Tierra Capri Gobble was sentenced to death
in Alabama in 2005 for the beating death of her six-month-old son in
The baby suffered a fractured skull, five broken
ribs, broken wrists and numerous bruises. An autopsy showed that he
died from head trauma consistent with child abuse
Tierra Gobble – white, age
Sentenced to death in Houston
By: A judge, jury recommendation
Date of Crime: 12/15/2004
Gobble killed her four-month-old
son, Phoenix Cody Parrish. Gobble’s three children had been removed
from her care after a Florida child welfare agency found abuse and
neglect. Gobble’s great uncle took in Parrish and was instructed not
to leave the state or allow any contact between the infant and his
parents. The great-uncle violated both of these instructions by
moving to Alabama and allowing Gobble to move in with him. Gobble
admitted to hitting Parrish’s head on the side of his crib because
Parrish would not stop crying. Parrish died from trauma consistent
with child abuse, including a skull fracture, broken ribs, two broken
wrists, and many bruises. The defense argued there were three other
people in the house who could have murdered Parrish. During the
sentencing phase, the defense introduced mitigating evidence that
Gobble had an abusive childhood.
Prosecutor(s): Doug Valeska
Defense lawyer(s): Tom Brantley
Sources: AP Alert – Florida
5/17/2005 (5/17/05 APAPLERTFL 19:13:26); AP Alert – Alabama 8/21/2005
(8/21/05 APALERTAL 21:11:06), 10/27/2005 (10/27/05 APALERTAL
00:31:31); Birmingham News 9/24/2005 (2005 WLNR 18813752), 9/24/2005
(2005 WLNR 18813752); Tampa Tribune 9/27/2005 (2005 WLNR 15575212).
Deciding Depravity: The Case of Tierra Capri Gobble
Tierra Capri Gobble v. State of Alabama; 2010
Ala; LEXIS 34 (April 30, 2010)
On December 15, 2005, at approximately 11:00 am,
Tierra Capri Gobble walked into her 4-month-old son’s bedroom to find
him lying in his crib, unresponsive and not breathing. Tierra called
in her friend Tori Jordan, who in turn went to find Gobble’s father
Edgar Parrish. Parrish called 911 for help and paramedics came to rush
the 4-month-old, Phoenix, to the hospital. Alas, it was too late for
the young boy.
24 hours after Phoenix’s birth, DCF removed him
from his mother’s custody and sent him to live with Edgar Parrish,
Tierra’s father, who was also caring for her daughter. However, in
October 2004, Gobble and her boyfriend Samuel David Hunter moved into
Parrish’s house, where she once again had full access to her children.
On December 15, 2004, Gobble could not get Phoenix
to go to sleep because he was “fussin.” At around 1:00 a.m. Gobble
went to feed him. After he finished his bottle, she put him back in
his crib. At around 9:00 a.m. Gobble checked on Phoenix and found him
playing. Gobble went back to sleep and awoke at approximately 11:00
a.m. when she found Phoenix unresponsive. When later questioned why
she did not call 911 immediately, she replied that she did not want to
get in trouble for being with her child.
Dr. Jonas R. Salne, the emergency room physician
who treated Phoenix testified at trial, “[Phoenix] had bruises,
contusions, on his face, scalp, and chest. They were everywhere.” The
x-rays showed that Phoenix had a skull fracture, fractures to both
wrists, as well as a fracture to his right upper arm. Dr. Salne
indicated that it takes “quite a bit of trauma and quite a bit of
force” to fracture a skull. The autopsy report revealed that Phoenix
also had fractures to several of his ribs. Dr. Salne further testified
that Phoenix would have been in tremendous pain from any of the
When undergoing questioning, Gobble told the police
that she was Phoenix’s primary caretaker even though Parrish was his
guardian. She explained the bruises and fractures on the child by
admitting that she would occasionally get frustrated with him when he
would not go to sleep and that she could have broken his ribs from
holding him too tightly. Tierra further explained an instance when she
was holding Phoenix and leaned down in the crib to get his blanket
quickly. According to Tierra, this may have resulted in Phoenix’s head
striking the side of the crib.
At trial, Tori Jordan testified that she had known
Gobble for nearly two years and that Gobble had told her “if she
couldn’t have her children, no one could.” Also presented to court was
a letter that Gobble had written which stated, “It’s my fault that my
son died but I didn’t mean for it to happen.”
The jury ultimately convicted Gobble of capital
murder. The jury recommended, by a vote of 10 to 2, that Gobble be
sentenced to death. The circuit court followed the jury’s
recommendation and sentenced Gobble to death.
On appeal, Gobble asserts that there was an
erroneous application of the heinous, atrocious, or cruel aggravating
circumstance in her case. In reply, the court stated, “The Alabama
appellate courts’ interpretation of ‘especially heinous, atrocious, or
cruel’ has passed muster under the Eighth Amendment because those
courts have consistently defined the term to include only ‘those
conscienceless or pitiless homicides which are unnecessarily torturous
to the victim.’ Ex parte Clark, [728 So. 2d 1126 (Ala.
1998)], citing, Lindsey v. Thigpen, 875 F. 2d 1509 (11th Cir.
“[T]he offense was committed upon a small child
(four months old) by striking his head against a hard surface causing
trauma [and] internal injuries. The victim had fractures of the
fourth, fifth, and sixth ribs and bleeding was observed between the
scalp and skin as well as between the skull and brain. This act by a
mother shocks the conscience of this Court. This was a callous and
calculated act and, in this Court’s opinion, was especially cruel,
heinous and atrocious as compared to other capital offenses. This was
a brutal beating that caused tremendous pain and suffering upon this
small child, who was helpless and unable to defend himself. The
mother-Defendant, Tierra Gobble was not supposed to be around the
child because the State of Florida had given custody of the child to
Mr. Parrish, a roommate of the defendant, due to her abuse and
neglect. Apparently, the pattern of abuse and neglect continued until
she ended the life of this small child. Her last fateful act on the
small child only showed her total disregard of any feelings for her
own child and demonstrates very clearly why the jury’s unanimous
verdict of especially heinous, atrocious and cruel as compared to
other capital offenses was correct and supported by the evidence.
Gobble’s death sentence was affirmed.
The Depravity Scale
Does it matter that Gobble was spending time with
her children illegally and that the crime involved her very own son?
Does the fact that she takes some blame for the death of her child
change the level of depravity? On the other hand, is her remorse
shallow? If long-term abuse becomes an unanticipated death, is the
depravity of a crime affected? How can The Depravity Standard assist
the courts in determining which facts of a case warrant weight?
Court of Criminal Appeals of Alabama
Gobble v. State
Tierra Capri GOBBLE v. STATE of Alabama.
February 05, 2010
The appellant, Tierra Capri Gobble, was convicted
of murdering her four-month-old son Phoenix Parrish, an offense
defined as capital by § 13A-5-40 (a)(15), Ala.Code 1975, because
Phoenix was under the age of 14. The jury recommended, by a vote of 10
to 2, that Gobble be sentenced to death. The circuit court followed
the jury's recommendation and sentenced Gobble to death.
The State's evidence established the following. On
December 15, 2004, Phoenix was rushed to the emergency room of the
Southeast Alabama Medical Center in Dothan. He was not breathing and
had no pulse. Attempts to resuscitate him were unsuccessful, and he
was pronounced dead shortly after he was brought to the hospital. The
autopsy showed that Phoenix died as a result of blunt-force trauma to
his head-Phoenix's skull had been fractured. Phoenix had numerous
other injuries, including fractured ribs, a fracture to his right arm,
fractures to both wrists, multiple bruises on his face, head, neck,
and chest and a tear in the inside his mouth that was consistent with
a bottle having been shoved into his mouth.
Gobble gave birth to Phoenix on August 8, 2004, in
Plant City, Florida. The child was taken from her custody by the
Florida Department of Children and Families (“DCF”) within 24 hours
after his birth because of DCF's involvement with Gobble's first
child, Jewell, who was 18 months old at the time of Phoenix's death.
Jewell had been removed from Gobble's custody in December 2003 by the
Florida Department of Children and Families (“DCF”) and placed with
her paternal uncle-Edgar Parrish. At the time of Phoenix's death
Gobble was under a court order to have no contact with her children.2
However, Gobble and her boyfriend, Samuel David Hunter, moved in with
Phoenix, Parrish, and Walter Jordan in October 2004. In October 2004,
Gobble signed an affidavit stating her intent to terminate her
parental rights. On December 2, 2004, proceedings were initiated to
terminate Gobble's parental rights.
In the early morning hours of December 15, 2004,
Gobble was having trouble getting Phoenix to go to sleep because he
was “fussin.” At around 1:00 a.m. Gobble went to feed him. After he
finished his bottle, she put him back in his crib. At around 9:00 a.m.
Gobble checked on Phoenix and found him playing. Gobble went back to
sleep and awoke at approximately 11:00 a.m. When she went to check on
Phoenix she discovered that he was not breathing. Gobble called
Jordan, who was also in the trailer that morning. Jordan went to get
Parrish, who was nearby. Parrish returned to the trailer and
telephoned emergency 911. When paramedics arrived, Phoenix was
unresponsive, and they rushed him to a local hospital.
Dr. Jonas R. Salne, the emergency room doctor who
treated Phoenix at Southeast Alabama Medical Center, testified that
“[Phoenix] had bruises, contusions, on his face, scalp, and chest.
They were everywhere.” (R. 436.) The x-rays showed that Phoenix had a
skull fracture, fractures to both wrists, and a fracture to his right
upper arm. Dr. Salne testified that it takes “quite a bit of trauma
and quite a bit of force” to fracture a skull. (R. 441.) The autopsy
report, admitted by agreement of the parties, showed that Phoenix also
had fractures to several of his ribs. Dr. Salne testified that Phoenix
would have been in tremendous pain from any of the numerous injuries.
Officer Tracy McCord of the Houston County
Sheriff's Department testified that Gobble was taken into custody
several hours after Phoenix was taken to the hospital and was
questioned by police. Gobble told McCord that she Phoenix's primary
caretaker even though Parrish was his guardian, that she would
occasionally get frustrated with him when he would not go to sleep,
that she could have broken his ribs from holding him too tightly, and
that when she was holding Phoenix she leaned down in the crib to get
his blanket quickly and Phoenix's head might have struck the side of
the crib at that time.
Tori Jordan testified that she had known Gobble for
about two or two and one half years and that she had periodically
babysat for Jewell over a period of about five months. She said that
Gobble had told her that “if she couldn't have [her children], no one
could.” (R. 256.)
Gobble testified in her own defense and portrayed
Hunter as abusive and domineering. She also testified that she was the
primary caretaker for the children, that she was under a court order
to not be around her children, and that several days before his death
she noticed that Phoenix had bruises on his body, but, she said, she
did not do anything because she was scared. Gobble further testified
that she was the only person to have contact with Phoenix for the 10
hours immediately preceding his death. She did not telephone 911 when
she realized he was not breathing, she said, because she did not want
to get into trouble. During her cross-examination, the State
introduced a letter written by Gobble in which she wrote that she was
responsible for Phoenix's death. In the letter Gobble writes: “It's my
fault that my son died but I didn't mean for it [to] happen.”
The jury convicted Gobble of capital murder. A
presentence report was prepared and a separate sentencing hearing was
held. The jury recommended, by a vote of 10 to 2, that Gobble be
sentenced to death. The circuit court followed the jury's
recommendation and sentenced Gobble to death. This appeal, which is
automatic in a case involving the death penalty, followed. See §
13A-5-53(a), Ala.Code 1975.
Standard of Review
Because Gobble has been sentenced to death this
Court must review the lower-court proceedings for plain error. Rule
45A, Ala.R.App.P., states:
“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 the plain-error rule we
“ ‘Plain error’ has been defined as error “ ‘so
obvious that the failure to notice it would seriously affect the
fairness or integrity of the judicial proceedings.’ “ Ex parte Womack,
435 So.2d 766, 769 (Ala.1983), quoting United States v. Chaney, 662
F.2d 1148, 1152 (5th Cir.1981). ‘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). This Court has
recognized that “ ‘[t]he plain-error exception to the
contemporaneous-objection rule is to be ‘sued sparingly, solely in
those circumstances in which a miscarriage of justice would otherwise
result.’ “ ‘ Burton v. State, 651 So.2d 641, 645 (Ala.Crim.App.1993),
aff'd, 651 So.2d 659 (Ala.1994), quoting United States v. Young, 470
U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), quoting in turn
United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71
L.Ed.2d 816 (1982).”
Brooks v. State, 973 So.2d 380, 387
(Ala.Crim.App.2007). Although Gobble's failure to object will not bar
this Court's review of any issue, it will weigh against any claim of
prejudice Gobble makes on appeal. See Dill v. State, 600 So.2d 343
Gobble asserts that the circuit court erred in
denying her motion for a change of venue because, she argues, the
publicity surrounding the case was extensive and prejudiced her
ability to obtain a fair jury pool in Houston County.
The record shows that Gobble moved for a change of
venue and that a lengthy pretrial hearing was held on the motion. At
the hearing Gobble presented the testimony of Natalie Davis, a
professor of political science at Birmingham Southern College and the
owner of Davis and Associates, a jury-consulting firm. Davis testified
that her firm conducted a survey of Houston County residents by
telephone and spoke to 340 individuals. She said that of those
individuals 57% had heard about the case. Those individuals who had
heard about the case where then asked if they believed Gobble was
guilty or not guilty. Davis testified that 46.5% said that Gobble was
either guilty or probably guilty; however, 50.6% refused to answer the
Gobble also presented the testimony of Lauren
Davis, the custodian of records for WTVY television station; Wayne
May, the custodian of records for Channel 4 television station; Ken
Curtis, the custodian of records for WDHN television station; Latanya
Smedley, the custodian of records for the Dothan Eagle newspaper; and
John Daniels, the custodian of records for WOOF radio station. The
videotapes of coverage of the case by WSFA, Channel 12, were admitted
into evidence by stipulation. May, Curtis, and Daniels testified that
in their opinion the media coverage of Phoenix's murder was no greater
than the coverage in any other murder case.
When reviewing a trial court's ruling on a motion
for a change of venue, we apply the following principles:
“A trial court is in a better position than an
appellate court to determine what effect, if any, pretrial publicity
might have in a particular case. The trial court has the best
opportunity to evaluate the effects of any pretrial publicity on the
community as a whole and on the individual members of the jury venire.
The trial court's ruling on a motion for a change of venue will be
reversed only when there is a showing that the trial court has abused
its discretion. Nelson v. State, 440 So.2d 1130 (Ala.Cr.App.1983).
“Rule 10.1(a), Ala.R.Crim.P., provides that a
‘defendant shall be entitled to a change of the place of trial to the
nearest county free from prejudice if a fair and impartial trial and
unbiased verdict cannot be had for any reason. ‘The burden of proof is
on the defendant ‘to show to the reasonable satisfaction of the court
that a fair and impartial trial and an unbiased verdict cannot be
reasonably expected in the county in which the defendant is to be
tried.’ Rule 10.1(b).
“ ‘[A] change of venue must be granted only when it
can be shown that the pretrial publicity has so ‘pervasively
saturated’ the community as to make the “court proceedings nothing
more than a ‘hollow formality,’ “ Hart v. State, 612 So.2d 520, 526-27
(Ala.Cr.App.), affirmed, 612 So.2d 536 (Ala.1992), cert. denied, 508
U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993), citing Rideau v.
Louisiana, 373 U.S. 723, 726, 10 L.Ed.2d 663, 83 S.Ct. 1417 
(1963), or when actual prejudice can be demonstrated. The burden of
showing this saturation of the community or actual prejudice lies with
the appellant. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16
L.Ed.2d 600 (1966). In order to show community saturation, the
appellant must show more than the fact “that a case generates even
widespread publicity.” Thompson v. State, 581 So.2d 1216, 1233
(Ala.Cr.App.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116
L.Ed.2d 774 (1992). “ ‘Newspaper articles alone would not necessitate
a change of venue unless it was shown that the articles so affected
the general citizenry through the insertion of such sensational,
accusational or denunciatory statements, that a fair and impartial
trial was impossible. Patton v. State, 246 Ala. 639, 21 So.2d 844
.’ “ Thompson v. State, supra at 1233, quoting McLaren v. State,
353 So.2d 24, 31 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala.1977).
Furthermore, in order for a defendant to show
prejudice, the “ ‘proper manner for ascertaining whether adverse
publicity may have biased the prospective jurors is through the voir
dire examination.’ Anderson v. State, 362 So.2d 1296, 1299
(Ala.Cr.App.1978).” Ex parte Grayson, 479 So.2d 76, 80 (Ala.1985),
cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985).' “
Joiner v. State, 651 So.2d 1155, 1156
(Ala.Crim.App.1994), quoting Oryang v. State, 642 So.2d 979, 983
We have reviewed the transcripts of the radio,
television, and newspaper coverage related to this case and we do not
find them inflammatory or sensational. “Newspaper stories that are not
inflammatory or sensational do not warrant a change of venue.”
Thompson v. State, 581 So.2d 1216, 1234 (Ala.Crim.App.1991). “ ‘The
proper manner for ascertaining whether adverse publicity may have
biased the prospective jurors is through the voir dire examination.’ “
Ex parte Grayson, 479 So.2d 76, 80 (Ala.1985). During voir dire Gobble
made four challenges for cause based on comments by prospective jurors
concerning their knowledge of the case. All four of the challenges
were granted by the trial court. There is no indication that the
circuit court abused its discretion in denying Gobble's motion for a
change of venue. See Joiner, supra.
Gobble next argues that the circuit court erred in
denying her motion for a continuance so that she could secure the
testimony of a second pathologist.
On August 18, 2005, Gobble moved to continue the
trial, which had been set for September 12, 2005. This motion asserted
only general grounds. At a pretrial hearing on August 19, 2005, Gobble
stated that she needed a continuance to secure the testimony of an
expert who specialized in “brittle bone syndrome” to explore the
possibility that Phoenix had this disease. Gobble retained the
services of a pathologist.
