Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jackson v. State

Alabama Court of Criminal Appeals

September 20, 2019

Jamal O'Neal Jackson
v.
State of Alabama

          Appeal from Mobile Circuit Court (CC-15-5909)

          KELLUM, Judge.

         The appellant, Jamal O'Neal Jackson, was convicted of murdering Satori Richardson during the course of an arson. See § 13A-5-40(a)(9), Ala. Code 1975. The jury unanimously found beyond a reasonable doubt the existence of one aggravating circumstance -- that Jackson had previously been convicted of a felony involving the use or threat of violence, see § 13A-5-49(2), Ala. Code 1975 -- and, by a vote of 10 to 2, recommended that Jackson be sentenced to death for his capital-murder conviction. The trial court followed the jury's recommendation and sentenced Jackson to death.[1] This appeal followed.

         The evidence adduced at trial indicated the following. On the morning of July 3, 2014, Jackson and Richardson, who were dating, went to the home of Jackson's cousin, Jans'sica, to visit. Jans'sica said that Jackson drank vodka during the visit. Jackson then spent the afternoon visiting his grandfather, where Jackson continued drinking alcohol. Jackson's grandfather did not know how much alcohol Jackson drank during that time. Later that night, at approximately 11:00 p.m., Jackson and Richardson returned to Jans'sica's house with Richardson's four-year-old daughter, Tiauna, where they stayed until 2:00 or 3:00 a.m. the morning of July 4, 2014. While at Jans'sica's house, Jackson, Richardson, Jans'sica, and Jans'sica's boyfriend drank almost three bottles of vodka. Jackson, Richardson, and Tiauna then went back to Richardson's apartment on Navco Road in Mobile. Testimony indicated that at 3:50 a.m., the emergency 911 center in Mobile received a telephone call from Richardson's cellular telephone. A recording of that call was played for the jury. During the call, a woman can be heard screaming.

         Dorneshia Bendolph, Richardson's cousin who lived in the same apartment complex as Richardson, testified that around 4:30 a.m. the morning of July 4, 2014, Tiauna knocked on her front door and said that "[h]er momma was dead in the tub and her dad just killed her momma." (R. 1766.) Bendolph further testified:

"[Prosecutor]: What did you do when [Tiauna] told you that?
"[Bendolph]: And I asked her again, I said her dad because I know that wasn't -– her dad was in prison, and that's when she told me Jamal. And I grabbed my phone, I went outside and I seen next-door neighbor standing outside, then I noticed the car was gone. So the next-door neighbor told me that she seen Jamal sitting in the car and [Tiauna] come from around the car, then he pulled off. So I went in the house. There was one light on above the stove and you could see smoke, but I didn't think it was that heavy, so I was calling [Richardson's] name and I didn't get no response.
"[Prosecutor]: Okay. Let's talk about the stove real quick. What was the condition of the stove?
"[Bendolph]: All the eyes [of the stove] were on, the oven was on and there was a T-shirt in the oven and it had blood splatter across the top of the stove, like where the knobs were.
"[Prosecutor]: Did you do anything to the stove when you saw that the eyes were on?
"[Bendolph]: Yes, I turned all of them off."

(R. 1766-67.) Richardson tried to go upstairs to the second level of Richardson's two-story apartment but was unable to breathe because of the smoke.

         Janet Roberts, who also lived in the same apartment complex as Richardson, testified that, in the early morning hours of July 4, 2014, she was awakened by a smoke alarm going off in her apartment. She said that the second level of her apartment was filling with smoke. Roberts looked out her window and saw a man sitting in an automobile in the parking lot; a young girl was walking around the front of the vehicle. Roberts had previously seen both the man and the young girl around the apartment complex, and she knew that the young girl was Richardson's daughter.[2] Roberts then went outside and found the young girl standing with another resident of the apartment complex, who she believed to be Richardson's cousin. Roberts telephoned emergency 911 to report the fire and then asked the young girl where her mother was. The girl said: "My momma is dead." (R. 1462.)

         Law-enforcement officers were the first to arrive at the scene. When Joseph Law, a corporal with the Mobile Police Department, arrived, he saw smoke billowing from the apartment complex and several people standing outside, including Tiauna. According to Cpl. Law, Tiauna said to him: "My Daddy killed my Mommy and set the house on fire." (R. 1489.) At the time of trial, Tiauna was seven years old. She testified at trial, in relevant part:

"[Prosecutor]: What do you remember that was bad that happened [to your mommy]?
"[Tiauna]: Well, she was screaming and I went in the room and then I saw him telling her to get in the bathtub. He went in the bathroom and he runs some water and then he put her in the tub.
"....
"[Prosecutor]: When she started screaming, what did you see?
"[Tiauna]: I saw him putting her in the bathtub.
"[Prosecutor]: Do you remember how he was choking her?
"[Tiauna]: Just how regular people choke people. And then when he was about to leave the house, then he had set the house on fire and then he had -– he thr[ew] up on the stairs, he went out, and I went out too when he went out.
"[Prosecutor]: Okay. When you went out, was there anything filling up the air?
"[Tiauna]: No, but when I went outside, I went to [Bendolph's] house.
"[Prosecutor]: You said that he set the house on fire; do you know where he did that?
"[Tiauna]: In the house.
"[Prosecutor]: Do you know if it was upstairs or downstairs?
"[Tiauna]: On the stairs."

(R. 1750-51.) Tiauna identified the man as "Jamal" and said that "Jamal" had a hammer and a knife and that he "[d]id something to my mommy with [the knife], but I don't know because I was in the bathroom downstairs." (R. 1764.)

         Firefighters arrived on the scene shortly after law enforcement. They found Richardson in the bathroom on the second level of the apartment; she was in the bathtub, which was full of water. Firefighters took her outside and paramedic Thomas Manning began performing cardiopulmonary resuscitation on Richardson. Manning said that Richardson had no pulse, had an electrical cord wrapped around her neck, and had numerous lacerations and punctures on her body. Richardson was transported to Spring Hill Medical Center, where she was pronounced dead.

         Dr. Staci Turner, a medical examiner with the State of Alabama, testified that Richardson suffered 32 sharp-force injuries to her body that varied in depth and size. Richardson also "had hemorrhages in the soft tissue of her neck and the soft tissue surrounding her voice box, and the soft tissue surrounding her hyoid bone" and "petechia hemorrhages in her eyes." (R. 1825.) It was Dr. Turner's opinion that Richardson died of multiple sharp-force injuries and strangulation.

         Kenneth Gillespie, a detective with the homicide unit of the Mobile Police Department, examined Richardson's apartment after the fire was extinguished. He said that there was soot on the stairs; that the upstairs bathtub was filled "with a dark red liquid believed to be a mixture of blood and water;" and that there was a pile of clothes that appeared to be burned on the floor in the upstairs bedroom. (R. 1773.) In addition, Richardson's driver's license, some cash, and a bent kitchen knife were on the bed. The knife, Det. Gillespie said, was bent "almost completely into like a horseshoe." (R. 1773.)

