Before sunrise, 70-year-old Mattie Wesson was brutally attacked, raped,
sodomized and shot to death in her home.
After the shooting and assualt took place in the
bedroom of her home, Mattie was able to walk across the street to the
front yard of her neighbor and before collapsing told her than a black
man had raped and shot her. Shortly after making this statement,
Mattie Wesson died.
Powell and a friend, Bobby Johnson, lived in a home
across the street from Mattie Wesson. Powell borrowed Johnson's
leather jacket and left the Johnson home in the early hours on the day
of the murder.
Powell denied knowing anything about the murder,
but the physical evidence told a different story. Powell's semen was
found in the victim's mouth, rectum, and vagina. Mattie Wesson's blood
was found on Powell's pants and on Bobby Johnson's leather jacket.
Powell's handprint was found on the window on the front of the
victim's home, where a screen had been cut. Powell had a handgun after
he arrived at the residence of Jason Long, which was about daybreak
and asked him to get rid of the handgun. Jason Long complied with this
request, and the handgun was never found.
Long testified that Powell told him on the day of
the murder that he did the bitch, she ran up on him and he shot her.
Powell had previously been arrested numerous times for robbery,
burglary and assault.
Powell v. State, 796 So.2d 404 (Ala. 1999). (Direct Appeal)
Ex parte Powell, 796 So.2d 434 (Ala. 2001). (Direct Appeal)
Powell v. Allen, 602 F.3d 1263 (11th Cir. 2010). (Habeas)
Powell did not request a special last meal. He ate sandwiches, soda
and corn chips from a vending machine.
"I'd like to say I'm sorry for the pain I have caused everyone who has
had to deal with this situation - my family, the victim's family and
everyone in this state. I've made peace with myself and God, and hope
that everyone can move on from this situation."
Alabama Department of Corrections
Inmate: Powell III, Eddie Duvall
Alabama executes man for brutal 1995 murder
By Monique Fields - Reuters.com
June 16, 2011
TUSCALOOSA (Reuters) - Alabama on Thursday executed
by lethal injection a man who raped, sodomized and murdered a 70-year-old
woman in Tuscaloosa County in 1995. Eddie Duval Powell, 41, was
pronounced dead at 6:30 p.m. local time at the Holman Correctional
Facility in Atmore, said Department of Corrections spokesman Brian
Powell had been on death row for 12 years, and his
execution was the fourth in Alabama this year. His execution was one
of two carried out on Thursday night, bringing the number of people
put to death in the United States this year to 22. There were 46
executions in 2010.
Powell did not request a special last meal. He ate
sandwiches, soda and corn chips from a vending machine. "I'd like to
say I'm sorry for the pain I have caused everyone who has had to deal
with this situation -- my family, the victim's family and everyone in
this state," he said before being put to death, according to Corbett.
"I've made peace with myself and God, and hope that everyone can move
on from this situation."
The family of victim Mattie Wesson lamented in a
written statement that she did not get to meet four of her
grandchildren or any of her four great-grandchildren. "Our family
would like to express our deepest gratitude to everyone that has
walked with us during the long journey. It is a journey we did not
want to take, but along the way we have been helped by so many people,"
the family said.
Amnesty International had urged Governor Robert
Bentley to commute Powell's death sentence due to his lawyers'
arguments that he had a mental disability that would render his
Powell and a friend lived across the street from
Wesson in Holt, Alabama. On the morning of March 25, 1995, Powell
borrowed his friend's leather jacket and attacked Wesson in her home.
Powell's handprint was found on the window on the front of her home --
where a screen had been cut -- and his semen was found on her body. He
shot Wesson and her blood was found on his pants and on the borrowed
leather jacket, according to court documents. Powell took small change
and jewelry from the home. He purchased wine with mostly nickels at a
nearby gas station, and jewelry similar to Wesson's was found in the
pockets of the leather jacket.
Powell was tried twice. The first trial ended in a
mistrial when the jury could not agree on the punishment. A second
jury found him guilty of murder and recommended the death penalty,
which Alabama's appellate courts upheld.
In Texas, a man who stabbed a fellow inmate in a
state prison in 1999 also was executed on Thursday.
Alabama prison inmate executed for '95 slaying
By Bob Johnson - MontgomeryAdvertiser.com
Jun. 17, 2011
ATMORE -- An Alabama prison inmate was executed
Thursday for the 1995 rape, robbery and murder of a 70-year-old woman.
Eddie Duval Powell, 41, was put to death by injection at 6:30 p.m. at
Holman Prison in Atmore.
With his last words, he apologized to the victim's
family, his family and to "everyone in the state." "I'd like to say
I'm sorry for all the pain I caused to everyone," Powell said when
Warden Tony Patter son asked if he had anything to say. Powell added,
"I'd like to say I've made peace with myself and God. Now everyone can
move on." Powell then laid his head down and blinked his eyes. Prison
chaplain Chris Summers walked over and held Powell's hand and kneeled
beside the inmate and prayed. A moment later Powell raised his head
and with a confused look on his face, glanced around the death chamber.
He then dropped his head back down and appeared to be unconscious.
Earlier in the evening the U.S. Supreme Court
denied Powell's appeals to stop the execution. He was sentenced to die
for raping, robbing and shooting to death 70-year-old Mattie Wesson at
her home in Holt in Tuscaloosa County early on the morning of March
After the execution, Mattie Wesson's sons, William
Wesson, Curtis Wayne Wesson and Jerold O'Neal Wesson issued a written
statement saying "justice had been served" with Powell's execution. "Because
of her untimely death, Mrs. Wesson was never able to meet four of her
grandchildren and none of her four great-grandchildren," the sons said
in the statement. "These children will never be able to hear her sweet
voice and her infectious laugh. They will never be able to know about
her gentle spirit or her wonderful sense of humor. She'll never be
able to teach them about her loves in life -- fishing, playing cards
with friends for nickels and dimes, and cooking." Mattie Wesson's sons
offered their condolences to Powell's family. "We would like to offer
our condolences to the family of Mr. Powell. We truly understand the
grief they are experiencing. It is our prayer that Mr. Powell has
found forgiveness from our Lord Jesus and that he will spend eternity
in Heaven," the sons said in the statement.
Department of Corrections spokesman Brian Corbett
said Powell had been "relaxed and talkative" Thursday and spent some
of his time writing letters. Corbett said Powell made no special
request for a last meal and turned down breakfast Thursday morning.
Later in the day he ate two meatball subs, a chicken sandwich, two
bags of corn chips and three Sunkist grape sodas from prison vending
Powell's family was to claim his body after the
execution. He gave some photos to his mother and the rest of his
possessions, including a 13-inch black-and-white television.
One of his appeals said the court should stop the
execution because Powell is mentally challenged. That appeal was
rejected earlier this week by the Alabama Supreme Court. The other
appeal, turned down Wednesday by the 11th U.S. Circuit Court of
Appeals, said Alabama recently changed a key drug used in the
execution cocktail and that could cause Powell extreme pain and
suffering. The state switched the first drug used in executions from
sodium thiopental to pentobarbital because of a nationwide shortage of
sodium thiopental. The 11th Circuit rejected Powell's appeal, saying
the switch in drugs was not a significant change and Powell waited too
long to raise the issue.
Powell became the fourth person executed in Alabama
this year and the second person since the state switched drugs in the
execution cocktail. Jason Oric Williams was executed using the new
cocktail May 19 for the 1992 killing of four people during a shooting
spree in Mobile County.
Court records show that Powell was working at a
Tuscaloosa restaurant at the time he killed the woman and was living
with a co-worker across the street from Wesson's home. Powell was
accused of breaking into the home, raping Wesson and shooting her as
she tried to escape. Wesson's blood was found later on Powell's pants
and on a jacket Powell had borrowed from his roommate.
Alabama inmate dies by lethal injection for 1995
By Matthew Busch - Blog.al.com
June 16, 2011
ATMORE, Alabama -- Eddie Duval Powell was executed
by lethal injection tonight at Holman Prison in Alabama. It was
Alabama's fourth execution this year, the third under Gov. Robert
Bentley. Powell was pronounced dead at 6:30 p.m.
Powell was convicted of the 1995 murder, rape and
sodomy of 70-year-old Mattie Wesson during the burglary of her home in
Holt in Tuscaloosa County. He was assigned to death row in 1998 and
has served 12 years, 9 months, and 9 days in prison.
Powell's mother, brother, sister, uncle and friend
visited him from 9 a.m. until 4:30 p.m. today. Officers said Powell
wrote letters and described him as talkative and calm. Powell refused
breakfast this morning but ate sandwiches, soda, and corn chips from
vending machines, Brian Corbett, a Holman spokesperson, said. He did
not request a last meal.
Powell left the majority of his belongings to
fellow inmates, including a black and white TV, a Bible, radio, shoes
and a thesaurus. He left his mother, Alice Neal, his photographs. The
U.S. Supreme Court today rejected appeals by Powell.
Family of slain woman says execution has served
By Jeremy Gray - Blog.al.com
June 16, 2011
The family of Mattie Lee "Polly" Wesson, whose 1995
murder led to tonight's execution Eddie Duval Powell III, said
although Powell's death can't bring her back, they take comfort in
knowing justice has been served.
In a statement to the press, family members noted
the execution came 16 years, two months, three weeks and one day after
she was murdered in her home in Holt. "Mrs. Wesson was never able to
meet four of her grandchildren and none of her four great-grandchildren.
These children will never be able to hear her sweet voice and her
infectious laugh. They will never be able to know about her gentle
spirit or her wonderful sense of humor. She'll never be able to teach
them about her loves in life - fishing, playing cards with friends for
nickels and dimes, and cooking," the statement read.
The family also thanked the many agencies they say
helped them in the wake of her death. These are: the Tuscaloosa Metro
Homicide Unit, the Tuscaloosa Police Department, the Tuscaloosa Fire
Department, the Tuscaloosa County Sheriff's Office, the Tuscaloosa
County District Attorney's Office and the State of Alabama Attorney
The statement also includes condolences to Powell's
family. "We truly understand the grief they are experiencing. It is
our prayer that Mr. Powell has found forgiveness from our Lord Jesus
and that he will spend eternity in Heaven."
It ended by noting family members hope to one day
see Wesson in Heaven, too. "As we close this chapter in our lives, we
look forward to more joyful times in the future. We take comfort in
knowing that we will one day see our sweet Mother again in Heaven
where she will be walking on streets of gold and fishing with the
saints of old."
Eddie Duvall Powell III
In the early morning hours before sunrise on March
25, 1995, the victim, 70-year-old Mattie Wesson, was brutally attacked,
raped, sodomized and shot to death. Mattie was an elderly widow and
was attacked in her home in Holt, Alabama, as she apparently attempted
to escape her attacker. After the shooting and assualt took place in
the bedroom of her home, Mattie was able to walk across the street to
the front yard of her neighbor, Cora Jennings, before she collapsed.
Ruth Kizziah, a neighbor, ran to Mattie's aid and Mattie told her than
a black man had raped and shot her. Shortly after making this
statement, Mattie Wesson died.
Eddie Duvall Powell III and a friend, Bobby Johnson,
lived in the home of Cora Jennings across the street from Mattie
Wesson. Jennings was the mother of Bobby Johnson. Powell and Johnson
both worked at O'Charley's restaurant. Powell borrowed Johnson's
leather jacket and left the Johnson home in the early hours of March
The evidence plainly showed that Powell had been at
Mattie Wesson's home, contrary to Powell's statement. Powell's semen
was found in the victim's mouth, rectum, and vagina. Mattie Wesson's
blood was found on Powell's pants and on Bobby Johnson's leather
jacket, which was worn by Powell on this date. Powell's handprint was
found on the window on the front of the victim's home, where a screen
had been cut. A matchbook from O'Charley's restaurant was found in the
unfinished basement under Mattie Wesson's home immediately after the
murder. The matchbook appeared to have been there only a short time
since it had no dust on it, unlike most other things in the basement.
Mattie was shot about 5:25 am on March 25, 1995,
and Powell was first seen on videotape at the Shell Oil Station in
Alberta City about an hour later at 6:27 am. This station was a
walking distance of about forty-two minutes from the victim's home,
considering a stop Powell made along the way that was in evidence. The
Shell Oil Station employee testified that Powell paid for wine mostly
in nickels and had a lot of change in small coins. This was
significant because Mattie kept a container of small change in her
purse for use in nickel and dime card games. The container of small
change was missing, and Mattie's handgun was missing also.
Powell appeared at the Shell Oil Station wearing a
leather jacket with a wet stain on it. Mattie's blood was on the
leather jacket worn by Powell on March 25, 1995. Powell wore this
bloodstained jacket, which belonged to Bobby Johnson, to the residence
of his friend, Jason Long, on the morning Mattie Wesson was killed.
Testimony showed that the contents of the leather jacket pockets
included an O'Charley's matchbook, small change, and jewelry similar
to jewelry owned by Mattie Wesson. None of these items belonged to
Bobby Johnson, who owned the jacket and stated that no bloodstain was
on the jacket when Powell took it.
The evidence showed that Powell had a handgun after
he arrived at the residence of Jason Long, which was about daybreak or
between 6:30 and 7:00 am on March 25, 1995. Powell asked Jason Long,
who lived near the Shell Oil Station, to get rid of the handgun. Jason
Long complied with this request, and the handgun was never found.
On the morning of March 25, 1995, Powell had fresh
scratches on the back of his neck. Lawrence Bunkley, an acquaintance
of Powell and a friend of Jason Long, testified that Powell told him
on the day Mattie Wesson was killed something to the effect that he
did the bitch, she ran up on him and he shot her." Powell had
previously been arrested numerous times for robbery, burglary and
Powell v. State, 796 So.2d 404 (Ala.
1999). (Direct Appeal)
Defendant was convicted in the Circuit Court,
Tuscaloosa County, No. CC-95-1020, Gay M. Lake, Jr., J., for murder
committed during the course of a burglary in the first degree, murder
committed during the course of a robbery in the first degree, murder
committed during a rape in the first degree, and murder committed
during sodomy in the first degree, and was sentenced to death.
Defendant appealed. The Court of Criminal Appeals, Fry, J., held that:
(1) audiotaped police interviews with defendant were admissible; (2)
waiver of Miranda rights was voluntary; (3) defendant was not entitled
to change of venue due to pretrial publicity in community; (4) blood-stained
jacket and contents of pockets were admissible; (5) charging defendant
with multiple counts of capital murder did not violate double jeopardy;
(6) probable cause existed to support order to obtain samples of blood,
saliva, hair, semen, and tissue; (7) defendant failed to make prima
facie Batson case; and (8) death sentence was warranted. Affirmed.