On September 9, 2005, three days before the trial
was scheduled to begin, Gobble moved for a continuance after the
pathologist that Gobble had retained, Dr. George McCormick, withdrew
from the case because of a scheduling conflict. Gobble's counsel cited
to no specific testimony the expert was expected to present at trial.
(C. 207.) At the hearing on the motion, the circuit court questioned
counsel as to why he had waited so long to request the continuance and
why he had not spoken to the State's pathologist. After noting that
the court had previously informed counsel to be prepared to try the
case in August, that they should work diligently, and that they should
not ask for a continuance for an expert at the last minute, the
circuit court denied the motion.
“ ‘[I]n Alabama, our courts have always held it is
discretionary with the trial court whether it should halt or suspend
the trial to enable a party to secure or produce witness in court․
And, in the exercise of that discretion the trial court is not to be
reversed save for gross abuse of discretion.’ Alonzo v. State ex rel.
Booth, 283 Ala. 607, 610, 219 So.2d 858, 861, cert. denied, 396 U.S.
931, 90 S.Ct. 269, 24 L.Ed.2d 229 (1969). In Ex parte Saranthus, 501
So.2d 1256 (Ala.1986), the Alabama Supreme Court addressed the issue
of a pretrial continuance:
“ ‘A motion for a continuance is addressed to the
discretion of the court and the court's ruling on it will not be
disturbed unless there is an abuse of discretion. Fletcher v. State,
291 Ala. 67, 277 So.2d 882 (1973). If the following principles are
satisfied, a trial court should grant a motion for continuance on the
ground that a witness or evidence is absent: (1) the expected evidence
must be material and competent; (2) there must be a probability that
the evidence will be forthcoming if the case is continued; and (3) the
moving party must have exercised due diligence to secure the evidence.
Knowles v. Blue, 209 Ala. 27, 32, 95 So. 481, 485-86 (1923).’
“Saranthus, 501 So.2d at 1257. “ ‘There are no
mechanical tests for deciding when a denial of a continuance is so
arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.” Unqar
v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921
(1964).’ Glass v. State, 557 So.2d 845, 848 (Ala.Cr.App.1990).
“ ‘The reversal of a conviction because of the
refusal of the trial judge to grant a continuance requires “a positive
demonstration of abuse of judicial discretion.” Clayton v. State, 45
Ala.App. 127, 129, 226 So.2d 671, 672 (1969).’ Beauregard v. State,
372 So.2d 37, 43 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979).
A ‘positive demonstration of abuse of judicial discretion’ is required
even where the refusal to grant the continuance is ‘somewhat harsh’
and this Court does not ‘condone like conduct in future similar
circumstances.’ Hays v. State, 518 So.2d 749, 759 (Ala.Cr.App.1985),
affirmed in part, reversed on other grounds, 518 So.2d 768 (Ala.1986),
cert. denied, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 262 (1988).”
McGlown v. State, 598 So.2d 1027, 1028-29
“ ‘Trial judges necessarily require a great deal of
latitude in scheduling trials. Not the least of their problems is that
of assembling the witnesses, lawyers, and jurors at the same place at
the same time, and this burdens counsels against continuances except
for compelling reasons. Consequently, broad discretion must be granted
trial courts on matters of continuances.’ “
Price v. State, 725 So.2d 1003, 1061
(Ala.Crim.App.1997), quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103
S.Ct. 1610, 75 L.Ed.2d 610 (1983). See also Sullivan v. State, 939
So.2d 58, 66 (Ala.Crim.App.2006) (“ ‘As a general rule, continuances
are not favored,’ In re R.F., 656 So.2d 1237, 1238 (Ala.Civ.App.1995),
and ‘[o]nly rarely will [an] appellate court find an abuse of
discretion’ in the denial of a motion for a continuance.”).
In this case, Gobble did not inform the court of
the content of the expert's expected testimony, did not attempt to
reschedule Dr. McCormick, and did not inform the court what evidence,
if any, a new pathologist could present at trial. Also, the circuit
court had repeatedly stressed that counsel should be ready to proceed
with the trial in a timely fashion and should not ask for
continuances. On one occasion he informed the attorneys that he would
not be granting a last-minute continuance to obtain an expert's
testimony. Also, on cross-examination defense counsel questioned Dr.
Salne about Phoenix's medical condition. Dr. Salne testified that in
his opinion Phoenix did not have brittle-bone disease.
Based on the facts in this case we cannot say that
the circuit court abused its considerable discretion in denying
Gobble's motion for a continuance to secure a second pathologist. See
Gobble next argues that the circuit court erred in
denying her motion to suppress statements she had made to
law-enforcement personnel. She cites several grounds in support of
In reviewing a circuit court's ruling on a motion
to suppress a confession we apply the standard articulated by the
Alabama Supreme Court in McLeod v. State, 718 So.2d 727 (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
“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, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961);
Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968).
“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, 18 S.Ct. 183, 42 L.Ed. 568
(1897). In Culombe, 367 U.S. at 602, 81 S.Ct. at 1879, 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).
“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, 89 S.Ct. 1138, 1139-40, 22 L.Ed.2d 433 (1969);
Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20
L.Ed.2d 77 (1968); see Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct.
189, 191, 19 L.Ed.2d 35 (1967). Alabama courts have also held that a
court must consider the totality of the circumstances to determine if
the defendant's will was overborne by coercion or inducement. See Ex
parte Matthews, 601 So.2d 52, 54 (Ala.) (stating that a court must
analyze a confession by looking at the totality of the circumstances),
cert. denied, 505 U.S. 1206, 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992);
Jackson v. State, 562 So.2d 1373, 1380 (Ala.Crim.App.1990) (stating
that, to admit a confession, a court must determine that the
defendant's will was not overborne by pressures and circumstances
swirling around him); Eakes v. State, 387 So.2d 855, 859
(Ala.Crim.App.1978) (stating that the true test to be employed is
‘whether the defendant's will was overborne at the time he
718 So.2d at 729 (footnote omitted).
First, Gobble argues that her statements were
involuntary because, she says, she was intimidated and threatened by
Before trial, Gobble moved to suppress her
statements, arguing that she did not knowingly, intelligently, and
voluntarily waive her Miranda3
rights. (C. 209.) At the suppression hearing she also argued that the
statements were coerced because, she says, she was intimidated by
At the suppression hearing, Officer McCord
testified that he interviewed Gobble twice on September 154
and once on September 16 after he had attended Phoenix's autopsy. He
said that all three times Gobble was read her Miranda rights from the
form and that she signed a waiver-of-rights form. McCord further
testified that it was his opinion that Gobble was not under the
influence of any drug when she made the statements, that he did not
threaten her in order to secure a statement, and that he did not offer
her any reward to secure a statement.
“The test for the voluntariness of an extrajudicial
confession or an inculpatory statement is whether, in light of all the
surrounding circumstances, the statement was free from inducement,
threat, or promise, either expressed or implied, that would have
produced in the mind of the accused any fear of harm or hope of
Ex parte Jackson, 836 So.2d 979, 982-83 (Ala.2002).
We have reviewed the videotapes of Gobble's
statements and we find no evidence that Gobble was threatened or
coerced into making the statements. Also, at the end of the last
statement Gobble states that she was not threatened or coerced.
Gobble's statements were not due to be suppressed on this basis.
Next, Gobble contends that the circuit court erred
in failing to instruct the jury that the ultimate decision as to
whether her statements were voluntary rested with the jury. She cites
Bush v. State, 523 So.2d 538 (Ala.Crim.App.1988).
Initially, we note that Gobble did not request this
instruction; therefore, we review this claim for plain error. See Rule
In Bush, we held that “it was improper for the
trial court to disclose to the jury that it had made a preliminary
determination” and also to tell the jury that it could not disregard
that finding. 523 So.2d at 559. In reversing the conviction, we found
that the instructions “had the effect of erroneously relieving the
jury of determining the voluntariness of the confessions than it
otherwise would have, had it been properly charged.” 523 So.2d at 560.
However, in this case the court did not give any
instruction on the voluntariness of Gobble's statements. The Alabama
Supreme Court in Ex parte Trawick, 698 So.2d 162, 174 (Ala.1997),
affirmed the conviction despite the trial court's failure to sua
sponte give an instruction on the voluntariness of a defendant's
confession and stated:
“Trawick next argues that the trial court erred to
reversal by failing to instruct that the jury, and not the trial
court, was to make the ultimate decision regarding the voluntariness
of Trawick's confession. After a pre-trial hearing on the
voluntariness of the confession, the trial court ruled that it was
admissible, and the confession then became central to the State's case
against Trawick. Trawick contends that, by allowing the confession
into evidence over his objection, the trial court implied to the jury
that the confession was voluntary and proper. Trawick concludes that
the trial court was required to instruct the jury that there was still
an issue of fact as to the voluntariness of the confession, and he
contends that its failure to do so was reversible error.
“This Court has recognized that a trial court
cannot lawfully prevent a jury from making a determination of
voluntariness as affecting the weight and credibility to be given a
defendant's statements. Ex parte Singleton, 465 So.2d 443 (Ala.1985).
In Singleton, the trial judge specifically told the jury that he had
already determined that the defendant's statement was voluntary and
therefore admissible; however, the judge also clearly instructed that
it was the jury that was to ultimately determine whether the
confession was voluntary. This Court ruled that these comments did not
imply that the jury should accept or believe the defendant's
confession merely because it had been ruled admissible.
“In this case, there is even less to indicate that
the trial court in any way implied to the jury that Trawick's
confession was voluntary merely because it was admissible. In
admitting Trawick's confession into evidence, the trial court did not
tell the jury that it had previously ruled upon the voluntariness of
Trawick's confession. The trial court properly instructed the jury
that the court would rule only as to whether evidence could be
admitted into the case and that the jury would be the sole and
exclusive judge of the truth of the evidence that was admitted. The
trial court specifically stated that it did not get involved in the
jury's ‘job’ as the finder of fact. We find no plain error in the
trial court's instruction.”
698 So.2d at 174. See also Woods v. State, 789
So.2d 896 (Ala.Crim.App.1999); Minor v. State, 780 So.2d 707
We find no plain error in the circuit court's
failure to sua sponte give an instruction concerning the ultimate
decision on the voluntariness of Gobble's statements to police. See
Third, Gobble argues that the State improperly
commented on her Fifth Amendment right against self-incrimination.
Specifically, Gobble asserts that the circuit court exposed the jury
to comments about her right to remain silent when it admitted her
third statement to police. She relies on of Griffin v. California, 380
U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and Doyle v. Ohio, 426
U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
During questioning, Officer McCord told Gobble:
“This is your last opportunity. And if you .. if you get the ․ if it
happens to go in front of [sic] jury and you haven't spoken or haven't
said anything o.k ․ then they're gonna be left to make their own
assumption as to what happened, o.k.?” (Supp. R. 222.)5
Sometime later during the same interview, Officer McCord said:
“Because your attorney more than likely.. I can't tell ya what ․
exactly what an attorney will do ․ more'n likely he's ain't gonna let
you get on a stand and testify.” (Supp. R. 231.)
There was a lengthy discussion concerning this
issue at trial. The prosecutor attempted to introduce a transcript of
the statement that contained this reference, the third statement, that
his office had prepared. That transcript redacted the now challenged
comments. However, when the State began to read the transcript into
evidence, Gobble objected and argued that the transcript was not the
same as the videotaped statement. Gobble then argued that the entire
statement should be suppressed. Defense counsel compared the video and
the transcript and agreed that the transcript was the same as the
videotape. The circuit court gave Gobble the option of either having
the redacted transcript read into evidence or having the videotape of
the statement played to the jury. The following occurred:
“[Defense counsel]: The new transcript was
acceptable with respect to the transcription, Your Honor. But we have
to object to using that in the manner that the State has been using
it, because there is such a gross difference between the emotionally
charged interrogation and what [the prosecutors] are doing here in the
courtroom. What the jury has to evaluate is both Ms. Gobble's
responses and how she got there.
“There was a lot of yelling, a lot of intimidation,
a lot of bearing down on the video in the last part of the
interrogation. And that to us is crucial.
“The Court: So now you want it played. Yesterday,
you didn't. But now you do?
“[Defense counsel]: Yes, sir.
“[The Court]: All right. What is the response from
“[Prosecutor]: Judge, once again, Your Honor, we're
back to the same point they want it played. I have no objection,
except here's the problem, it's the State's contention they are just
trying to get error in. Because the first time-and it's going to come
out, Judge, when you play the tape, I'd like to use an example on page
twelve, Investigator McCord says, ‘[B]ecause your attorney more than
likely-I can't tell you what-exactly what an attorney will do-but more
than likely isn't going to let you get on the stand and testify,
because he don't want you on the stand to testify, okay.’ That is
clearly not admissible. And that will be reversed, if that is allowed
to be played. So they are inviting error.
“[Defense counsel]: Judge, the error is already in.
The error occurred when the investigator intimidated and threatened
and harassed her throughout the statement. Once he does that-that
lasts throughout the whole statement.
“The Court: Okay. I understand. And I am ready to
rule, okay. We either show the whole tape as it is, or we put the
transcriptions in with the redactions that don't help your client one
way or the other. You've got your choice.
“[Defense counsel]: Judge, I am going to leave that
up to the Court. Our position is we object to any further showing of
the videotape or statements. And we ask the Court to reconsider
granting our motion to suppress the statements and instruct the jury
to disregard it.
“[Prosecutor]: The tapes themselves show she says
she wasn't coerced or threatened. She says that-
“The Court: All right. We will play the whole
If error occurred it was invited by defense
counsel. Invited error applies to death-penalty cases and operates to
waive the error unless “it rises to the level of plain error.” Ex
parte Bankhead, 585 So.2d 112, 126 (Ala.1991). Defense counsel viewed
the entire contents of the videotape as supporting his proposition
that his client had been pressured by police to talk about the events
leading to her son's death.
Also, Doyle has no application because Gobble did
not remain silent but chose to speak with police.
“The Fifth Amendment provides, in relevant part,
that ‘[n]o person ․ shall be compelled in any criminal case to be a
witness against himself[.]’ U.S. Const. amend. V. This provision
applies to the states via the Due Process Clause of the Fourteenth
Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d
653 (1964). The Supreme Court has determined that this provision
‘forbids either comment by the prosecution on the accused's silence or
instructions by the court that such silence is evidence of guilt.’
Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d
106 (1965). Likewise, ‘it would be fundamentally unfair and a
deprivation of due process to allow the arrested person's silence to
be used to impeach an explanation subsequently offered at trial.’
Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
Nevertheless, Doyle does not apply where the accused actually speaks
with the police. ‘Such questioning makes no unfair use of silence
because a defendant who voluntarily speaks after receiving Miranda
warnings has not been induced to remain silent. As to the subject
matter of his statements, the defendant has not remained silent at
all.’ Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 65
L.Ed.2d 222 (1980).”
Woodard v. McKee, (No. 06-12219, April 13, 2009)
(E.D.Mich.2009) (not reported in F.Supp.).
We cannot say that Gobble's substantial rights were
adversely affected. See Rule 45A, Ala.R.App.P. Therefore, we find no
plain error in regard to this claim.
Gobble next contends that the circuit court erred
in allowing the State to use typed transcriptions of the videotaped
statements, which, she argues, were not entirely accurate.
As stated above, the record shows that transcripts
of all three statements were compiled by the sheriff's department. The
district attorney's office also made a transcript of the third
statement. Transcripts of the first two statements were introduced,
but only a portion of the transcript of the third statement was read
into evidence. At the suppression hearing, Officer McCord testified
that he was present for all three of Gobble's statements and that the
transcripts that had been prepared were accurate. We have reviewed the
videotapes and the transcripts of the statements and we likewise
conclude that they are accurate. The court also instructed the jury to
rely on the videotapes and not the transcripts of the statements.
“The fact that a recording is partially inaudible
in those portions likely to contain material statements does not
require its exclusion from evidence unless the recording is the only
evidence offered as to the statements.' Austin v. State, 354 So.2d 40,
43 (Ala.Cr.App.1977), 354 So.2d 40 (Ala.1978). See also Boulden v.
State, 278 Ala. 437, 179 So.2d 20, 33 (1965) (no reversible error in
admitting transcriptions of tape recordings, where the trial judge
played the tapes outside the presence of the jury and decided that
they were sufficiently audible to be played and, further, that the
appellant could not have been hurt by the playing of the tapes in
light of the testimony of the officer to whom he confessed.).”
Hill v. State, 516 So.2d 876, 878
(Ala.Crim.App.1987). “Moreover, the appellant's argument that the
transcription was not a verbatim reproduction of a partially audible
tape does not address the admissibility of the transcription, but
rather the weight it would be given by the jury.” Clark v. State, 562
So.2d 620, 624 (Ala.Crim.App.1989).
“ ‘Where the tape-recorded statement or
conversation is missing or unavailable, “[a] typewritten transcript of
[the recording] is admissible where the officer who listened to the
conversation at the time of the recording testifies that the
transcript accurately reflect[s] the conversation.” Hawkins [v. State
], 443 So.2d [1312,] 1314-15 [ (Ala.Crim.App.1983) ]. We have also
permitted the admission of a transcript where the tape recording was
inaudible in places. Thornton v. State, 570 So.2d 762
(Ala.Cr.App.1990); Hill v. State, 516 So.2d 876 (Ala.Cr.App.1987);
Dawkins v. State, 455 So.2d 220 (Ala.Cr.App.1984).
“ ‘Although the tape recording in the present case
was neither unavailable nor inaudible, we see no reason why a
different rule should apply. Lieutenant Scogin was in a position to
establish the reliability and accuracy of the transcript, see Gwin v.
State, 425 So.2d 500, 505 (Ala.Cr.App.1982), cert. quashed, 425 So.2d
510 (Ala.1983), and did so. Furthermore, the transcript was merely
cumulative evidence, the admission of which rests within the
discretion of the trial court. White v. State, 587 So.2d 1218, 1228
(Ala.Cr.App.1990), affirmed, 587 So.2d 1236 (Ala.1991); Gainer v.