         Rufus Watkins, a captain with the Mobile Fire & Rescue Department who was an arson investigator in July 2014, testified that he investigated the fire at Richardson's apartment. Capt. Watkins testified that the area of the apartment with the most damage was a closet in an upstairs bedroom and that the origin of the fire was clothing that was located on the floor of that closet. Capt. Watkins further testified:

"[Prosecutor]: And how did you rule out any kind of accidental starting of this fire?
"[Capt. Watkins]: Based on the circumstances surrounding what took place that evening, I ruled that it was highly probable that it was an incendiary fire."

(R. 1693.) It was Capt. Watkins's opinion that the fire was not accidental but was intentionally set.

         Henry Guess, a cashier at a gasoline station/convenience store located on Gulf Breeze Drive in Gulf Breeze, Florida, testified that at approximately 5:45 a.m. the morning of July 4, 2014, a man, later identified as Jackson, drove into the parking lot and parked his automobile. Jackson stayed in his vehicle "for a long period of time, longer than normal" before he got out and entered the store. (R. 1503.) Guess said that Jackson was disheveled and had what appeared to be dried blood on his clothes and shoes; he also appeared to be intoxicated. According to Guess, Jackson wandered up and down the aisles in the store but did not look at any of the merchandise; instead, he kept looking at the area where the cash register was located. Guess testified to what happened next:

"[Jackson] walked into the men's restroom and he stayed in there an inordinate amount of time. When he came out, there was a floor display of some hats and shirts and miscellaneous. He ran into it and knocked it over and then bumped into the counter and continued to just sort of wander around the store and continue to eyeball me. And at that point in time, I got a little concerned that he might be looking to do harm to the store or to rob the store. He then went out to his automobile, sat in it for a few minutes .... That's when I called the police."

(R. 1504.)

         Officers with the Gulf Breeze Police Department responded to Guess's telephone call and approached Jackson as he was still sitting in his vehicle in the parking lot of the gasoline station/convenience store. Jackson did not respond to the officers' questions or commands. After a minute or two of not responding, Jackson sped away in the vehicle, hitting a light pole before leaving the parking lot. Police pursued him. During the pursuit, Jackson drove east in the westbound lane of traffic. Eventually, Jackson entered the median and struck a tree. Because Jackson did not comply with the officers' commands to turn off the vehicle and to exit the vehicle, they used a Taser stun gun on him and then removed him from the vehicle and secured him. At that point, they saw "a noticeable amount of blood on [Jackson's] tennis shoes and the lower area of his legs." (R. 1530.) The blood appeared to be dried but police summoned paramedics, and Jackson was taken to the Gulf Breeze Hospital, where he was treated and released into police custody. Medical records from the hospital indicated that Jackson's blood-alcohol level was over twice the legal limit of .08 and that he also had benzodiazepine in his system.

         Standard of Review

         Because Jackson was sentenced to death, this Court must search the record of the lower-court proceedings for "plain error" in accordance with Rule 45A, Ala. R. App. P., which 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 Rule 45A, the Alabama Supreme Court has stated:

"'"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."' Ex parte Bryant, 951 So.2d 724, 727 (Ala. 2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998)). In United States v. Young, 470 U.S. 1, 15 [105 S.Ct. 1038');">105 S.Ct. 1038, 84 L.Ed.2d 1] (1985), the United States Supreme Court, construing the federal plain-error rule, stated:
"'The Rule authorizes the Courts of Appeals to correct only "particularly egregious errors," United States v. Frady, 456 U.S. 152, 163 [102 S.Ct. 1584, 71 L.Ed.2d 816] (1982), those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. [157], at 160 [(1936)]. In other words, the 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. Frady, 456 U.S., at 163, n.14.'
"See also Ex parte Hodges, 856 So.2d 936, 947-48 (Ala. 2003) (recognizing that plain error exists only if failure to recognize the error would 'seriously affect the fairness or integrity of the judicial proceedings,' and that the plain-error doctrine is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result' (internal quotation marks omitted))."

Ex parte Brown, 11 So. 3d 933, 938 (Ala. 2008).

"'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). Although [the appellant's] failure to object at trial will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala. 1992)."

Knight v. State, [Ms. CR-16-0182, August 10, 2018] __So. 3d__,__ (Ala.Crim.App.2018).

         Guilt-Phase Issues

         I.

         Jackson argues that his absence at multiple phases of his capital-murder trial violated his constitutional rights under the Sixth and Fourteenth Amendments of the United States Constitution and under Alabama law. Specifically, Jackson asserts that he was not present during three "critical stages" of his trial -- the beginning of general voir dire, a discussion of potential juror misconduct, and a substantial portion of the charge conference.[3] Jackson did not object to any of the now challenged instances where he was absent from the courtroom. Therefore, we review these issues under the plain-error standard. See Rule 45A, Ala. R. App. P.

         Rule 9.1(a), Ala. R. Crim. P., provides that "[t]he defendant has the right to be present at the arraignment and at every stage of the trial, including the selection of the jury, the giving of additional instructions pursuant to Rule 21, the return of the verdict, and sentencing."

"A defendant's right to be present at all stages of a criminal trial derives from the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1884). This right extends to all hearings that are an essential part of the trial -- i.e., to all proceedings at which the defendant's presence 'has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.' Snyder v. Massachusetts, 291 U.S. 97, 105–06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). Compare Hopt v. Utah, supra (defendant has right to be present at empaneling of jurors); Bartone v. United States, 375 U.S. 52, 84 S.Ct. 21, 11 L.Ed.2d 11 (1963) (court cannot impose sentence in absence of defendant); with United States v. Howell, 514 F.2d 710 (5th Cir. 1975); cert. denied, 429 U.S. 838, 97 S.Ct. 109, 50 L.Ed.2d 105 (1976) (no right to be present at in camera conference concerning attempted bribe of juror); United States v. Gradsky, 434 F.2d 880 (5th Cir. 1970), cert. denied, 409 U.S. 894, 93 S.Ct. 203, 34 L.Ed.2d 151 (1971) [1972] (right to presence does not extend to evidentiary hearing on suppression motion.)"

Proffitt v. Wainwright, 685 F.2d 1227, 1256 (11th Cir. 1982).

"A person charged with a felony has a fundamental right to be present at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). That right includes the right to be present at voir dire examination of jurors and empanelling of the jury. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). The right of presence derives from the Confrontation Clause of the Sixth Amendment to the United States Constitution and the Due Process Clauses of the Fifth and Fourteenth Amendments. United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985)."

Ex parte Clemons, 720 So.2d 985, 989 (Ala. 1998).