The appellant, Eddie Duvall Powell III, was
convicted of four counts of capital murder: murder committed during
the course of a burglary in the first degree, see § 13A-5-40(a)(4),
Ala.Code 1975; murder committed during the course of a robbery in the
first degree, see § 13A-5-40(a)(2), Ala.Code 1975; murder committed
during a rape in the first degree, see § 13A-5-40(a)(3), Ala.Code
1975; and murder committed during sodomy in the first degree, see §
13A-5-40(a)(3), Ala.Code 1975. The jury, by a vote of 11-1,
recommended that Powell be sentenced to death. The trial court imposed
the death sentence recommended by the jury.
The record contains a summary of the facts and
evidence presented, as found by the trial court. In pertinent part,
the trial court's order states as follows: “The Defendant, Eddie Duval
Powell, has been convicted in this case of capital murder. The jury
has recommended the sentence of death.
“(1) In the early morning hours before sunrise on
March 25, 1995, the victim, [M.W.], was brutally attacked, raped,
sodomized and shot to death. The victim was an elderly widow and was
attacked in her home in Holt, Alabama, as she apparently attempted to
escape her attacker.
“(2) Defendant and a friend, Bobby Johnson, lived
at the Johnson home across the street from the victim. Defendant and
Bobby Johnson both worked at O'Charley's restaurant. Defendant
borrowed Bobby Johnson's leather jacket and left the Johnson home in
the early hours of March 25, 1995.
“(3) The evidence plainly showed that the Defendant
had been at the home of the victim, contrary to Defendant's statement.
The Defendant's semen was found in the victim's mouth, rectum, and
vagina. The victim's blood was found on the Defendant's pants and on
Bobby Johnson's leather jacket, which was worn by the Defendant on
this date. The Defendant's handprint was found on the window on the
front of the victim's home, where a screen had been cut. A matchbook
from O'Charley's restaurant was found in the unfinished basement under
the victim's home immediately after the murder. The matchbook appeared
to have been there only a short time since it had no dust on it,
unlike most other things in the basement.
“(4) The victim was shot about 5:25 A.M. on March
25, 1995, and the Defendant was first seen on videotape at the Shell
Oil Station in Alberta City about an hour later at 6:27 A.M. This
station was a walking distance of about forty-two minutes from the
victim's home, considering a stop the Defendant made along the way,
that was in evidence. The Shell Oil Station employee testified that
the Defendant paid for wine mostly in nickels and had a lot of change
in small coins. This was significant because the victim kept a
container of small change in her purse for use in nickel and dime card
games. The container of small change was missing, and the victim's
handgun was missing also. The Defendant appeared at the Shell Oil
Station wearing a leather jacket with a wet stain on it. The victim's
blood was on the leather jacket worn by the Defendant on March 25,
1995. The Defendant wore this bloodstained jacket, which belonged to
Bobby Johnson, to the residence of his friend, Jason Long, on the
morning the victim was killed.
“(5) Testimony showed that the contents of the
leather jacket pockets included an O'Charley's matchbook, small change,
and jewelry similar to jewelry owned by the victim. None of these
items belonged to Bobby Johnson, who owned the jacket and stated that
no bloodstain was on the jacket when the Defendant took it.
“(6) The evidence showed that Defendant had a
handgun after he arrived at the residence of Jason Long, which was
about daybreak or between 6:30 and 7:00 A.M. on March 25, 1995. The
Defendant asked Jason Long, who lived near the Shell Oil Station, to
get rid of the handgun. Jason Long complied with this request, and the
handgun was never found.
“(7) On the morning of March 25, 1995, the
Defendant had fresh scratches on the back of his neck. Lawrence
Bunkley, an acquaintance of Defendant and a friend of Jason Long,
testified that the Defendant told him on the day the victim was killed
something to the effect that he did the bitch, she ran up on him and
he shot her.” (C. 661-63.)
Powell contends that the trial court erred in
denying his motion to suppress his videotaped and audiotaped
statements. “ ‘ “ ‘In reviewing the correctness of the trial court's
ruling on a motion to suppress, this Court makes all the reasonable
inferences and credibility choices supportive of the decision of the
trial court.’ ” Kennedy v. State, 640 So.2d 22, 26 (Ala.Cr.App.1993),
quoting Bradley v. State, 494 So.2d 750, 761 (Ala.Cr.App.1985), aff'd,
494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385,
94 L.Ed.2d 699 (1987). A trial court's ruling on a motion to suppress
will not be disturbed unless it is “palpably contrary to the great
weight of the evidence.” Parker v. State, 587 So.2d 1072, 1088 (Ala.Cr.App.1991).'
“ Rutledge v. State, 680 So.2d 997, 1002 (Ala.Cr.App.1996).” Maples v.
State, 758 So.2d 1, 41 (Ala.Cr.App.1999).
Powell asserts that he should have been informed of
his Miranda rights during his initial interview, pursuant to Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Specifically, he argues that the videotaped interview with Stan Bush,
a homicide investigator for the Tuscaloosa Police Department, was a
custodial interrogation. “ Miranda warnings are not necessarily
required to be given to everyone whom the police question. Oregon v.
Mathiason, 429 U.S. 492, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977).
Miranda is only applicable when an individual is subjected to
custodial interrogation. Davis v. Allsbrooks, 778 F.2d 168, 170 (4th
Cir.1985); Primm v. State, 473 So.2d 1149, 1158 (Ala.Crim.App.), cert.
denied, 473 So.2d 1149 (Ala.1985). ‘By custodial interrogation, we
mean questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of
action in a significant way.’ Miranda, supra, 384 U.S. at 444, 86 S.Ct.
“There is a distinction which must be made between
general interrogation and custodial interrogation since Miranda is
inapplicable when interrogation is merely investigative rather than
accusative. Kelley v. State, 366 So.2d 1145, 1148 (Ala.Crim.App.1979);
Primm, supra, at 1158; Johnston v. State, 455 So.2d 152, 156 (Ala.Crim.App.),
cert. denied, 455 So.2d 152 (Ala.1984). This distinction should be
made on a case-by-case basis after examining all of the surrounding
circumstances. United States v. Miller, 587 F.Supp. 1296, 1299 (W.D.Pa.1984);
Johnston, supra, at 156; Warrick v. State, 460 So.2d 320, 323 (Ala.Crim.App.1984);
Hall v. State, 399 So.2d 348, 351-52 (Ala.Crim.App.1981); Kelley,
supra at 1149.” Hooks v. State, 534 So.2d 329, 347-48 (Ala.Cr.App.1987).
See State v. Smith, 715 So.2d 925 (Ala.Cr.App.1998).
In deciding whether the questioning of a suspect is
a custodial interrogation, the following factors should be considered:
“ ‘(1) the language used to summon the individual, (2) the extent to
which the defendant is confronted with evidence of guilt, (3) the
physical surroundings of the interrogation, (4) the duration of the
detention, and (5) the degree of pressure applied to detain the
individual. United States v. Crisco, 725 F.2d 1228, 1231 (9th Cir.),
cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984)....’
” Hooks v. State, 534 So.2d at 348 (some citations omitted), quoting
United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir.1985). See also
State v. Smith, 715 So.2d 925, 927 (Ala.Cr.App.1998).
In Click v. State, 695 So.2d 209 (Ala.Cr.App.1996),
this Court stated: “It is well established that ‘the prosecution may
not use statements, whether exculpatory or inculpatory, of the
defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.’ Miranda
v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694
(1966). However, the safeguards required by Miranda are required only
if the defendant is in custody when questioned. Berkemer v. McCarty,
468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984);
Landreth v. State, 600 So.2d 440, 444 (Ala.Cr.App.1992). “.... “Also,
the fact that the questioning occurred at the police station does not
necessarily lead to a conclusion that appellant was in custody for
Miranda purposes. “ ‘[P]olice officers are not required to administer
Miranda warnings to everyone they question. Nor is the requirement of
warnings to be imposed simply because the questioning takes place in
the station house, or because the questioned person is one whom the
police suspect.’ “ Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.
711, 714, 50 L.Ed.2d 714 (1977).” 695 So.2d at 216-17.
During the suppression hearing, Bush testified that
he asked Cora Jennings, the victim's neighbor, to tell both Powell and
Bobby Johnson to come to the police station and talk to him. Powell,
Bobby Johnson, and Cora Jennings (Johnson's mother) lived across the
street from the victim, and Bush believed Powell and Bobby Johnson had
information about the murder. Additionally, Powell worked at
O'Charley's restaurant and a matchbook from O'Charley's was found at
the scene of the murder. Bush stated that Vincent Johnson, a friend of
Powell's, drove Powell to the police station around 1:45 p.m. on March
25, 1995. According to Bush, he believed that Powell was a possible
witness to the crime, and he began questioning Powell around 2:00 p.m.
Our review of the videotaped interview indicates
that Bush began the interview around 2:00 p.m. in a small room in the
police station. During the interview, Powell stated that he had
graduated from high school in 1987 and that he was at the time of the
interview 25 years old. Bush asked Powell several questions concerning
where he was when the murder occurred. According to Powell, after he
worked the evening shift at O'Charley's, he went home, and then he and
his neighbor, Buddy, went to a nightclub. Powell stated that when he
left the nightclub, he walked to the house of a prostitute. He further
stated that after visiting the prostitute, he walked to a gas station
in Alberta City, purchased some beer, and then walked to Jason Long's
house, where he remained until the morning. During the interview, Bush
told Powell that he was not a suspect but that he needed to know where
Powell was the night that the murder occurred. Additionally, Bush
asked Powell if he had seen anyone suspicious walking around the
victim's house early in the morning, and asked him several questions
about his roommate, Bobby Johnson.
At the suppression hearing Bush testified that,
about one hour into the interview, he noticed that Powell was becoming
evasive and that there were inconsistencies in his statement. At that
point, he read Powell his Miranda rights. Our review of the videotape
indicates that Bush did, in fact, read Powell his rights and that
Powell stated that he understood his rights and signed a waiver of
rights form. Bush asked Powell a few more questions and then told him
that he was free to leave. Powell said goodbye and left the interview
We conclude that Powell's interrogation did not
become custodial until just before he was advised of his rights.
Powell was summoned by Cora Jennings to talk to the police, and Powell
voluntarily rode to the police station with a friend. Bush testified
that he initially believed that Powell was a witness, but that, after
Powell gave inconsistent and evasive answers, he suspected that Powell
was involved in the crime. Bush stated that, as soon as he suspected
that Powell was involved, he read him his Miranda rights. After
examining all of the surrounding circumstances, we conclude that,
before Powell was read his Miranda rights, Bush's questions were
investigative, rather than accusative. Moreover,
“Nothing in the record suggests that the appellant
was not free to leave the police station or that he was in custody
until the point at which he became a suspect and was advised of his
rights.” Click v. State, 695 So.2d at 217. Thus, Powell has failed to
establish he was involved in a custodial interrogation before Bush
advised him of his Miranda rights. Therefore, the trial court's
determination to admit the videotaped statement was not “palpably
contrary to the great weight of the evidence.” Maples v. State, 758
So.2d at 41. The trial court did not err in admitting the videotaped
statement into evidence.
Additionally, Powell argues that the trial court
erred in admitting two subsequent statements he made after he was
arrested for disorderly conduct inside the police station shortly
after giving his first statement. Specifically, he argues that he
should have been readvised of his Miranda rights and that he should
have been given the opportunity to execute a waiver of rights form
before each interrogation.
“Once the mandate of Miranda has been complied with
at the threshold of the questioning it is not necessary to repeat the
warnings at the beginning of each successive interview.” Gibson v.
State, 347 So.2d 576, 582 (Ala.Cr.App.1977). See also Cleckler v.
State, 570 So.2d 796 (Ala.Cr.App.1990).
“An accused may be read the Miranda rights prior to
one interrogation but not confess until a later interrogation during
which there was no rereading of the Miranda warning. As a general rule,
it has been held that Miranda warnings are not required to be given
before each separate interrogation of a defendant after an original
waiver of the accused's rights has been made. However, if such a long
period of time has elapsed between the original Miranda warning and
the subsequent confession that it can be said that, under the
circumstances, the accused was not impressed with the original reading
of his rights in making the ultimate confession, then the confession
should be held inadmissible.” C. Gamble, McElroy's Alabama Evidence, §
201.09 (5th ed.1997) (footnotes omitted). See Phillips v. State, 668
So.2d 881, 883 (Ala.Cr.App.1995).
During the suppression hearing, Bush testified that
he conducted a second audiotaped interview with Powell around 4:30
p.m. on March 25, 1995.FN1 Bush stated that when he began to read
Powell his Miranda rights, Powell told him that he knew and understood
his rights. According to Bush, Powell agreed to give a statement. FN1.
Bush initially interviewed Powell around 2:00 p.m. on March 25, 1995.
Powell was first informed of his Miranda rights at approximately 3:00
p.m. on March 25.
At the suppression hearing, Investigator Greg
Burroughs testified that he and Investigator John Steele interviewed
Powell around 2:00 a.m. on March 26, 1995. Burroughs stated that he
reminded Powell of his Miranda rights, and that Powell indicated that
he remembered and that he understood his rights and he agreed to speak
Given that Powell was thoroughly advised of his
Miranda rights during his initial interview with Bush on March 25,
that both Bush and Steele reminded Powell of his rights during the two
subsequent interviews, and that the two subsequent interviews occurred
within 12 hours of his initial waiver of his Miranda rights, we
conclude that the trial court did not err in admitting the audiotaped
statements into evidence. See Tolbert v. State, 450 So.2d 805 (Ala.Cr.App.1984)
(there was no necessity to re-inform defendant of his constitutional
rights because defendant was reminded before his second and third
statements that he had already been informed of his Miranda rights, he
was asked if he remembered those rights, and he stated that he did and
he agreed to talk with law enforcement officers). See also Cleckler v.
State, 570 So.2d 796 (Ala.Cr.App.1990).
Powell argues that he did not voluntarily,
knowingly, and intelligently waive his Miranda rights; and thus, he
claims, the trial court erred in admitting the three statements into
evidence. Specifically, Powell argues that he was intoxicated and was
suffering from fatigue when he made the statements.