State, 553 So.2d 673, 684 (Ala.Cr.App.1989). Consequently, the
transcript was properly admitted for the limited purposes advanced by
the prosecution.’ “
Battle v. State, 645 So.2d 344, 346-47
(Ala.Crim.App.1994), quoting Jackson v. State, 594 So.2d 1289, 1297
(Ala.Crim.App.1991) (footnote omitted).
The circuit court committed no error in allowing
the use of transcripts of Gobble's statements to aid the jury. See
Last, Gobble argues that the State violated the
circuit court's discovery order by not timely disclosing the
transcript of the third statement that had been prepared by the
district attorney's office. Gobble never objected on this ground at
trial; therefore, we review this claim for plain error. See Rule 45A,
Ala.R.App.P. Only a portion of the transcript of the third statement
was read to the jury. Also, Gobble was given access to the videotape
of the statement. To establish reversible error for a discovery
violation “the accused must show prejudice.” Smith v. State, 698 So.2d
189, 207 (Ala.Crim.App.1996). See also Morrison v. State, 601 So.2d
165 (Ala.Crim.App.1992). Gobble can show no prejudice in regard to
this claim; thus, there is no plain error.
In conclusion, we hold that the circuit court
correctly allowed Gobble's three statements to be received into
Gobble next argues that the prosecutor improperly
used voir dire as an opportunity to argue its case. Specifically, she
asserts that the prosecutor exceeded the scope of proper voir dire and
violated Rule 18.4(d), Ala.R.Crim.P.
Gobble made no objection to the court's method of
handling the voir dire examination of the prospective jurors; thus, we
review this claim for plain error. See Rule 45A, Ala.R.App.P.
The record shows that the circuit court allowed the
prosecutor to question the prospective jurors about information that
would be admitted during trial.
Rule 18.4(d), Ala.R.Crim.P., provides: “Voir dire
examination of prospective jurors shall be limited to inquiries
directed to basis for challenge for cause or for obtaining information
enabling the parties to knowledgeably exercise their strikes.”
“ ‘In selecting a jury for a particular case, “the
nature, variety, and extent of the questions that should be asked
prospective jurors” must be left largely within the sound discretion
of the trial court. Peoples v. State, 375 So.2d 561
(Ala.Crim.App.1979). In other words, the scope of the voir dire
examination of the jury venire is within the broad discretion of the
trial court. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844 (1974),
cert. denied, 293 Ala. 746, 309 So.2d 850 (1975); Witherspoon v.
State, 356 So.2d 743 (Ala.Crim.App.1978); Ervin v. State, 399 So.2d
894 (Ala.Crim.App.), cert. denied, 399 So.2d 899 (Ala.1981).’ “
Hall v. State, 820 So.2d 113, 124
(Ala.Crim.App.1999), quoting Bracewell v. State, 447 So.2d 815, 821
(Ala.Crim.App.1983). “It is well settled that the process of voir dire
examination remains within the sound discretion of the trial court.”
State v. Watts, [Ms. CR-08-0728, October 9, 2009] --- So.3d ----, ----
There is no indication that the circuit court
abused its discretion in its method of handling the voir dire
examination of the prospective jurors.
Gobble next argues that the prosecutor violated
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),
and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89
(1994), by using its peremptory strikes to remove black prospective
jurors and male prospective jurors from Gobble's jury.
In Batson, the United States Supreme Court held
that it was violation of the Equal Protection Clause to strike a black
prospective juror from a black defendant's jury based solely on the
juror's race. This holding was extended to gender-based strikes in
The record shows that not only did Gobble not
object but that the following occurred:
“The Court: Do you have any other motions before we
sit the jury?
“[Defense counsel]: No, sir. We don't have a
(R. 210.) In Calhoun v. State, 932 So.2d 923
(Ala.Crim.App.2005), we held that counsel could waive a Batson
objection. Because Gobble did not make a Batson motion, we review this
claim for plain error. See Rule 45A, Ala.R.App.P. As the Alabama
Supreme Court stated in Ex parte Trawick, 698 So.2d 162 (Ala.1997):
“A party making a Batson or J.E.B. challenge bears
the burden of proving a prima facie case of discrimination and, in the
absence of such proof, the prosecution is not required to state its
reasons for its peremptory challenges. Ex parte Branch, 526 So.2d 609
(Ala.1987); Ex parte Bird, 594 So.2d 676 (Ala.1991). In Branch, this
Court discussed a number of relevant factors a defendant could submit
in attempting 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, stated in a manner applicable to
gender discrimination, are as follows: (1) evidence that the jurors in
question shared only the characteristic of gender and were in all
other respects as heterogenous as the community as a whole; (2) a
pattern of strikes against jurors of one gender on the particular
venire; (3) the past conduct of the state's attorney in using
peremptory challenges to strike members of one 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 gender.”
698 So.2d at 167-68. “ ‘To find plain error in the
context of a Batson or J.E.B. violation, the record must supply an
inference that the prosecutor was ‘engaged in the practice of
purposeful discrimination.’ Ex parte Watkins, 509 So.2d 1074, 1076
(Ala.1987).” Blackmon v. State, 7 So.3d 397, 425 (Ala.Crim.App.2005)
(opinion on application for rehearing).
Here, the supplemental record contains the venire
list, which details the prospective jurors' demographic information.
Although the strike list is also contained in the record, the juror
identification numbers on the strike list do not match the juror
identification numbers on the venire list. A second strike list is
contained in the record that lists the numbers and names of the jurors
whom the State struck for cause. However, when, during the voir dire
examination, a juror would respond to a question, the record, on
numerous occasions, fails to identify the juror speaking but merely
states “prospective juror.”
The State did strike five prospective black jurors.
The record shows that prospective juror E.C.,6
a black female, indicated twice during questioning that she was not
prepared to serve on a capital murder jury. “The peremptory strike of
a prospective juror who had expressed reservations about the death
penalty was sufficiently race-neutral so as to not violate Batson.”
Acklin v. State, 790 So.2d 975, 988 (Ala.Crim.App.2000). Juror M.B., a
black female, indicated that her nephew had been in trouble with the
law and had served time in jail, that she had been robbed at gun
point, and that her son had also been in trouble with the law.
“Striking a prospective juror because a member of the juror's family
has been convicted of a crime is a valid race-neutral reason under
Batson.” Lewis v. State, 741 So.2d 452, 456 (Ala.Crim.App.1999). Juror
K.D., a black female, responded that she did not wish to serve because
her cousin had a capital-murder charge pending against him. A juror's
indication that he or she does not wish to serve is a valid
race-neutral reason. See Council v. State, 682 So.2d 495
(Ala.Crim.App.1996). However, because of the failure of the record to
consistently identify the jurors it is not as apparent why the State
struck the other two black males.7
The record does show that white and black prospective jurors were not
subjected to disparate treatment during voir dire questioning. Nor is
there evidence of disparate treatment of jurors who shared similar
characteristics. “Numbers alone are not sufficient to establish a
prima facie case of discrimination.” Blackmon v. State, 7 So.3d 397
(Ala.Crim.App.2005). We cannot say that the record establishes a prima
facie case of a Batson violation.
Moreover, the record does not reflect a prima facie
case of gender discrimination. The record shows that the state struck
five women and seven men8
and that Gobble's jury was composed of seven males and five females.
Gobble asserts that the juror's occupations show discrimination.
However, the record does not contain any indication as to occupations
of the jurors. There is nothing to establish a prima facie case of
gender discrimination. Accordingly, we find no plain error. See Ex
parte Watkins, supra.
Gobble next argues that the circuit court erred in
refusing to dismiss juror F.B. after it was disclosed that F.B. had
contact with Officer McCord. Specifically, Gobble contends that her
due-process rights were violated by the unauthorized contact. She
cites Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424
(1965), and Ex parte Pierce, 851 So.2d 606 (Ala.2000), to support her
contention that the unauthorized contact entitles her to a new trial.
The record shows that during a recess the
prosecutor informed the court that he had seen F.B. talking to Officer
McCord in the hallway of the courthouse. The circuit court then
inquired into the substance of their conversation. F.B. told the court
that they had talked about nothing related to the case but that he had
told Officer McCord that he needed a haircut and Officer McCord had
responded that he worked in the drug unit. The circuit court
instructed F.B. not to talk to Officer McCord. The following then
“[Defense counsel]: Okay. The fact that you have
carried on a conversation, apparently, y'all seem to like each other a
little bit on a friendly basis, would that-what effect, if any, would
that have on your weighing his testimony?
“[F.B.]: None, sir.
“[Defense counsel]: Okay. You are sure? This is a
capital murder case-
“[F.B.]: I understand sir. No, sir. No, sir. No,
“[Defense counsel]: You understand it is a capital
“[F.B.]: I understand what it is, sir.
“[Defense counsel]: Okay. And you are not going to
give his testimony, Mr. McCord's testimony, any greater weight than if
you had not conversed with him?
“[F.B.]: No, sir. what he says or what he did, I
didn't fall off a turnip truck yesterday.”
(R. 372-73.) At the time this encounter was brought
to the court's attention Gobble did not request that F.B. be removed
and replaced with one of the alternates, nor did she object to the
circuit court's handling of the matter. Only when the circuit court
was about to release the alternates did Gobble move that F.B. be
removed and replaced with an alternate. At this late point in the
trial the circuit court denied the motion. (R. 823.)
In Minor v. State, 914 So.2d 372
(Ala.Crim.App.2004), this Court considered a similar issue and stated:
“In both Turner [v. Louisiana, 379 U.S. 466, 85
S.Ct. 546, 13 L.Ed.2d 424 (1965),] and Ex parte Pierce, [851 So.2d 606
(Ala.2000),] the jurors had close and continual contact with key
prosecution witnesses throughout the trial; specifically, the
law-enforcement officers who were in charge of taking care of the
jury, who transported the jurors to and from their lodging each day,
who ate meals with the jurors, and who conversed with the jurors on a
regular basis throughout the trial, were key prosecution witnesses in
both Turner and Ex parte Pierce. Based on this situation, the United
States Supreme Court held in Turner, and the Alabama Supreme Court
held in Ex parte Pierce, that the defendant's due-process right to a
fair trial by an impartial jury was violated and that prejudice could
be presumed from such close and continual contact even if there was no
evidence to show that the law-enforcement officers had discussed the
facts of the case with the jurors. Specifically, the Court in Turner
stated that ‘it would be blinking reality not to recognize the extreme
prejudice inherent in this continual association throughout the trial
between the jurors and these two key witnesses for the prosecution.’
379 U.S. at 473, 85 S.Ct. 546, 13 L.Ed.2d 424.”
914 So.2d at 412-13.
In both Turner and Pierce, prejudice was presumed
because of the close and continual contact between the key witness and
a juror. Pierce, 851 So.2d at 620. However, in this case the contact
was not close and continual. “[P]rejudice cannot be presumed under the
facts in this case as it was in Turner and Ex parte Pierce; rather, as
this Court held in Myers v. State, 677 So.2d 807, 810
(Ala.Crim.App.1995), ‘[i]n order to be entitled to [relief] due to
contact by a juror with witnesses or others, prejudice must be shown.’
“ Minor, 914 So.2d at 413.
“In order to show prejudice in a case such as this
one involving misconduct by a non-juror in speaking to a juror, a
defendant must establish only that the verdict might have been
affected by the juror's outside contact with the other person. See
Roan v. State, 225 Ala. 428, 435, 143 So. 454, 460 (1932) (‘The test
of vitiating influence is not that it did influence a member of the
jury to act without the evidence, but that it might have unlawfully
influenced that juror and others with whom he deliberated, and might
have unlawfully influenced its verdict rendered.’). See also Ex parte
Dobyne, 805 So.2d 763, 771 (Ala.2001) (citing Roan in the context of
juror misconduct, specifically the failure of a juror to properly
respond to questions on voir dire). However, this
might-have-influenced-the-verdict standard nevertheless requires more
than a mere showing that the juror was exposed to outside influences.
See Ex parte Apicella, 809 So.2d 865 (Ala.2001). In Ex parte Apicella,
the Alabama Supreme Court, addressing a juror-misconduct claim (a
juror spoke with an attorney not associated with the case), explained
the standard as follows:
“ ‘On its face, this standard would require nothing
more than that the defendant establish that juror misconduct occurred.
As Apicella argues, the word “might” encompasses the entire realm of
possibility and the court cannot rule out all possible scenarios in
which the jury's verdict might have been affected.
“ ‘However, as other Alabama cases establish, more
is required of the defendant. In Reed v. State, 547 So.2d 596, 598
(Ala.1989), this Court addressed a similar case of juror misconduct:
“ ‘ “We begin by noting that no single fact or
circumstance will determine whether the verdict rendered in a given
case might have been unlawfully influenced by a juror's [misconduct].
Rather, it is a case's own peculiar set of circumstances that will
decide the issue. In this case, it is undisputed that the juror told
none of the other members of the jury of her experiment until after
the verdict had been reached. While the question of whether she might
have been unlawfully influenced by the experiment still remains, the
juror testified at the post-trial hearing on the defendant's motion
for a new trial that her vote had not been affected by the
“ ‘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. In this case, as in Reed, the
effect of the misconduct was confined to the juror who committed the
misconduct. The Reed Court stated:
“ ‘ “We cannot agree with the defendant that the
verdict rendered might have been unlawfully influenced, where the
results of the [misconduct] were known only to the one juror who
[committed the misconduct] and that juror remained unaffected by the
“ '547 So.2d at 598. Because no evidence indicates
that [the juror] shared the content of his conversation with the other
members of the jury and because no evidence indicates that [the
juror's] own vote was affected, we cannot say the trial court abused
its discretion in finding no actual prejudice.”
Minor, 914 So.2d at 413-14, quoting in part, Ex
parte Apicella, 809 So.2d 865, 871 (Ala.2001).
There is no indication that “the jury's decision
might have been affected,” by F.B.'s limited contact with Officer
McCord. Accordingly, we find no reversible error. See Minor, supra.
Gobble next argues that the circuit court erred in
allowing what she described as inadmissible character evidence to be
admitted in the guilt phase of her trial because, she asserts, the
evidence was not relevant and was unfairly prejudicial.
Rule 401, Ala.R.Evid., defines “relevant evidence”
as “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Rule
402, Ala.R.Evid., further provides that “[a]ll relevant evidence is
admissible, except as otherwise provided by the Constitution of the
United States or that of the State of Alabama, by statute, by these
rules, or by other rules applicable in the courts of this State.”
“ ‘Alabama recognizes a liberal test of relevancy,
which states that evidence is admissible “if it has any tendency to
lead in logic to make the existence of the fact for which it is
offered more or less probable than it would be without the evidence.”
‘ Hayes [v. State, 717 So.2d  at 36 [Ala.Crim.App.1997) ], quoting
C. Gamble, Gamble's Alabama Evidence § 401(b). ‘[A] fact is admissible
against a relevancy challenge if it has any probative value, however[
] slight, upon a matter in the case.’ Knotts v. State, 686 So.2d 431,
468 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996). Relevant
evidence should be excluded only ‘if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
Gavin v. State, 891 So.2d 907, 963-64
First, Gobble asserts that evidence that she
dressed in black clothing, dyed her hair black, and referred to
herself as “Fallen Angel,” was not admissible for any purpose because
it was irrelevant. Gobble also asserts that evidence that her
boyfriend, Samuel Hunter, after he started dating Gobble, began
dressing in black and dyed his hair black was likewise irrelevant.
The State argues in its brief to this Court that
this evidence was admissible to show that Gobble was the dominant
person in her relationship with Hunter. Gobble testified that she was
afraid of Hunter, that he was abusive, and that he was the dominant
person in the relationship. Gobble's father and stepmother also
testified that Hunter was the dominant partner in his relationship
with Gobble. This testimony was relevant and was correctly received
into evidence. See Gavin.
Second, Gobble argues that the circuit court erred
in allowing the State to introduce evidence that she had been involved
with a individual named Wolf who referred to himself as a vampire. We
note that Gobble presented some of this evidence in documents admitted
as defense exhibits. Also, the State argues in its brief to this Court
that Gobble testified that she was a loving mother who would not
abandon her children and that she chose to live with Hunter because
she loved him and that information that she had been involved with
another man and not living with her children was relevant to rebut
“As the United States Supreme Court stated in Davis
v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974):
“ ‘Cross-examination is the principal means by
which the believability of a witness and the truth of his testimony
are tested. Subject always to the broad discretion of a trial judge to
preclude repetitive and unduly harassing interrogation, the
cross-examiner is not only permitted to delve into the witness' story
to test the witness' perceptions and memory, but the cross-examiner
has traditionally been allowed to impeach, i.e., discredit, the
“415 U.S. at 316, 415 U.S. 308, 94 S.Ct. 1105, 39
L.Ed.2d 347. “ ‘The latitude and extent of cross-examination, of
necessity, is a matter within the sound discretion of the trial court,
and, in the absence of prejudicial abuse, it is not reviewable on
appeal.” Turner v. State, 289 Ala. 97, 100, 265 So.2d 883 (1972).’
Ashurst v. State, 462 So.2d 999, 1008-09 (Ala.Crim.App.1984).”
Marshall v. State, 20 So.3d 830, 835
(Ala.Crim.App.2008). “Where a witness' testimony is of major
importance and is strongly adverse to the party against whom he has
testified, the usual discretion of a trial court has a narrow range,
and it generally is required to allow proof of any important fact
indicating bias of the witness.” Proctor v. State, 331 So.2d 828, 830
“In the discharge of its fact finding functions the
jury's search for the truth includes the paramount right to consider a
witness's motivation, and any evidence testing ‘his interest, bias or
prejudice’ so as to ‘illustrate or impeach the accuracy of his
testimony’ is a competent, material and relevant subject of
cross-examination, and the jury's right to be given such evidence is,
of itself, part of the fact finding process. Green v. State, [254 Ala.