         However, Alabama courts have recognized that not every absence of a defendant from a critical stage of the trial constitutes reversible error. In Jackson v. State, 791 So.2d 979, 1003-05 (Ala.Crim.App.2000), this Court held that the defendant's absence during the exercise of the State's and the defense's first six peremptory strikes did not constitute reversible error because there was no prejudice to the defendant. In Hodges v. State, 856 So.2d 875, 926-28 (Ala.Crim.App.2001), aff'd, 856 So.2d 936 (Ala. 2003), we held that the defendant's absence from the hearing on his motion for a new trial did not constitute reversible error because there was no testimony taken and only issues of law were involved. In Dobyne v. State, 672 So.2d 1319, 1329-30 (Ala.Crim.App.1994), aff'd, 672 So.2d 1354 (Ala. 1995), this Court held that no reversible error occurred when the defendant was absent during a pretrial hearing where no witnesses testified.

         Other states have also applied a harmless-error analysis to a defendant's claim that he or she was denied the right to be present during a critical stage of trial. See People v. Guzman-Rincon, 369 P.3d 752, 758 (Colo. App. 2015) ("We apply constitutional harmless error analysis to claims of denial of a defendant's right to be present at trial."); State v. Irby, 170 Wash.2d 874, 885, 246 P.3d 796, 802 (2011) ("A violation of the due process right to be present is subject to harmless error analysis."); Hernandez v. State, 761 N.E.2d 845, 853 (Ind. 2002) ("A denial of the right to be present during all critical stages of the proceedings, like the right to counsel at a critical stage, is a constitutional right that is subject to a harmless error analysis."); State v. Bell, 266 Kan. 896, 920, 975 P.2d 239, 254 (1999) ("In determining whether the denial of a defendant's right to be present at all critical stages of the trial is reversible error, this court has applied the same harmless error test as for other constitutional errors.").

         With these principles in mind, we review each instance Jackson was absent during trial.

         A.

         Jackson first asserts that his absence when general voir dire began resulted in prejudice to him because, he says, "the jury [was likely] to draw adverse inferences about his absence at the outset of voir dire." (Jackson's brief, p. 24.). He cites United States v. Alikpo, 944 F.2d 206 (5th Cir. 1991), and United States v. Mackey, 915 F.2d 69 (2d Cir. 1990), to support his argument. The State argues that the record refutes Jackson's assertion that he was not present for the beginning of general voir dire because, it says, the trial court identified Jackson and asked him to stand during the beginning of the voir dire process.

         Voir dire began the morning of Monday, March 13, 2017. After the oath was administered, the trial court gave the venire preliminary instructions, asked general qualifying questions, and excused several prospective jurors for hardship. A recess was then taken. After the recess, the proceedings resumed and a notation in the record states: "Defendant not present." (R. 215.) At this time, prospective jurors were given questionnaires to complete and were told to return on Wednesday, March 15, 2017. When the proceedings resumed on March 15th, a notation in the record again states: "Defendant not present." (R. 227.) After a short discussion between the trial court and the parties regarding minor issues that had arisen with two prospective jurors the previous day, the venire was again administered an oath, and the trial court explained to the venire the process of voir dire, read the indictment to the venire, and briefly explained the purpose of an indictment and the principle of presumption of innocence. The trial court then introduced various court personnel and had the prosecutor identify the employees of the district attorney's office as well as any potential witnesses. At that point, the trial court introduced Jackson to the venire and asked Jackson to stand, thus indicating that Jackson was present at that time. (R. 242.) General voir dire of the entire venire then commenced.

         The cases cited by Jackson are distinguishable from the facts here. In Alikpo, supra, the defendant was absent for "most of the jury selection process." 944 F.2d at 207, and in Mackey, supra, one of the defendants was absent for the entire jury-selection process, as well as a "substantial portion of the testimony." 915 F.2d at 74. In both cases, the reviewing courts found reversible error. The facts in this case are not nearly as egregious as the facts in Alikpo and Mackey.

         Rather, the facts in this case are more akin to the facts presented to this Court in Jackson, supra, where the defendant was absent when the State and the defense exercised the first six peremptory strikes. We held that the defendant's absence was not reversible error because there was no prejudice to the defendant. We explained:

"Rule 9.1(a), Ala. R. Crim. P., provides that a 'defendant has the right to be present at the arraignment and at every stage of the trial, including the selection of the jury, the giving of additional instructions pursuant to Rule 21, the return of the verdict, and sentencing.' At the time of Jackson's trial, a capital defendant could not waive his right to be present. See Rule 9.1(b)(2)(I), Ala. R. Crim. P. However, Alabama courts held 'that if a capital defendant is absent from noncritical stages of trial and if his presence would not have benefitted his defense, no error occurs.' Burgess v. State, 723 So.2d 742, 760 (Ala. Cr. 1997), aff'd, 723 So.2d 770 (Ala. 1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999), citing Harris v. State, 632 So.2d 503, 510–12 (Ala. Cr. App. 1992), aff'd, 632 So.2d 543 (Ala. 1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).
"'"Because the basis of the right to be present at trial is the constitutional mandate [that one be provided] an opportunity to defend oneself, due process requires that the defendant be personally present 'to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'"' Burgess v. State, 827 So.2d 134, 186 (Ala. Cr. App. 1998), quoting Finney v. Zant, 709 F.2d 643, 646 (11th Cir. 1983), quoting, in turn, Snyder v. Massachusetts, 291 U.S. 97, 107–8, 54 S.Ct. 330, 78 L.Ed. 674 (1934). In Harris, supra, this court stated:
"'"A defendant's right to be present at all stages of a criminal trial derives from the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1884). This right extends to all hearings that are an essential part of the trial -– i.e., to all proceedings at which the defendant's presence 'has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.' Snyder v. Massachusetts, 291 U.S. 97, 105–06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). Compare Hopt v. Utah, supra (defendant has right to be present at empaneling of jurors); Bartone v. United States, 375 U.S. 52, 84 S.Ct. 21, 11 L.Ed.2d 11 (1963) (court cannot impose sentence in absence of defendant); with United States v. Howell, 514 F.2d 710 (5th Cir. 1975); cert. denied, 429 U.S. 838, 97 S.Ct. 109, 50 L.Ed.2d 105 (1976) (no right to be present at in camera conference concerning attempted bribe of juror); United States v. Gradsky, 434 F.2d 880 (5th Cir. 1970), cert. denied, 409 U.S. 894, 93 S.Ct. 203, 34 L.Ed.2d 151 (1972) (right to presence does not extend to evidentiary hearing on suppression motion.)"' "632 So.2d at 511, quoting Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983).
"Here, the record reflects that Jackson was absent from the courtroom during the State's first six peremptory strikes and during the defense's first six peremptory strikes. ... Although we recognize that jury selection is a critical stage of the trial, we fail to see how Jackson was prejudiced by his absence from the first six peremptory strikes, or how the outcome of the trial might have changed if he had been present during those strikes."