This Court addressed the voluntariness of a waiver
of Miranda rights in Click v. State: “Whether a waiver is voluntary,
knowing, and intelligent depends on the particular facts and
underlying circumstances of each case, including the background,
experience, and conduct of the accused-i.e., the totality of the
circumstances. Magwood v. State, 494 So.2d 124, 135 (Ala.Cr.App.1985),
aff'd, 494 So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct.
599, 93 L.Ed.2d 599 (1986); Chandler v. State, 426 So.2d 477 (Ala.Cr.App.1982)
(citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d
378 (1981)); Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981.) The
trial court need only be convinced from a preponderance of the
evidence that a confession or inculpatory statement was voluntarily
made. Magwood v. State, supra; Harris v. State, 420 So.2d 812 (Ala.Cr.App.1982).
The finding of the trial court as to voluntariness will not be
disturbed unless it appears contrary to the great weight of the
evidence. Dill v. State, 600 So.2d 343, 368 (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); Magwood v. State, supra.” 695 So.2d at 218.
In Jackson v. State, 674 So.2d 1318 (Ala.Cr.App.1993),
aff'd in pertinent part, 674 So.2d 1365 (Ala.1994), this Court stated:
“ ‘ “ ‘[U]nless intoxication, in and of itself, so impairs the
defendant's mind that he is “unconscious of the meaning of his words,”
the fact the defendant was intoxicated at the time he confessed is
simply one factor to be considered when reviewing the totality of the
circumstances surrounding the confession.’ Carr v. State, 545 So.2d
820, 824 (Ala.Cr.App.1989). ‘The intoxicated condition of an accused
when he makes a confession, unless it goes to the extent of mania,
does not affect the admissibility and evidence of the confession, but
may effect its weight and credibility.’ Callahan v. State, 557 So.2d
1292, 1300 (Ala.Cr.App.), affirmed, 557 So.2d 1311 (Ala.1989).” “ ‘
White v. State, 587 So.2d 1218 (Ala.Cr.App.1990).’ “ State v. Austin,
596 So.2d 598, 601 (Ala.Cr.App.1991).” 674 So.2d at 1326. See also
Gaddy v. State, 698 So.2d 1100, 1117 (Ala.Cr.App.1995), aff'd, 698
So.2d 1150 (Ala.), cert. denied, 522 U.S. 1032, 118 S.Ct. 634, 139
L.Ed.2d 613 (1997). “ ‘Mere emotionalism and confusion do not dictate
a finding of mental incompetency or insanity’ so as to render a
statement inadmissible.” Callahan v. State, 557 So.2d 1292, 1300 (Ala.Cr.App.1989),
quoting Sullivan v. Alabama, 666 F.2d 478, 483 (11th Cir.1982).
During the suppression hearing, Bush testified that,
before the initial interview, Powell told him that he had been
drinking earlier in the day. Bush stated that Powell's ability to
communicate did not appear to be impaired, and that he did not appear
to be suffering from any mental disease or emotional shock. Bush
further stated that Powell was not threatened, coerced, or offered any
inducements in return for giving his statements. Although Mike Everett,
an officer with the Tuscaloosa County Homicide Unit, testified that,
after Powell's first interview but before his second interview, he had
seen Powell drinking in the parking lot of the station, Everett
testified that, in his opinion, Powell was not intoxicated when he was
Here, the trial court was presented with
conflicting testimony as to whether Powell was under the influence of
alcohol. “ ‘When there is conflicting evidence of the circumstances
surrounding an incriminating statement or a confession, it is the duty
of the trial judge to determine its admissibility, and if the trial
judge decides it is admissible his decision will not be disturbed on
appeal “unless found to be manifestly contrary to the evidence.” ’ ”
A.W.M. v. State, 627 So.2d 1148, 1150 (Ala.Cr.App.1993), quoting Ex
parte Matthews, 601 So.2d 52, 53 (Ala.), cert. denied, 505 U.S. 1206,
112 S.Ct. 2996, 120 L.Ed.2d 872 (1992). See, e.g., Burgess v. State, [Ms.
CR-94-0475, December 18, 1998] --- So.2d ---- (Ala.Cr.App.1998); Burks
v. State, 600 So.2d 374, 380 (Ala.Cr.App.1991); Leonard v. State, 551
So.2d 1143, 1148 (Ala.Cr.App.1989). As did the trial court, we have
reviewed the videotaped and audiotaped statements. We conclude, as did
the trial court, that there is no indication that Powell was so
intoxicated that he could not comprehend his circumstances or that his
statements were rendered involuntary.
Additionally, we reject Powell's argument that his
statements were not voluntary because, he says, when he made them he
had been deprived of food or sleep for a prolonged time. See, e.g.,
Pardue v. State, 695 So.2d 199 (Ala.Cr.App.1996). Indeed, there was no
testimony from any officers that Powell had not received any food or
had been prevented from sleeping between each of his statements, or
that he was exhausted to the point of being unable to give a voluntary
statement. The record simply does not establish that Powell was
deprived of food or sleep. Moreover, whether a defendant was
physically exhausted when he gave his statement is merely one factor
to be considered by the jury in determining the credibility and weight
to afford the statement. Burgess v. State, supra.
There was ample evidence from which the trial court
could conclude that Powell's statements were knowingly and voluntarily
made. No error occurred in their admission.
Powell maintains that the trial court erred in
failing to order a change of venue for his trial because, he says,
many of the jurors had heard about the case through what he says was
extensive media coverage, and this exposure prevented him from
receiving a fair trial.
The defense produced several newspaper articles and
television stories concerning the incident. During the voir dire
examination of potential jurors, the veniremembers were asked whether
they had read or heard anything concerning M.W.'s death. Those who
responded that they did have prior knowledge of the offense were
questioned individually. All of the potential jurors indicated that
they could put what they had read in the newspaper or seen on
television out of their minds. “ ‘ “[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” ’ ... or when
actual prejudice can be demonstrated. The burden of showing this
saturation of the community or actual prejudice lies with the
appellant.” ' “ George v. State, 717 So.2d  at 833 [ (Ala.Cr.App.1996)
], quoting Oryang v. State, 642 So.2d 979, 983 (Ala.Cr.App.1993).
“ ‘The defendant is not entitled to jurors who are
totally ignorant of the facts and issues involved in the case or to
jurors who never entertained a preconceived notion as to the
defendant's guilt or innocence. Ex parte Grayson, 479 So.2d 76, 80
(Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157
(1985). A defendant is entitled to a trial by jurors who can lay aside
any preconceived impressions or opinions and render a verdict based on
the evidence which is presented at trial, id. The record in this case
indicates that the appellant received such a trial. See also Murphy v.
Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589
(1975); Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d
751 (1961). Because the appellant has failed to show that the pre-trial
publicity in this case was “inherently prejudicial,” Holladay v. State,
[549 So.2d 122 (Ala.Cr.App.1988) ], or “presumptively prejudicial,”
Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), affirmed, 577 So.2d
531 (Ala.1991), and the appellant has also failed to show that there
was actual juror prejudice, we find no abuse of discretion by the
trial court or manifest error in his finding of impartiality and his
denial of the appellant's motion for change of venue. Irvin v. Dowd,
366 U.S. at 724, 81 S.Ct. at 1643; Ex parte Grayson, 479 So.2d at 80.’
“ Oryang v. State, 642 So.2d at 993-94.” Boyd v. State, 715 So.2d 825,
“ ‘Newspaper articles or widespread publicity,
without more, are insufficient to grant a motion for change of venue.’
” Harris v. State, 632 So.2d 503, 517-18 (Ala.Cr.App.1992), quoting 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). The voir dire conducted by
the trial court and by counsel clearly showed that none of the
prospective jurors was prejudiced by the pretrial publicity. Therefore,
Powell has failed to show any actual prejudice resulting from the
pretrial publicity. Boyd v. State, supra; Williams v. State, 710 So.2d
1276 (Ala.Cr.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); Oryang v. State,
642 So.2d 989, 993 (Ala.Cr.App.1994). Cf. Ex parte Neal, 731 So.2d 621
(Ala.1999); Burgess v. State, supra; Hyde v. State, 778 So.2d 199 (Ala.Cr.App.1998);
and Price v. State, 725 So.2d 1003 (Ala.Cr.App.1997), aff'd, 725 So.2d
1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d
1012 (1999). Thus, the trial court did not abuse its discretion in
denying Powell's motion for a change of venue. See Harris v. State,
632 So.2d 503, 517 (Ala.Cr.App.1992), citing Ex parte Magwood, 426
So.2d 929, 931 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77
L.Ed.2d 1355 (1983).
Powell contends that the trial court erred in
admitting into evidence a jacket and its contents.FN2 Powell argues
that the jacket and the contents of the pockets of the jacket were
irrelevant because, he claims, there was no evidence linking him to
the items. He also argues that even if the jacket and the contents of
its pockets were relevant, they should not have been introduced into
evidence because, he says, the evidence was highly prejudicial.
Additionally, he argues that the state did not establish a proper
chain of custody for the admission of the jacket.
FN2. The state admitted the jacket into evidence.
Testimony at trial conflicted as to whether the jacket was leather or
suede. However, each of the witnesses identified the jacket admitted
into evidence by the state.
We must address whether the jacket and the contents
of its pockets are relevant to Powell's case, and if so, whether the
evidence's “probative value is substantially outweighed by the risk of
unfair prejudice, confusion, or a tendency to mislead the trier of
fact.” (Appellant's brief at p. 27.) 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
The test of relevancy sanctioned by the Alabama
appellate courts has been described as a “liberal test of relevancy
under which evidence is admissible if it has any probative value,
however slight, upon a matter in the case.” C. Gamble, McElroy's
Alabama Evidence § 21.01(1) (5th ed.1996). In Henderson v. State, 598
So.2d 1045 (Ala.Cr.App.1992), this Court stated: “ ‘ “The test of
probative value or relevancy of a fact is whether it has any tendency
to throw light upon the matter in issue even though such light may be
weak and fall short of its intended demonstration.” Tate v. State, 346
So.2d 515, 520 (Ala.Cr.App.1977). “It is not necessary that each item
of testimony, taken alone, be conclusively shown to prove the guilt of
the defendant; but the question is whether each fact, in connection
with all others, may be properly considered in forming a chain of
circumstantial evidence tending to prove the guilt of the accused.”
Russell v. State, 38 So. 291, 296 (Ala.1905).’ ” 598 So.2d at 1047-48,
quoting Barrow v. State, 494 So.2d 834, 835 (Ala.Cr.App.1986). Rule
403, Ala.R.Evid., states: “Although relevant, evidence may be excluded
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 evidence.”
This Court stated in Miles v. State, 715 So.2d 913
(Ala.Cr.App.1997): “The trial court is vested with broad discretion
when determining matters of relevancy and this Court may not overturn
its decision except in cases where there is an abuse of discretion.
Primm v. State, 473 So.2d 1149 (Ala.Cr.App.1985), citing C. Gamble,
McElroy's Alabama Evidence, § 21.01(1), § 21.01(6) (3d ed.1977);
McLeod v. State, 383 So.2d 207 (1980). According to the liberal
standard adopted in Alabama, such an abuse of discretion can occur
only when evidence that has no probative value is introduced.
McElroy's, § 21.019(1).” 715 So.2d at 919-20. See Knotts v. State, 686
So.2d 431, 444 (Ala.Cr.App.1995).
Powell argues that there was no evidence linking
him to the bloodstained suede jacket recovered from Jason Long's house.
During a preliminary hearing, Investigator John Steele testified that
during Powell's first interview, Powell stated that he had spent the
night with Jason Long. Officers were sent to Long's residence. At
trial, Long testified that he informed Steele that Powell had visited
him at his residence early in the morning on March 25, that Powell was
wearing a jacket, and that Powell left the jacket at his house. Steele
testified that Long gave the jacket to the officers. During the
hearing, Investigator Burroughs testified that, in the police station
after his initial interview and shortly before he was arrested for
disorderly conduct, Powell picked up the blood-stained suede jacket
that had earlier been recovered from Long's house and was sitting on
an officer's desk, and he tried to put the jacket on. Additionally,
Investigator Rocky Montgomery testified that, although Bobby Johnson
told him that the jacket was his, Johnson noticed that the jacket was
missing from his home on the morning of the murder. Powell was Bobby
Johnson's roommate. Investigator Burroughs testified that a videotape
from a local gas station recorded at 6:27 a.m. on March 25 revealed
that when Powell entered the station he was wearing a brown suede
jacket with a noticeable wet spot on the left chest area, similar to
the jacket Long gave the officers shortly after the murder occurred.
Thus, there was overwhelming and relevant evidence that linked Powell
to the jacket.
Powell also argues that there is no evidence
linking the change found in the jacket to him or to the murder.
Investigator Montgomery testified that Bobby Johnson told him that he
did not place the change, the jewelry, or the matchbooks in the jacket
pockets. At trial, A.W., the victim's son testified that his mother
kept her change in a square container. A.W. stated that, after the
murder, he was unable to locate the container. Investigator Burroughs
testified that change was strewn across M.W.'s carport. In addition,
Burroughs stated that the videotape from the gas station revealed that
Powell paid for an alcoholic beverage with a large amount of change.
Thus, evidence linked the change found in the jacket to Powell and to
the murder, burglary, and robbery of M.W.
Additionally, Powell argues that the evidence of
the matchbooks found in the jacket pocket and outside M.W.'s house was
irrelevant, and that there was no evidence linking Powell to the
matchbooks. Testimony indicated that Powell and Bobby Johnson both
worked at O'Charley's restaurant and lived across the street from the
victim. The matchbooks recovered from the scene and from the jacket
pocket were from the O'Charley's restaurant. As previously stated,
Powell was seen wearing a suede jacket the morning that the murder
occurred and an O'Charley's matchbook was found in the pocket of the
jacket. Thus, relevant and sufficient evidence linked Powell to the
In addition, Powell argues that the jewelry found
in the jacket pocket was not linked to the crime. Investigator
Burroughs testified that M.W.'s jewelry box was lying upside down on
her bedroom floor. A.W. testified that his mother owned a gold
herringbone chain necklace similar to the necklace found in the jacket
linked to Powell. He further testified that he was unable to find the
necklace after his mother was killed. According to Burroughs, several
of M.W.'s relatives told him that the other jewelry found in the
jacket pocket was similar to jewelry worn by M.W. Thus, there was
sufficient and relevant evidence linking the jewelry to Powell and to
the murder, burlgary, and robbery. Given that there was overwhelming
circumstantial evidence linking the relevant items to the crime and to
Powell, we conclude that the probative value of the evidence
substantially outweighed its prejudicial impact.