471, 64 So.2d 84 (1953) ].”
Ex parte Brooks, 393 So.2d 486, 487-88 (Ala.1980).
“ ‘[W]hen the accused takes the stand to testify in
his own behalf, he does so in a dual capacity-(1) as the accused and
(2) as a witness. In his capacity as a witness his credibility may be
impeached in the same way or ways in which the credibility of any
other witness may be impeached. Stone v. State, 208 Ala. 50, 93 So.
706 [ (1922) ]; Pitts v. State, 261 Ala. 314, 74 So.2d 232 [ (1954) ].
“A defendant, who testifies for himself as a witness, may be impeached
in the same manner as other witnesses, by showing that he has been
convicted of a crime involving moral turpitude, or that he has made
contradictory statements, or that he is a person of bad character.” ‘
Fisher v. State, 57 Ala.App. 310, 328 So.2d 311,
317 (Ala.Crim.App.1976), quoting Chambers v. State, 264 Ala. 8, 10, 84
So. 342, 343-44 (1935).
Rule 611(b), Ala.R.Evid., states: “The right to
cross-examine a witness extends to any matter relevant to any issue
and to matters affecting the credibility of the witness.” In
discussing the scope of Rule 611(b), Ala.R.Evid., Professor Gamble
“Rule 611 means that cross-examination generally is
not limited in scope to the matters brought out on the witness' direct
examination. Rather, the cross-examiner may ask two kinds of questions
that fall within the permissible boundaries of cross-examination.
First, any question relevant to the witness's credibility may be
propounded. Additionally, any question is permissible so long as it is
relevant to a material matter in the case. Even if a question is not
otherwise relevant to a material issue in th case, the cross-examiner
may be permitted to propound it if the question is relevant to a
matter brought out by the adverse party during direct examination of
C. Gamble, McElroy's Alabama Evidence, § 136.01
The circuit court did not abuse its discretion in
allowing the prosecutor the leeway to thoroughly cross-examine Gobble.
Third, Gobble asserts that it was error to allow
the State to present evidence concerning her lack of parenting skills
and evidence indicating that she did not volunteer to pay for
Gobble testified on direct examination that
abandonment charges had been filed on her by the Florida DCF.
Certainly, Gobble's parenting skills and her disregard for her son
were critical to the issue of her guilt in this case and were within
the proper scope of cross-examination. See Rule 611(b), Ala.R.Evid.
Next, Gobble argues that it was error to allow the
State to present evidence of her marijuana use. There was no objection
when this testimony was admitted; therefore, we review this claim for
plain error. See Rule 45A, Ala.R.App.P.
Gobble testified on direct examination that she did
not “do drugs.” (R. 635.) On cross-examination the following occurred:
“[Prosecutor]: You told [defense counsel on direct]
that you had never used marijuana. Is that what you said?
“[Gobble]: No. He asked me was I using drugs. And I
“[Prosecutor]: You have used marijuana; correct?
“[Gobble]: Yes, sir, I have tried it.”
(R. 724.) The prosecutor's questions were within
the proper scope of cross-examination and were admissible to impeach
Gobble's credibility. See Rule 611(b), Ala.R.Evid.
Gobble also argues in this section of her brief to
this Court that the circuit court failed to sua sponte give a limiting
instruction on the use of the testimony that Gobble had tried
marijuana. She relies on Ex parte Minor 780 So.2d 796 (Ala.2000).
Because Gobble did not request such as instruction, we review this
claim for plain error. See Rule 45A, Ala.R.App.P.
“In Ex parte Minor, 780 So.2d 796 (Ala.2000), the
Alabama Supreme Court held that it was plain error where the trial
court failed to sua sponte instruct the jury that evidence of the
defendant's prior convictions introduced for impeachment purposes
could not be considered as substantive evidence of the defendant's
guilt of the crime for which he was now on trial. See also Snyder v.
State, 893 So.2d 482 (Ala.2001). However, the holdings in Minor and
Snyder have been repeatedly held to apply only to those cases in which
the defendant testified and the evidence of prior convictions was
admitted for impeachment purposes, and then on a case-by-case basis.
See, e.g., Johnson v. State, [Ms. 1041313, Oct. 6, 2006] --- So. d
---- (Ala.2006); Ex parte Martin, 931 So.2d 759 (Ala.2004); Key v.
State, 891 So.2d 353 (Ala.Crim.App.2002).”
Floyd v. State, [Ms. CR-05-0935, September 28,
2007] --- So.3d ----, ---- (Ala.Crim.App.2007).
No evidence was introduced indicating that Gobble
had any prior convictions. Only a brief reference that Gobble had
“tried marijuana” was made. Also, no undue emphasis was placed on this
evidence. Further, the prior misconduct was not similar to the conduct
underlying the charge on which she was being tried. Accordingly, we
find no plain error in the circuit court's failure to give sua sponte
a limiting instruction on the use of this evidence.
Gobble next argues that the circuit court erred in
not allowing her to call Edgar Parrish and Samuel David Hunter in her
defense. Gobble cites Mosley v. State, 652 So.2d 767
(Ala.Crim.App.1994), in support of her assertion that the circuit
court committed reversible error in not allowing her to call these
In Mosley, this Court held that it was reversible
error to allow a codefendant to invoke his Fifth Amendment right not
to testify without the codefendant's first taking the witness stand in
the presence of the jury.
However, in Biles v. State, 715 So.2d 878
(Ala.Crim.App.1997), we limited our holding in Mosley and stated:
“The Fifth Amendment privilege against
self-incrimination may be invoked by a witness after only the witness
has been sworn and asked a question that would elicit incriminating
evidence if answered. J.D.S. v. State, 587 So.2d 1249
(Ala.Cr.App.1991). Thus, in this case, the trial court improperly
permitted Ms. Biles to ‘take the Fifth’ without taking the stand and
without having been asked a single question. However, the appellant
failed to set out the questions that he intended to ask Ms. Biles and
failed to make an offer of proof as to what he expected her testimony
to prove. Thus, we find the language in Gwin v. State, 425 So.2d 500,
509 (Ala.Cr.App.1982), cert. quashed, 425 So.2d 510 (Ala.1983), to be
“ ‘Error cannot be predicated upon the trial
court's refusal to compel the witness to testify unless the defendant
made an offer of proof showing that the testimony he expected to
elicit from the witness would not have been incriminating. Compare
Murphy v. State, 108 Ala. 10, 18 So. 557 (1895); Patterson v. State,
37 Ala.App. 161, 66 So.2d 191, cert. denied, 259 Ala. 152, 66 So.2d
194 (1953). Since the witness only could have been required to answer
any question which did not tend to incriminate him, but not others,
the defendant should have made an offer of proof. To put the trial
court in error in declining to allow a question to be answered, it
must have been suggested what it was proposed to prove, and how it
would be relevant and competent, unless the question in itself gave
such information.’ “
715 So.2d at 888.
Here, the record shows that before trial Gobble
informed the circuit court that she intended to call her
codefendants-Parrish and Hunter-to testify. Parrish's attorney moved
to quash Parrish's subpoena on Fifth Amendment grounds, and the State
moved to quash both subpoenas. It does not appear the circuit court
ever ruled on the motion to quash. However, during the defense's
presentation of its case Gobble moved to have Parrish and Hunter take
the witness stand. The following occurred:
“The Court: Okay. [Defense counsel], the two
attorneys [for the codefendants] have already informed me ․ that they
will not allow their clients to take the stand. So the motion is
denied. Have you talked to these folks?
“[Defense counsel]: Talked with who? The lawyers?
“The Court: Yeah.
“[Defense counsel]: No. But I think I can put them
on the stand. An then on the record if they want to invoke the Fifth
Amendment, they have to invoke the Fifth Amendment.
“The Court: Well, their attorneys have already
informed me that they are not going to testify.
“[Prosecutor]: Judge, they cannot call a witness
who invokes the Fifth Amendment. The only purpose, Judge is-here's
what they don't tell you what they want to do, [defense counsel] wants
“The Court: Oh, I know what they want to do.”
(C. 753-54.) Counsel made no offer of proof as to
Parrish and Hunter's expected testimony. In fact, counsel stated that
he had not even spoken to Parrish or Hunter.
The circumstances of this case are more analogous
to those presented to this Court in Garner v. State, 606 So.2d 177
(Ala.Crim.App.1992). In Garner, we addressed whether it was error for
the circuit court to not allow a codefendant to testify when the court
knew the codefendant was going to invoke his Fifth Amendment right. In
upholding the circuit court's ruling excluding the codefendant's
testimony, we stated:
“Here, the appellant was not deprived of any
witness on his behalf because this witness was going to assert his
Fifth Amendment right against self-incrimination, and defense counsel
knew this. ‘The trial court may, ex mero motu, exclude improper
evidence at any stage of the trial.’ Chillous v. State, 405 So.2d 58,
“Furthermore, as stated by this court in Hurst v.
State, 397 So.2d 203 (Ala.Cr.App.1981), cert. denied, Ex parte Hurst,
397 So.2d 208 (Ala.1981):
“ ‘It is the court's duty to confine the evidence
to the points in issue in order that the attention of the jury may not
be distracted, or that their minds may not be withdrawn from the main
issue and directed to matters which are foreign or of questionable or
doubtful relevancy. Gulley v. State, 342 So.2d 1362, 1365
“Hurst, 397 So.2d at 207.
“The tactic of defense counsel was to in effect
have the jury draw an inference of guilt from Alexander's exercise of
the right against self-incrimination. Alexander's testimony was
properly excluded in that it ‘would have had no bearing on the case’
nor would it have ‘enlightened the jury as to any material aspect in
the case.’ Hurst, 397 So.2d at 207. The trial court's exclusion of
this witness's testimony was, therefore, proper.
“Moreover, this court in Thomas v. State, 473 So.2d
627 (Ala.Cr.App.1985), stated the general rule when the prosecution
calls an accomplice or another witness to testify for the State,
knowing the witness will invoke the Fifth Amendment.
“ ‘ “It is error for the prosecution to call an
accomplice or another witness to testify for the state if he knows the
witness will invoke the Fifth Amendment.’ N. Chiarkas, Alabama
Criminal Trial Practice 219 (1981). See Busby v. State, 412 So.2d 837
(Ala.Cr.App.1982); Shockley v. State, 335 So.2d 659 (Ala.Cr.App.1975),
affirmed, 335 So.2d 663 (Ala.1976); Allison v. State, 331 So.2d 748
(Ala.Cr.App.), cert. denied, 331 So.2d 751 (Ala.1976).
“ ‘The general rule is stated in Annot., 19
A.L.R.4th 368, 373 (1983):
“ ‘[I]t is improper for the prosecution to call as
a witness one whom it knows will certainly invoke the privilege
against testifying on the ground of self-incrimination, with the sole
purpose or design of having the jury observe that invocation.
Obviously, it is difficult to demonstrate that the prosecution had
this sole purpose or design, and it would be necessary, in any event,
to demonstrate prejudice to the accused in order to effect the
reversal of a conviction.’ “
“Thomas, 473 So.2d 627, 629-30.
“In Thomas, this court held that the defendant's
right to a fair trial was not prejudiced after the State called the
convicted codefendant as a rebuttal witness to testify against the
defendant when there was no evidence that the State called the
co-defendant with the purpose of having the jury observe him invoke
his right against self-incrimination. Furthermore, the State presented
a strong case against the defendant, and the co-defendant was not
extensively examined after the invocation of his right.
“In the instant case the trial judge properly
excluded Alexander's testimony when the trial judge knew defense
counsel's purpose was to have the jury observe Alexander invoke his
right against self-incrimination.”
606 So.2d at 181-82. See also Sanford v. State, 652
So.2d 776 (Ala.Crim.App.1994) (“[I]t was improper for defense counsel,
knowing [the accomplice] planned to invoke the Fifth Amendment, to
call him as a witness and question him in an apparent attempt to have
the jury to draw an inference of his guilty form his assertion of
rights.”); Robinson v. State, 728 So.2d 650, 655 (Ala.Crim.App.1997)
(“[I]t was improper for defense counsel to call [the accomplice] as a
witness, knowing that [the accomplice] planned to invoke the Fifth
Amendment. This was an apparent attempt to have the jury infer [the
accomplice's] guilt from his assertion of rights.”).
For the foregoing reasons, we find no error in the
circuit court's ruling. As the court intimated, counsel's purpose for
calling Parrish and Hunter was clearly for the jury to see them invoke
their Fifth Amendment right to remain silent. Under these
circumstances, we hold that the circuit court committed no reversible
error in excluding Parrish's and Hunter's testimony. See Garner,
Gobble next argues that the circuit court erred in
allowing the admission of what she characterizes as inadmissible
hearsay evidence. She makes several different arguments in this
“Hearsay” is defined in Rule 801(c), 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 of the
First, Gobble argues that it was error to allow the
admission of statements allegedly made by Parrish, Jordan, and Hunter.
Specifically, she asserts that it was error to allow into evidence the
entire videotaped statements she made to police because during
questioning the police referenced statements Parrish and Hunter had
made to them.
Gobble did not raise this issue at trial;
therefore, we review this issue for plain error. See Rule 45A,
The pertinent portion of the transcript of Gobble's
third statement is as follows:
“[Gobble]: I was just patting him on the back,
trying to calm him back down. I put the blanket over him and started
“[McCord]: Ok. About what time was this?
“[Gobble]: I believe it was (inaudible) when I went
in there to pick him up ․
“[McCord]: Look at me.
“[Gobble]: ․ calm him ․ sorry.
“[McCord]: ‘Bout what time?
“[Gobble]: It had to be about 1 o'clock that
“[McCord]: ‘Bout 1 o'clock in the morning?
“[Gobble]: Yes sir.
“[Gobble]: Cause when I went back in there ․
“[McCord]: That's consistent with the patting noise
․ o.k. David says he heard a patting noise ․ he thought it was kinda
rough ․ we asked him did he get up and go check on it ․ no he didn't․”
(Supp. R. 237.) We have thoroughly reviewed all
Gobble's statements to police, and we find no other specific reference
like the one cited above that credits statements her codefendants had
made to police.
First, the above statement was Gobble's third
statement to police. Earlier we discussed that if any error occurred
in the admission of the third statement it was invited by Gobble
because the court gave Gobble the option of either having the
videotape of her interview played to the jury or the redacted
transcript read to the jury. Invited error is waived unless it rises
to the level of plain error. See Snyder v. State, 893 So.2d 488, 518
Also, assuming that the statement was hearsay, its
admission was harmless beyond a reasonable doubt. See Belisle v.
State, 11 So.3d 256, 299 (Ala.Crim.App.2007) (“Any error in the
admission of hearsay testimony was harmless beyond a reasonable doubt
when the testimony is cumulative to other lawfully admitted
testimony.”). Gobble herself testified to similar facts that were the
subject of the hearsay.
Second, Gobble asserts that it was error to allow
the admission of the DCF records relating to Jewell because, she
argues, they contained prejudicial statements indicating that Gobble
had failed to care for her daughter.
These records were first introduced and admitted as
defense exhibits 2 through 5. The State then introduced a similar
exhibit as State's exhibit number 34.
“When one party opens the door to otherwise
inadmissible evidence, the doctrine of ‘curative admissibility’
provides the opposing party with ‘the right to rebut such evidence
with other illegal evidence.’ McElroy's Alabama Evidence, § 14.01, p.
49 (5th ed.1996). ‘[T]he law [is] that even though a party introduces
evidence that may be immaterial or illegal, his opponent has the right
to rebut such evidence and this right is unconditional.’ Clark v.
State, 54 Ala.App. 183, 186, 306 So.2d 51, 54 (1974). “ ‘A party who
has brought out evidence on a certain subject has no valid complaint
as to the trial court's action in allowing his opponent or adversary
to introduce evidence on the same subject.’ “ Hubbard v. State, 471
So.2d 497, 499 (Ala.Crim.App.1984) (quoting Brown v. State, 392 So.2d
1248, 1260 (Ala.Crim.App.1980), cert. denied, 392 So.2d 1266
Ex parte D.L.H., 806 So.2d 1190, 1193 (Ala.2001).
Gobble opened the door to this information; she cannot now complain
that the State's introduction of similar evidence was error.
Also, Gobble testified that her daughter Jewell had
been removed from her custody and she had been charged with the
abandonment of Jewell. “Testimony that may be apparently inadmissible
may be rendered innocuous by subsequent or prior lawful testimony to
the same effect or from which the same facts can be inferred.” Yeomans
v. State, 641 So.2d 1269, 1272 (Ala.Crim.App.1993). “The erroneous
admission of evidence that is merely cumulative is harmless error.”
Dawson v. State, 675 So.2d 897, 900 (Ala.Crim.App.1995).
For these reasons, if error did occur in the
admission of State's exhibit 34, it was harmless. See D.L.H., supra.
Third, Gobble argues that it was error to allow the
admission into evidence of Jewell's medical records because, she
argues, they contained statements to the effect that Gobble had
Even assuming that error did occur, it was
harmless. Gobble admitted during her testimony that the State of
Florida had charged her with abandoning her daughter Jewell. Also, the
record shows that Gobble introduced exhibits from the State of Florida
and the State of Alabama that contained the same statement. “This
Court has held that testimony apparently illegal upon submission may
be rendered prejudicially innocuous by subsequent legal testimony to
the same effect or from which the same facts can be inferred.” Ex
parte Curtis, 502 So.2d 833, 834 (Ala.1986).
Fourth, Gobble argues that the circuit court erred
in allowing the autopsy report to be received into evidence without
the coroner's testifying. Specifically, she argues that the admission
of the autopsy report violates her right to confront her accusers
pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004).
The record shows that during Officer McCord's
testimony the autopsy report was admitted by agreement. (R. 297.)
Officer McCord testified that he was present during the autopsy
conducted by State Medical Examiner Dr. Song W. Wong. Dr. Wong
compiled a report of his autopsy findings. The report indicated that
Phoenix died of head injuries. The report was consistent with Dr.
