Opinion
CR-20-0790
02-10-2023
James Benton HORN v. STATE of Alabama
William B. Alverson III of Alverson & Alverson, Andalusia, for appellant. Steve Marshall, att’y gen., and Jordan Shelton, asst. att’y gen., for appellee.
William B. Alverson III of Alverson & Alverson, Andalusia, for appellant.
Steve Marshall, att’y gen., and Jordan Shelton, asst. att’y gen., for appellee.
KELLUM, Judge.
The appellant, James Benton Horn, was convicted of murder, see § 13A-6-2, Ala. Code 1975, arson in the second degree, see § 13A-7-42, Ala. Code 1975, and. criminal mischief in the first degree, see § 13A-7-21, Ala. Code 1975. Horn was sentenced as a habitual felon to life imprisonment for the murder conviction, life imprisonment for the arson conviction, and 20 years’ imprisonment for the criminal-mischief conviction. The circuit court ordered that all three sentences be served consecutively.
Horn was also tried for theft of property in the third degree; however, the circuit court granted Horn’s motion for a judgment of acquittal on the theft charge.
The State’s evidence tended to show that in the early morning hours of June 20, 2018, police discovered the badly burned body of Bruce Nelson in his vehicle parked outside his mobile home in Andalusia. Dr. Christopher Guthrie, a medical examiner for the Alabama Department of Forensic Sciences, testified that Nelson had two gunshot wounds to his head, four knife injuries, and thermal injuries caused by the intensive heat of the fire. Nelson had been shot in the right eyebrow and the chin, had four sharp-force wounds, and had multiple heat injuries that caused "thermal fractures of the lower extremities." (R. 643.) It was Dr. Guthrie’s opinion that the thermal injuries were caused after Nelson’s death and that his cause of death was the "combined effects of multiple sharp force injuries and gunshot wounds of the head." (R. 644-45.)
At approximately 3:30 a.m. on June 20, 2018, Cody Taylor, at the time of trial a former officer with the Covington County Sheriff’s Office, responded to a 911 emergency call that there was a suspicious vehicle in the vicinity of Ray Armstrong Road. Taylor testified that on his way to that call he observed a vehicle on fire in front of a mobile home. After he dealt with the 911 call, he said, he returned to the fire. Taylor walked around the vehicle and discovered a badly burned and unrecognizable body in the driver’s seat. That body was later identified as Bruce Nelson. There was also testimony that the mobile home and the vehicle belonged to Nelson. (R. 292.)
Tomi Cox, Nelson’s fiancée, testified that Horn was a friend of Nelson’s and that they had known each other for about 30 years. Nelson owned a vehicle repair shop, Nelson’s Auto Repair ("the shop"), and Horn had worked as a mechanic for Nelson in the past. According to Cox, Nelson had fired Horn for his conduct and the poor quality of his work. On the day that Nelson was killed, Cox said, Horn had been in the shop and he and Nelson had had a disagreement because Horn had taken an installed stereo out of Nelson’s vehicle. Cox said that Nelson arrived home at about 4:00 p.m. and that Horn showed up a little after 5:00 p.m. (R. 321.) She said that it was unusual for Horn to come to their house. Nelson and Horn drank beer and watched videos on YouTube streaming service while at the house. Cox left the house at around 11:00 p.m. to go to work, and Horn was still with Nelson when she left. Cox also testified that when she borrowed $20 from Nelson before she went to work she noticed that Nelson had several "twenties and fifties" in his wallet. (R. 329.) According to Cox, she found Nelson’s empty wallet in one of his drawers when she was allowed back in the mobile home to get some clothes after Nelson’s murder. (R. 330-31.)
Clint Adkison, Nelson’s brother, testified that he had worked at the shop for eight years and that after Nelson’s death he took over the management of the shop. He said that at the time of his death, Nelson was driving a 1988 Black Mazda MX6 automobile and that he had helped Nelson make modifications to that car that cost approximately $2,200. He testified that several days before Nelson was killed, Nelson discovered that his stereo equipment had been taken out of his Mazda. Adkison testified that he had a game camera at the shop and that, in order to see Horn’s reaction, he told Horn that the camera had recorded the person who had stolen the stereo equipment from Nelson’s car. Horn sent a text message to Adkison later that day, he said, and told Adkison that he had taken the equipment to "prove a point." (R. 359.) Horn had come by the shop on June 19, 2018, and had asked to borrow money so that he could go to a funeral and he offered his tools as collateral. Adkison said that he told him to go to a nearby pawnshop and Horn left the shop. Horn came back a little later, Adkison said, and showed everyone that he had gotten $100 for his tools, and he asked Nelson if he could borrow $20.