791 So.2d at 1004-05.

         Also, in Gaston v. State, 265 So. 3d 387');">265 So. 3d 387 (Ala.Crim.App.2018), we hold that no reversible error occurred when the defendant was unable to hear the responses of prospective jurors during individual voir dire. We explained:

"The record reflects that Gaston was present during voir dire examination, where he had the opportunity to learn about the members of the jury panel and to assess the potential composition of the jury; he was present during all the challenges for cause; he was present during the State's peremptory strikes and during the defense's peremptory strikes; and he was present when the trial court formally announced the members of the jury at the conclusion of the striking process. Additionally, the record does not indicate that Gaston was denied an opportunity to consult with his counsel during or after voir dire examination regarding his challenges for cause and peremptory strikes. Importantly, nothing in the record indicates that Gaston was somehow prevented from being with his counsel while those discussions took place.
"Although we recognize that jury selection is a critical stage of the trial, we fail to see how Gaston was prejudiced by his inability to hear the discussions that were taking place between the circuit judge, certain veniremembers, his defense counsel, and the prosecution, or how the outcome of his trial might have been different if he had been present during those strikes. Under these circumstances, we simply cannot conclude that Gaston's inability to listen to those discussions was error, plain or otherwise."

265 So. 3d at 423.

         Here, it appears that Jackson was absent only briefly on March 13 when prospective jurors were given questionnaires and told when to return, and only briefly again on March 15 when the trial court explained the process of voir dire, read the indictment to the venire, and explained the purpose of an indictment and the presumption of innocence. Jackson may also have been absent when court personnel, employees of the State, and potential witnesses were identified, but he was clearly present when he and his attorneys were identified -- before any substantive questioning of the venire began. The facts in this case do not even rise to the level of the circumstances in Jackson, supra, where we found no reversible error and, as we did in Jackson, we fail to see how Jackson's brief absences during a portion of the voir dire proceedings prejudiced him. Therefore, we find no error, plain error or otherwise, as to this claim.

         B.

         Jackson next asserts that he was absent when the trial court and the parties had a discussion concerning possible juror misconduct. According to Jackson, he was "undoubtedly prejudiced" by his absence because he was unable "to weigh in on what additional steps might be necessary to address" the juror misconduct. (Jackson's brief, p. 25.)

         The record indicates that, during a recess in the middle of trial, a security officer who was responsible for transporting incarcerated defendants to and from the courtroom during trial and whose uniform included a patch with the word "corrections," informed the trial court about statements he had heard one of the jurors make. (R. 1499.) The record contains a notation stating that, when the proceedings resumed after this recess, Jackson was "not present," although it is clear that his counsel was present. (R. 1497.) The trial court informed the parties of the potential issue and asked the security officer, Chase Oliver, to explain what had occurred. Oliver stated:

"The specific occasion we went down for their smoke break and [juror R.R.[4]] made mention -– he was joking saying that since I was up here, I wouldn't be in the basement and that was not the first comment he made. That's the one I can remember specifically. And I was just afraid that insinuating that I work for Corrections which then they can infer that [Jackson] is in lockup."

(R. 1497-98.) Oliver indicated that other jurors were nearby when R.R. made the statement to him "but they weren't paying attention." (R. 1498.) After discussing how to handle the situation and deciding not to bring more attention to it by questioning R.R. or the other jurors, the trial court instructed Oliver that, if R.R. approached him again, to inform R.R. that he could not speak with him. The trial court then asked if anything else needed to be discussed before the jury was brought into the courtroom and the court reporter stated for the record that "[t]he [d]efendant is not in here." (R. 1500.) The prosecutor then indicated that he was going to play a video for the jury when the trial resumed and the trial court asked if everyone was ready to proceed. At that point, the record contains the following notation: "Defendant present with counsel." (R. 1501.)

         Nothing in the record indicates the reason Jackson was absent for the brief discussion regarding R.R.'s statements, and defense counsel did not object to Jackson's absence. Nor does the record indicate that defense counsel were in any way concerned about R.R.'s statement to Oliver. In fact, during the discussion, defense counsel indicated that they were unclear what the problem was, other than the fact that the patch on Oliver's arm had the word "corrections" and that counsel did not want the trial court to call attention to the issue. In addition, as explained in Part IX of this opinion, we conclude that no further action was required by the trial court with respect to R.R.

         Under the circumstances in this case, we conclude that "[Jackson] has not demonstrated any possibility of prejudice that resulted from his absence." Burgess v. State, 723 So.2d 742, 761 (Ala.Crim.App.1997), aff'd, 723 So.2d 770 (ala. 1998). Therefore, we find no error, plain or otherwise, with respect to this claim.

         C.

         Jackson further asserts that he was absent during a substantial portion of the charge conference and that his "inability to participate and consult with counsel about the proper instruction of the jury was prejudicial." (Jackson's brief, p. 26.)

         The record reflects that, after the State called its last witness in its case-in-chief, a lunch recess was taken. A notation in the record states that Jackson was "not present" when the proceedings resumed after lunch. (R. 1829.) While Jackson was absent, the trial court asked general questions about exhibits and then the charge conference began. The trial court and the parties discussed several of the State's requested instructions, including requested instructions on capital murder during an arson, flight, and intent, and were about to discuss the State's requested instructions on intoxication when the following occurred:

"THE COURT: ... Oh, where's the Defendant. I thought he was out here. Let's bring him out. I apologize for that. I'm going to finish the State's, that way I'll logically know where we are.
"(Defendant present with counsel.)
"THE COURT: Okay. Back on the record. Defendant is in the courtroom. Just to recap what we talked about, State's Requested Number 1, which is the pattern charge for murder during arson in the first degree, capital murder, it's the pattern. No objection from the Defense. The Court will give that one.
"State's Requested Number 8 is the flight charge. It's out of the patterns that are attached to the law library link on the Supreme Court website, no objection from the Defense. Court will give that.
"The charges that intent may be formed in an instant, Charge Number 7, intent may be inferred if the act is done deliberately, et cetera.
"Charge Number 6, no objections from the Defense. Court is going to give those.
"And so we were to the question of whether, and if so, which ones or both of the State's intoxication charges the Court is going to give. ..."

(R. 1835-36; emphasis added.)

         Although Jackson was absent from a small portion of the charge conference, he was not absent from a substantial portion as he now asserts. In addition, when Jackson entered the courtroom, the trial court reiterated what had occurred in Jackson's absence and Jackson had the opportunity to participate in the discussion. As this Court explained in addressing a defendant's absence during an in camera examination of a witness who later testified during the trial in the defendant's presence:

"In the present case, a fair and just hearing was not thwarted by [the appellant's] absence from the in camera examination or his absence from the brief exchange between the trial court and the prosecutor immediately before the examination. The examination concerned determining a preliminary evidentiary question, not the merits of the charges. It was merely a preliminary inquiry where guilt or innocence was not at stake. The exchange between the trial court and the prosecutor immediately before the examination did not appear to state anything that had not been stated earlier other than the fact that the State desired to be excluded from the in camera examination. [The appellant] does not cite any authority holding that such an examination is a critical stage in the proceedings. Furthermore, later, Jones testified in front of the jury, and [the appellant] had the opportunity to fully cross-examine her. Therefore, we hold that the trial court did not commit reversible error concerning this issue."