Salne's testimony. The autopsy report did indicate that Phoenix had
fractured ribs, and Dr. Salne testified that the x-rays at the
hospital did not show fractured ribs but that Phoenix had bruising on
his chest. However, Dr. Salne also testified that “You may not even
start to see rib fractures on a child until they may be several days
old.” (R. 476.) Phoenix's cause of death was not contested.
In Perkins v. State, 897 So.2d 457
(Ala.Crim.App.2004), we addressed whether it was a violation of
Crawford v. Washington to admit an autopsy report without the
coroner's testimony. We stated:
“In Crawford v. Washington, 541 U.S. 36, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held
that the admission of a wife's out-of-court statements to police
officers, regarding an incident in which the defendant, her husband,
allegedly stabbed the victim, violated the Confrontation Clause. The
Supreme Court stated that an out-of-court statement by a witness that
is testimonial is barred under the Confrontation Clause, unless the
witness is unavailable and the defendant had a prior opportunity to
cross-examine the witness, regardless of whether such statement is
deemed reliable by the trial court, abrogating its previous holding in
Ohio v. Roberts [, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)
]. While the Supreme Court applied a stricter standard to the
admission of testimonial hearsay, however, it did not do so with
regard to nontestimonial hearsay, noting:
“ ‘Where nontestimonial hearsay is at issue, it is
wholly consistent with the Framers' design to afford the States
flexibility in their development of hearsay law-as does Roberts, and
as would an approach that exempted such statements from Confrontation
Clause scrutiny altogether.’
“541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at
“Unlike the hearsay in Crawford v. Washington, the
hearsay at issue in this case is nontestimonial in nature-an autopsy
report on the victim, Wysteria Mathews. As the Court noted in White:
‘[w]here [the] proffered hearsay has sufficient guarantees of
reliability to come within a firmly rooted exception to the hearsay
rule, the Confrontation Clause is satisfied.’ 502 U.S. at 356, 112
“Both Alabama and federal caselaw have recognized
that the business records exception is a firmly rooted exception to
the hearsay rule. See, e.g., McNabb v. State, 887 So.2d 929, 969
(Ala.Crim.App.2001); Ohio v. Roberts, 448 U.S. at 66 n. 8, 100 S.Ct.
2531, 65 L.Ed.2d 597. Moreover, under Alabama law, ‘An autopsy report
made in the regular course of business is admissible under the
business records exception.’ 2 Charles W. Gamble, McElroy's Alabama
Evidence § 254.01(18) (5th ed.1996) (footnote omitted). See also Adams
v. State, 955 So.2d 1037, 1072-73 (Ala.Crim.App.2003); Baker v. State,
473 So.2d 1127, 1129 (Ala.Crim.App.1984). The results of Dr. Embry's
autopsy and the supporting materials are business records, which bear
the earmark of reliability or probability of trustworthiness and
further the “ ‘integrity of the fact-finding process,’ “ see Coy v.
Iowa, 487 U.S. 1012, 1020, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988)
(quoting Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 96
L.Ed.2d 631 (1987)); because this evidence satisfies the core value of
the Confrontation Clause, the State did not have to establish Dr.
897 So.2d at 463-65. See also Sharifi v. State, 993
So.2d 907 (Ala.Crim.App.2008).
Based on the facts in this case, we hold that there
was no Crawford violation in admitting the autopsy report. See
Gobble next argues that the circuit court erred in
allowing the prosecutor to use a baby doll during her
cross-examination. She asserts that the doll was merely a “prop,” that
it had no probable value, and that it unduly prejudiced her.
The record shows that during Gobble's
cross-examination the prosecutor asked Gobble to hold the doll and to
demonstrate to the court how Phoenix had hit his head on the crib. She
complied. (R. 695.)
Defense counsel's only objection was that the doll
was not the same size as Phoenix. Counsel then asked the court to
instruct the jury that the doll was not similar in size. The court
indicated that it would consider the matter later in the trial. (R.
693.) Gobble stated during her testimony that the doll was similar in
size to her son.
“Demonstrations and experiments are permitted or
prohibited in the trial court's discretion. Thus, Alabama appellate
courts have affirmed trial court decisions permitting an experiment on
cross-examination to test the defendant's ability to calculate
interest as he said he had; a demonstration using a mannequin and the
defendant herself to discredit her assertion that the prosecuted
homicide happened accidentally; a demonstration of the defendant's
version of how a fight occurred, the solicitor playing the deceased
and the defendant playing himself; a demonstration wherein the
defendant made prints of his bare feet in the sawdust on the courtroom
floor; a demonstration by the defendant of the extent to which his
injuries had impaired his ability to walk; and a demonstration between
a brain damaged child and a special education therapist calculated to
show the child's physical and mental abilities.”
William A. Schroeder and Jerome A. Hoffman, Alabama
Evidence § 12:25 (3d ed.2006) (footnotes omitted).
In Ivey v. State, 369 So.2d 1276
(Ala.Crim.App.1979), this Court considered whether the circuit court
erred in allowing the prosecutor to cross-examine the defendant using
a full-size mannequin to test the credibility of the defendant's
version of the events. We stated:
“The appellant also argues that her Fifth Amendment
rights against self-incrimination were violated through the manner in
which she was cross examined by the prosecution. During her cross
examination the appellant was required to hold the pistol in a manner
consistent with the State's theory of how the weapon must have been
held according to the trajectory of the bullet. This was inconsistent
with the manner in which the appellant testified she held the weapon
on direct examination.
“An accused on trial for a criminal offense cannot
be required to give or furnish testimony against himself either by way
of spoken words or by act. Hubbard v. State, 283 Ala. 183, 215 So.2d
261 (1968); Dean v. State, 240 Ala. 8, 197 So. 53 (1940); Article I, §
6, Constitution of Alabama of 1901. However where an accused elects to
testify for himself, he waives his constitutional right not to be
compelled to give evidence against himself. Brown v. United States,
356 U.S. 148, 154, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958); Lipscomb
v. State, 32 Ala.App. 623, 29 So.2d 145 (1947); Green v. State, 218
Ala. 363, 118 So. 506 (1928); Carpenter v. State, 193 Ala. 51, 69 So.
531 (1915); Kelley v. State, 160 Ala. 48, 49 So. 535 (1909); Cotton v.
State, 87 Ala. 103, 6 So. 372 (1889). A defendant who has introduced
himself as a witness may be cross examined and compelled to do what
would be material and competent of any other witness. Coates v. State,
253 Ala. 290, 45 So.2d 35 (1950); Smith v. State, 247 Ala. 354, 24
So.2d 546 (1946). has testified in his own behalf may be
cross-examined as to any facts or matters, even though collateral,
which are inconsistent with the testimony given by him on direct
examination, and tend to qualify or contradict such testimony, or to
show its improbability.' 98 C.J.S. Criminal Law § 401(3) (1957). See
also Nicholson v. State, 150 Ala. 80, 43 So. 365 (1907); Stevens v.
State, 133 Ala. 28, 32 So. 270 (1902); Eaton v. State, 8 Ala.App. 136,
63 So. 41 (1913).
“The general rule on requiring the accused to
demonstrate an encounter, action, or position on cross examination is
stated at 171 A.L.R. 1144, 1190.
“ ‘The right of the prosecution, upon cross
examination of a defendant, to require him to give some physical
demonstration of matters such as his actions or position at the time
of the alleged offense, where he has voluntarily testified concerning
those matters on his direct examination, has been sustained as proper
cross-examination in quite a variety of circumstances, as shown by the
following cases. While not all of them mention the question of
constitutional privilege, the general import of these cases appears to
be that by voluntarily testifying to and opening up the matter on his
direct examination, or perhaps merely by voluntarily becoming a
witness in the case, the defendant had waived such privilege as he may
have originally had against giving the particular demonstration.’
“In Lumpkin v. State, 19 Ala.App. 272, 97 So. 171
(1923), it was held not error to require, upon cross examination, a
defendant in a homicide case, who had become a witness in his own
behalf, to illustrate before the jury how the fatal fight occurred by
showing the motions and actions of the parties to the encounter, with
the State's attorney taking the part of the deceased. Also in Coates
v. State, 253 Ala. 290, 45 So.2d 35 (1950), it was held not error to
permit the appellant, at the request of the State during its cross
examination and over the objection of defense counsel, to leave the
witness stand and sit in a chair, in view of the jury, so as to better
demonstrate the manner in which the appellant contended he was holding
the gun at the time of its discharge.
“The scope and extent of cross examination rest in
the sound discretion of the trial court, Bridges v. State, 284 Ala.
412, 225 So.2d 821 (1969), as do the scope and extent of experiments
and demonstrations. Campbell, supra; McElroy, ss 81.01(3), 81.02(1).
As a general rule experiments and demonstrations should be permitted
to be made in the courtroom in the jury's presence where it reasonably
appears that the experiment will aid the jury in ascertaining the
truth, where there exists a substantial similarity of conditions and
where the experiment will not unfairly prejudice the defendant.”
369 So.2d at 1279-80. See also Annot., Propriety of
Requiring Criminal Defendant to Exhibit Self, or Perform Physical Act,
or Participate in Demonstration, During Trial and in Presence of Jury,
3 A.L.R.4th 374 (1981).
The circuit court did not abuse its discretion in
allowing the prosecutor to use a baby doll as a demonstrative aid
during Gobble's cross-examination so that Gobble could demonstrate her
version of the events leading to Phoenix's death. See Ivey, supra.
Gobble next argues that the circuit court erred in
precluding her from presenting evidence of the guilt of third parties.
Specifically, she argues that she was prevented from presenting
evidence that her codefendants, Edgar Parrish and Samuel Hunter, had a
history of violence and criminal activity.”9
The record shows that during cross-examination of
Officer McCord, the following occurred:
“[Defense counsel]: Had you done a background
investigation on either Edgar Parrish or Samuel Hunter?
“[Officer McCord]: We ran criminal histories on
both. We ran criminal histories on everybody.
“[Defense counsel]: What did you come up with on
“[Prosecutor]: Object. He's not a witness in this
“The Court: Okay. Sustained.”
(R. 418.) Gobble made no offer of proof, see
Jennings v. State, 513 So.2d 91 (Ala.Crim.App.1987); therefore, we
review this claim for “plain error.” See Rule 45A, Ala.R.App.P.
“Alabama courts have long recognized the right of a
defendant to prove his innocence by presenting evidence that another
person actually committed the crime. See Ex parte Walker, 623 So.2d
281 (Ala.1992); Thomas v. State, 539 So.2d 375 (Ala.Crim.App.1988);
Green v. State, 258 Ala. 471, 64 So.2d 84 (1953); Underwood v. State,
239 Ala. 29, 193 So. 155 (1939); Orr v. State, 225 Ala. 642, 144 So.
867 (1932); Houston v. State, 208 Ala. 660, 95 So. 145 (1923);
Tennison v. State, 183 Ala. 1, 62 So. 780 (1913); McGehee v. State,
171 Ala. 19, 55 So. 159 (1911); McDonald v. State, 165 Ala. 85, 51 So.
629 (1910). In addition, Alabama courts have also recognized the
danger in confusing the jury with mere speculation concerning the
guilt of a third party:
“ ‘It generally is agreed that the defense, in
disproving the accused's own guilt, may prove that another person
committed the crime for which the accused is being prosecuted․ The
problem which arises in the application of this general rule, however,
is the degree of strength that must be possessed by the exculpatory
evidence to render it admissible. The task of determining the weight
that must be possessed by such evidence of another's guilt is a
“Charles W. Gamble, McElroy's Alabama Evidence §
48.01(1) (5th ed.1996). To remove this difficulty, this Court has set
out a test intended to ensure that any evidence offered for this
purpose is admissible only when it is probative and not merely
speculative. Three elements must exist before this evidence can be
ruled admissible: (1) the evidence ‘must relate to the “res gestae” of
the crime’; (2) the evidence must exclude the accused as a perpetrator
of the offense; and (3) the evidence ‘would have to be admissible if
the third party was on trial.’ See Ex parte Walker, 623 So.2d at 284,
and Thomas, 539 So.2d at 394-96.”
Ex parte Griffin, 790 So.2d 351, 354-55 (Ala.2000).
The evidence Gobble sought to introduce did not meet the three pronged
test set out in Griffin. Also, “[e]vidence of a person's character or
a trait of character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion.” Rule 404(a),
Ala.R.Evid. The circuit court committed no error in excluding this
Gobble next argues that the circuit court erred in
admitting autopsy photographs because, she says, they were irrelevant
and unduly prejudicial. Specifically, she challenges the court's
admission of a photograph showing Phoenix's exposed skull and a
photograph showing Phoenix's nude body.
We have repeatedly held that autopsy photographs
are admissible in a defendant's murder trial. “ ‘[A]utopsy photographs
depicting the character and location of wounds on a victim's body are
admissible even if they are gruesome, cumulative, or relate to an
undisputed matter.’ “ Jackson v. State, 791 So.2d 979, 1016
(Ala.Crim.App.2000), quoting Perkins v. State, 808 So.2d 1041, 1108
(Ala.Crim.App.1999). “We must admit that the photographs were
gruesome, particularly since the victim was an infant. However, they
were necessary to demonstrate to the jury the extent of [the victim's
injuries.]” Dobbs v. State, 518 So.2d 825, 829 (Ala.Crim.App.1987).
Moreover, this Court has upheld the admission of photographs showing
an exposed skull because the photographs were relevant to show the
extent of the head injuries. See Hamilton v. State, 492 So.2d 331
Also, the court instructed the jury that the
photographs were not admitted to “inflame or prejudice you.” (R. 814.)
The circuit court did not abuse its discretion in allowing the
photographs to be admitted into evidence. See Dobbs, supra.
Gobble argues that the circuit court erred in
allowing irrelevant and noncharacter evidence to impeach the
credibility of two defense witnesses-Dallas Gobble Sr., Gobble's
father, and his wife, Carmen Gobble.
The record shows that Dallas Gobble testified about
his daughter's relationship with Hunter. He testified that Hunter was
the dominant partner in the relationship and that he had been around
Hunter when he was violent. Dallas further testified that his daughter
was a good mother and that she had been learning how to be a proper
mother to Jewell. Dallas said that he worried about his daughter and
her children. Carmen Gobble testified that in 2003 after Jewell was
born Gobble and Hunter moved in with and Dallas for about three
months. She said that Hunter was the dominant one in the relationship
and that she had seen him when he was violent. Carmen also testified
that Gobble was a loving mother.
On cross-examination the prosecutor elicited
testimony that showed that both Dallas and Carmen had had little
contact with Gobble and her children. These facts were relevant to the
“Cross-examination is the principal means by which
the believability of a witness and the truth of his testimony are
tested. Subject always to the broad discretion of a trial judge to
preclude repetitive and unduly harassing interrogation, the
cross-examiner is not only permitted to delve into the witness' story
to test the witness' perceptions and memory, but the cross-examiner
has traditionally been allowed to impeach, i.e., discredit, the
Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105,
39 L.Ed.2d 347 (1974). “The scope of cross-examination in Alabama is
quite broad. Rule 611(b), Ala.R.Evid. This means that any question may
be asked on cross-examination that is relevant either to any
substantive issue in the case or to the witness's credibility.” Ex
parte Deardorff, 6 So.3d 1235, 1241 (Ala.2008).
“It is well settled that ‘[a] party is entitled to
a thorough and sifting cross-examination of the witnesses against
him,’ McMillian v. State, 594 So.2d 1253, 1261 (Ala.Crim.App.1991),
remanded on other grounds, 594 So.2d 1288 (Ala.1992), opinion after
remand, 616 So.2d 933 (Ala.Crim.App.1993), citing Perry v. Brakefield,
534 So.2d 602 (Ala.1988), and § 12-21-137, Ala.Code 1975, and that a
party should be given ‘wide latitude on cross-examination to test a
witness's partiality, bias, intent, credibility, or prejudice, or to
impeach, illustrate, or test the accuracy of the witness's testimony
or recollection as well as the extent of his knowledge.’ Williams v.
State, 710 So.2d 1276, 1327 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350
(Ala.1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d
699 (1998). It is equally well established, however, ‘that the
latitude and extent of cross-examination are matters which of
necessity rest largely within the sound discretion of the trial court,
and rulings with respect thereto will not be revised on appeal except
in extreme cases of abuse.’ Long v. State, 621 So.2d 383, 388
(Ala.Crim.App.1993), cert. denied, 510 U.S. 932, 114 S.Ct. 345, 126
L.Ed.2d 310 (1993), quoting Beavers v. State, 565 So.2d 688, 689
Reeves v. State, 807 So.2d 18, 38
The circuit court did not abuse its discretion in
allowing the prosecutor to thoroughly cross-examine both Dallas Gobble
and Carmen Gobble.
Gobble next argues that her “presumption of
innocence” was destroyed when the jury was allowed to see her in
shackles and an orange prison-issued jumpsuit during her third
videotaped statement to police.
First, we note that the State attempted to
introduce a redacted transcript of Gobble's third statement to police
but defense counsel strenuously requested that the entire videotape be
shown to the jury because, he said, it showed the coercion exercised
by the police. Thus, if any error occurred, it was invited. Invited
error operates to waive any error unless it rises to the level of
plain error. See Ex parte Sharp, [Ms. 1080959, December 4, 2009] ---
So.3d ----, ---- (Ala.2009).