Investigator David Hamby with the Covington County Sheriff’s Office testified that he was called to the scene in the early morning of June 20, 2018. There was a burned vehicle in the front yard, a body was on the ground outside the driver’s door and the mobile home was still smoldering. (R. 407.) He said that there was a blood trail on the grass from a boat trailer to the burned vehicle. Nelson’s mobile home had been partially burned in the master bedroom, and the bed in that room had collapsed. (R. 431.) In the mobile home, there was a trail of blood that started in the "bedroom, went all the way out to - went to the chair [in the living room], went all the way out to the boat, then came back to the car." (R. 440.) An empty bottle of lighter fluid was also found in the living room. (R. 430-31.) A .22 caliber gun was also recovered from the mobile home.
Investigator Hamby testified that the gun had not been sent for testing until the week before trial. (R. 494.)
Horn was arrested after police stopped his car at a laundromat near Horn’s residence at approximately 8:30 a.m. on the morning of June 20. Investigator Mark Odom of the Covington County Sheriff’s Office testified that, when Horn was stopped, he was alone and was driving a four-door silver Saturn automobile. After opening the vehicle, Investigator Odom said, he discovered what he believed to be blood on the driver’s side door. The car was impounded, and Horn was taken to the Drug Task Force ("DTF") office in Andalusia, where he was interviewed. Horn had an injury to his right hand when he was taken into custody.
During trial, Horn introduced medical records that showed that nine months earlier Horn had had a knife injury to one of his hands that had not healed properly.
Investigator Hamby testified that he took Horn to the DTF office and advised Horn of his Miranda rights and that Horn gave a statement to police at around 10:00 a.m. on the morning of June 20 after waiving those rights. Horn told police that he was good friends with Nelson and had known him for many years, that Nelson was his "buddy", that he visited Nelson on June 19, that he stayed only 20 minutes after Cox left to go to work, and that he and Nelson did argue. (R. 460.) Horn also told police that when he left Nelson’s residence he saw a Chevrolet Malibu vehicle pull up and that two individuals were inside the vehicle. The driver, he said, was a black man. Horn said that he went by Nelson’s mobile home later that evening and saw that the Malibu was still parked at Nelson’s residence. Horn later told police that several days after Nelson was killed a black man broke into Horn’s house and threatened him.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
After Horn was first interviewed, Investigator Hamby took Horn to his residence while police executed a search warrant. Police discovered a pair of blue jeans in the washing machine with powdered laundry detergent on them. The washing machine had not been started. At the scene, police tested the jeans for blood and obtained a positive result; the jeans were sent for DNA testing. (R. 473.) There was also a pile of clothes in the backyard that had been set on fire and the pile was "still wet like it appeared that somebody had just put the fire out recently." (R. 478.) State forensic DNA expert, Teryn Bostick, testified that she conducted DNA tests on the jeans recovered from Horn’s house and found that the DNA on one knee of those jeans matched Nelson’s DNA. Horn had told police that the jeans belonged to him. Bostick also testified that the DNA found in Horn’s vehicle matched Nelson’s DNA.
Investigator Ken Harris of the Covington County Sheriff’s Office testified that, after the search warrant had been executed on Horn’s home, he drove Horn to the Covington County Sheriff’s Office and put Horn in an interview room. After Horn was questioned, Investigator Harris took Horn to a nearby Marathon gasoline service station because Horn had asked if he could get "some items." (R. 104.) Investigator Harris testified:
"We got to the Marathon, and as he was getting out of the vehicle, he grabbed money out of his pocket. And it was a pretty good sum of money, and it caught my attention on that because we had learned earlier in the day that Mr. Nelson had just cashed a check. And he had a lot of cash money, and it just kind of caught my attention."
(R. 104.) When Horn was arrested, police seized $579 in cash from his wallet. (R. 116.)