Powell maintains that the jacket was inadmissible
because, he claims, a chain of custody for the jacket was not
established from the time the crime was committed until the police
seized the jacket, and from the time the jacket was seized until trial.
Specifically, Powell argues that the jacket was inadmissible because
there was no testimony establishing who had access to the jacket from
the time Powell left Jason Long's house until the jacket was given to
the police. Additionally, Powell argues that the state did not
establish who had access to the jacket after it was taken from Jason
“Proper analysis of a chain of custody question ...
does not begin at the time of the offense; the chain of custody begins
when [an] item of evidence is seized by the State.” Burrell v. State,
689 So.2d 992, 995-96 (Ala.Cr.App.1996); State v. Conrad, 241 Mont. 1,
785 P.2d 185 (1990); 29A Am.Jur.2d, Evidence § 947 (1994 ed.) (“The
chain-of-custody rule does not require the prosecution to account for
the possession of evidence before it comes into their hands.”). Once
the state obtains the evidence, then it “ ‘need only prove to a
reasonable probability that the object is in the same condition as,
and not substantially different from, its condition at the
commencement of the chain.’ ” Turner v. State, 610 So.2d 1198, 1200-01
(Ala.Cr.App.1992), quoting Sommer v. State, 489 So.2d 643, 645 (Ala.Cr.App.1986).
Testimony indicated that, on March 25 around 6:00
a.m., after Powell visited a gas station while wearing a suede jacket,
he walked across the street to Jason Long's residence where he slept
for a few hours. Investigator Burroughs testified that Long told him
that Powell was wearing the jacket when he arrived, and that Powell
left the jacket at his house when he left later that morning.
Investigator Rocky Montgomery testified that, around 3:00 p.m., he and
Investigator Steele went to Long's house and that Long handed the
jacket to Steele. Although Powell contends that someone at Long's
house may have placed the jewelry, matchbook, and change in the jacket
pocket after he left, Powell offers no evidence in support of this
argument. His contention does not affect the admissibility of the
evidence based on a chain-of-custody objection. Therefore, whether
someone other than Powell placed the items in the jacket pocket was
only a relevant question for the jury to decide. Burrell v. State,
In Ex parte Scott, 728 So.2d 172 (Ala.1998), the
Supreme Court stated: “ ‘In Ex parte Holton, 590 So.2d 918, 920
(Ala.1991), the Alabama Supreme Court stated: “ ‘ “The chain of
custody is composed of ‘links.’ A ‘link’ is anyone who handled the
item. The State must identify each link from the time the item was
seized. In order to show a proper chain of custody, the record must
show each link and also the following with regard to each link's
possession of the item: ‘(1) [the] receipt of the item; (2) [the]
ultimate disposition of the item, i.e., transfer, destruction, or
retention; and (3) [the] safeguarding and handling of the item between
receipt and disposition.’ Imwinklereid, The Identification of
Original, Real Evidence, 61 Mil.L.Rev. 145, 159 (1973). “ ‘ “If the
State, or any other proponent of demonstrative evidence, fails to
identify a link or fails to show for the record any one of the three
criteria as to each link, the result is a ‘missing’ link, and the item
is inadmissible. If, however, the State has shown each link and has
shown all three criteria as to each link, but has done so with
circumstantial evidence, as opposed to the direct testimony of the
‘link,’ as to one or more criteria or as to one or more links, the
result is a ‘weak’ link. When the link is ‘weak,’ a question of
credibility and weight is presented, not one of admissibility.” ' ”
728 So.2d at 182, quoting Knight v. State, 659 So.2d 931, 932 (Ala.Cr.App.1993).
See Jackson v. State, [Ms. CR-97-2050, May 28, 1999] ---So.2d ---- (Ala.Cr.App.1999);
Thomas v. State, 766 So.2d 860 (Ala.Cr.App.1998).
Whether a trial court erred in overruling an
objection made on chain-of-custody grounds is reviewed under an abuse-of-discretion
analysis. Akin v. State, 698 So.2d 228, 232-33 (Ala.Cr.App.1996), cert.
denied, 698 So.2d 238 (Ala.1997).
Jason Long testified that he showed Investigator
Steele and Montgomery Powell's jacket, which was hanging in his
bedroom closet. Long stated that Steele took the jacket from the
closet; however, Steele testified that Long handed him the jacket. At
trial, Long testified that the jacket appeared to be in substantially
the same condition at trial as when Steele removed it from his house.
Steele testified that, after Long gave him the jacket, he returned to
the police station. Bush stated that Steele placed the jacket on an
officer's desk, and that he received the jacket from Steele around
3:30 p.m. Bush further stated that he found approximately $3.00 in
change, one O'Charley's matchbook, two condoms and various items of
jewelry in the pockets of the jacket. Bush testified that he left the
items in the pockets of the jacket, and that he placed the jacket in a
brown paper bag. Bush further testified that he remained with the
jacket the entire time that it was at the police station. According to
Bush, Mitch Rector conducted a presumptive test at the police station
on the stain on the jacket to determine whether it was blood. Bush
stated that he then gave the jacket to Mike Everett. Everett testified
that, around 10:00 p.m., he drove to O'Charley's and showed the jacket
to Bobby Johnson, who identified the jacket as being his property.
Everett stated that he then returned to the police station and gave
the jacket to Bush. Bush testified that he secured the jacket. Bush
further testified that, on March 28, he transferred the jacket to
Dyer testified that he received the jacket from
Bush in a sealed condition and that he transported it to the
Department of Forensic Sciences lab in Tuscaloosa. Dyer further
testified that he gave the jacket to John McDuffie, the director of
the Tuscaloosa lab. McDuffie testified that he received the jacket in
its sealed condition from Dyer. Mike Lee testified that he received
the sealed jacket from the Tuscaloosa lab on April 19, and that he
transported it to the Department of Forensic Sciences serology lab in
Birmingham, and placed it in a locker. Larry A. Huys, a forensic
scientist, testified that on April 20, he took the jacket out of the
locker and analyzed the stain on a portion of the jacket. He further
testified that he cut part of the jacket in order to perform the
analysis, and that the jacket was in his exclusive care, custody, and
control. Huys stated that he transferred the jacket to Dyer on July
13. Dyer testified that he transported the jacket from the Birmingham
lab to the Tuscaloosa lab. McDuffie testified that he received the
jacket from Dyer on July 13. Additionally, McDuffie testified that he
gave the jacket to Mitch Rector on or about September 22. Rector
testified that he transferred the jacket from the Tuscaloosa lab to
the Birmingham lab on September 22. Huys testified that the jacket
remained at the Birmingham lab in his exclusive care and control until
he transferred the jacket to Rector on November 20. Rector testified
that he transferred the jacket to the Tuscaloosa lab. McDuffie
testified that he received the jacket at the Tuscaloosa lab on
November 20, and that it remained in his constant care and control.
McDuffie stated that, on September 4, 1997, he gave the jacket to the
court reporter for the trial court.
In this case, the circumstantial and direct
evidence established that the jacket was received, retained, and
safeguarded by the police. Thus, any weak links in the chain of
custody go to the weight and credibility of the evidence, rather than
to its admissibility. See Ex parte Scott, supra.
Moreover, the jacket was admissible under §
12-21-13, Ala.Code 1975, which states: “Physical evidence connected
with or collected in the investigation of a crime shall not be
excluded from consideration by a jury or court due to a failure to
prove the chain of custody of the evidence. Whenever a witness in a
criminal trial identifies a piece of evidence connected with or
collected in the investigation of a crime, the evidence shall be
submitted to the jury or court for whatever weight the jury or court
may deem proper. The trial court in its charge to the jury shall
explain any break in the chain of custody concerning the physical
Accordingly, we find no error as to this claim.
Loggins v. State, 771 So.2d 1070 (Ala.Cr.App.1999).
Powell contends that his indictment charging him
with the separate offenses of murder during the course of a burglary
in the first degree, murder during the course of a robbery in the
first degree, murder during a rape in the first degree, and murder
during sodomy in the first degree was multiplicitous and violated the
Double Jeopardy Clause of the Fifth Amendment to the United States
“[T]he test in determining whether the charges run
afoul of the Double Jeopardy Clause is whether each crime contains a
statutory element not contained in the other.” Williams v. State, 710
So.2d 1276, 1321 (Ala.Cr.App.1996), citing Blockburger v. United
States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Supreme
Court of Alabama addressed a similar issue in Ex parte McWilliams, 640
So.2d 1015 (Ala.1993), aff'd on return to remand, 666 So.2d 89 (Ala.Cr.App.1994),
aff'd, 666 So.2d 90 (Ala.1995), cert. denied, 516 U.S. 1053, 116 S.Ct.
723, 133 L.Ed.2d 675 (1996), wherein the Court stated: “In Grady v.
Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the
United States Supreme Court addressed the scope of coverage of the
Double Jeopardy Clause, as follows: “ ‘The Double Jeopardy Clause
embodies three protections: “It protects against a second prosecution
for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)
(footnotes omitted). The Blockburger [v. United States, 284 U.S. 299,
304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306 (1932),] test was developed “in
the context of multiple punishments imposed on a single prosecution.”
Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85
L.Ed.2d 764 (1985).’ “ Grady, 495 U.S. at 516-17, 110 S.Ct. at
2090-91, 109 L.Ed.2d at 561. This Court has also held that the Double
Jeopardy Clause of the Alabama Constitution, Art. I, § 9, applies only
in three areas enumerated above. Ex parte Wright, 477 So.2d 492
“In this case, McWilliams was not prosecuted for
the same offense after an acquittal; nor was he prosecuted for the
same offense after a conviction. That is, he was not prosecuted twice
for the same offense. Moreover, while in King [v. State, 574 So.2d 921
(Ala.Cr.App.1990),] the defendant received four separate prison
sentences for the same offense, McWilliams has only been sentenced to
die once and, indeed, can only be put to death once. “In the context
of prescribing multiple punishments for the same offense, the United
States Supreme Court has stated that ‘the Double Jeopardy Clause does
no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.’ Missouri v. Hunter, 459 U.S.
359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). “In the present
case, it is clear that the jury knew that it was convicting McWilliams
of murdering Patricia Reynolds only once. It is also clear that the
jury knew McWilliams's crime was made capital because his victim was
murdered in the course of one robbery and one rape. We conclude,
therefore, that the sentencing court has not prescribed a greater
punishment than the legislature intended.” 640 So.2d at 1022.
In this case, the facts clearly reveal that the
jury knew it was convicting Powell of one murder-i.e., the murder of
M.W. Additionally, the facts established that the crime was made
capital because M.W. was murdered during the course of one burglary,
one robbery, one rape, and one act of sodomy. Because each crime
contained an element of an offense not committed in the other, the
charges did not run afoul of the Double Jeopardy Clause. “We therefore
conclude that under the Blockburger test, the appellant was properly
indicted and convicted for ... separate and distinct capital offenses
‘notwithstanding a substantial overlap in the proof offered to
establish the crimes,’ Iannelli v. United States, 420 U.S. 770, 785 n.
17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975); Jackson v. State,
516 So.2d 726, 761 (Ala.Cr.App.1985), rem'd on other grounds, 516
So.2d 768 (Ala.1986).” Williams v. State, 710 So.2d 1276, 1321 (Ala.Cr.App.1996).
Therefore, the charges were not multiplicitous and
Powell's conviction on the four counts did not violate the Double
Powell contends that the trial court erred in
denying his motion to suppress evidence seized after his arrest for
disorderly conduct. Specifically, he contends that his clothing and
samples of his blood, saliva, hair, semen, and tissue were unlawfully
seized because, he says, his arrest was illegal.
First, we must determine whether probable cause
existed to arrest Powell for disorderly conduct. In State v. Johnson,
682 So.2d 385 (Ala.1996), our Supreme Court held that: “The level of
evidence needed for a finding of probable cause is low. ‘An officer
need not have enough evidence or information to support a conviction
[in order to have probable cause for arrest].... “[O]nly the
probability, and not a prima facie showing, of criminal activity is
the standard of probable cause.” ’ Stone v. State, 501 So.2d 562, 565
(Ala.Cr.App.1986). ‘ “Probable cause exists where ‘the facts and
circumstances within [the arresting officers'] knowledge and of which
they had reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief that’
an offense has been or is being committed.” ' Young v. State, 372
So.2d 409, 410 (Ala.Cr.App.1979)(quoting Draper v. United States, 358
U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959)).” 682 So.2d at
Section 15-10-3(a)(1), Ala.Code 1975, states, in
pertinent part: “An officer may arrest a person without a warrant, on
any day and at any time ... [i]f a public offense has been committed
or a breach of the peace threatened in the presence of a police
officer.” Section 13A-11-7(a), Ala.Code 1975, states, in pertinent
part: “A person commits the crime of disorderly conduct if, with
intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he: “(1) Engages in fighting or in
violent tumultuous or threatening behavior; or “(2) Makes unreasonable
noise; or “(3) In a public place uses abusive or obscene language or
makes an obscene gesture....”
Investigator Stan Bush testified that, during
Powell's initial videotaped interview, he read Powell his Miranda
rights. Bush testified that Powell voluntarily executed a waiver form
indicating that he understood his rights. Bush stated that, after the
interview, he told Powell that he was free to go, and that Powell left
the building. Bush stated that he went to his office and reviewed some
paperwork, and that he then walked outside to look at Vincent
Johnson's car. According to Bush, as he was walking back to the
building, he saw Powell and asked him to return to the station because
Bush wanted to see if the shoe prints found in a crawlspace underneath
M.W.'s home matched the soles of Powell's shoes.FN3 Bush stated that
Powell agreed to return to the station, and that, while he went into
another room to get a camera, he heard Powell begin to loudly use
profanity. Tuscaloosa County Deputy Taylor Powell testified that,
while he was in the process of a shift change, he saw Powell standing
in the lobby and that Powell was cursing. Deputy Taylor Powell stated
that Powell used loud and abusive language, and that Powell said, “You
better tell those punk-ass police there ain't no bitches over here.”