In Barber v. State, 952 So.2d 393
(Ala.Crim.App.2005), we addressed whether it was reversible error to
allow a videotape of the defendant's statement to be shown to the jury
when the videotape showed the defendant wearing handcuffs. In
concluding that there must be a showing of “actual prejudice,” we
“[D]uring the third interview with Edger, the
appellant is wearing handcuffs. In Gates v. Zant, 863 F.2d 1492,
1501-02 (11th Cir.1989), which the appellant cites, the United States
Court of Appeals for the Eleventh Circuit addressed a similar
situation as follows:
“ ‘Gates' other challenge to the videotaped
confession is that its admission was unduly prejudicial because it
portrayed him in handcuffs. As we have noted previously, although the
handcuffs are not always visible, it is evident throughout the
fifteen-minute tape that the defendant is handcuffed. We are aware of
no cases which address the propriety of handcuffing during a
videotaped confession. Nonetheless, the resolution of the issue is
apparent from earlier cases addressing handcuffing in and around
“ ‘The principal difficulty arising from shackling
or handcuffing a defendant at trial is that it tends to negate the
presumption of innocence by portraying the defendant as a bad or
dangerous person. The Supreme Court has referred to shackling during
trial as an “inherently prejudicial practice” which may only be
justified by an “essential state interest specific to each trial.”
Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 1346, 89 L.Ed.2d
525 (1986). See also Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct.
1057, 1061, 25 L.Ed.2d 353 (1970). This court recently has extended
the general prohibition against shackling at trial to the sentencing
phase of a death penalty case. Elledge v. Dugger, 823 F.2d 1439,
1450-52 (11th Cir.1987), modified, 833 F.2d 250 (1987), cert. denied,
 U.S. , 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715
“ ‘On the other hand, a defendant is not
necessarily prejudiced by a brief or incidental viewing by the jury of
the defendant in handcuffs. Allen v. Montgomery, 728 F.2d 1409, 1414
(11th Cir.1984); United States v. Diecidue, 603 F.2d 535, 549-50 (5th
Cir.1979), cert. denied sub nom. Antone v. United States, 445 U.S.
946, 100 S.Ct. 1345, 63 L.Ed.2d 781, 446 U.S. 912, 100 S.Ct. 1842, 64
L.Ed.2d 266 (1980); Wright v. Texas, 533 F.2d 185, 187-88 (5th
Cir.1976); Jones v. Gaither, 640 F.Supp. 741, 747 (N.D.Ga.1986), aff'd
without opinion, 813 F.2d 410 (11th Cir.1987). The new fifth circuit
is among those circuits which adhere to this rule. King v. Lynaugh,
828 F.2d 257, 264-65 (5th Cir.1987), vacated on other grounds, 850
F.2d 1055 (5th Cir.1988); see also United States v. Williams, 809 F.2d
75, 83-86 (1st Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1959,
2469, 2484, 95 L.Ed.2d 531, 877, 96 L.Ed.2d 377 (1987); United States
v. Robinson, 645 F.2d 616, 617-18 (8th Cir.1981), cert. denied, 454
U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 182 (1981). In these latter cases,
the courts generally have held that the defendant must make some
showing of actual prejudice before a retrial is required.
“ ‘Thus, the case law in this area presents two
ends of a spectrum. This case falls closer to the “brief viewing” end
of the spectrum and requires a showing of actual prejudice before a
retrial is required. The prosecution showed the fifteen-minute tape
twice during several days of trial. The handcuffs were only visible
during short portions of the tape.
“ ‘Gates has made no attempt to show that he
suffered actual prejudice because the jury saw him in handcuffs. Our
independent examination of the record also persuades us that he did
not suffer any prejudice. Although defense counsel strenuously
objected to the admission of the videotape, he did not object to the
handcuffing in particular. He did not ask for a cautionary instruction
or a poll of the jury. Furthermore, the videotape at issue here was
taken at the scene of the crime, not at the police station. Thus,
jurors likely would infer that handcuffing was simply standard
procedure when a defendant is taken outside the jail. The viewing of
the defendant in handcuffs on television rather than in person further
reduces the potential for prejudice. In light of the foregoing facts,
and the fact that Gates sat before the jury without handcuffs for
several days during his trial, we conclude that the relatively brief
appearance of the defendant in handcuffs on the videotape did not tend
to negate the presumption of innocence or portray the defendant as a
dangerous or bad person. We therefore conclude on the particular facts
of this case that the handcuffing of Gates during the videotaped
confession does not require a new trial.’
“In this case, although the appellant is clearly
wearing handcuffs during the interview, because the videotape is
blurry in places, the handcuffs are not plainly visible all of the
time. Rather, they are more noticeable when the appellant is moving
his hands. Also, as in Gates, the defense did not object to the
admission of the videotape on this ground or ask for a cautionary
instruction; the viewing was on television rather than in person; and
the appellant did not wear handcuffs or shackles during the actual
trial. Finally, the appellant had been arrested on an outstanding
warrant and not on the capital murder charge at the time he made his
statement. Therefore, under the facts of this case, we do not conclude
that there was any plain error in this regard.”
Barber v. State, 952 So.2d 393, 445-46
We have reviewed the videotape of Gobble's third
statement. At the beginning of questioning Gobble was in handcuffs but
within seconds those handcuffs were removed. Gobble is sitting for the
entire statement and is wearing an orange jumpsuit, but the jumpsuit
appears to have no identifying marks or writing on the front. There is
no evidence in the record that Gobble was wearing handcuffs or
shackles during her trial. As did the Court in Barber, we find no
evidence of prejudice. Accordingly, we find no plain error in regard
to this claim.
Gobble next argues that the circuit court erred in
prohibiting her from presenting the testimony of an expert in the
The record shows that at the guilt phase Gobble
informed the court that she wished to call Dr. David Ghostly, a
psychologist. Defense counsel stated “[H]e's done tests on her to be
able to give his opinion as to whether or not she could form an
intent.” Counsel further stated that Dr. Ghostly would testify that
based on his review of the records, “the only person who has ever been
charged with committing violence on this child has been Samuel David
Hunter, not her.” (R. 748.) The State objected and argued that Dr.
Ghostly's testimony would invade the province of the jury. The circuit
court did not allow Dr. Ghostly to testify. Dr. Ghostly did testify at
the penalty phase that Gobble suffered from postpartum depression. On
appeal, Gobble argues for the first time that the circuit court erred
in not allowing Dr. Ghostly to testify in the guilt phase about her
postpartum depression. This specific assignment of error was not
raised before the circuit court; thus, we review this issue for plain
error. See Rule 45A, Ala.R.App.P.
In Wilkerson v. State, 686 So.2d 1266
(Ala.Crim.App.1996), this Court addressed whether it was reversible
error for the circuit court to exclude evidence from an expert that
the defendant did not have the ability to form intent. In affirming
the circuit court's ruling, this Court stated:
“The appellant contends that the trial court erred
by not allowing him to question his expert witness, Dr. Alan Blotcky,
a clinical psychologist who performed a court-ordered evaluation of
the appellant, as to whether the appellant had the ability to form the
requisite intent to commit murder. During an offer of proof in the
trial court, the appellant's counsel explained that Dr. Blotcky would
testify that the appellant had a diminished capacity to form the
requisite intent to commit murder because of the combined effect of
intoxication at the time of the crime, borderline intellectual
function, and mental disease or defect (i.e., passive-aggressive
personality). ‘It has been held traditionally in this country that an
expert witness cannot give his opinion upon an ultimate issue in the
case.’ Charles W. Gamble, McElroy's Alabama Evidence § 127.01(5)(d)
(4th ed.1991). More specifically, ‘[a] witness, be he expert or lay,
cannot give his opinion when such constitutes a legal conclusion or
the application of a legal definition.’ Gamble, supra, at § 128.07.
“The appellant refers us to our opinion in Bailey
v. State, 574 So.2d 1001, 1003 (Ala.Cr.App.1990), where we stated:
‘[T]he modern trend is in the direction of permitting experts to give
their opinions upon ultimate issues, of which the final determination
rests with the jury.’ The modern trend culminated in the adoption of
Rule 704 of the Federal Rules of Evidence, which abandoned the
ultimate issue rule. C. Gamble, supra, at § 127.01(5)(d). However,
subsection (b) of Rule 704 contains the following important
“ ‘No expert witness testifying with respect to the
mental state or condition of a defendant in a criminal case may state
an opinion or inference as to whether the defendant did or did not
have the mental state or condition constituting an element of the
crime charged or of a defense thereto.’
“ ‘Rule 704(b) does not prohibit an expert witness
from stating his opinion and reviewing facts from which a jury could
determine whether a defendant had the requisite criminal intent․
Rather, the rule prohibits an expert witness from testifying that a
defendant did or did not possess the requisite mental intent at the
time of the crime.’
“United States v. Orr, 68 F.3d 1247, 1252 (10th
Cir.1995), cert. denied, 516 U.S. 1064, 116 S.Ct. 747, 133 L.Ed.2d 695
(1996). See also United States v. Frisbee, 623 F.Supp. 1217, 1222-223
(N.D.Cal.1985) (‘the defendant's experts will not be allowed to state
an opinion or inference as to whether the defendant did or did not
form a specific intent to kill․ No testimony directly or indirectly
opining on the issue of specific intent will be allowed’). Thus, even
the more permissive federal rule does not allow an expert witness to
state an opinion as to the ultimate issue of whether a defendant had
the requisite mental state to commit murder. Here, it is clear from
the record that the appellant sought only to elicit Dr. Blotcky's
opinion on the issue of specific intent. Therefore, even under the
modern trend, the appellant's argument that Dr. Blotcky should have
been allowed to testify concerning the appellant's intent fails.
“This Court addressed an almost identical issue in
McCowan v. State, 412 So.2d 847 (Ala.Cr.App.1982). In McCowan, citing
Ex parte Dial, 387 So.2d 879 (Ala.1980), we held that the trial court
did not err in disallowing the appellant's expert witness from stating
‘the legal conclusion that the appellant could not have formed the
requisite intent for murder,’ and had properly allowed the expert to
testify ‘that, hypothetically, one suffering from an “isolated
explosive disorder” would not be able to “knowingly and intentionally
appreciate what he was doing.’ “ 412 So.2d at 849. (Emphasis added.)
We are aware of no case holding that a witness can testify as to
whether the defendant has the ability to form the requisite intent to
commit the charged offense. We find no error on the part of the trial
court in disallowing Dr. Blotcky from testifying as to the appellant's
ability to form the requisite intent to commit murder. McCowan.”
686 So.2d at 1278-79. See Prof. William A.
Schroeder and Jerome A. Hoffman, Alabama Evidence § 7.36 (3 ed.2009).
Based on our holding in Wilkerson and the record in
this case, we cannot say that the circuit court committed reversible
error in prohibiting Gobble from presenting the expert testimony of
Dr. Ghostly at the guilt phases of her trial.
Gobble next argues that the circuit court erred in
failing to exclude a court document seeking to terminate Gobble's
parental rights in regard to her daughter Jewell. The document stated
that Gobble had murdered Jewell's sibling, Phoenix.
The document that Gobble is referencing on appeal
is part of a 555-page document from the Hillsborough Kids, Inc., that
was introduced and admitted by Gobble and labeled defense exhibit 2.
The exhibit contains a copy of a “Motion to terminate Parental Rights”
that appears to have been filed in the Houston County Juvenile Court.
The document contains the following statement: “The parents of this
child have failed to protect this child's sibling, who was murdered by
the mother.” (C. 782.)
Error, if any, was invited by Gobble. This exhibit
was offered and introduced by Gobble.
“ ‘Under the doctrine of invited error, a defendant
cannot by his own voluntary conduct invite error and then seek to
profit thereby.’ Phillips v. State, 527 So.2d 154, 156 (Ala.1988).
‘The doctrine of invited error applies to death-penalty cases and
operates to waive any error unless the error rises to the level of
plain error.’ Snyder v. State, 893 So.2d 488, 518
Robitaille v. State, 971 So.2d 43, 59
(Ala.Crim.App.2005). “ ‘It would be a sad commentary upon the vitality
of the judicial process if an accused could render it impotent by his
own choice.’ “ Murrell v. State, 377 So.2d 1102, 1105
(Ala.Crim.App.1979), quoting Aldridqe v. State, 278 Ala. 470, 474, 179
So.2d 51, 54 (1965).
Here, the complained-of statement was one sentence
in a 555-page document introduced at trial by Gobble. In total, Gobble
introduced over 1,600 pages of documents from the Florida Department
of Investigation, DCF Court, and Hillsborough Kids, Inc. We cannot say
that any plain error occurred in this case, given the numerous
documents admitted into evidence. See Rule 45A, Ala.R.App.P.
Gobble next argues that numerous instances of
prosecutorial misconduct that, she argues, deprived her of her
constitutional right to a fair trial. She cites several instances in
support of this contention.
The record shows that Gobble did not object to any
of the challenged comments. As the Alabama Supreme Court stated in Ex
parte Windsor, 683 So.2d 1042 (Ala.1996):
“ ‘ “While this failure to object does not preclude
review in a capital case, it does weigh against any claim of
prejudice.” Ex parte Kennedy, 472 So.2d [1106,] at 1111 [ (Ala.1985) ]
(emphasis in original). “This court has concluded that the failure to
object to improper prosecutorial arguments ․ should be weighed as part
of our evaluation of the claim on the merits because of its suggestion
that the defense did not consider the comments in question to be
particularly harmful.” Johnson v. Wainwright, 778 F.2d 623, 629 n. 6
(11th Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d
152 (1987).’ “
683 So.2d at 1061, quoting Kuenzel v. State, 577
So.2d 474, 489 (Ala.Crim.App.1990).
“In reviewing these claims of alleged improper
prosecutorial argument, we must evaluate the comments and their impact
in the context of the entire argument, and not view the allegations of
improper argument in the abstract. Duren v. State, 590 So.2d 360
(Ala.Cr.App.1990), aff'd, 590 So.2d 369 (Ala.1991). Also,
“ ‘ “This court has concluded that the failure to
object to improper prosecutorial arguments ․ should be weighed as part
of our evaluation of the claim on the merits because of its suggestion
that the defense did not consider the comments in question to be
particularly harmful.’ “
“Kuenzel v. State, 577 So.2d 474, 489
(Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502
U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991), quoting Johnson v.
Wainwright, 778 F.2d 623, 629 n. 6 (11th. Cir.1985), cert. denied, 484
U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987). We also point out that
the control of a closing argument is in the broad discretion of the
trial court. Thomas v. State, 601 So.2d 191 (Ala.Cr.App.1992). That
court is in the best position to determine if counsel's argument is
legitimate or if it degenerates into impropriety. Thomas, supra. ‘In
judging a prosecutor's closing argument, the standard is whether the
argument “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” ‘ Bankhead v. State,
585 So.2d 97, 107 (Ala.Crim.App.1989), quoting Darden v. Wainwright,
477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).”
Acklin v. State, 790 So.2d 975, 1002
(Ala.Crim.App.2000). A prosecutor may argue all legitimates inferences
that may be drawn from the evidence. Taylor v. State, 666 So.2d 36, 64
(Ala.Crim.App.1994). The standard of review is not whether the
defendant was prejudiced, but whether the comment “so infected the
trial with unfairness as to make the resulting conviction a denial of
due process.” Darden v. Wainwright, 477 U.S. 168, 169, 106 S.Ct. 2464,
91 L.Ed.2d 144 (1986). With these principles in mind, we review the
First, Gobble argues that the prosecutor argued
facts that were never introduced at trial. Specifically, she argues
that the prosecutor argued in opening statement that Gobble “didn't
want Jewell back in any manner or fashion” and that Phoenix could have
suffered the injuries he suffered only as the result of an automobile
accident or physical abuse.
The documents admitted by Gobble showed that she
relinquished her parental rights as to Jewell. Dr. Salne testified
that Phoenix could have obtained the injuries he suffered only in one
of two ways-either an automobile accident or from child abuse. Also,
Gobble testified that she signed a form in October of 2004 stating her
intention to terminate her parental rights.
The prosecutor's statements were supported by the
evidence presented at trial and were within the scope of permissible
argument. See Taylor, supra.
Gobble next argues that the prosecutor improperly
vouched for the credibility of the State's case when he made the
following argument in closing:
“When we put on the statements that the police
took, that she says Tierra Gobble, she's the one who did it. And they
want to say it's an interrogation. It was only solved in two or three
days. Just get it through your mind. You will never forget. It's
solved. We brought you the evidence. I submit to you we proved to you
in this case. The detectives did an outstanding job. They got the
statements. They got the evidence in this case.”
The State asserts in its brief on appeal that this
argument was a reply-in-kind to the argument made by defense counsel.
Defense counsel argued in closing that Gobble had been “railroaded.”
We agree that the prosecutor's remarks were a reply to that argument.
“ ‘A prosecutor has a right based on fundamental fairness to reply in
kind to the argument of defense counsel.’ “ Johnson v. State, 823
So.2d 1, 47 (Ala.Crim.App.2001), quoting DeBruce v. State, 651 So.2d
599, 609 (Ala.Crim.App.1993).
Gobble next argues that there was not sufficient
evidence to convict her of capital murder because, she argues, there
was no evidence that she intended to murder Phoenix. She further
asserts that there was no direct evidence linking her to Phoenix's
murder and that the circuit court should have granted her motion for a
judgment of acquittal.
Gobble was indicted for murder defined as capital
by § 13A-5-40 (a)(15), Ala.Code 1975, because the victim was less than
14 years of age. To convict under § 13A-5-40(a)(15), the State must
prove that an intentional murder, as defined in § 13A-6-2(a)(1),
Ala.Code 1975, occurred and that the victim was under the age of 14.
“In reviewing a conviction based on circumstantial
evidence, this court must view that evidence in a light most favorable
to the prosecution. The test to be applied is whether the jury might
reasonably find that the evidence excluded every reasonable hypothesis
except that of guilt; not whether such evidence excludes every
reasonable hypothesis but guilt, but whether a jury might reasonably
Cumbo v. State, 368 So.2d 871, 874
“In Underhill on Criminal Evidence, § 540(3d
ed.1923), we find the following statement regarding proof of intent in
an attempted murder charge:
“ ‘ “Thus, as a general rule, the force or violence
which was employed must be proven to have been intentional․ The
intention to do great bodily harm, to murder or commit any other crime
by means of an assault, may be inferred from the circumstances.