Charles Nelson testified that he lives about 400 feet from Bruce Nelson’s mobile home. (R. 692.) He testified as an expert in the valuation of Nelson’s vehicle and said that Nelson’s vehicle was very rare and that its value was between $7,500 and $15,000. Charles further testified that he had been working on a water line in his yard on the afternoon of June 19 and that he had gone up and down the road in front of Nelson’s mobile home several times that day. He said that he observed a silver vehicle parked at Nelson’s that he did not recognize and that he also saw Cox’s vehicle and Nelson’s vehicle at the residence at that same time. (R. 703.) That same silver vehicle was there when his wife called him into the house at approximately 2:30 a.m. in the early morning hours of June 20. (R. 704.)
Nothing in the record suggests that Charles Nelson is related to Bruce Nelson.
Special Agent John Wesley Snodgrass with the Alabama State Fire Marshal's Office testified that he investigated the fire at Nelson’s residence. He said that the fire in the master bedroom "had to be an intentional fire, which is basically human interference." (R. 523.) He further testified that the fire in the vehicle had been intentionally set and that the accelerant was probably gasoline. (R. 541.) Officers could smell gasoline when Nelson’s body was recovered.
Horn’s defense was that the State failed to conduct an adequate investigation, failed to have certain evidence tested, and focused on him without investigating other possible suspects. In Hom’s statements to police, Horn said that he had been framed for the murder and that the men who drove up to Nelson’s mobile home as he was leaving had committed the murder, that someone must have planted the jeans in the exterior laundry room at his house, and that his vehicle was not in the same condition on June 20 as it was when he parked it at his house the night before. (R. 611.) Also, Horn said that the reason he had so much cash on him when he was arrested was that he was on his way to pay his outstanding electrical bill of $321. (C. 654.)
Horn’s own DNA expert, Stacy Martin, a DNA forensic analyst employed by DNA Diagnostic Center in Ohio, testified that she was hired by Horn’s attorney to perform a second DNA test on several items of evidence that had been collected in Horn’s case. (R. 731.) She tested swabs that had been collected from a bathroom tub, samples from a vehicle, and samples from a pair of jeans that had been recovered from a laundry room in Horn’s house. Martin testified that her tests on the jeans revealed the presence of Nelson’s DNA profile on the left knee of those jeans. (R. 735.) Her test results from the jeans were consistent with the State’s DNA expert’s test results. Martin further testified that she was unable to test one of the swabs from a bathroom tub because there was no blood to test. A second swab from a bathroom tub did show the presence of Horn’s blood. Last, Martin said that she tested a swab that had been collected from Horn’s vehicle but that there was insufficient DNA on that sample to obtain a match to Nelson’s DNA.
In his defense, Horn also presented the testimony of Erica Lawton, a forensic scientist with the Alabama Department of Forensic Sciences. Lawton testified that she tested the two bullet fragments that had been sent to the lab from the coroner’s office. Although she was not able to measure the bullets, she said, based on her experience the fragments were "most consistent with a .22 caliber gun." (R. 752.) If a gun had been submitted, even with the condition of the fragments, she would have been able to determine if that gun had fired the fatal bullets. (R. 753.)
After both sides rested and the circuit court instructed the jury, the jury found Horn guilty of murder, second-degree arson, and third-degree criminal mischief. Horn timely filed a motion for a new trial, which the circuit court denied. This appeal followed.
I.
[1] Horn first argues that his right to due process was violated when the circuit court denied his motion for funds to hire a DNA expert that, he says, was essential to assist him in his defense.
The record indicates that in May 2019 Horn moved that he be allowed to proceed ex parte on his requests for funds for expenses related to his defense. (C. 150.) In October 2019, Horn moved for funds for a DNA expert. (First Supp. R. C. 34.) At the pretrial hearing on this motion, the defense argued:
"I’m no expert in the field of DNA. That’s a very specialized thing as Your Honor is well aware. Dr. [Ronald] Acton would be able to analyze the reports, verify the proper procedures were followed. Also, additionally, as he mentioned in his fee sheet here, he would be able to help educate me to the point where I could conduct an effective cross-examination and educate me as far as what would be important to ask of the State’s DNA experts at trial.