Craft v. State, 90 So. 3d 197, 225-26 (Ala.Crim.App.2011).

         Under the circumstances here, we again conclude that "[Jackson] has not demonstrated any possibility of prejudice that resulted from his absence." Burgess, 723 So.2d at 761.[5] Therefore, we find no error, plain or otherwise, with respect to this claim.

         II.

         Jackson argues that the State violated Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. v. Alabama, 511 U.S. 127 (1994), because, he says, the State struck prospective jurors based solely on their race and gender. Because Jackson did not make a Batson objection or a J.E.B. objection at trial, we review these claims for plain error. See Rule 45A, Ala. R. App. P.

"To find plain error in the Batson [v. Kentucky, 476 U.S. 79 (1986),] context, we first must find that the record raises an inference of purposeful discrimination by the State in the exercise of its peremptory challenges. E.g., Saunders v. State, 10 So. 3d 53, 78 (Ala.Crim.App.2007). Where the record contains no indication of a prima facie case of racial discrimination, there is no plain error. See, e.g., Gobble v. State, 104 So. 3d 920, 949 (Ala.Crim.App.2010)."

Henderson v. State, 248 So. 3d 992, 1016 (Ala.Crim.App.2017).[6]

"In [Ex parte] Branch, [526 So.2d 609 (Ala. 1987),] this Court discussed a number of relevant factors ... to establish a prima facie case of racial discrimination; those factors are likewise applicable in the case of a defendant seeking to establish gender discrimination in the jury selection process. Those factors ... are as follows: (1) evidence that the jurors in question shared only the characteristic of [race or] gender and were in all other respects as heterogenous as the community as a whole; (2) a pattern of strikes against jurors of one [race or] gender on the particular venire; (3) the past conduct of the state's attorney in using peremptory challenges to strike members of one [race or] gender; (4) the type and manner of the state's questions and statements during voir dire; (5) the type and manner of questions directed to the challenged juror, including a lack of questions; (6) disparate treatment of members of the jury venire who had the same characteristics or who answered a question in the same manner or in a similar manner; and (7) separate examination of members of the venire. Additionally, the court may consider whether the State used all or most of its strikes against members of one [race or] gender."

Ex parte Trawick, 698 So.2d 162, 167–68 (Ala. 1997).

         In this case, after prospective jurors were excused for hardship or removed for cause, the venire consisted of 48 prospective jurors. The State and Jackson were each afforded 18 peremptory strikes, with the last two strikes for each party serving as alternates.[7] The State used 9 of its 18 strikes to remove black prospective jurors and 14 of its 18 strikes to remove women from the venire. Jackson used 13 of his 18 strikes to remove white prospective jurors. The petit jury consisted of 10 white jurors and 2 black jurors, 7 women and 5 men. The two alternates were also women.

         The record contains no indication that the struck jurors shared only the characteristic of race or gender; that there was a pattern of strikes against jurors of one race or gender; or that there was disparate treatment of jurors who had the same characteristics or who answered a question in the same manner or in a similar manner. The record also contains no indication that the State engaged in disparate or desultory questioning of jurors. Jackson's assertion that the Mobile County District Attorney's office has a "recent" history, dating from 1987 to 1999, of violating Batson is unavailing.[8]

"Although Bohannon contends that there is a long history of racial discrimination by the Mobile County District Attorney's Office in striking juries, the most recent case cited by Bohannon in his brief in making this claim is a 1999 case. Despite Bohannon's contention that the district attorney's office has a long history of striking jurors based on race, 'this was not reflected in, or indicated by, the record. See Sharifi v. State, 993 So.2d 907, 928 (Ala.Crim.App.2008) (no inference from the record of discriminatory use of peremptory challenges by the prosecutor despite Sharifi's argument that Madison County has a long history of violating Batson and that the number of strikes used by the State indicated prejudice).' Dotch v. State, 67 So. 3d 936, 982 (Ala.Crim.App.2010). See also McMillan v. State, 139 So. 3d [184] at 205 [(Ala.Crim.App.2010)]."

Bohannon v. State, 222 So. 3d 457, 483 (Ala.Crim.App.2015), aff'd, 222 So. 3d 525 (Ala. 2016). See also Lindsay v. State, [Ms. CR-15-1061, March 8, 2019] __So. 3d__, __(Ala.Crim.App.2019). After carefully reviewing the record of voir dire examination and the juror questionnaires and considering Jackson's arguments, we find no inference in the record that the State engaged in purposeful discrimination against blacks or women.

         In addition, we point out that the record reflects valid race- and gender-neutral reasons for the State's strikes. The State struck black prospective jurors J.B., C.M., A.D., J.R., D.B., D.F., T.B., S.J., and J.M. J.B. had two relatives who have been convicted of robbery; C.M. had a relative who was incarcerated at the time of trial; D.B. had been convicted of assault; D.F. had a brother who was in jail; T.B. had relatives who had been arrested for disorderly conduct and firearms violations; and S.J.'s daughter had previously been arrested. A.D., J.R., D.B., and S.J. stated on their questionnaires that they were opposed to capital punishment and, as the State correctly asserts in its brief, all the struck black jurors expressed reservations about the death penalty when questioned during voir dire examination.[9] Of the 14 women struck by the State, 12 expressed reservations about the death penalty (prospective jurors J.B., C.M., A.D., J.R., K.H., D.B., S.J., J.S., L.C., J.M., M.B., and S.A.), and the other 2 (prospective jurors E.I. and D.O.) had a relative or friend who had a criminal conviction. "[P]revious criminal charges, prosecutions, or convictions of potential jurors or their relatives [is] a race-neutral reason" for a strike, Johnson v. State, 43 So. 3d 7, 12 (Ala.Crim.App.2009), as is "opposition to the death penalty." Ex parte Travis, 776 So.2d 874, 882 (Ala. 2000).

         Therefore, we find no plain error as to this claim.

         III.

         Jackson also argues that death-qualifying prospective jurors produces a biased jury prone to convict and that permitting the exclusion of jurors based on their views toward the death penalty violates the "right [of jurors] to the free exercise of religion under the First Amendment." (Jackson's brief, p. 99.)

         Appellate courts in Alabama have repeatedly held that there is no violation of state or federal law in death-qualifying prospective jurors in a capital case, even if it results in a more conviction-prone jury. See Graham v. State, [Ms. CR-15-0201, July 12, 2019] __So. 3d__ (Ala.Crim.App.2019); Petersen v. State, [Ms. CR-16-0652, January 11, 2019] __So. 3d__ (Ala.Crim.App.2019); Largin v. State, 233 So. 3d 374 (Ala.Crim.App.2015); Shanklin v. State, 187 So. 3d 734 (Ala.Crim.App.2014); Wiggins v. State, 193 So. 3d 765 (Ala.Crim.App.2014); Albarran v. State, 96 So. 3d 131 (Ala.Crim.App.2011); and Brown v. State, 11 So. 3d 866 (Ala.Crim.App.2007), aff'd, 11 So. 3d 933 (Ala. 2008).