(R. 439.) Taylor Powell further stated that Powell referred to the
police as “motherfuckers.” (R. 439.) Additionally, Taylor Powell
testified that Tom Lowe, the Chief of the Tuscaloosa Police Department,
homicide office, told him to arrest Powell for disorderly conduct.
Taylor Powell stated that he handcuffed Powell and transported him to
the county jail. Lloyd Baker, a deputy for the Tuscaloosa County
Sheriff's Department, testified that just before Powell's arrest
Powell was “being very loud and profane with his words, directing
profane or abusive language toward the deputies.” (R. 458.) According
to Baker, Powell would calm down for a moment and then “start back
up.” (R. 458.) Lowe testified that he ordered an officer to arrest
Powell because of his loud use of profanity and his unruly behavior in
the hall outside the main homicide office.
FN3. The record does not support Powell's argument
that he was being illegally detained at this time.
Because Powell cursed loudly and used abusive
language in the presence of several police officers at the police
station, the officers had sufficient probable cause to arrest Powell
for the misdemeanor offense of disorderly conduct. Thus, we conclude
his arrest was lawful.
Powell maintains that the trial court erred in
denying his motion to suppress and in admitting into evidence in his
capital murder trial the clothing he was wearing when he was arrested
for disorderly conduct.
In United States v. Robinson, 414 U.S. 218, 94 S.Ct.
467, 38 L.Ed.2d 427 (1973), the United States Supreme Court held: “A
custodial arrest of a suspect based on probable cause is a reasonable
intrusion under the Fourth Amendment; that intrusion being lawful, a
search incident to the arrest requires no additional justification. It
is the fact of the lawful arrest which establishes the authority to
search, and we hold that in the case of a lawful custodial arrest a
full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a ‘reasonable’ search
under that Amendment.” 414 U.S. at 235, 94 S.Ct. at 477. See State v.
Adams, 643 So.2d 606, 610 (Ala.Cr.App.1992).
A police officer may search for and seize any
evidence on the arrestee's person, even if the evidence is unrelated
to the crime for which the arrest was made, in order to prevent
concealment or destruction of evidence. See Thomas v. State, 666 So.2d
849, 853-54 (Ala.Cr.App.1993), rev'd on other grounds, 666 So.2d 855
(Ala.1995) (cocaine discovered in defendant's pockets after an arrest
for disorderly conduct was admissible at trial where defendant was
charged with disorderly conduct and possession of cocaine.); Ex parte
Scarbrough, 621 So.2d at 1010 (confession to a murder, obtained while
defendant was under arrest for traffic violation, was admissible at
trial); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d
685 (1969). Moreover, a search incident to a lawful arrest does not
have to be made immediately on arrest. “[S]earches and seizures that
could be made on the spot at the time of arrest may legally be
conducted later when the accused arrives at the place of detention.”
United States v. Edwards, 415 U.S. 800, 803, 94 S.Ct. 1234, 1237, 39
L.Ed.2d 771 (1974). See also Abel v. United States, 362 U.S. 217, 80
S.Ct. 683, 4 L.Ed.2d 668 (1960).
Having determined that Powell's arrest for
disorderly conduct was lawful, the subsequent search of his person and
seizure of his clothes incident to that lawful arrest was permissible.
See Taylor v. State, 239 Ga.App. 858, 522 S.E.2d 266 (1999); State v.
Staten, 238 Neb. 13, 469 N.W.2d 112 (1991); Pinkston v. State, 189
Ga.App. 851, 377 S.E.2d 864 (1989); and 2 LaFavre, Search and Seizure
§ 5.3 (3d ed.1996). Therefore, the trial court did not err in denying
Powell's motion to suppress these items.
Additionally, the admission of the evidence was
proper because the seizure of an arrestee's clothing is a reasonable
administrative procedure. Cf. Ayers v. State, 659 So.2d 177 (Ala.Cr.App.1994).
During the suppression hearing, Taylor Powell testified that it is
standard procedure in Tuscaloosa County to seize the clothing of an
arrested person if the person is to be incarcerated and dressed in a
jumpsuit. Taylor Powell further testified that the police often use
their discretion in determining whether a loud and boisterous person
who is arrested and charged with disorderly conduct will be permitted
to make bond and leave or whether to remove the person's clothes and
issue him or her a jumpsuit. Taylor Powell stated that he had planned
to make Powell change into a jumpsuit after he had finished booking
him for disorderly conduct, and that Bush arrived and seized Powell's
clothing before he had finished the booking procedure. The fact that
Powell's clothes were seized before Taylor Powell finished booking
Powell does not constitute a Fourth Amendment violation. Because
Powell's clothing would have been seized and inventoried at the
conclusion of booking, no error occurred in this regard.
Finally, we reject Powell's argument that the
seizure of his clothing was unlawful because, he says, he was
illegally detained after his arrest for the misdemeanor offense of
disorderly conduct. Specifically, he argues that he should have been
permitted to pay his bond and leave without being detained and forced
to change clothes.FN4 FN4. Powell also asserts that he was not
permitted to make bond for his arrest for disorderly conduct. However,
contrary to Powell's assertion, our review of the record indicates
that a $500 bond was set. (C. 753.) Moreover, during the hearing on
the motion to suppress, Bush testified that, during his second
interview with the appellant, he told Powell to talk to the officers
at the booking desk to find out the amount of his bond.
Rule 4.3(a)(1)(iii), Ala.R.Crim.P. provides that,
in a warrantless arrest situation, a probable cause hearing must be
held within 48 hours, where the defendant remains in custody. See
Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49
(1991). Here, Powell was arrested for disorderly conduct on March 25,
1995. Investigator Bush testified that Powell's clothing was seized
shortly after his arrest for disorderly conduct on March 25, 1995.
Given that Powell's clothing was seized within 48 hours of his arrest
for disorderly conduct, he may not now argue that he was illegally
detained during the seizure of his clothing.
Based on the foregoing, the trial court's refusal
to suppress the evidence found on Powell's clothing was not “palpably
contrary to the great weight of the evidence.”
Powell maintains that the trial court erred in
denying his motion to suppress and in admitting into evidence the test
results of his blood, saliva, hair, semen, and tissue samples.
Specifically, he argues that the affidavit in support of the warrant
was based on hearsay and did not establish probable cause to believe
that he had participated in the offense. In Jones v. State, 719 So.2d
249 (Ala.Cr.App.1996), this Court stated: “ A finding of probable
cause may be based completely on hearsay evidence, ‘provided that
there is a substantial basis for believing the evidence under the
totality of the circumstances.’ Rule 3.9(b), Ala.R.Crim.P. ‘An issuing
judge's determination that sufficient probable cause existed to
support the warrant “is entitled to great deference and is conclusive
in the absence of arbitrariness.” ’ Wamble v. State, 593 So.2d 109,
110 (Ala.Cr.App.1991), citing United States v. Pike, 523 F.2d 734 (5th
Cir.1975), reh'g denied, 525 F.2d 1407, cert. denied, 426 U.S. 906, 96
S.Ct. 2226, 48 L.Ed.2d 830 (1976). We must determine whether the
issuing judge had a ‘substantial basis' for concluding that probable
cause existed. Wamble v. State; Illinois v. Gates, 462 U.S. 213, 238,
103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).” 719 So.2d at 254. (Emphasis
Powell was arrested and charged with murder at 2:05
a.m. on March 26. On March 28, Bush applied for a warrant to compel
Powell to submit to the taking of specimens or samples of blood,
saliva, and hair from his person. The affidavit in support of the
trial court's order that Powell submit to the taking of specimens or
samples of blood, saliva, and hair from his person stated, in
pertinent part, the following:
“My name is Stan Bush. I am a police officer with
the Tuscaloosa Police Dept. I am currently assigned as an investigator
to the Tuscaloosa County Homicide Unit (TCHU). “On March 25, 1995, [M.W.]
was the victim of a home invasion murder. She was a 70-year-old white
female who lived alone at 3516 19th St. N.E. Holt, Al. She was shot
numerous times and was also beaten. After the shooting and assault
took place in the bedroom of [M.W.'s] residence, [M.W.] was able to
walk from her residence to the front yard of her neighbor (Cora
Jennings) before she collapsed (3423 19th St. N.E.). Another of [M.W.'s]
neighbors, Ruth Kizziah, also ran to [M.W.'s] aid, Mrs. Kizziah has
told me that [M.W.] told her that an unknown black male had raped and
shot her. [M.W.] was physically unable to give any more of a
description before she died.
“The investigation conducted by the Tuscaloosa
County Homicide Unit indicated that the suspect who had shot [M.W.]
had attempted to gain entry into [M.W.'s] residence through a front
living room window. Investigators were able to lift palm prints from
the glass of this window. The suspect gained entry into the [M.W.]
home through the back bathroom window. Fibers were recovered from the
brick at the bathroom window seal. Investigators believe that [M.W.]
was assaulted in her bedroom. There was a large concentration of blood,
hair and fibers on and about her bed which I observed. “Investigation
led to one Eddie Duvall Powell (3423 19th St. N.E.). Powell has been
arrested numerous times for burglary, robbery and assault. Mitch
Rector of Dept. of Forensic Science in Tuscaloosa has told me that
Powell's palm prints have been identified by him as those that were
recovered from the front living room window by investigators. Powell's
clothing that he was wearing on [March 25] have also been recovered
and have a large amount of blood on them.
“I have talked with the Medical Examiner Johnny
Dyer who advised that [the] preliminary autopsy report did not
indicate any sexual assault had taken place but he did stress that
microscopic results have not been returned and the results are not
final.FN5 Blood, hair and saliva samples obtained from the suspect
could be used to compare with those submitted as evidence to help
identify the assailant as various samples of hair and blood were
recovered from the crime scene.” FN5. Although the preliminary report
did not indicate a sexual assault, the actual autopsy showed the
presence of semen and did indicate that the victim had been sexually
assaulted. (C. 706-07.) FN6
FN6. We note that this portion of the affidavit is
identical to a portion of the affidavit attached to the trial court's
order to obtain photographs of Powell's neck showing scratches. The
affidavit additionally stated: “Based upon the foregoing facts and
information, your affiant believes and states that there is probable
cause to believe and does believe that Eddie Duval Powell was the
assailant who burglarized [M.W.'s] residence and shot her to death and
that the said Eddie Duval Powell should be ordered to submit to the
taking of samples of his hair, blood and saliva for comparison to the
evidence obtained during the investigation.” (C. 707.)
In this case, the affidavit indicated that Powell's
handprint was discovered on M.W.'s window, that M.W. told her neighbor
that her assailant was an African-American male, and that Powell's
clothing, which was obtained on the day of the murder, contained
several bloodstains. We find that the facts detailed in Bush's
affidavit were sufficient to form a substantial basis for the trial
judge's determination that probable cause existed to support an order
to obtain samples of blood, saliva, hair, semen, and tissue. Thus, the
trial court did not err in denying Powell's motion to suppress and in
admitting the test results into evidence.
Powell contends that the trial court erred in
admitting into evidence photographs showing scratches on his neck.
Specifically, he argues that the trial court's order was invalid,
because, he says, the affidavit in support of the order to photograph
the scratches on his neck did not establish probable cause and was
based on hearsay. As previously stated in Part V of this opinion, a
finding of probable cause may be based solely on hearsay evidence, “
‘provided there is a substantial basis for believing the evidence
under the totality of the circumstances.’ ” Jones v. State, 719 So.2d
at 254, quoting Rule 3.9(b), Ala.R.Crim.P.
Additionally, we note that, in general, the mere
observation of a person's physical characteristics does not constitute
a Fourth Amendment search. See Nguyen v. State, 547 So.2d 582, 585 (Ala.Cr.App.1988).
“ ‘Moreover, it is no search to “record” those characteristics, in
effect, by taking a picture of the individual.’ ” Nguyen v. State, 547
So.2d at 585, quoting LaFave, Search and Seizure, § 2.6(a) (1987).
In this case, the affidavit in support of the trial
court's order to photograph scratches on Powell's neck stated the same
facts listed in the affidavit discussed in Part V of this opinion.
Additionally, the affidavit stated: “I also observed some scratches on
Powell's neck which have a straight-line pattern to them and may have
been caused by his entry through [M.W.'s] window. “Based upon the
foregoing facts and information, your affiant believes and states that
there is probable cause to believe and does believe that Eddie Duvall
Powell was the assailant who burglarized [M.W.'s] residence and shot
her to death and that the said Eddie Duval Powell should be ordered to
submit to the taking of a photograph of his neck and samples of his
hair, blood and saliva for comparison to the evidence obtained during
the investigation.” (C. 712-13.) The trial court ordered Powell to
submit to the taking of a photograph of his neck based on the
information contained in the affidavit. (C. 711.)
In this case, the affidavit indicated that the
suspect had entered M.W.'s house through the bathroom window. Bush
personally saw long scratches on the back of Powell's neck, which he
believed may have been caused by Powell's entry into the house through
the window. Moreover, Bush stated that a large amount of blood was
found on Powell's clothing. Additionally, Bush stated that Mitch
Rector, a forensic scientist, told him that Powell's palm prints were
recovered from M.W.'s living room. Thus, we find that the facts
detailed in Bush's affidavit were sufficient to form a substantial
basis for the trial court's determination that probable cause existed
to support the issuance of an order to photograph the scratches on
In addition, Powell argues that the photograph
should have been excluded under Rule 402 and Rule 403, Ala.R.Evid.,
because, he says, it was not relevant, it had little or no probative
value, and it was highly prejudicial. Specifically, he argues that the
scratches on the back of his neck were not linked to the charged
Rule 403, Ala.R.Evid., provides that relevant
evidence may be excluded if its “probative value is substantially
outweighed by the danger of unfair prejudice.” A determination whether
the probative value of evidence is substantially outweighed by the
danger of unfair prejudice rests within the sound discretion of the
trial court. Hayes v. State, 717 So.2d 30 (Ala.Cr.App.1997).
In Fisher v. State, 665 So.2d 1014 (Ala.Cr.App.1995),
we stated: “As to the appellant's contention that the photographs are
prejudicial, all evidence that tends to make out the case of one
litigant is prejudicial to the opposing litigant. If it were not in
some way prejudicial to the opposing party, one would question its
relevance. An authenticated photograph may be received into evidence
if it tends to ‘prove or disprove some disputed issue, ... illustrate
or elucidate some relevant fact or ... corroborate or disprove some
other evidence offered or to be offered.’ C. Gamble, McElroy's Alabama
Evidence, § 123.03(1) (4th ed.1991).” 665 So.2d at 1019. See also
Snell v. State, 565 So.2d 265, 267-68 (Ala.Cr.App.1989), rev'd on
other grounds, 565 So.2d 271 (Ala.1990) (photographs depicting
scratches on defendant's body were relevant to prove that a struggle
occurred during rape).