"This is an area where I have no expertise at all. I wouldn’t know the proper procedure for testing someone’s DNA. He could conduct or he can recommend another laboratory for secondary testing, if that’s necessary, if he believes there is something to be at issue there. If he was needed to come testify at trial, his travel rate is a hundred dollars an hour plus reimbursement for travel, lodging, meals and expenses.
"The State appears at this point to be relying heavily upon that DNA evidence, and we need a DNA expert to be able to analyze and get a feel for the credibility of that evidence and possibly even contest it."
(R. 18-19.) The circuit court denied that motion. (First Supp. R. C. 31.) In January 2020, Horn moved that the circuit court reconsider its ruling. (First Supp. R. C. 37.) That motion was also denied.
In March 2020, Horn filed a motion for the production of DNA evidence. (C. 249.) Horn filed a second request for production in August 2020. (C. 251.) A hearing was held on those motions. At this hearing, Horn asserted that, according to this Court’s holding in Maples v. State, 758 So. 2d 1 (Ala. Crim. App. 1999), he was entitled to access to all the 12 steps and procedures that had been used to test the DNA evidence. In essence, Horn requested all the "raw DNA data." (C. 251.) The defense argued at the hearing:
"Essentially what it boils down to is I’ve got an indigent client, and with the request for DNA funds being denied, if this request for production were to be denied, then we’re basically boxed in to just having to accept as true a DNA conclusion from one of the State’s experts. And while the -- As stated earlier, the DNA in this case is critical as defined in the Dubose [v. State, 662 So. 2d 1189 (Ala. 1995),] case that we reference. And while generally I admit that lawyers have the burden of educating ourselves to get ready for trial, DNA is of such a scientific nature that I’m not able to -- not likely able to educate myself to the level of a DNA expert, but also even if I were able to, I’m not able to take the stand and testify. And so we’re essentially -- if all these requests are denied, we’re essentially left without a way to either confirm nor refute the DNA evidence that has been produced by the State in this case."
(R. 120.) In response to Horn’s arguments, the following discussion occurred:
"[Prosecutor]: I’m saying … they’re not interested in testing the DNA. They want to challenge the processes we use, which they’re certainly capable of doing on the witness stand. But what they’re asking for is all this work product, all this otherwise protected information485 that, you know and the Court’s heard testimony in other cases about lab protocols and about FBI best practices. And to grant this motion violates all those protocols. And so I go back to this: The Court -- the case law -- the law of the land right now is Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),] is what applies. And from that, the only logical inference is that if the Defense has evidence that they want to offer into trial that otherwise complies with Daubert, then it’s admissible, and the inference therefore is they
"I was not privy to the motion to have independent testing done. They -- you know, I think [defense counsel] is right; the box that might be created is problematic. And so I have no objection to him having the samples that we have independently tested.
"THE COURT: Has that been done?
"[Defense counsel]: Judge, I filed an ex parte request for a DNA expert. That request was denied by Your Honor. I filed a motion to reconsider the denial of that request, and the motion to reconsider was also denied.
"THE COURT: I thought your request was for something other than to test DNA.
"[Defense counsel]: I previously also requested an investigator, and Your Honor granted an ex parte request for an investigator but denied -- At the same hearing, I also had the issue of a request for a DNA expert, and that request was denied.
"THE COURT: Okay. Well, maybe I misunderstood that request. I thought the request was for a DNA expert to help you understand DNA as opposed to a DNA expert to test something and see if it was different than their results.
"[Defense counsel]: I honestly can’t recall what was -- how that motion was worded. I know part of what I argued to you was for Dr. Acton in Birmingham to be able to educate me and to evaluate
"THE COURT: That’s what I was ruling on. If it was something else to it, I may have -- just didn’t pick up on it.
"[Defense counsel]: And I
"THE COURT: I would certainly allow you to test the stuff."
(R. 122-24.) As stated above, defense counsel orally requested that he be allowed to have the DNA evidence independently tested. A written motion was also filed a few days after the hearing. (C. 255.) The circuit court granted Horn’s motion for independent DNA testing. (C. 257.)