         In addition, federal courts have held that death qualifying prospective jurors does not violate a juror's First Amendment right to freedom of religion, and we agree.

"Defendant ... argues that the [Federal Death Penalty Act] and the First Amendment preclude the 'death qualification' process. The Court finds that no provision of the [Federal Death Penalty Act] precludes the 'death qualification' process. Further, the Court finds the Defendant's argument that a prospective juror's First Amendment right to freely practice his or her religion is impaired by the 'death qualification' process to be similarly without merit. The 'death qualification' process eliminates from the prospective jury pool only those persons who state that they are unable to render a verdict based on the evidence presented during trial and the Court's instructions on the law. It does not require the Court or the parties to look to the sources of an excluded juror's beliefs. Cf. United States v. DeJesus, 347 F.3d 500, 510 (3d Cir. 2003) (noting that a peremptory strike based on religious belief would be constitutional if the religious belief might interfere with a juror's ability to follow the law). For the abovementioned reasons, the Court denies Defendant's motion to strike the 'death-qualification' process as unconstitutional."

United States v. Roof, 225 F.Supp.3d 413');">225 F.Supp.3d 413, 416-17 (D. S.C. 2016).

"Ofomata argues that the death-qualification process necessarily excludes jurors based on their religion in violation of their rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. ('RFRA'), and the First Amendment. The Court will address these arguments separately.
"RFRA provides that the '[g]overnment shall not burden a person's exercise of religion even if the burden results from a rule of general applicability.' § 2000bb-1(a). 'To claim RFRA's protections, a person "must show that (1) the relevant religious exercise is grounded in a sincerely held religious belief and (2) the government's action or policy substantially burdens that exercise by, for example, forcing the plaintiff to engage in conduct that seriously violates his or her religious beliefs."' United States v. Comrie, 842 F.3d 348, 351 (5th Cir. 2016) (quoting Ali v. Stephens, 822 F.3d 776, 782–83 (5th Cir. 2016)) (internal quotations omitted). The law was designed to provide greater protection for religious exercise than that afforded by the First Amendment. Id.
"RFRA includes an exception, however: the '[g]overnment may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling interest.' § 2000bb-1(b). However, '[o]nly "if the [religious person] carries [his or her] burden" does the government 'bear[] the burden of proof to show that its action or policy' meets the exception. See id. (quoting Ali, 822 F.3d at 783).
"As an initial matter, Ofomata has not met his burden of demonstrating that the process of selecting a death-qualified jury substantially burdens the free exercise of religion. Ofomata's conclusory argument is that jurors' views on the death penalty often 'reflect[] [their] religious convictions' and that '[e]xcluding someone from a capital jury based on his or her religious beliefs violates ... RFRA.'
"The death-qualification process 'focuses on whether the jurors' views would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and oath.' Thompson v. Premo, No. 15-1313 ... (D. Or. Jan. 16, 2018). Indeed, the Fifth Circuit has held that 'a veniremember may not be excluded from sitting on a capital jury simply because she ... expresses conscientious or religious scruples against its infliction.' Ortiz v. Quarterman, 504 F.3d 492, 500 (5th Cir. 2007), cert. denied, 553 U.S. 1035 (2008). '[J]urors are not excluded simply because they are opposed to the death penalty on religious grounds, but only if they are unable to set those views aside and apply the law impartially.' United States v. Mitchell, 502 F.3d 931, 954 (9th Cir. 2007).
"Even assuming that Ofomata was able to show that the death-qualification process constitutes a substantial burden, his RFRA claim fails because '[t]he question [of] whether a juror is able to follow the law and apply the facts in an impartial way ... is a compelling government interest.' Id. at 954 (rejecting the assertion that excluding jurors because of their religion and corresponding views on the death penalty violated RFRA); see also Lockhart v. McCree, 476 U.S. 162, 175–76 (1986) ('"Death qualification," unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve the [the government's] concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.'). 'And the rule excluding jurors who are unable to do so is the least restrictive means to achieve that end[.]' Mitchell, 502 F.3d at 954. ...
"Ofomata's First Amendment claim under the Free Exercise Clause fails for substantially the same reasons. The Free Exercise Clause provides that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' U.S. Const. amend. I. Unlike claims evaluated under RFRA, 'a neutral, generally applicable governmental regulation will withstand a free exercise challenge when the regulation is reasonably related to a legitimate state interest.' Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 292 (5th Cir. 2001) (citing Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 879 (1990) ); see also Cornerstone Christian Sch. v. University Interscholastic League, 563 F.3d 127, 135 (5th Cir. 2009) ('The government does not impermissibly regulate religious belief, however, when it promulgates a neutral, generally applicable law or rule that happens to result in an incidental burden on the free exercise of a particular religious practice or belief.').
"As the Court has already explained, the death-qualification process does not exclude jurors based on their religious beliefs. Instead, the process ensures that jurors' views on the death penalty do not preclude them from performing their duties in accordance with their oath and a court's instructions. Cf. Lockhart, 476 U.S. at 176 ('[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.'); Cain v. Woodford, No. 96-2584 ... (C.D. Cal. June 12, 2003) ('[A] juror excluded not merely because of his religious beliefs, but because he indicates that he would not be willing to subordinate his personal views, has not been categorized according to his religion.').
"The Supreme Court has expressly held that 'a juror who in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause.' Morgan v. Illinois, 504 U.S. 719, 728 (1992). Accordingly, courts have rejected Ofomata's argument. See United States v. Casey, No. 05-277 ... (D.P.R. Jan. 23, 2013) (noting that Supreme Court standards 'base[] for-cause removal upon ethical or moral principles which do not necessarily stem from any religious affiliation or belief'); [United States v.] Roof, 225 F.Supp.3d [413,] 416 [(D. S.C. 2016)] ('The "death qualification" process eliminates from the prospective jury pool only those persons who state that they are unable to render a verdict based on the evidence presented during trial and the Court's instructions on the law' and 'does not require the Court or the parties to look to the sources of an excluded juror's beliefs.'); Thompson, ... (rejecting the defendant's argument that death-qualification violated jurors' rights to the free exercise of their religion).

United States v. Ofomata, (No. 17-201, February 11, 2019)(E.D. La. 2019)(not selected for publication F.Supp).

         Therefore, Jackson is due no relief on this claim.

         IV.