In this case, the photographs of the scratches on
Powell's neck were relevant to the issue whether Powell burglarized
M.W.'s house by entering through a window. Lincoln Irvin testified
that he cut Powell's hair on the evening of March 24, 1995, and that
there were no scratches on Powell's neck. Cora Jennings testified that,
around noon on March 25, 1995, she noticed scratches on the back of
Powell's neck. In Powell's videotaped interview, which was played to
the jury, he stated that the scratches on his neck were caused by a
razor during a haircut. Thus, the trial court did not err in
determining that the photographs of Powell's neck were relevant and
that their probative value was not substantially outweighed by the
danger of unfair prejudice.
Powell contends that the trial court erred in
denying his motion for a mistrial because, he says, the jury venire
was racially diluted and the trial court erred in denying his Batson
Powell contends that the trial court erred in
denying his motion for a mistrial; the motion was based on the “racial
dilution of the jury panel.” (Appellant's brief at p. 46.)
Specifically, he argues that the method used by the circuit clerk of
dividing a large jury panel among various courtrooms denied him a jury
venire that represented a fair cross-section of the community.
In Dobyne v. State, 672 So.2d 1319 (Ala.Cr.App.1994),
this Court stated: “ ‘[T]he fair cross-section requirement “ensures
only a venire of randomness, one free of systematic exclusion. It does
not ensure any particular venire.” Note, United States v. Gelb: The
Second Circuit's Disappointing Treatment of the Fair Cross-Section
Guarantee, 57 Brook.L.Rev. 341, 343 n. 7 (1991). “Rather than being
entitled to a cross-sectional venire,” a defendant “has a right only
to a fair chance, based on a random draw, of having a jury drawn from
a representative panel.” Comment, The Cross-Section Requirement and
Jury Impartiality, 73 Cal.L.Rev. 1555, 1565 (1985).” Dobyne v. State,
672 So.2d at 1329, quoting Sistrunk v. State, 630 So.2d 147, 150 (Ala.Cr.App.1993).
Our review of the record indicates that there were
approximately 120 potential jurors on the jury panel-29 of whom were
African-American. After the panel was qualified by the trial court,
the potential jurors were divided among the various courtrooms.FN7
This division of the jury pool resulted in a jury venire for Powell's
trial of 38 individuals-9 of whom were African-American. After
challenges for cause were granted, three African-American
veniremembers were left on the panel. Defense counsel timely objected
to the division of the jury panel on the grounds that the division
prevented Powell from “having a fair and accurate cross-section of the
community.” (R. 1066.) The trial court determined that the court's
practice was to divide jurors among the various courtrooms, and denied
Powell's motion for a mistrial.
FN7. Powell did not challenge the randomness of the
circuit court's division of the panel among the various courtrooms at
trial. In his brief to this court, Powell states, “[t]he circuit court
randomly split that panel with one-half going to Judge Gay Lake's
courtroom for [his] trial and one half going to the other three
circuit judges.” Given that the jury panel was divided among the
courtrooms, there is no evidence that certain groups of veniremembers
were systematically excluded from the jury pool. Thus, the trial court
did not err in denying Powell's motion for a mistrial. Dobyne v. State,
Powell contends that the trial court erred in
finding that he did not prove a prima facie case of racial
discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986). Specifically, he argues that the state's use of
one of its peremptory challenges to remove juror number 106 from the
jury venire and its selection of juror number 2 as its second
alternate juror violated Batson. We disagree.
In support of his Batson motion, Powell argued that
because the state removed one African-American juror and selected
another African-American juror as an alternate, the state's strikes
were not race-neutral. Our review of the record indicates that out of
a jury pool of 38 veniremembers, 9 members were African-American.
After challenges for cause were granted, 3 members were African-American.
The state removed juror number 106, and selected juror number 2 as an
alternate. The third African-American veniremember remained on the
jury panel. The trial court determined that Powell failed to establish
a prima facie Batson violation; therefore, it did not require the
State to explain its reasons for its peremptory strikes of the African-American
“ ‘Merely showing that the challenged party struck
one or more members of a particular race is not sufficient to
establish a prima facie case.’ ” Farrior v. State, 728 So.2d 691, 699
(Ala.Cr.App.1998), quoting Edwards v. State, 628 So.2d 1021, 1024 (Ala.Cr.App.1993);
Moore v. State, 677 So.2d 828, 829 (Ala.Cr.App.1996). A defendant
fails to establish a prima facie case of discrimination under Batson
and Ex parte Branch, 526 So.2d 609 (Ala.1987), where the defendant
fails to show any evidence of discrimination other than the number of
African-American veniremembers who were struck. Young v. State, 730
So.2d 1251, 1253-54 (Ala.Cr.App.1998); Moore v. State, 677 So.2d at
829. “ ‘It is within the sound discretion of the trial court to
determine if the State's peremptory challenges of black jurors are
motivated by intentional racial discrimination.’ ” Taylor v. State,
666 So.2d 36, 43 (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),
quoting Ex parte Lynn, 543 So.2d 709, 712 (Ala.1988), cert. denied,
493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989). “A circuit
court's ruling on a Batson objection is entitled to great deference,
and we will reverse a circuit court's Batson findings only if they are
clearly erroneous.” Stokes v. State, 648 So.2d 1179, 1181 (Ala.Cr.App.1994)
In this case, the defense based its Batson
challenge exclusively on the number of African-American veniremembers
who were struck from the jury and who were selected as alternates. The
fact that the state used one of its strikes to remove an African-American
veniremember and selected one African-American veniremember as an
alternate does not establish a prima facie case of discrimination.
Thus, the trial court did not abuse its discretion by finding that the
Powell failed to prove a prima facie Batson violation.
Based on the foregoing, the trial court's denial of
the Powell's motion was not clearly erroneous.
In accordance with Rule 45A, Ala.R.App.P., we have
examined the record for any plain error with respect to Powell's
capitalmurder convictions and death sentence, whether or not brought
to our attention or to the attention of the trial court. We find no
plain error or defect in either the guilt phase or the sentencing
phase of Powell's trial.
We have also reviewed Powell's sentence in
accordance with § 13A-5-53, Ala.Code 1975, which requires that, in
addition to reviewing the case for any error involving Powell's
capital murder convictions, we also review the propriety of the death
sentence. Our determination must include a review of the following:
(1) whether any error adversely affecting the rights of the defendant
occurred in the sentence proceedings; (2) whether the trial court's
findings concerning the aggravating and mitigating circumstances were
supported by the evidence; and (3) whether death is the appropriate
sentence in this case. Section 13A-5-53(b) requires that, in
determining whether death is the proper sentence, we ascertain: (1)
whether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor; (2) whether an
independent weighing by this court of the aggravating and mitigating
circumstances indicates that death is the proper sentence; and (3)
whether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the
After the jury convicted Powell of the capital
offenses charged in the indictment, a separate sentence hearing was
held before the jury in accordance with §§ 13A-5-45 and -46, Ala.Code
1975. After hearing evidence concerning the aggravating circumstances
and the mitigating circumstances; after being properly instructed by
the trial court as to the applicable law; and after being correctly
advised as to its function in reference to the finding of any
aggravating and mitigating circumstances, the weighing of those
circumstances, and its responsibility in returning an advisory verdict,
the jury recommended, by a vote of 11-1, a sentence of death by
Thereafter, the trial court held another hearing,
in accordance with § 13A-5-47, Ala.Code 1975, to determine whether it
would sentence Powell to death as the jury recommended or to life
imprisonment without the possibility of parole. The trial court
ordered and received a written presentence investigation report, as
required by § 13A-5-47(b). After the hearing, the trial court entered
specific written findings concerning the existence or nonexistence of
each aggravating circumstance enumerated in § 13A-5-49, Ala.Code 1975,
each mitigating circumstance enumerated in § 13A-5-51, Ala.Code 1975,
and any nonstatutory mitigating circumstance found to exist under §
13A-5-52, Ala.Code 1975, as well as written findings of fact
summarizing the offense and Powell's participation in the offense.
In its findings of fact, the trial court found the
existence of two statutory aggravating circumstances: (1) that the
murder was committed while Powell was engaged in committing or
attempting to commit, or fleeing after committing, or attempting to
commit rape, robbery, or kidnapping, see § 13A-5-49(4), Ala.Code 1975;
and (2) that the capital offense was especially heinous, atrocious, or
cruel compared to other capital offenses, see § 13A-5-49(8), Ala.Code
1975. With regard to its finding that the capital offense was
especially heinous, atrocious, or cruel compared to other capital
offenses, the trial court stated:
“The State proved this circumstance beyond a
reasonable doubt. The victim was an older woman, who was not in good
health. The victim was horribly assaulted about the head with a blunt
weapon with several blows hard enough to tear her scalp and render her
unconscious. She was brutally raped and sodomized orally and rectally.
She was pursued from her home and shot five or six times, resulting in
her death. The manner in which the victim was killed was unnecessarily
torturous to the victim for an undetermined period of time. This
killing of this victim was the epitome of a conscienceless or pitiless
homicide.” (C. 666.)
The trial court found the existence of one
statutory mitigating circumstance: the age of the defendant (he was 25
years old) at the time of the crime, see § 13A-5-51(7), Ala.Code 1975.
The trial court found the existence of the following nonstatutory
mitigating circumstances: (1) that Powell exhibited signs of mental or
emotional problems that went untreated; (2) that Powell suffered
direct or indirect abuse at some time in his life; (3) that Powell was
detrimentally affected by his family's instability during his early
and middle years; (4) that Powell had suffered some degree of neglect
and deprivation in his early childhood years as the result of family
turmoil, instability, and other factors; (5) that Powell has friends
and relatives who love him and do not want to see him die; (6) that
Powell has demonstrated the capacity to love and to care for another
human being. As a young father, he cared for and demonstrated devotion
to his children. This love was expressed in practical day-to-day ways,
such as changing diapers, and bathing and feeding the infants, and in
more profound ways, such as searching for employment; (7) that Powell
was suffering from unrelated, yet real stresses, at the time of the
crime; and (8) that Powell assisted other inmates while incarcerated.
The trial court's sentencing order reflects that
after considering all the evidence presented, the arguments of counsel,
the presentence report, the advisory verdict of the jury, and after
weighing the aggravating circumstances against any statutory and
nonstatutory mitigating circumstances, the court determined that the
aggravating circumstances outweighed the mitigating circumstances.
Accordingly, the trial court properly sentenced Powell to death. We
conclude that the trial court's findings concerning the aggravating
circumstances and the mitigating circumstances are supported by the
Powell was convicted of one count of the offense of
murder committed during the course of a burglary, one count of murder
committed during the course of a robbery, one count of murder
committed during a rape, and one count of murder committed during the
course of sodomy. These offenses are defined by statute as capital
offenses. See § § 13A-5-40(a)(2),(3), and (4), Ala.Code 1975. We take
judicial notice that similar crimes have been punished capitally
throughout the state. See, e.g., Freeman v. State, 776 So.2d 160 (Ala.Cr.App.1999);
Barnes v. State, 704 So.2d 487 (Ala.Cr.App.1997); Hutcherson v. State,
677 So.2d 1174 (Ala.Cr.App.1994), rev'd on other grounds, 677 So.2d
1205 (Ala.1996); Dubose v. State, 662 So.2d 1156 (Ala.Cr.App.1993),
aff'd, 662 So.2d 1189 (Ala.1995); Kuenzel v. State, 577 So.2d 474, 530
(Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.1991), cert. denied, 502
U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991); Henderson v. State,
583 So.2d 276, 304 (Ala.Cr.App.1990), aff'd, 583 So.2d 305 (Ala.1991),
cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992).
<)P>After carefully reviewing the record of the guilt phase and the
sentencing phase of Powell's trial, we find no evidence that the
sentence was imposed under the influence of passion, prejudice or any
other arbitrary factor. We conclude that the findings and conclusions
of the trial court are abundantly supported by the evidence. We have
independently weighed the aggravating circumstances against the
statutory and nonstatutory mitigating circumstances, and we concur in
the trial court's judgment that death is the appropriate sentence in
this case. Considering the crimes committed by Powell, we find that
the sentence of death is neither excessive nor disproportionate to the
penalty imposed in similar cases.
Powell's convictions and his sentence of death are
Ex parte Powell, 796 So.2d 434 (Ala.
2001). (Direct Appeal)
Defendant was convicted in the Circuit Court,
Tuscaloosa County, No. CC-95-1020, Gay M. Lake, J., of capital murder
and sentenced to death. Defendant appealed. The Court of Criminal
Appeals, 796 So.2d 404, affirmed. Defendant sought certiorari review.
The Supreme Court, England, J., held that, having meticulously
searched entire record for error and finding none, plain or otherwise,
and having determined that the Court of Criminal Appeals adequately
and properly reviewed conviction and sentence, the Supreme Court would
Eddie Duval Powell III was convicted of capital
murder and was sentenced to death. The Court of Criminal Appeals
affirmed his conviction and his sentence. Powell v. State, 796 So.2d
404 (Ala.Crim.App.1999). We granted certiorari review. We affirm.
Powell was indicted by a Tuscaloosa County grand
jury on four counts of capital murder related to the shooting death of
70-year-old Mattie Wesson. Count I charged Powell with murder made
capital because it was committed during the course of a burglary in
the first or second degree or during an attempt thereof, a violation
of Ala.Code 1975, § 13A-5-40(a)(4); Count II charged Powell with
murder made capital because it was committed during the course of a
robbery in the first degree or during an attempt thereof, a violation
of § 13A-5-40(a)(2); Count III charged Powell with murder made capital
because it was committed during the course of a rape in the first or
second degree or during an attempt thereof, a violation of §
13A-5-40(a)(3); and Count IV charge Powell with murder made capital
because it was committed during the course of sodomy in the first or
second degree or during an attempt thereof, a violation of §
A jury convicted Powell on each count. The trial
court then conducted the penalty phase of Powell's trial, in
accordance with Ala.Code 1975, § 13A-5-6. After hearing the evidence
presented by the parties and hearing the arguments of counsel, the
jury recommended, by a vote of 11-1, that Powell be sentenced to death.