The record further shows that Horn obtained the expert services of Stacy Martin, a DNA forensic analyst. As stated above, she testified that she was hired by Horn’s attorney to perform a second DNA test on several items of evidence that had been collected in Horn’s case. (R. 731.) She tested swabs that had been collected from a bathroom tub, samples from a vehicle, and samples from a pair of jeans that had been recovered from a laundry room in Horn’s house. Martin testified that her tests on the jeans revealed the presence of Nelson’s DNA profile on the left knee of those pants. (R. 735.) This finding was consistent with the State’s DNA expert’s test results. Martin also testified that she had been given a copy of the State’s DNA report and that she had examined that report. (C. 650-51.) She was questioned about that report. The State’s DNA expert was also questioned on cross-examination.
[2, 3] In his brief on appeal, Horn argues that as an indigent defendant he had an absolute right to the assistance of a DNA expert. He relies on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and Dubose v. State, 662 So. 2d 1189 (Ala. 1995), to support his argument.
"In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court held that an indigent defendant is entitled, under the Due Process Clause of the United States Constitution, to expert psychiatric assistance when the defendant’s sanity is a significant issue. The Supreme Court expressed concern that the indigent defendant have access to a ‘competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.’ Ake, 470 U.S. at 83, 105 S.Ct. at 1096.
"The Supreme Court did not address the precise issue whether an indigent defendant would be entitled to the assistance of a psychiatric expert when diminished mental capacity, rather than insanity, is the issue at trial, or when diminished mental capacity is the issue at a capital sentencing healing.
"However, in Dubose v. State, 662 So. 2d 1189 (Ala. 1995), this Court held that the Ake principles relating to assistance of experts are not limited to psychiatrists. The Ake principles, which are grounded in the due process guarantee of fundamental fairness, apply to assistance by nonpsychiatric experts when an indigent defendant makes a proper showing that the requested assistance is needed in order for the defendant to have ‘a fair opportunity to present his defense.’ Dubose, 662 So. 2d at 1194. Specifically, a defendant, in order to be entitled to funds to pay for an expert, must show more than a mere possibility that he or she will receive useful assistance from the expert. Rather, the defendant must show a reasonable probability that the expert would aid in the defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial. In the past, Alabama decisions have been based upon whether the defendant made an adequate showing of a need for the requested expert. Dubose, 662 So. 2d at 1191; see also, Smith v. State, 623 So. 2d 369 (Ala. Or. App. 1992), cert. denied, 510 U.S. 1030, 114 S.Ct. 650, 126 L.Ed.2d 607 (1993); McLeod v. State, 581 So. 2d 1144 (Ala. Cr. App. 1990); Siebert v. State, 562 So. 2d 586 (Ala. Cr. App. 1989), aff'd, 562 So. 2d 600 (Ala.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 408 (1990); Stewart v. State, 562 So. 2d 1365 (Ala. Cr. App. 1989); McGahee v. State, 554 So. 2d 454 (Ala. Cr. App.), aff'd, 554 So. 2d 473 (Ala. 1989)."
Ex parte Dobyne, 672 So. 2d 1354, 1357-58 (Ala. 1995).
"While defense counsel is obligated to inform himself about the scientific area in question, we also recognize that defense counsel may be unfamiliar with specific scientific theories implicated in a case and therefore unable to provide the court with the detailed analysis the appointed expert might provide."
Dubose, 662 So. 2d at 1197.
Here, the record clearly indicates that Horn was not denied the assistance of a DNA expert. Indeed, the circuit court approved funds for independent testing of the DNA evidence that had been collected by the State. The circuit court did not approve Horn’s first motion for funds for an expert to educate Hom’s counsel on DNA evidence. To prevail on this issue, Horn was required to show that his trial was fundamentally unfair because he was not granted a DNA expert to educate him on DNA evidence. See Ex parte Dobyne. Based on Martin’s testimony, we cannot say that Horn has met that burden.