         Jackson argues that the State erred in questioning the lead investigator, Det. Kenneth Gillespie, about Jackson's invocation of his right to remain silent when he was questioned by police. Specifically, Jackson argues that a Doyle v. Ohio, 426 U.S. 610 (1976), violation occurred when Det. Gillespie was asked about Jackson's demeanor during the interview. He asserts that this error was compounded because "Jackson admitted to being present at the scene of the crime, argued that he was too intoxicated to form intent, and then exercised his right not to testify at trial." (Jackson's brief, p. 19.) Jackson did not object to Det. Gillespie's testimony, and the granting of his pretrial motion in limine was not sufficient to preserve this issue for review. See Saunders v. State, 10 So. 3d 53, 87 (Ala.Crim.App.2007) (holding that, unless a ruling on a motion in limine is absolute or unconditional, the ruling does not preserve the issue for appeal and that a timely objection must be made when the evidence is introduced). Therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

         The record reflects that Jackson had been driving Richardson's automobile at the time he was taken into custody in Florida, and the Gulf Breeze Police Department notified the Mobile Police Department that it had Richardson's vehicle in its possession and Jackson in custody. Det. Gillespie drove to Gulf Breeze and interviewed Jackson at approximately noon the day of the murder. Before trial, Jackson moved in limine to prohibit the State from presenting evidence or referring to the fact that he had invoked his right to remain silent and that he requested an attorney during that interview. The State did not object to the motion in limine and indicated that it would redact from Jackson's statement his request for an attorney and his invocation of his right to remain silent and anything that happened thereafter. The trial court granted the motion in limine. Little else about this issue appears in the record, and the State ultimately did not introduce Jackson's statement into evidence.

         The record reflects the following exchange during direct examination of Det. Gillespie:

"[Prosecutor]: What was [Jackson's] demeanor during that interview?
"[Det. Gillespie]: He was very -– let me see, acted like he didn't know what we were talking about, didn't really want to answer our questions. When we initially were gathering information from him, asking for his personal information, you know, obviously he was very responsive, he gave the answers pretty much immediately.
"[Prosecutor]: What kind of personal information were you asking for?
"[Det. Gillespie]: Name, date of birth, Social Security number, that type of stuff.
"[Prosecutor]: And he was very responsive to that?
"[Det. Gillespie]: He was.
"[Prosecutor]: Did his demeanor then change when you started asking him further questions?
"[Det. Gillespie]: It did.
"[Prosecutor]: Now, only talking about his demeanor, how did it change?
"[Det. Gillespie]: He became very -– his answers were very short-based, very abrupt, just didn't want to answer certain questions we would ask. He wouldn't answer them.
"[Prosecutor]: In your many years of law enforcement, have you come into contact with people that are intoxicated?
"[Det. Gillespie]: I have.
"[Prosecutor]: About how many times?
"[Det. Gillespie]: I would say probably at least a hundred times.
"[Prosecutor]: Have you ever come into contact with people that are intoxicated to the point that they have no awareness of what's going on around them?
"[Det. Gillespie]: I have.
"[Prosecutor]: About how many times?
"[Det. Gillespie]: Probably about four or five times.
"[Prosecutor]: Did you form any opinion as to whether [Jackson] was intoxicated at the time that you spoke to him?
"[Det. Gillespie]: I couldn't tell a hundred percent if he was intoxicated, but if he was, he was not to the point to where he couldn't comprehend what was going on or answer any questions or anything like that. But as far as, I didn't smell any kind of alcohol. I didn't observe anything that I could say for sure he was intoxicated. But I can say that he was to the point that he was able to answer those questions."

(R. 1775-76; emphasis added.)

         "The receipt into evidence of testimony concerning an accused's post-Miranda exercise of the constitutional right to remain silent is itself a violation of the accused's constitutional right to remain silent." Harris v. State, 611 So.2d 1159, 1160–61 (Ala.Crim.App.1992) (citing Doyle, supra). However, "Doyle only prohibits the prosecutor's making the defendant's silence the subject of comment. '[A] defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.'" Kidd v. State, 649 So.2d 1304, 1307 (Ala.Crim.App.1994) (quoting Anderson v. Charles, 447 U.S. 404, 408 (1980)).

         This Court in Pettibone v. State, 91 So. 3d 94');">91 So. 3d 94 (Ala.Crim.App.2011), addressed the holding in Doyle and stated:

"'In Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), the United States Supreme Court "clarified that 'the holding of [Doyle v. Ohio, 426 U.S. 610 (1976),] is that the Due Process Clause bars "the use for impeachment purposes" of a defendant's post-arrest silence.'" United States v. Stubbs, 944 F.2d 828, 834 (11th Cir. 1991), quoting Greer, 483 U.S. at 763, 107 S.Ct. at 3108, in turn quoting Doyle, 426 U.S. at 619, 96 S.Ct. at 2245. Furthermore, "[w]hile a single comment alone may sometimes constitute a Doyle violation, the Supreme Court's opinion in Greer makes clear that a single mention does not automatically suffice to violate defendant's rights when the government does not specifically and expressly attempt to use –- as was attempted in Doyle and Greer –- the improper comment to impeach the defendant. See Lindgren v. Lane, 925 F.2d 198, 201 (7th Cir. 1991)." Stubbs, 944 F.2d at 835. (Emphasis in original.)'"

91 So. 3d at 114-15 (quoting Wilkerson v. State, 686 So.2d 1266, 1272 (Ala.Crim.App.1996)).

         Initially, we agree with the State that the record is unclear as to when during the interview Jackson invoked his right to remain silent. As noted, there is little discussion in the record about Jackson's statement, and the State ultimately did not introduce that statement into evidence during trial. In addition, Det. Gillespie's testimony sheds no light on when Jackson invoked his right to remain silent, i.e., before or after he began providing "short-based" and "abrupt" answers and refusing to answer "certain questions." (R. 1775.) As the State correctly argues, this Court cannot predicate error on a silent record. See Gaddy v. State, 698 So.2d 1100, 1130 (Ala.Crim.App.1995), aff'd, 698 So.2d 1150 (Ala. 1997). Moreover, whether the prosecutor's questioning Det. Gillespie about Jackson's demeanor and whether Jackson appeared intoxicated was an unconstitutional use of Jackson's silence is debatable. As the Connecticut Supreme Court explained:

"The defendant further argues that the state violated Doyle when [the officer] testified that the defendant had declined to give a written statement and thereafter ended the interview. We disagree. In State v. Kirby, supra, 280 Conn. [361,] 397, 908 A.2d 506');">908 A.2d 506 [2006)], a police officer testified that after the defendant had made a statement, the officer again explained the Miranda [v. Arizona, 384 U.S. 436 (1966)] rights form to him. In response, the defendant 'just bowed his head and closed his eyes,' after which the officers stopped questioning him. Id. We concluded that this testimony did not constitute a Doyle [v. Ohio, 426 U.S. 610 (1976)] violation, reasoning that 'to the extent that any silence by the defendant after he made [the] statement [to police] was implicated,' that implication was permissible 'evidence of the defendant's assertion of [the right to remain silent] for the purposes of demonstrating the investigative effort made by the police and the sequence of events as they unfolded....' (Internal quotation marks omitted.) Id., at 401, 908 A.2d 506');">908 A.2d 506. Similarly, in the present case, [the officer's] testimony was a permissible description of the end of the interview and was not an unconstitutional use of the defendant's post-Miranda silence."

State v. Lockhart, 298 Conn. 537, 585-86, 4 A.3d 1176, 1203-04 (2010). Therefore, we seriously question whether a Doyle violation even occurred.