Thereafter, the trial court conducted its own
sentencing hearing, as required by Ala.Code 1975, § 13A-5-47. The
trial court found the existence of two statutory aggravating
circumstances, one statutory mitigating circumstance, and eight
nonstatutory mitigating circumstances. In light of those circumstances
and the jury's recommendation, the trial court sentenced Powell to
death by electrocution.
This Court, on March 6, 2000, granted Powell's
petition for a writ of certiorari to review the opinion of the Court
of Criminal Appeals and to search the record for plain error, pursuant
to Rule 39(k), Ala. R.App. P.FN1 In his brief to the Court of Criminal
Appeals, Powell raised seven issues, several of which had subparts.
The Court of Criminal Appeals thoroughly addressed and properly
decided each of these issues. In his certiorari petition to this Court,
Powell raised an additional 34 issues, most of which have multiple
subparts. Because these additional issues were not raised in the Court
of Criminal Appeals, they are not subject to appellate review absent
plain error. See Ex parte Myers, 699 So.2d 1285, 1296 (Ala.1997), cert.
denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998); Ex parte
Frith, 526 So.2d 880, 882 (Ala.1987). Error is plain “if the error is
so obvious that the failure to notice it would seriously affect the
fairness or integrity of the judicial proceedings.” Haney v. State,
603 So.2d 368, 392 (Ala.Crim.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). (Citation omitted.) Powell also raised two issues for the
first time in his reply brief filed with this Court. As a general rule,
issues raised for the first time in a reply brief are not properly
subject to appellate review. See Kennesaw Life & Accident Ins. Co. v.
Old Nat'l Ins. Co., 291 Ala. 752, 287 So.2d 869, 871 (1973).FN2 None
of the issues raised in either of Powell's briefs has merit. Moreover,
our search of the record reveals no error, plain or otherwise.
FN1. Rule 39 was amended, effective May 19, 2000.
“The amendment removes the provision in the former Rule 39(c) that
provided that a petition for a writ of certiorari to the Supreme Court
in a case in which the death penalty was imposed would be granted as a
matter of right. With this amendment, review of death-penalty cases
will be at the discretion of the Supreme Court. The Supreme Court
retains the authority to notice any plain error or defect in the
proceedings under review in those cases.” “Court Comment to Amendment
to Rule 39 effective May 19, 2000, as to death-penalty cases, etc.,”
Ala. R.App. P. FN2. We note that Kennesaw Life & Accident Insurance Co.
v. Old National Insurance Co. did not involve the imposition of the
death penalty and, therefore, was decided in accordance with the
general rules regarding the preservation of error on appeal. Because
this present case involves the imposition of the death penalty, we
caution that the Kennesaw rule would not apply in the presence of
As required by Rule 39(k), Ala. R.App. P., we have
meticulously searched the entire record for error, and we have found
none, plain or otherwise.FN3 We conclude that Powell received a fair
trial. FN3. The petition for certiorari review in this case was filed
in this Court on December 22, 1999, before the effective date of the
amendment to Rule 39. See note 1.
We have reviewed the opinion of the Court of
Criminal Appeals and conclude that it adequately and properly reviewed
Powell's conviction and sentence. The judgment of the Court of
Criminal Appeals affirming Powell's conviction and his sentence of
death is affirmed.
HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS,
BROWN, and JOHNSTONE, JJ., concur.
Powell v. Allen, 602 F.3d 1263 (11th Cir.
Background: Following affirmance of his conviction
of capital murder and sentence of death, 796 So.2d 434, and affirmance
of dismissal of his petition for post-conviction relief, 938 So.2d
449, petitioner sought habeas corpus relief. The United States
District Court for the Northern District of Alabama, No. 06-00375-CV-IPJ-HGD,
Inge P. Johnson, J., denied relief. Petitioner appealed.
Holdings: The Court of Appeals held that: (1)
method for selecting grand jury foreperson did not violate Equal
Protection Clause; (2) petitioner's right to impartial jury was not
violated by juror-selection procedure; (3) petitioner's equal
protection rights were not violated when prosecutor struck two African-Americans
from venire; (4) decision to uphold voir dire was not contrary to or
unreasonable application of federal law; (5) petitioner was not
entitled to jury instruction on felony murder; (6) habeas relief was
not warranted on claim that state presented false DNA evidence; (7)
counsel was not ineffective in guilt phase for failing to investigate
scope of petitioner's substance abuse; and (8) decision that counsel
was not ineffective during penalty phase was not contrary to or
unreasonable application of Supreme Court precedent. Affirmed.
Eddie Powell was convicted of capital murder on
June 16, 1998. In accordance with the 11-1 jury recommendation, on
August 27, 1998, the trial judge sentenced him to death.FN1 Powell
appealed his conviction and sentence to Alabama's criminal appellate
court and, when both were affirmed, Powell v. State, 796 So.2d 404 (Ala.Crim.App.1999),
to the Alabama Supreme Court, which also affirmed, Ex parte Powell,
796 So.2d 434 (Ala.2001). Powell then filed a petition for a writ of
certiorari with the Supreme Court of the United States, which denied
the writ. Powell v. Alabama, 534 U.S. 904, 122 S.Ct. 236, 151 L.Ed.2d
FN1. This was Powell's second trial. His first
trial concluded in a mistrial because the jury could not reach
agreement regarding punishment. While preparing for retrial of the
penalty phase, Powell moved for a new trial based on the prosecutor's
allegedly improper comment on Powell's decision to remain silent. The
judge agreed, reversed the conviction, and Powell then received a new
Powell began his state habeas process by filing,
pro se, a petition under Rule 32 of the Alabama Rules of Criminal
Procedure for relief from judgment in September, 2002. After his
initial petition was dismissed as improperly plead, Powell filed,
again pro se, an amended petition in November, 2003. Powell then
obtained post-conviction counsel and, on the day of his status
conference, filed a second amended petition in December, 2003 through
counsel. In May, 2004, on the same date as Powell's Rule 32.8 pre-hearing
conference, Powell filed a third amended petition. The state judge, in
July, 2004, (1) denied Powell's petition and request for evidentiary
hearings; (2) found every claim except one in Powell's second amended
petition to be time-barred, and (3) struck Powell's third amended
petition. Powell then requested permission to amend the petition for
the fourth time, and the court denied the request. The appellate court
overturned the Rule 32 court's decision to the extent it found the
second amended petition time-barred, but affirmed the Rule 32 court's
merits holdings (which included the denial of any evidentiary hearings).
The Alabama Supreme Court quashed the petition for a writ of
certiorari without an opinion.
Powell then filed in federal court for a writ of
habeas corpus and applicable evidentiary hearings, under 28 U.S.C. §
2254. The district court denied both. We granted Powell a certificate
of appealability on the following nine issues: 1. Whether Powell is
mentally retarded such that his execution is prohibited by the Eighth
Amendment. 2. Whether the trial court improperly refused to instruct
Powell's jury on the lesser included offense of felony murder. 3.
Whether Powell received ineffective assistance of counsel during his
penalty phase due to counsel's failure to adequately investigate and
present effective mitigation evidence. 4. Whether Powell's trial
counsel were ineffective for failing to investigate and present
additional evidence of voluntary intoxication based on drug use during
Powell's trial. 5. Whether the State presented false DNA evidence in
Powell's trial. 6. Whether the process employed to create Powell's
venire violated his Sixth Amendment right to a venire comprised of a
fair cross-section of the community. 7. Whether the method for
selecting Powell's grand jury foreperson violated the Equal Protection
Clause. 8. Whether Powell made a prima facie case of racial
discrimination during jury selection. 9. Whether the trial court
violated Powell's right to question jurors on the issue of race by
asking, in a racially-charged capital case, only one question to the
entire jury pool regarding racial attitudes.
APPLICABLE STANDARDS OF REVIEW
We review the district court's conclusions on legal
questions and mixed questions of law and fact de novo and its factual
findings for clear error. Rhode v. Hall, 582 F.3d 1273, 1279 (11th
Cir.2009). However, our review of the Alabama habeas court's
decisionFN2 is limited by the terms of 28 U.S.C. § 2254, as amended by
the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Pub.L.
No. 104-132, 110 Stat. 1214 (1996). See 28 U.S.C. § 2254; Williams v.
Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Under AEDPA, we accord a presumption of correctness to a state court's
factual findings. § 2254(e)(1) (“[A] determination of a factual issue
made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.”). We therefore grant habeas relief to
a petitioner challenging a state court's factual findings only in
those cases where the state court's decision “was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” § 2254(d)(2). See Wiggins v.
Smith, 539 U.S. 510, 527-28, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
FN2. When the last state court rendering judgment
affirms without explanation, we presume that it rests on the reasons
given in the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797,
803-05, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Sweet v. Sec., Dep't
of Corrections, 467 F.3d 1311, 1316-17 (11th Cir.2006). Because the
last reasoned decision in this case was the appellate court's review
of the Rule 32 court's decision, we look to the appellate court's
decision. Where the appellate court affirmed the Rule 32 court's
holding for the Rule 32 court's reasons, we, in effect, review the
initial Rule 32 court's decision.
AEDPA similarly constrains our review of legal
questions decided on the merits in state court. Under the statute, we
cannot grant habeas relief “with respect to any claim that was
adjudicated on the merits in State court proceedings” unless: [T]he
adjudication of the claim- (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. § 2254(d). The Supreme Court
has further explained the requirements of § 2254(d) as follows:
Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law or if the
state court decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from this
Court's decisions but unreasonably applies that principle to the facts
of the prisoner's case. Williams, 529 U.S. at 413, 120 S.Ct. 1495.
When, however, a claim is properly presented to the state court, but
the state court does not adjudicate it on the merits, we review de
novo. Cone v. Bell, --- U.S. ----, 129 S.Ct. 1769, 1784, 173 L.Ed.2d
If a petitioner fails to “properly” present his
claim to the state court-by exhausting his claims and complying with
the applicable state procedure-prior to bringing his federal habeas
claim then AEDPA typically bars us from reviewing the claim.
Exhaustion requires that “state prisoners must give the state courts
one full opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d
1 (1999); see § 2254(b), (c). That is, to properly exhaust a claim,
the petitioner must “fairly present[ ]” every issue raised in his
federal petition to the state's highest court, either on direct appeal
or on collateral review. Castille v. Peoples, 489 U.S. 346, 350-51,
109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (quotation omitted).
In the process of exhausting a claim, the
petitioner must comply with all “independent and adequate” state
procedures, else the petitioner will have procedurally defaulted on
that claim. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1977); Bailey v. Nagle, 172 F.3d 1299, 1302-03
(11th Cir.1999); 28 U.S.C. § 2254(b), (c). Where a petitioner has not
“ properly presented his claims to the state courts,” he will have
“procedurally defaulted his claims” in federal court. O'Sullivan, 526
U.S. at 848, 119 S.Ct. 1728. To determine whether a state court's
procedural ruling constitutes an independent and adequate state rule
of decision, this Court has set forth the following three-part test:
(1) the last state court rendering a judgment in the case must clearly
and expressly state that it is relying on state procedural rules to
resolve the federal claim without reaching the merits of that claim;
(2) the state court's decision must rest solidly on state law grounds,
and may not be “intertwined with an interpretation of federal law”;
and (3) the state procedural rule must not be applied in an arbitrary
or unprecedented fashion. Judd v. Haley, 250 F.3d 1308, 1313 (11th
Cir.2001) (citations omitted). We review de novo the district court's
determination that a claim has been procedurally defaulted. See Mize
v. Hall, 532 F.3d 1184, 1190 (11th Cir.2008) (citation omitted).
I. CONVICTION ISSUES
We turn first to the five claims Powell makes
pertaining to jury issues during trial. As to these claims, we find no
reversible error for the following reasons.
First, the method by which Powell's judge selected
his grand jury foreperson does not make out a prima facie violation of
the Equal Protection Clause. See Rose v. Mitchell, 443 U.S. 545, 99
S.Ct. 2993, 61 L.Ed.2d 739 (1979). To make out a prima facie violation,
a defendant must show, among other things, that the applicable racial
group was underrepresented relative to its proportion of the
population as a whole. See Valle v. Sec. for Dept. of Corrections, 459
F.3d 1206, 1215-16 (11th Cir.2006) (prima facie case requires
“comparing the proportion of the group in the total population to the
proportion of the group chosen to serve as grand jurors over a
significant period of time.” (citing Castaneda v. Partida, 430 U.S.
482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977))). Before Powell's
judge,FN3 however, African-Americans (the group at issue) were over-represented
as grand jury forepersons. We thus affirm the district court's opinion
on this issue.
FN3. The judge selected the grand jury foreperson
in the following manner: first by selecting the foreperson at random;
then, with the recommendation of the prosecutor, substituting someone
more “literate” for the original choice. We express no view as to the
wisdom of this method nor its legality if challenged under a different
set of facts.
Second, Powell argues that his Sixth Amendment
right to an impartial jury “drawn from a fair cross section of the
community,” Holland v. Illinois, 493 U.S. 474, 480, 110 S.Ct. 803, 107
L.Ed.2d 905 (1990) (quoting Taylor v. Louisiana, 419 U.S. 522, 527, 95
S.Ct. 692, 42 L.Ed.2d 690 (1975) (emphasis omitted)), was violated by
his judge's juror-selection procedure, wherein Powell's jurors were
selected from those remaining after attorneys for other cases selected
their jurors from the venire. Powell has not alleged that this process
is the general practice for capital cases nor, if it is, that it
results in a non-representative venire for capital cases. See Duren v.
Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)
(prima facie case requires non-representative venires due to
systematic exclusion from the jury process). We thus find no theory,
under these cases, which could permit us to overturn the district
court's decision denying Powell relief on this issue.
Third, Powell claims that the prosecutor struck two
of the three African-Americans remaining in Powell's venire (i.e., the
jurors remaining after the jury selection procedure described above
and after strikes for cause), in violation of the Equal Protection
Clause. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986). Instead of pointing to evidence supporting the specific claim
that either of the two jurors were struck because of race, Powell's
brief and oral arguments focused on more general allegations regarding
the racially charged nature of Powell's trial. The record in this case
cannot support this Batson claim.