[4] Secondly, Horn asserts that the circuit court erred in not approving his mo- tion for funds to obtain the "raw DNA data." He asserts that, according to this Court’s holding in Maples v. State, supra, he was entitled to all of that information. Specifically, he argues that he was entitled to discover all 12 items set out by the Alabama Supreme Court in Ex parte Perry, 586 So. 2d 242 (Ala. 1991). At the pretrial hearing where this was discussed the following occurred:
Perry provides: "The proponent of the DNA evidence, whether defense or prosecution, should give discovery to the adversary, which should include, upon request: (1) Copies of autorads, with the opportunity to examine the originals. (2) Copies of laboratory books. (3) Copies of quality control tests run on material utilized. (4) Copies of reports by the testing laboratory issued to the proponent. (5) A written report by the testing laboratory setting forth the method used to declare a match or non-match, with actual size measurements, and mean or average size measurement, if applicable, together with standard deviation used. (6) A statement setting forth observed contaminants, the reasons therefore, and tests performed to determine the origin and the effects thereof. (7) If the sample is degraded, a statement setting forth the tests performed and the results thereof. (8) A statement setting forth any other observed defects or laboratory errors, the reasons therefore and the effects thereof. (9) Chain of custody documents. (10) A statement by the testing lab, setting forth the method used to calculate the allele frequency in the relevant population. (11) A copy of the data pool for each loci examined. (12) A certification by the testing lab that the same rule used to declare a match was used to determine the allele frequency in the population." 586 So. 2d at 255. Horn was furnished a copy of the State’s DNA report. Several of the above items were included in that report. (C. 650-51.)
"[Prosecutor]: Maples sets out a twelve or a thirteen-point list of things that are DNA-related standards, if you will, that it was previously suggested that defense counsel should be reviewing. When I say ‘previously suggested,’ I mean by another Court. Those same twelve or thirteen points are the same things that [defense counsel] has asked for in his motion.
"Now Maples [v. State, 758 So. 2d 1 (Ala. Crim. App. 1999),] got those twelve or thirteen points from [Ex parte] Perry, [586 So. 2d 242 (Ala. 1991)]. Perry is the first place where those twelve or thirteen points originated. And [defense counsel] -- he used the word ‘superseded.’ Perry was overturned by, I think it was Chambers.
"[Defense counsel]: Calhoun [v. State, 932 So. 2d 923 (Ala. Crim. App. 2005).].
Of course, this Court has no authority to reverse a decision by the Alabama Supreme Court. See § 12-3-16, Ala. Code 1975. However, this Court in Calhoun noted "[T]he standard articulated in Perry was superseded by Alabama’s adoption of § 36-18-30, Ala. Code 1975. We no longer use the reliability test articulated in Perry; instead, § 36-18-30, Ala. Code 1975, guides the admission of DNA evidence." Calhoun, 932 So. 2d at 947.
"[Prosecutor]: Calhoun. Thank you. Perry was overturned by Calhoun. And Calhoun says, look, we’re not gonna get into all of those points. You go by Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),]. And if it’s admissible under Daubert then it’s admissible. Well, the inference then is -- the only logical inference to draw from that -- the finding in Calhoun is this: that instead of the defense testing the tester, which is essentially what this motion is designed to do -- the twelve or thirteen points that [defense counsel] has asked for in his motion are all related to testing the forensic analysis done by the department of forensic sciences. They’re not related to testing the DNA to determine whether or not this Defendant committed a crime. They’re related to or they’re designed to enable the defense to exploit or poke holes in any methodology employed by the department of forensic sciences in how they conduct the science. And so it’s not -- if you were to grant this motion out right, there’s nothing here that would allow [defense counsel’s] people to come back and say we’ve tested this DNA and it’s not [Horn’s], All it’s designed to do is allow [Horn’s] experts to come back and say we’ve reviewed the process that they’ve done, we’ve reviewed the data that they used, and here are the deficiencies that they have in our opinion.
"Well, so if we get into that kind of a test that tests their process, then it’s never-ending. Then I have to file some motion say well, we want to test their process.
"THE COURT: Can’t they question the tester?
"[Prosecutor]: No. No. I’m not talking about question[ing] them on the witness stand. I’m saying, you know, they’re not interested in testing the DNA. They want to challenge the processes we use, which they’re certainly capable of doing on the witness stand. But what they’re asking for is all this work product. … And so I have no objection to him having the samples that we have independently tested."
(R. 121-123.) It appears that Horn abandoned his request for discovery of the 12 items listed in Perry in favor of a motion for independent DNA testing on the items collected by the State.