Circumstantial evidence is usually the only available evidence of
intention aside from the declarations of the accused. The intention
may be inferred from the force or direction, or from the natural or
contemplated result of the violence employed, from the weapon or
implement used by the accused, from his threats or prior conduct
towards the person assaulted, and generally from the extent and effect
of the injury inflicted, or from any deliberate action, which is
naturally attempted and usually results in danger to the life of
another.” ‘ “
Long v. State, 668 So.2d 56, 60
(Ala.Crim.App.1995), quoting Bishop v. State, 482 So.2d 1322, 1326
(Ala.Crim.App.1985). “ ‘[T]he element of intent, being a state of mind
or mental purpose, is usually incapable of direct proof, [and] it may
be inferred from the character of the assault, the use of a deadly
weapon and other attendant circumstances.’ “ Jones v. State, 591 So.2d
569, 574 (Ala.Crim.App.1991), quoting Johnson v. State, 390 So.2d
1160, 1167 (Ala.Crim.App.1980). Moreover,
“ ‘ “A person acts intentionally with respect to a
result or to conduct described by a statute defining an offense, when
his purpose is to cause that result or to engage in that conduct.’ §
13A-2-2(l), Ala.Code 1975. Furthermore,
“ ‘ “[t]he question of a defendant's intent at the
time of the commission of the crime is usually an issue for the jury
to resolve.” Rowell v. State, 570 So.2d 848, 850 (Ala.Crim.App.1990),
citing Crowe v. State, 435 So.2d 1371, 1379 (Ala.Crim.App.1983).
Intent may be “ ‘inferred from the character of the assault, the use
of a deadly weapon and other attendant circumstances.’ “ Jones v.
State, 591 So.2d 569, 574 (Ala.Crim.App.1991), quoting Johnson v.
State, 390 So.2d 1160, 1167 (Ala.Crim.App.), cert. denied, 390 So.2d
1168 (Ala.1980).' “
Sale v. State, 8 So.3d 330, 339
(Ala.Crim.App.2008), quoting Butler v. State, 781 So.2d 994, 997
Based on the evidence set out in the beginning of
this opinion, there was more than sufficient evidence to present the
case to the jury for its determination. See Ward v. State, 814 So.2d
899, 912 (Ala.Crim.App.2000) (upholding capital murder conviction in
death of child less than 14 years of age over challenge to sufficiency
of the evidence). We see no reason to disturb the jury's verdict in
Gobble next argues that the circuit court denied
counsel his right to argue reasonable inferences from the evidence
when it sustained the prosecutor's objection to an argument made by
defense counsel in the guilt phase. During defense counsel's closing
argument, the following occurred:
“[Defense counsel]: Think about that. That is a
heavy piece of evidence, ladies and gentlemen, where Samuel David
Hunter knocked a hole in Sheetrock. You know, I'm not physically in
shape anymore. But at the time when I was, and I don't think I-one
time I was six one, two hundred and forty pounds of pretty good
muscle. I don't think I could ever knock a hole in Sheetrock. You've
got to have some rage on you. Not only that, you've got to be crazy to
knock a hole in Sheetrock and throw a kid though it.
“[Prosecutor]: Objection. Objection. There I no
testimony any child was thrown through the Sheetrock, Judge.
“The Court: Sustained.”
It is well established that
“ ‘During closing argument, the prosecutor, as well
as defense counsel, has a right to present his impressions from the
evidence, if reasonable, and may argue every legitimate inference.’
Rutledge v. State, 523 So.2d 1087, 1100 (Ala.Cr.App.1987), rev'd on
other grounds, 523 So.2d 1118 (Ala.1988) (citation omitted). Wide
discretion is allowed the trial court in regulating the arguments of
counsel. Racine v. State, 290 Ala. 225, 275 So.2d 655 (1973). ‘In
evaluating allegedly prejudicial remarks by the prosecutor in closing
argument, ․ each case must be judged on its own merits,’ Hooks v.
State, 534 So.2d 329, 354 (Ala.Cr.App.1987), aff'd, 534 So.2d 371
(Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d
1005 (1989) (citations omitted) (quoting Barnett v. State, 52 Ala.App.
260, 264, 291 So.2d 353, 357 (1974)), and the remarks must be
evaluated in the context of the whole trial, Duren v. State, 590 So.2d
360 (Ala.Cr.App.1990), aff'd, 590 So.2d 369 (Ala.1991). ‘In order to
constitute reversible error, improper argument must be pertinent to
the issues at trial or its natural tendency must be to influence the
finding of the jury.’ Mitchell v. State, 480 So.2d 1254, 1257-58
(Ala.Cr.App.1985) (citations omitted). ‘To justify reversal because of
an attorney's argument to the jury, this court must conclude that
substantial prejudice has resulted.’ Twilley v. State, 472 So.2d 1130,
1139 (Ala.Cr.App.1985) (citations omitted).”
Coral v. State, 628 So.2d 954, 985
Dallas Gobble testified that when Hunter and his
daughter were living at his house he came home one day and found a
hole in the drywall. However, there was no evidence that a child was
thrown through the drywall. Dallas did not witness what occurred. The
circuit court committed no error in sustaining the State's objection
to the above argument, by defense counsel, which was not supported by
Also, Gobble can show no prejudice from the trial
court's action in sustaining the objection. Counsel made the argument
and the prosecutor did not move to strike the argument or move for the
court to instruct the jury to disregard it. Thus, any possible error
was harmless beyond a reasonable doubt. See Chapman v. California, 386
U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Gobble next argues that the circuit court erred in
its jury instructions in the guilt phase. She lists several grounds in
support of this assertion.
“When reviewing a trial court's jury instructions,
we must view them as a whole, not in bits and pieces, and as a
reasonable juror would have interpreted them. Ingram v. State, 779
So.2d 1225 (Ala.Cr.App.1999). ‘The absence of an objection in a case
involving the death penalty does not preclude review of the issue;
however, the defendant's failure to object does weigh[ ] against his
claim of prejudice.’ Ex parte Boyd, 715 So.2d 852 (Ala.), cert.
denied, 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998).”
Johnson v. State, 820 So.2d 842, 874
(Ala.Crim.App.2000). As we stated in Williams v. State, 795 So.2d 753
1”A trial court has broad discretion in formulating
its jury instructions. See Williams v. State, 611 So.2d 1119, 1123
(Ala.Cr.App.1992). When reviewing a trial court's instructions, “ ‘the
court's charge must be taken as a whole, and the portions challenged
are not to be isolated therefrom or taken out of context, but rather
considered together.’ “ Self v. State, 620 So.2d 110, 113
(Ala.Cr.App.1992) (quoting Porter v. State, 520 So.2d 235, 237
(Ala.Cr.App.1987)); see also Beard v. State, 612 So.2d 1335
(Ala.Cr.App.1992); Alexander v. State, 601 So.2d 1130
795 So.2d at 780. “When reviewing a trial court's
jury instructions, we must view them as a whole, not in bits and
pieces, and as a reasonable juror would have interpreted them.”
Johnson v. State, 820 So.2d 842, 874 (Ala.Crim.App.2000).
“An accused has the right to have the jury charged
on “ ‘any material hypothesis which the evidence in his favor tends to
establish.’ “ Ex parte Stork, 475 So.2d 623, 624 (Ala.1985). ‘In
determining whether an instruction was supported by the evidence the
question is not whether the Supreme Court or Court of Criminal Appeals
believes the evidence, but simply whether such evidence was
presented.′ Id. ‘[E]very accused is entitled to have charges given,
which would not be misleading, which correctly state the law of his
case, and which are supported by any evidence, however weak,
insufficient, or doubtful in credibility.’ Ex parte Chavers, 361 So.2d
1106, 1107 (Ala.1978). “ “It is a basic tenet of Alabama law that “a
party is entitled to have his theory of the case, made by the
pleadings and issues, presented to the jury by proper instruction, ․
and the [trial] court's failure to give those instructions is
reversible error.” ‘ “ ‘ Ex parte McGriff, 908 So.2d 1024, 1035
(Ala.2004), quoting Winner Int'l Corp. v. Common Sense, Inc., 863
So.2d 1088, 1091 (Ala.2003), quoting in turn other cases. ‘In order to
determine whether the evidence is sufficient to necessitate an
instruction and to allow the jury to consider the defense, we must
view the testimony most favorably to the defendant.’ Ex parte Pettway,
594 So.2d 1196, 1200 (Ala.1991).”
Williams v. State, 938 So.2d 440, 444-45
First, Gobble argues that the circuit court erred
in refusing to give a jury instruction on aggravated child abuse,
which, she argues, is a lesser-included offense to the capital offense
of murder of a child under the age of 14. She relies on the case of
Edwards v. State, 671 So.2d 129 (Ala.Crim.App.1995), to support her
argument. Here, the circuit court gave jury instructions on the
lesser-included offenses of manslaughter and criminally negligent
In Edwards, this Court held that the defendant, who
had been indicted for murder, would have been entitled to a jury
instruction on assault because there was evidence that the victim died
as a result of a surgeon's error in the surgery necessitated by the
assault and not Edwards's assault. We stated:
“In view of the evidence, had the appellant been
tried on the charge of murder for which he was indicted, he would have
been entitled to a jury charge on assault in the first degree as a
lesser included offense of murder based on the rationale that the
evidence suggested that the appellant had not, in fact, caused the
victim's death. See Parker v. State, 587 So.2d 1072, 1083
(Ala.Cr.App.1991) (trial court instructed jury on the charged offense
of capital murder and on lesser included offense of assault in the
first degree where appellant's defense was that he participated in an
assault on victim but that he left her alive and that she was stabbed
to death by someone else after assault occurred). Compare, Dill v.
State, 600 So.2d 343 (Ala.Cr.App.1991), aff'd, 600 So.2d 372
(Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d
684 (1993) (finding that trial court properly refused capital murder
defendant's requested jury charge on the lesser included offense of
assault in the first degree where victim did not die until some nine
months after being shot, because there was no evidence presented from
which jury could have reasonably inferred that, although defendant
shot victim, something else in fact had caused his death).”
671 So.2d at 131.
Gobble was charged with capital murder as defined
in § 13A-5-40(a)(15), Ala.Code 1975, which makes capital: “[m]urder
when the victim is less than fourteen years of age.” Aggravated child
abuse is defined in § 2 6-15-3.1, Ala.Code 1975, as follows:
“(a) A responsible person, as defined in § 26-15-2,
commits the crime of aggravated child abuse if he or she does any of
“(1) He or she violates the provisions of § 26-15-3
by acts taking place on more than one occasion.
“(2) He or she violates § 26-15-3 and in so doing
also violates a court order concerning the parties or injunction.
“(3) He or she violates the provisions of § 26-15-3
which causes serious physical injury, as defined in § 13A-1-2, to the
Assuming, without deciding, that aggravated child
abuse is a lesser-included offense of capital murder defined in §
13A-5-40(a)(15), there was no rational basis for such an instruction
here. There was no factual basis to support the view that although
Gobble beat Phoenix, she was not responsible for his death. The only
rationale conclusion based on the evidence presented was that Gobble
abused Phoenix and caused his death or that someone else abused him
and caused his death. See Dill v. State, 600 So.2d 343, 360
(Ala.Crim.App.1991). There was no testimony that any intervening act
occurred to lessen Gobble's culpability in the events leading to
Phoenix's death. “A trial court may refuse to charge on a
lesser-included offense only when: (1) it is clear to the judicial
mind that there is no evidence tending to bring the offense within the
definition of the lesser offense; or (2) the charge would tend to
mislead or confuse the jury. Turner v. State, 708 So.2d 232, 234
(Ala.Crim.App.1997)(citing Holladay v. State, 549 So.2d 122
(Ala.Crim.App.1988)).” McClain v. State, [Ms. CR-07-1585, June 26,
2009] --- So.3d ----, ---- (Ala.Crim.App.2009).
There was no reasonable theory to support an
instruction on aggravated child abuse. Accordingly, our holding in
Edwards did not compel the circuit court to give a jury instruction on
aggravated child abuse as a lesser-included offense.
Gobble next argues that the circuit court's
instructions on intent were erroneous because, she argues, the court
instructed the jury that intent may be formed in the “spur of the
moment.” Specifically, she asserts that the court's instructions
lessened the State's burden of proof.
Gobble did not object when this instruction was
given. Accordingly, we review this claim for plain error. See Rule
We have upheld a court's jury instructions in a
capital case when the court instructed the jury that intent may be
formed in the “spur of the moment.” See Sneed v. State, 1 So.3d 104
(Ala.Crim.App.2007). Here, the court gave very specific and detailed
instructions on intent and distinguished for the jury the different
mental states necessary to convict the defendant of capital murder,
manslaughter, and criminally negligent homicide. The circuit court's
instructions on intent did not constitute plain error.
Gobble next argues that the capital-murder statute
under which she was indicted and convicted, § 13A-5-40(a)(15),
Ala.Code 1975, is unconstitutional because, she argues, it fails to
narrow the class of capital offenders and is arbitrary.
The “Alabama Legislature has repeatedly recognized
that children are entitled to certain protections not afforded
adults,” and “[t]he child-murder provision is not arbitrary and does
not violate any equal protection right.” Ex parte Woodard, 631 So.2d
1065, 1072-73 (Ala.Crim.App.1993). See MacEwan v. State, 701 So.2d 66,
71 (Ala.Crim.App.1997). Other jurisdictions have also upheld similar
legislation against the claim that the statutes are arbitrary. See
Gray v. Commonwealth, 274 Va. 290, 310, 645 S.E.2d 448, 461 (2007) (
“[S]ubsection (12) [killing of a person under the age of 14 by a
person age 21 or older] meets a rational basis for inclusion in
Virginia's capital murder statute as it provides for only specific and
limited types of murder to qualify as capital murder.”); Styron v.
Johnson, 262 F.3d 438, 452 (5th Cir.2001) ( “Murdering a child under
six is a sufficiently narrow statutory aggravating factor.”); Black v.
State, 26 S.W.3d 895, 897 (Tex.Crim.App.2000) (“[C]hild capital-murder
provision is rationally related to the government's interest in
protecting young children “and is not arbitrary.”).
Section 13A-5-40(a) (15), Ala.Code 1975, is not
unconstitutional because it fails to narrow the class of capital
Gobble asserts that her sentence was imposed in
violation of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002), and Caldwell v. Mississippi, 472 U.S. 320, 105
S.Ct. 2633, 86 L.Ed.2d 231 (1985). She raises several different
arguments in regard to this claim.
The United States Supreme Court in Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held
that any fact that increases a punishment above the statutory maximum
must be presented to a jury and proven beyond a reasonable doubt. That
holding was extended to death-penalty cases in Ring v. Arizona. In
Caldwell v. Mississippi, the United States Supreme Court held that
“[i]t is constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the defendant's
death rests elsewhere.” 472 U.S. at 328-29.
First, Gobble argues that according to federal law
the jury was required to weigh the aggravating and the mitigating
circumstances and that, “[b]ecause the weighing process must be found
by the jury, all jury findings leading to that determination,
including the existence of mitigating circumstances, necessarily are
binding on the trial court.” (Gobble's brief, at pp. 114-15.)
In Ex parte Waldrop, 859 So.2d 1181 (Ala.2002), the
Alabama Supreme Court held: “[T]he determination whether the
aggravating circumstances outweigh the mitigating circumstances is not
a finding of fact or an element of the offense. Consequently, Ring and
Apprendi do not require that a jury weigh the aggravating
circumstances and the mitigating circumstances.” 859 So.2d at 1190.
In this case, the jury completed a verdict form,
which stated: “We, the jury, find that the aggravating circumstance of
‘heinous, atrocious, or cruel’ exists beyond a reasonable doubt.” (C.
261.) This finding by the jury made Gobble eligible for the death
penalty; thus, there was no Ring violation.
Second, Gobble argues that the jury's nonunanimous
recommendation of death was insufficient to support a sentence of
death. The jury, by a vote of 10 to 2, recommended that Gobble be
sentenced to death.
“Irvin argues that Ring requires that the jury's
recommendation of death be unanimous. Ring makes no such argument.
Moreover, both this Court and the Alabama Supreme Court have upheld
death sentences imposed after the jury made a non-unanimous
recommendation that the defendant be sentenced to death.”
Irvin v. State, 940 So.2d 331, 366
(Ala.Crim.App.2005). See also Newton v. State, [Ms. CR-05-1517,
October 2, 2009], --- So.3d ---- (Ala.Crim.App.2009); Blackmon v.
State, 7 So.3d 397 (Ala.Crim.App.2005); Flowers v. State, 922 So.2d
938 (Ala.Crim.App.2005); Miller v. State, 913 So.2d 1148
(Ala.Crim.App.2004). Ring does not reguire a unanimous recommendation
for the death penalty before a defendant may be sentenced to death.
Third, Gobble argues that her death sentence
violates Caldwell v. Mississippi because, she argues: “Where the
jury's determination as to the existence of an aggravating
circumstance is binding on the trial court, the reliability of that
determination is unconstitutionally undermined if the jury is wrongly
told that its penalty phase determination is a recommendation or
advisory in nature.” (Gobble's brief, p. 117.)
“We have repeatedly stated that a trial court does
not diminish the jury's role by stating that its verdict in the
penalty phase is a recommendation or an advisory verdict. Taylor v.
State, 666 So.2d 36 (Ala.Cr.App.1994), on remand, 666 So.2d 71
(Ala.Cr.App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516
U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996); Burton v. State, 651
So.2d 641 (Ala.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert.
denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995); White
v. State, 587 So.2d 1218 (Ala.Cr.App.1990), aff'd, 587 So.2d 1236
(Ala.1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d
Smith v. State, 795 So.2d 788, 837
(Ala.Crim.App.2000). Moreover, “Ring does not address the advisory
nature of a jury's sentencing recommendation.” Duke v. State, 889
So.2d 1, 43 n. 4 (Ala.Crim.App.2002), vacated on other grounds, 544
U.S. 901, 125 S.Ct. 1588, 161 L.Ed.2d 270 (2005).