"Regardless of the application of Doyle to the facts in this case, the United States Supreme Court in Brecht v. Abrahamson, 507 U.S. 619 (1993), held that a Doyle violation is subject to a harmless-error analysis under Chapman v. California, 386 U.S. 18 (1967). This Court has applied the harmless-error analysis to a Doyle violation in the following death-penalty cases: Kelley v. State, 246 So. 3d 1032');">246 So. 3d 1032 (Ala.Crim.App.2014); Shaw v. State, 207 So. 3d 79');">207 So. 3d 79 (Ala.Crim.App.2014); Wilson v. State, 777 So.2d 856 (Ala.Crim.App.1999); Arthur v. State, 575 So.2d 1165 (Ala.Crim.App.1990)."

Bohannon v. State, 222 So. 3d 457, 489 (Ala.Crim.App.2015), aff'd, 222 So. 3d 525 (Ala. 2016). "The determination of whether a Doyle violation is harmless should be made on a case-by-case basis under the specific facts of each case." Qualls v. State, 927 So.2d 852, 856 (Ala.Crim.App.2005).

         Here, there was no direct reference to the fact that Jackson had invoked his right to remain silent. As noted, Det. Gillespie testified only that Jackson would not answer "certain questions." (R. 1775.) After carefully reviewing the record, we are confident that if any Doyle violation did, in fact, occur, it was harmless beyond a reasonable doubt.

         For the foregoing reasons, we find no error, much less plain error, as to his claim.

         V.

         Jackson also argues that the trial court erred in allowing Det. Gillespie to testify about what Tiauna said to him the day of the murder. Specifically, Jackson argues that Tiauna's statement was hearsay and that it did not fall within the excited-utterance exception to the hearsay rule because, he says, Tiauna's statement was "quintessential retrospective narration." (Jackson's brief, p. 33.) According to Jackson, "Alabama courts have applied the [excited-utterance] exception only if the startling condition has continued in some way or if an intervening event has revived the declarant's distress spontaneously" and no Alabama case has applied the exception to a statement made as a result of police questioning several hours after the startling event. (Jackson's brief, p. 33.) Jackson also argues that admission of Tiauna's statement was not harmless error because, he says, the statement was the only evidence that established that the fire was set intentionally. This argument is meritless.

         At trial, the State asserted that the fire had been set intentionally, but Jackson argued that the fire was accidental. At trial, Tiauna, who was then seven years old, testified that Jackson "had set the house on fire." (R. 1751.) In addition, when law enforcement first arrived at the scene, Tiauna told Cpl. Law: "My Daddy killed my Mommy and set the house on fire." (R. 1489.)[10] Before trial, Jackson moved in limine to prohibit the State from introducing a statement Tiauna had made to Det. Gillespie at approximately 7:00 a.m. the morning of the murder while she was being questioned at the police station. After two hearings on the issue, the trial court denied the motion. At trial, over defense counsel's objection, Det. Gillespie testified that, when he spoke with Tiauna, who was four years old at that time, after the murder, she appeared scared and frightened, was not moving around, and was speaking just a few words at a time. Nonetheless, Tiauna managed to tell Det. Gillespie that Jackson had started the fire by lighting some clothes with a cigarette.

         "Hearsay" is defined in Rule 801, Ala. R. Evid., as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth fo the matter asserted." Hearsay is generally not admissible unless it falls within an one of the exceptions in Rule 803, Ala. R. Evid., or Rule 804, Ala. R. Evid. See Rule 802, Ala. R. Evid. An excited utterance is an exception to the hearsay rule. Rule 803(2), Ala. R. Evid., defines an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

"'This rule [Rule 803(2), Ala. R. Evid.] sets out three conditions which must be met for admission of the statement. There must be a startling event or condition, the statement must relate to the circumstances of the occurrence and the statement must be made before time has elapsed sufficient for the declarant to fabricate. The statement must be the apparently spontaneous product of that occurrence operating upon the visual, auditory, or other perceptive sense of the speaker. The declaration must be instinctive rather than deliberative. In short, it must be the reflex product of the immediate sensual impressions, unaided by retrospective mental action. Whether a statement qualifies as an excited utterance is a preliminary and discretionary question for the trial court.'"

A.C.M. v. State, 855 So.2d 571, 575 (Ala.Crim.App.2002) (quoting Charles W. Gamble, McElroy's Alabama Evidence 265.01(1) (5th ed. 1996) (footnotes omitted)). We further stated in A.C.M.: "[A] statement made in response to a question is admissible as a spontaneous exclamation if the person was still under the influence of the excitement or shock of the crime." 855 So.2d at 577.

         Some jurisdictions have liberally applied the excited-utterance exception when the statements are made by a young child. As the Wisconsin Supreme Court explained:

"A broad and liberal interpretation is given to what constitutes an excited utterance when applied to young children. Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974); Bertrang v. State, 50 Wis.2d 702, 184 N.W.2d 867 (1971); Bridges v. State, 247 Wis. 350, 19 N.W.2d 529, reh'g denied, 247 Wis.2d 350, 19 N.W.2d 862 (1945). In this special circumstance, the court has held that stress is present even some time after the triggering event. This ascertainment of prolonged stress is born of three observations. First, a child is apt to repress the incident. Bertrang, 50 Wis.2d at 707–08, 184 N.W.2d at 870. Second, it is often unlikely that a child will report this kind of highly stressful incident to anyone but the mother. Cf. Bridges v. State, 247 Wis. 350, 19 N.W.2d 529 (1945). Third, the characteristics of young children work to produce declarations 'free of conscious fabrication' for a longer period after the incident than with adults. It is unlikely a young child will review the incident and calculate the effect of the statement. See United States v. Nick, 604 F.2d 1199, 1204 ([9th Cir.] 1979)."

State v. Padilla, 110 Wis.2d 414, 419, 329 N.W.2d 263, 266 (1982). "In the context of statements made by children, 'there is more flexibility concerning the length of time between the startling event and the making of the statements because the stress and spontaneity upon which the exception is based is often present for longer periods of time in young children than adults.'" State v. Burgess, 181 N.C.App. 27, 36, 639 S.E.2d 68, 75 (2007).

"Under Rule 803(2) of the North Carolina Rules of Evidence, hearsay that fits the requirements of an excited utterance is admissible as an exception to the general rule against hearsay. For a statement to fall within the excited utterance exception, there must be: '"(1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication."' State v. Wright, 151 N.C.App. 493');">151 N.C.App. 493, [496], 566 S.E.2d 151, 154 (2002) (quoting State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988) (citation omitted)). Further, our Supreme Court has been more lenient with respect to the passage of time between the two essential elements of an excited utterance in cases involving statements made by children. By doing so, it has recognized that 'the stress and spontaneity upon which the [excited utterance] exception [to the hearsay rule] is based is often present for longer periods of time in young children than in adults.' State v. Smith, 315 N.C. 76, 87, 337 S.E.2d ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.