Moreover, Horn failed to show "substantial prejudice" in the circuit court’s failure to furnish all the raw DNA data. As the Alabama Supreme Court stated in Ex parte Maples, 758 So. 2d 81 (Ala. 1999):
"Although we disagree with the Court of Criminal Appeals in these respects, we nonetheless agree with that court that the defendant failed to demonstrate that he was substantially prejudiced or that he was probably substantially prejudiced by not having the additional DNA-related evidence available to him at the trial. The State introduced the DNA report to support its allegation that the defendant had murdered the victims in Mr. [Stacy] Terry’s automobile while it was in the defendant’s driveway. The State was attempting to prove that the murders occurred close in time and in distance, in order to establish the aggravating circumstance set out in § 13A–5–40(a)(10) (that the two victims had been murdered pursuant to one scheme or course of conduct). We are persuaded beyond a reasonable doubt that the defendant was not substantially prejudiced by not having the requested infomation. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (the standard for determining whether violation of a constitutional right is hamless is whether the reviewing court can declare a belief that it was harmless beyond a reasonable doubt). See Ex parte Hutcherson, 677 So. 2d 1205 (Ala. 1996), and Ex parte Greathouse, 624 So. 2d 208 (Ala. 1993). The defendant, in a lengthy video taped confession, unequivocally stated that he had shot the two victims while they were sitting together in Mr. Terry’s automobile and while the automobile was in the defendant’s driveway. The defendant neither recanted his statement nor seriously challenged its admissibility on grounds of improper influence, coercion, etc., on the part of the police officers who took it. Furthermore, as the Court of Criminal Appeals noted, the results of the defendant’s independent DNA analysis were consistent with the results reached by the State’s expert. The fact that the two laboratories doing the tests independently reached
the same results causes us to conclude that a thorough cross-examination of the State’s DNA expert by the defendant’s counsel would not have revealed any significant flaws in the method of testing done in the State’s laboratory, even if the defendant’s counsel had had the requested information."
Here, the DNA expert hired by Horn testified that her tests of the sample from Horn’s jeans also showed the presence of Nelson’s blood. Her DNA tests results were consistent with the State’s tests even though several items could not be tested because there was not enough blood on two items for her to conduct tests. As the Supreme Court noted in Ex parte Maples, Horn failed to show that he was substantially prejudiced by the circuit court’s rulings on the DNA motions. For these reasons, we find no reversible error. Accordingly, Horn is due no relief on this claim.
II.
[5] Horn next argues that the circuit court erred in admitting a recording that contained what, he says, were irrelevant racial slurs that resulted in prejudice to him. He asserts that their probative value was outweighed by their prejudice under Rule 403, Ala. R. Evid.
The record indicates that Horn moved that certain portions of his statements to police be redacted. (C. 332-36.) Specifically, Horn requested that the videotapes and audiotapes be redacted to delete references to his prior bad acts and to other statements that he asserted would be misleading to the jury. The State filed a response to Horn’s motion to redact. (C. 338.) In its response, the State agreed to redact various portions of the statements. At the hearing on this issue, Horn argued that there were various places in the recordings where Horn is discussing a black person and calls that person the "N word multiple times and [uses] other racially prejudicial comments to describe this person." (R. 152.) The circuit court and the parties went through the tapes, and the circuit court issued an order granting in part and denying in part Horn’s motion to redact. (C. 345-46; 349-50.) The circuit court’s order stated, in part:
"[Horn’s] motion to redact is granted as to each of the following: --[1][e], --[1][j], --[4][b]. Otherwise [Horn’s] motion is denied except as to portions of the paragraphs and/or subparagraphs not addressed in this order which the State and/or the Defense have by stipulation agreed to redact a portion whether it is legally objectionable or not or agreed that portion previously objected to is no longer objected to."
The circuit court used the numbers that corresponded to the State’s response to Horn’s motion to redact.
(C. 349-50.)
The challenged racial slurs that Horn asserts should have been redacted but were not are instances where Horn described the people that he said he saw drive up to Nelson’s house as he left that house on June 19. In the first statement, Horn was asked if the two people were women or men and he said "a lot of black women look male." (R. 146.) In the second statement, Horn used the "N word then goes on to specify a difference between a hard N word and a soft N word." (R. 151.) In the third statement, Horn describes one of the people as a 6 foot 2 inch or 6 foot "N word." (R. 160.) In the fourth statement, Horn stated that one of the people was a "soft N word" and that that person had "dull-colored skin " (R. 160.)