Fourth, Powell argues that his voir dire violated
his right, as a defendant accused of an interracial crime, “to have
prospective jurors informed of the race of the victim and questioned
on the issue of racial bias.” Turner v. Murray, 476 U.S. 28, 36-37,
106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). However, “the trial judge
retains discretion as to the form and number of questions on the
subject [of race], including the decision whether to question the
venire individually or collectively.” Id. at 37, 106 S.Ct. 1683.
Because the judge indeed permitted a question, posed to the jury
collectively, on racial bias (and Powell makes no other relevant
allegations) we cannot say that the Rule 32 court's decision to uphold
the trial judge's voir dire was contrary to or an unreasonable
application of federal law.
Fifth, contrary to Powell's argument, Beck v.
Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), does not
entitle Powell to a jury instruction on felony murder, even if it is a
lesser-included offense for capital murder in Alabama. Because
Powell's jury charge included not only capital murder but also
intentional murder and manslaughter, neither of which permit the death
penalty, Powell's jury did not face “the choice of either convicting
the defendant of the capital crime, in which case it is required to
impose the death penalty, or acquitting him, thus allowing him to
escape all penalties for his alleged participation in the crime.” Beck,
447 U.S. at 628-29, 100 S.Ct. 2382. Because the jury was not faced
with the “all-or-nothing choice” Beck is concerned with, Powell's
claim cannot succeed. Schad v. Arizona, 501 U.S. 624, 647, 111 S.Ct.
2491, 115 L.Ed.2d 555 (1991). FN4. We note that Powell has not argued
to us that his counsel was ineffective for failing to request a felony-murder
instruction under Alabama law. Powell has alleged, rather, that
federal law entitles him to the instruction.
Powell then makes two claims regarding evidentiary
issues. First, he alleges that the state presented false DNA evidence
by presenting falsified results from its DNA test to the jury, then
drawing prejudicial conclusions from those false results. Second,
Powell alleges that the state misleadingly asserted that the oral,
anal, and vaginal swabs taken from the victim all matched Powell. On
review of the record, we cannot say that the state made an
unconstitutionally misleading assertion on this issue. As to the
allegedly false DNA results, Powell points to no record evidence, nor
has our review of the record revealed any, from which the allegedly
true test results can be found. Moreover, he makes no claim before us
that the prosecutor failed to disclose any results (e.g., a Brady or
Giglio claim) or that trial counsel was ineffective for failing to
discover them. Finally, the state expert testified that the DNA
evidence in the anal swab conclusively belonged to Powell, a
conclusion Powell does not now contest. Consequently, we find that his
claim has no merit.
Powell also asserts that his counsel's failure to
present additional evidence of his extreme alcohol and substance abuse
immediately prior to his crime-when his defense relied primarily on an
argument that he was insane due to voluntary intoxication-constitutes
ineffective assistance of counsel. However, Powell fails to point to
any evidence about the effect of the addition of other substances on
his sanity or ability to form a specific intent. To be sure, Powell
alleges that his counsel was ineffective for failing to investigate
such evidence by, for example, failing to retain a pharmacologist to
evaluate the substances Powell allegedly ingested. However, Powell has
not alleged nor shown what the result of any such expert testimony
would be. Without allegations of any prejudice, we cannot say that
Powell's counsel was ineffective in the guilt phase for failing to
investigate the scope of Powell's substance abuse.
II. PENALTY PHASE
A. Atkins Claim
Initially, as to Powell's claim that he is
sufficiently mentally retarded that Atkins v. Virginia, 536 U.S. 304,
122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), bars his execution, we cannot
say that the Rule 32 court's conclusion that Powell failed to allege
facts in his Rule 32 petition sufficient to show that he was mentally
retarded was contrary to or an unreasonable application of Atkins.FN5
Instead of establishing a national standard and procedures for
determining whether a particular individual is mentally retarded, the
Supreme Court in Atkins left to the states “the task of developing
appropriate ways to enforce the constitutional restriction” upon the
execution of mentally retarded convicts. Id. at 317, 122 S.Ct. 2242.
In Alabama, to establish mental retardation a defendant “must have
significantly subaverage intellectual functioning (an IQ of 70 or
below), and significant or substantial deficits in adaptive behavior.
Additionally, these problems must have manifested themselves during
the developmental period (i.e., before the defendant reached age 18).”
Ex Parte Perkins, 851 So.2d 453, 456 (Ala.2002). More recently the
Alabama Supreme Court reaffirmed the definition of mental retardation
it identified in Perkins, but also clarified that it is implicit in
that definition that the IQ and deficits in adaptive behavior exist
not only prior to the age of eighteen but also both at the time of the
crime and currently. Smith v. Alabama, ---So.2d ----, ----, 2007 WL
1519869, at *8 (Ala. May 25, 2007).
FN5. The Rule 32 court relied on two distinct
conclusions in rejecting Powell's claim of mental retardation. In
addition to dismissing the claim as described above, the state court
also reviewed the record evidence from the guilt and penalty phases of
Powell's trial and determined that he could not establish that he had
both significantly subaverage intellectual functioning and significant
deficits in adaptive functioning either before eighteen years old or
currently. Because we cannot state that the Rule 32 court's dismissal
of this claim for failing to allege sufficient facts was contrary to
or an unreasonable application of Atkins, we need not address its
In his Rule 32 petition, Powell alleged the
following fact as the basis for his claim of mental retardation: “Mr.
Powell was diagnosed as mildly mentally retarded in the fifth grade by
the Lake County, Illinois school system.” However, Powell did not
allege in his Rule 32 petition that his IQ was or is 70 or below,
which is necessary to support a finding of mental retardation in
Alabama. See Perkins, 851 So.2d at 456. Because a finding of mental
retardation to sustain an Atkins claim requires both significantly
subaverage intellectual functioning and significant deficits in
adaptive functioning, Powell has failed to plead facts on which an
Atkins claim can be based. Accordingly, we cannot say that the state
court's determination of this issue was contrary to or an unreasonable
application of Atkins. FN6. Likewise we find no error in the district
court's denial of Powell's request for an evidentiary hearing in
federal court on this issue.
B. Ineffective Assistance of Counsel
Powell also argues that his trial counsel was
ineffective at the penalty phase for failing to investigate and
present mitigating evidence regarding his deprived background,
intellectual and developmental impairments, multiple traumatic head
injuries, and the effect of drug use on his mental capacity. The Rule
32 court, affirmed by the state appellate court, found that Powell
failed to plead facts on which an ineffective assistance claim could
be based and, for that reason, denied Powell's claim and request for
an evidentiary hearing.FN7 See Boyd v. State, 913 So.2d 1113, 1125 (Ala.Crim.App.2003)
(only when “facts are pleaded, which, if true, entitle a petitioner to
relief, [is] the petitioner then entitled to an opportunity, as
provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving
those alleged facts.” (citing Ala. R.Crim. P. 32.6) (emphasis omitted)).
We thus review the Rule 32 court's rejection of Powell's claim as a
holding on the merits. Judd, 250 F.3d at 1313; Stokes v. Anderson, 123
F.3d 858, 860 (5th Cir.1997) (finding no procedural bar from state
court ruling on similar pleading rule because the ruling “require[d]
some evaluation, however cursory, of the merits of a petitioner's
claim”). In doing so, AEDPA limits our review to whether the state
court's determination that Powell failed to plead sufficient facts in
his Rule 32 petition to support a claim of ineffective assistance of
counsel was contrary to or an unreasonable application of Supreme
Court precedent. Thus, we look only to the allegations in Powell's
Rule 32 petition and whether those allegations sufficiently state a
claim for ineffective assistance of counsel.FN8
FN7. The Rule 32 court's initial finding that these
claims were time-barred was rejected by the state appellate court
based upon an intervening decision of the Alabama Supreme Court. FN8.
Powell has made additional allegations and submitted more evidence in
support of his claim of ineffective assistance of counsel in his
federal habeas petition. In accordance with AEDPA, however, we do not
consider such supplemental allegations or evidence when reviewing the
reasonableness of the state court's resolution of this claim, which
was based on the allegations before it.
Under Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), trial counsel is ineffective when:
First, ... counsel's performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning
as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, ... the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable. Id.
at 687, 104 S.Ct. 2052.
To be found deficient, capital counsel's
performance must be “outside the wide range of professionally
competent assistance.” Id. at 690, 104 S.Ct. 2052. Professionally
competent assistance includes a duty to conduct a reasonable
investigation. Id. at 690-91, 104 S.Ct. 2052. The Court has emphasized
that only when counsels' choices are made after a “thorough
investigation of law and facts relevant to plausible options” are
those choices “virtually unchallengeable.” Id. at 691, 104 S.Ct. 2052.
When, however, “strategic choices [are] made after less than complete
investigation [they] are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation.” Id. at 690-91, 104 S.Ct. 2052. Thus, at bottom,
“counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances
....” Id. at 691, 104 S.Ct. 2052. This means that when we assess the
attorney's decision not to investigate, we “must consider ... whether
the known evidence would lead a reasonable attorney to investigate
further.” Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156
L.Ed.2d 471 (2003). To establish prejudice, “[t]he defendant must show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104
Powell claims that his counsel knew about, but
failed to properly investigate and present evidence of Powell's
deprived background and mental impairment. Specifically he asserts
that his counsel failed to present evidence of his intellectual
limitations, developmental delays, multiple traumatic head injuries,
substance abuse, depression, and parental neglect and abandonment
because counsel failed to interview numerous additional family members.
Powell argues that his counsel's allegedly unreasonable investigation
(1) lead counsel to omit key information regarding the breadth and
significance of Powell's deprived background and mental impairments,
and (2) undermined the impairment evidence which was presented. Powell
concludes that had the jury received accurate information, there was a
reasonable probability that it would have reached a verdict of life
imprisonment instead of death.
Having reviewed the allegations in Powell's Rule 32
petition in this case, we affirm because, regardless of whether Powell
has made allegations sufficient for a showing of deficient performance,
he has not alleged facts sufficient to show “that there is a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.” Strickland,
466 U.S. at 694, 104 S.Ct. 2052.FN9 Because Powell has not alleged
what mitigating factors would have been established but for his
counsel's deficient performance, we are unable to conclude that any
such deficiency resulted in prejudice to him, and thus we cannot say
that the Rule 32 court's dismissal of this claim was contrary to or an
unreasonable application of Supreme Court precedent.
FN9. As with his Atkins's claim, Powell also
requested an evidentiary hearing in federal court on his ineffective
assistance of counsel claim. We find no error in the district court's
denial of an evidentiary hearing on this claim.
Although Powell alleges that his counsel was
ineffective for failing to investigate and present evidence of
Powell's numerous significant head traumas, he makes no allegations
and presents no information pertaining to the significance of his head
injuries on his subsequent behavior and how this would have changed
the outcome of the penalty phase of his trial. In his state court
habeas petition, he did not allege the existence of any testimony from
a medical professional nor the existence of any medical records that
addressed the relationship between his alleged head injuries and his
subsequent behavior.FN10 In asserting that trial counsel was deficient
for failing to retain a neurologist to investigate the impact of his
head injuries, he fails to point to any allegations in his state court
petition that such testing has since been conducted or what the
results of such testing would show. Without any allegations explaining
how his alleged head injuries affected his actions at the time he
committed the crime of conviction, we cannot say that it was
unreasonable for the state court to conclude that the failure of
Powell's counsel to investigate and present neuropsychological testing
unfairly prejudiced Powell so as to render the penalty phase of his
trial fundamentally unfair. See Strickland, 466 U.S. at 687, 104 S.Ct.
FN10. In his federal habeas petition, Powell now
refers to an unidentified post-conviction neuropsychologist who has
allegedly commented on the inadequacies of Dr. Rosenzweig's assessment.
He also alleges that neuropsychological testing confirms that Powell
was suffering from a traumatic brain injury at the time of his trial.
Nonetheless, because these allegations were not before the Rule 32
court and Powell has not given sufficient reasons for us to consider
them, they do not inform our determination of whether the Rule 32
court's dismissal of Powell's claim of ineffective assistance of
counsel was contrary to or an unreasonable application of Strickland.
Likewise, Powell argues that his trial counsel
should have obtained the testimony of his teachers or school records,
because he asserts that “school records, military records, health
records, employment records, correctional records, and religious
records of both Mr. Powell and his parents and his siblings” were
available and would have presented a complete picture of his life.
However, Powell did not allege in his Rule 32 petition what any such
records would show other than to make the conclusory allegation that
such records would have revealed “numerous mitigating circumstances.”
He does not, however, allege what those mitigating circumstances are.
As such, we cannot conclude that the Rule 32 court's dismissal of
Powell's ineffective assistance of counsel claim was an unreasonable
application of Strickland.
Additionally, Powell's mother testified at the
penalty phase that Powell's school had found him to be mildly mentally
retarded and, as a consequence, placed him in a special education
class. Powell argues that because of Powell's early school diagnosis
of mental impairment, his counsel should have asked Dr. Rosenzweig to
perform an intelligence test in preparation for the penalty phase.
However, because Powell failed to allege before the Rule 32 court what
the results of such IQ testing would show, we have no basis to
evaluate whether there is a reasonable probability that the results of
such a test would have made a difference in the outcome of his
Powell also asserts that his counsel was
ineffective for failing to investigate the extent of his substance
abuse problems. However, both Dr. Rosenzweig and Powell's aunt
testified at his original sentencing hearing that Powell began
drinking and taking drugs at an early age. Powell did not allege what
additional testimony was available from family members that was not
already before the jury regarding the extent of his drinking and drug
Finally, Powell alleges that his counsel was
deficient for failing to investigate and present additional evidence
regarding his family life and upbringing. However, Dr. Rosenzweig
testified at his original sentencing hearing regarding many of the
significant events from Powell's childhood. She testified about the
divorce of Powell's parents when he was nine years old and the effect
it had on Powell's behavior. She stated that his parents lived in
different states, that he had to live with relatives because his
mother worked much of the time, that he became very close to his
maternal grandfather and that family members described him as a sad
child. Dr. Rosenzweig confirmed that Powell likely suffered from
childhood depression and discussed how his behavior changed following
his parents' divorce. Powell does allege counsel failed to present two
incidents of domestic violence from the time when his parents were
still married. Under our caselaw, these additional incidents are not
enough to show prejudice.
For the reasons discussed above, we cannot say that
the state court's decision was contrary to or an unreasonable
application of Strickland's ineffective assistance of counsel standard.
Eddie Duval Powell III
70-year-old Mattie Wesson was brutally attacked, raped, sodomized
and shot to death in her home.