The circuit court did not diminish the jury's role
in the penalty phase.
Gobble argues that evolving standards of decency
have rendered Alabama's method of performing lethal injection
She cites the article, Leonidas G. Koniaris, Inadeguate Anaesthesia in
Lethal Injection for Execution, 365 Lancet 1412 (2005), to support her
argument. This study was based on the improper administering of the
first drug-sodium thiopental-which acts as an anaesthesia. The United
States Supreme Court cited this study in Baze v. Rees, 553 U.S. 35, n.
2, 128 S.Ct. 1520, 170 L.Ed.2d 420(2008). Alabama's method of
performing lethal injection, a three-drug protocol, is substantially
similar to the one considered by the United States Supreme Court in
Baze v. Rees.
The Alabama Supreme Court in Ex parte Belisle, 11
So.3d 323 (Ala.2008), held that Alabama's method of performing lethal
injection does not constitute cruel and unusual punishment. The Court
“The Eighth Amendment to the United States
Constitution provides: ‘Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.’
‘Punishments are cruel when they involve torture or a lingering death;
but the punishment of death is not cruel within the meaning of that
word as used in the constitution. It implies there something inhuman
and barbarous,-something more than the mere extinguishment of life.’
In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890).
However, as the Supreme Court of the United States recently stated in
Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008):
“ ‘Our cases recognize that subjecting individuals
to a risk of future harm-not simply actually inflicting pain-can
qualify as cruel and unusual punishment. To establish that such
exposure violates the Eighth Amendment, however, the conditions
presenting the risk must be “sure or very likely to cause serious
illness and needless suffering,” and give rise to “sufficiently
imminent dangers.” Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113
S.Ct. 2475, 125 L.Ed.2d 22 (1993) (emphasis added). We have explained
that to prevail on such a claim there must be a “substantial risk of
serious harm,” an “objectively intolerable risk of harm” that prevents
prison officials from pleading that they were “subjectively blameless
for purposes of the Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 842, 846, and n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).’
“553 U.S. at ----, 128 S.Ct. at 1530-31.
“In Baze, two death-row inmates challenged
Kentucky's use of the three-drug protocol, arguing ‘that there is a
significant risk that the procedures will not be properly followed-in
particular, that the sodium thiopental will not be properly
administered to achieve its intended effect-resulting in severe pain
when the other chemicals are administered.’ 553 U.S. at ----, 128
S.Ct. at 1530. Belisle's claim, like the claims made by the inmates in
Baze, ‘hinges on the improper administration of the first drug, sodium
thiopental.’ Baze, 553 U.S. at ----, 128 S.Ct. at 1533.
“The Supreme Court upheld the constitutionality of
Kentucky's method of execution, Baze, 553 U.S. at ----, 128 S.Ct. at
1538, and noted that ‘[a] State with a lethal injection protocol
substantially similar to the protocol we uphold today would not create
a risk that meets this standard.’ Baze, 553 U.S. at ----, 128 S.Ct. at
1537. Justice Ginsburg and Justice Souter dissented from the main
opinion, arguing that ‘Kentucky's protocol lacks basic safeguards used
by other States to confirm that an inmate is unconscious before
injection of the second and third drugs.’ Baze, 553 U.S. at ----, 128
S.Ct. at 1567 (Ginsburg, J., dissenting). The dissenting Justices
recognized, however, that Alabama's procedures, along with procedures
used in Missouri, California, and Indiana ‘provide a degree of
assurance-missing from Kentucky's protocol-that the first drug had
been properly administered.’ Baze, 553 U.S. at ----, 128 S.Ct. at 1571
(Ginsburg, J., dissenting).
“The State argues, and we agree, that Belisle, like
the inmates in Baze, cannot meet his burden of demonstrating that
Alabama's lethal-injection protocol poses a substantial risk of harm
by asserting the mere possibility that something may go wrong. ‘Simply
because an execution method may result in pain, either by accident or
as an inescapable consequence of death, does not establish the sort of
“objectively intolerable risk of harm” that qualifies as cruel and
unusual.’ Baze, 553 U.S. at ----, 128 S.Ct. at 1531. Thus, we conclude
that Alabama's use of lethal injection as a method of execution does
not violate the Eighth Amendment to the United States Constitution.”
11 So.3d at 338-39. Alabama's method of performing
lethal injection is not cruel and unusual.
Gobble next argues that the circuit court erred in
not allowing defense counsel to present mitigating evidence.
Specifically, Gobble argues that counsel was unlawfully prevented from
making references to the Bible in his closing argument in the penalty
The record shows that during defense counsel's
closing argument, the following occurred:
“[Defense counsel]: What does the Bible tell us
about revenge? And let me tell you this-
“[Prosecutor]: I object the reference to the Bible.
That is improper argument.
“The Court: Sustained.
“[Defense counsel]: Let me tell you about revenge.
Does revenge belong to us? It does not. Who does it belong to?
“[Prosecutor]: Objection. You just sustained it.
And he goes back and starts-
“[Defense counsel]: I'm not talking about the
Bible, Judge. I'm talking about morality.
“The Court: Sustained. I understand.”
(R. 987.) Gobble asserts that the circuit court
erred in not allowing counsel to make the above argument. She cites Ex
parte Waldrop, 459 So.2d 959 (Ala.1984), to support her assertion.
Gobble mischaracterizes this issue. Gobble was not
prevented from presenting any mitigating evidence. Arguments of
counsel are not evidence. See Sneed v. State, 1 So.3d 104
Also, although some states forbid any biblical
references in closing arguments-State v. Berry, 141 S.W.3d 549
(Tenn.Crim.App.2004), and Fontenot v. State, 881 P.2d 69
(Okla.Crim.App.1994)-Alabama has recognized that “counsel's argument
should not be so restricted as to prevent reference, by way of
illustration, ․ to principles of divine law or biblical teachings,”
Waldrop, 459 So. at 963.11
However, we have also held that the discretion to argue biblical
references is not unlimited. In Welcher v. State, 504 So.2d 360
(Ala.Crim.App.1987), we stated:
“The disputed portion of the appellant's closing
statement is as follows, ‘The State asked y'all to cast the stone.
Those among you who are within [sic] sin cast that stone.’ (R. 355)
Although it is true that quotations from the Bible are generally
allowed during closing arguments, see, e.g., Wright v. State, 279 Ala.
543, 188 So.2d 272 (1966), it is clear that the statement made here
went beyond the ‘wide latitude’ allowed counsel in closing arguments.
See Sanders v. State, 426 So.2d 497 (Ala.Crim.App.1982). We find no
abuse of discretion in the trial judge's actions here since the
statement was clearly made in an attempt to have the members of the
jury empathize with the defendant. Montgomery v. State, 446 So.2d 697
(Ala.Crim.App.1983). The trial judge was correct in instructing the
jury to disregard counsel's statement.”
504 So.2d at 363-64.
Defense counsel's argument was made in an attempt
“to have the members of the jury empathize with the defendant.”
Welcher, 504 So.2d at 363. Like the court in Welcher, we find that the
circuit court did not abuse its considerable discretion in declining
to allow defense counsel to make the above-cited argument.
Gobble argues that prosecutorial arguments made in
the penalty phase denied her a fair trial.
Gobble did not object to any of the challenged
instances; thus, we review these claims for plain error. See Rule 45A,
Ala.R.App .P. As the Alabama Supreme Court stated in Ex parte
Deardorff, 6 So.3d 1235 (Ala.2008):
“[T]rial counsel did not object to the prosecutor's
untimely argument. This failure weighs against the claim of prejudice
Deardorff makes on appeal. See Brooks v. State, 973 So.2d 380, 387
(Ala.Crim.App.2007). ‘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).”
6 So.3d at 1244. The standard of review is not
whether the defendant was prejudiced, but whether the comment “so
infected the trial with unfairness as to make the resulting conviction
a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 169, 106
S.Ct. 2464, 91 L.Ed.2d 144 (1986).
First, Gobble argues that the prosecutor repeatedly
misstated the law in the penalty phase when he argued that the jury
was not to consider sympathy in its deliberations and when he made the
following comment on Gobble's mental health: “Come on, people, it used
to be a crime was a crime, and a sin was a sin. Now, it's a syndrome.”
In upholding a prosecutor's arguments that the jury
should set aside its sympathies, we have stated:
“[I]n Haney v. State, 603 So.2d 368, 394-95
(Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507
U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993), the prosecutor
argued to the jury that it should set aside its sympathies in making
its decision. This Court held that those comments were proper, stating
that they were ‘no more than the prosecutor urging the jury not to be
distracted by matters unrelated to the evidence, but to confine itself
to the facts and the law․ The prosecutor's remarks concerning
sympathy, sympathy for children, and weaknesses are obvious efforts to
prevent the jurors from considering emotional responses not based on
the evidence, and they are permitted by [California v.] Brown, 479
U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) ].’ Id. at 394.”
Boyd v. State, 715 So.2d 825, 846
Also, the court on several occasions instructed the
jury that arguments of counsel were not evidence in the case. There is
no indication that the above arguments seriously affected Gobble's
substantial rights. We cannot say that the prosecutor's arguments so
infected the trial with unfairness that Gobble was denied due process.
See Darden v. Wainwright, supra.
Next, Gobble argues that the prosecutor misled the
jury on the aggravating circumstance that the offense was especially
heinous, atrocious, or cruel when he made the following argument:
“The law in Alabama on what is heinous, atrocious,
and cruel, the definition is that you inflicted pain, that you are
evil, you are wicked, you inflicted the pain for pure disdain to human
life, that it's shockingly evil, it's wicked. And the judge will
charge you and tell you what that means.”
The prosecutor's argument was consistent with
Alabama law on the definition of the “heinous, atrocious, or cruel”
aggravating circumstance. See Ex parte Kyzer, 399 So.2d 330
(Ala.1981). The argument was not improper.
Third, Gobble argues that the prosecutor misled the
jury on expert testimony when he made the following argument in
“Let's look at, once again, Dr. Ghostly when he
talks about-this is his report. This is what they have brought to you.
Dr. Ghostly has not a lot of credibility any more. I disagree with
[defense counsel]. You don't need no experts. You have to follow the
(R. 997.) We cannot say that this argument so
infected the trial with unfairness that Gobble was denied due process.
See Darden v. Wainwright, supra.
Gobble argues that the circuit court erred in
prohibiting the jury from considering “residual doubt” as a mitigating
circumstance in the penalty phase. Specifically, she argues that
residual doubt is a circumstance under § 13A-5-52, Ala.Code 1975, that
may be considered by the jury in sentencing.12
There was no objection to this issue; therefore, we
review this claim for plain error. See Rule 45A, Ala.R.App.P.
Recently, the Alabama Supreme Court considered the role of “residual
doubt” in the penalty phase of a capital-murder trial. The Court
“Section 13A-5-51, Ala.Code 1975, without limiting
possible mitigating circumstances, statutorily defines a number of
mitigating circumstances. Residual doubt as to the defendant's guilt
is not a statutory mitigating circumstance. Instead, as the State
argues, ‘all seven statutory mitigating circumstances [in § 13A-5-51]
relate to the defendant or the circumstances of the crime for which
the defendant [has been found guilty] and merely reduce the
defendant's culpability for committing that crime.’ State's brief, at
“Section 13A-5-52, Ala.Code 1975, allows a capital
defendant to offer mitigating circumstances in addition to those
enumerated in § 13A-5-51. Specifically, it provides:
“ ‘In addition to the mitigating circumstances
specified in Section 13A-5-51, mitigating circumstances shall include
any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant offers as a basis for
a sentence of life imprisonment without parole instead of death, and
any other relevant mitigating circumstances which the defendant offers
as a basis for a sentence of life imprisonment without parole instead
“It is inarguable, as the Court of Criminal Appeals
has pointed out on many occasions, that residual doubt is not a factor
about the ‘defendant's character or record [or] any of the
circumstances of the offense.’ See, e.g., Melson v. State, 775 So.2d
857, 899 (Ala.Crim.App.1999), aff'd, 775 So.2d 904 (Ala.2000). Indeed,
as the State argues, residual doubt ‘is nothing more than a juror's
state of mind and bears directly on the defendant's guilt, [and] is
not a fact or situation relating to the defendant's character or
record or which reduces the defendant's culpability in the commission
of a crime for which guilt is a foregone conclusion.’ State's brief,
“According to Lewis, the language § 13A-5-52
providing that ‘mitigating circumstances shall include ․ any other
relevant mitigating circumstance which the defendant offers as a basis
for a sentence of life imprisonment without parole instead of death’
is broad enough to allow the consideration of residual doubt at the
penalty phase of a capital-murder trial. It is not, however, because
residual doubt is not a ‘relevant mitigating circumstance.’
“A mitigating circumstance is ‘[a] fact or
situation that does not bear on the question of a defendant's guilt
but is considered ․ in imposing punishment and esp. in lessening the
severity of a sentence.’ Black's Law Dictionary 260 (8th ed.2004). As
previously stated in this opinion, residual doubt bears directly on
the question of a defendant's guilt. In fact, Lewis admits as much:
‘Residual doubt arises because even though the evidence the juror saw
was enough to convict, there is a possibility that ․ the defendant is
really innocent.’ Lewis's reply brief, at 13. Also, residual doubt is
not a ‘fact or situation.’ Instead, it is merely ‘a lingering
uncertainty about facts, a state of mind that exists somewhere between
“beyond a reasonable doubt’ and ‘absolute certainty.’ “ Franklin v.
Lynaugh, 487 U.S. 164, 188, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988)
(O'Connor, J., concurring). Stated simply, Lewis's arguments find no
support in Alabama's statutory provisions addressing mitigating
“Residual doubt is not a mitigating circumstance.
Consequently, the Court of Criminal Appeals was correct in holding
that the trial court did not err in denying Lewis's requested jury
charge on residual doubt during the penalty phase of Lewis's
Ex parte Lewis, [Ms. 1070647, May 29, 2009] ---
So.3d ----, ---- (Ala.2009). Accordingly, we find no plain error in
regard to this claim.
Gobble argues that the circuit court erroneously
found that the murder was especially heinous, atrocious, or cruel, §
13A-5-49 (8), Ala.Code 1975, as compared to other capital murders. She
further asserts that the circuit court's sentencing order fails to
make specific findings of fact concerning this aggravating
The Alabama Supreme Court in Ex parte Kyzer, held
that the heinous, atrocious, or cruel aggravating circumstance was
meant to apply “to only those conscienceless or pitiless homicides
which are unnecessarily torturous to the victim.” 399 So.2d at 334.
The factors to consider in determining whether that aggravating
circumstance exists are set out by the Alabama Supreme Court in Ex
parte Key, 891 So.2d 384 (Ala.2004) -(1) psychological torture; and
(2) suffering after the initial assault.
The circuit court stated the following in its
“The Court finds that the State proved beyond a
reasonable doubt the existence of the following circumstances:
“(1) The capital offense was especially heinous,
atrocious, and cruel compared to other capital offenses. See Code of
Alabama, Section 13A5-40.
“The jury's verdict establishes the existence of
this aggravating circumstance in an unanimous vote and the evidence
supports the verdict.”
(C. 275.) This was the only aggravating
circumstance the trial court found to exist.
Section 13A-5-47(d), Ala.Code 1975, requires that
“[t]he trial court shall enter specific written findings concerning
the existence or nonexistence of each aggravating circumstance
enumerated in Section 13A-5-49 ․” Here, the circuit court did not make
specific findings of facts concerning all the aggravating
circumstances set out in § 13A-5-49, Ala.Code 1975.13
Also, as noted above, the circuit court failed to make specific
findings of fact consistent with Ex parte Kyzer, concerning the
aggravating circumstance that the murder was especially heinous,
atrocious, or cruel when compared with other capital offenses. In
Miller v. State, 913 So.2d 1148 (Ala.Crim.App.2004), we remanded a
similar case and stated:
“The court's order fails to comply with Ex parte
Kyzer, because the trial court failed to make specific findings of
fact as to why it believed that this aggravating circumstance existed.
Although the circuit court made findings of fact in another part of
its three-part sentencing order, those facts do not establish specific
findings addressing the standard set forth in Ex parte Kyzer. See,
e.g., Stallworth v. State, 868 So.2d 1128, 1168 (Ala.Crim.App.2001)
913 So.2d at 1152. See McGowan v. State, 990 So.2d
931 (Ala.Crim.App.2003); Turner v. State, 924 So.2d 737
By remanding this case to the circuit court, we do
not wish to be understood as implying that this murder was not
especially heinous, atrocious, or cruel when compared to other capital
murders. “We have consistently held that brutal beatings that result
in death meet the definition of especially heinous, atrocious, or
cruel.” Blackmon v. State, 7 So.3d 397, 420 (Ala.Crim.App.2005).
Rather, remand is required because the circuit court's order fails to
comply with § 13A-5-47(d), Ala.Code 1975, and with Ex parte Kyzer.
Thus, we must remand this case to the circuit court for that court to
correct these deficiencies in its sentencing order.
Accordingly, this case is hereby remanded to the
Houston County Circuit Court for the circuit court to make specific
findings of fact concerning each aggravating circumstance set out in §
13A-5-49, Ala.Code 1975, and to make specific findings of facts,
consistent with the requirements of Ex parte Kyzer concerning the
aggravating circumstance set out in § 13A-5-49(8), Ala.Code 1975. The
circuit court should then reweigh the aggravating and the mitigating
circumstances and resentence Gobble. See Spencer v. State, [Ms.
CR-04-2570, April 4, 2008] --- So.3d ---- (Ala.Crim.App.2008). Due
return should be filed in this Court within 42 days from the date of
AFFIRMED AS TO CONVICTION; REMANDED WITH DIRECTIONS
AS TO SENTENCING.
WELCH and KELLUM, JJ., concur.WISE, P.J., and
WINDOM, J., concur in the result.
Tierra Capri Gobble
Four-month-old Phoenix Cody Parrish