the evidence of
Embry's confession and conviction was critical in
establishing Griffin's defense that another, not he,
killed Davis, held that the trial court's ruling
excluding the evidence with regard to Embry's confession
and conviction prohibited Griffin from presenting his defense
to the jury and violated his due-process rights under the 5th
and 6th Amendments.
"The holdings in both Chambers and
Griffin rest upon the fact that the trial
court's strict application of the rules of evidence
excluded critical evidence proffered by the defense, and the
exclusion of the critical evidence resulted in the
defendants' being denied their constitutional right to a
fair trial and due process. Critical evidence is defined as
'[e]vidence strong enough that its presence could tilt a
juror's mind.' Black's Law Dictionary
674 (10th ed. 2014). In both Chambers and
Griffin, the excluded evidence was critical to the
defense because each defendant had denied participation in
the offense and the excluded evidence indicated that another
individual had admitted to committing the offense. When a
defendant denies participation in an offense, evidence
indicating that someone else has admitted to committing the
offense and that that admission excludes the defendant as the
offender, as it did in ...