During this discussion, the officers asked Horn what is the difference between a "soft N word" and a "hard N word." Horn explained that it was a street term and that "soft one is based on a certain skin tone, and a hard one is based on the other." (R. 161.)
When the tape of the second interview was offered into evidence the following occurred:
"[Prosecutor]: And so, Judge, again, this is a recording that was sent to be redacted pursuant to the agreement between the parties. And so I would offer it as the redacted version pursuant to that agreement.
"[Defense counsel]: Judge, we object to the admission of the recording on the grounds that it offers no probative value. If the Court were to find that it does offer probative value, the unfair prejudice to Mr. Horn would greatly outweigh the benefit of any probative value. Therefore, it should be excluded.
"THE COURT: Those are the same arguments that we’ve already had?
"[Prosecutor]: Yes, sir.
"[Defense counsel]: Yes, sir. And I renew the objection that we made prior to the redactions.
"THE COURT: All right. The objection is overruled. Be admitted."
(R. 582-83.)
The State argues that the racial slurs were relevant to show Horn’s bias against Black people. Specifically, in Horn’s first statement he said that he saw a Chevrolet Malibu drive up to Nelson’s mobile home as he was leaving, and that the driver was a Black man. About a week after Nelson was killed, Horn had told Agent Harris that someone had broken into his house and threatened him. When speaking to Agent Harris, Horn used racial slurs to describe the person who broke in his house and threatened him. In brief, the State argues:
"Horn’s apparent animosity and bias against African Americans proved that it was less likely he was telling the truth when he alleged that another person, who was African American, was responsible for Nelson’s murder. Further, Horn’s feelings against African Americans demonstrated that he could have had other motives for claiming that an African American individual was culpable besides merely removing himself from the spotlight of the investigation. The audio recording was relevant and had probative value."
(State’s brief at p. 30.)
[6] Alabama courts have traditionally held that a statement made by a defendant is entitled to be admitted in its entirety based on the doctrine of completeness. Rule 106, Ala. R. Evid., provides that, "[w]hen a party introduces part of either a writing or recorded statement, an adverse party may require the introduction at that time of any other part of the writing or statement that ought in fairness to be considered contemporaneously with it." " ‘[R]edaction of a confession violates the rule of completeness only if the redacted version "distorts the meaning of the statement or excludes information substantially exculpatory of the defendant." ’ " Ex parte Sneed, 783 So. 2d 863, 870 (Ala. 2000), quoting United States v. Washington, 952 F.2d 1402, 1404 (D.C. Gir. 1991).
This Court has recognized a few exceptions to the rule of completeness. See Belcher v. State, 341 So. 3d 237, 270 (Ala. Crim. App. 2020) ("Typically, references to prior convictions should be redacted from a confession when that confession is played to a jury. See Henderson v. State, 248 So. 3d 992, 1040-41 (Ala. Crim. App. 2017)."); DeBlase v. State, 294 So. 3d 154, 219 (Ala. Crim. App. 2018) (affirming redaction of portion of defendant’s statement where defendant offered to take a polygraph test.); Hardy v. State, 804 So. 2d 247, 260 (Ala. Crim. App. 1999) (holding that confession of one codefendant admitted into evidence that references another codefendant should be "redacted to eliminate all references to the defendant or his participation in the crime.").
Other state courts have held that the inclusion of a racial slur in a defendant’s statement did not constitute reversible error. See State v. McIntosh, 145 Ohio App. 3d 567, 577, 763 N.E.2d 704, 711-12 (2001) ("[A]ppellant contends that he was denied a fair trial when the trial court failed to redact a portion of a tape recording containing a racial slur. The racial slur was made by appellant to Klein about a contestant appearing in a television show during the taped telephone conversation concerning the return to appellant of a portion of the marijuana that had been destined for Baehr. While permitting the jury to hear appellant’s racial slur had no relevance to the charged offenses, based on the record, it was not so unfairly prejudicial that appellant was deprived of a fair trial."); Boggs v. Bair, 892 F.2d 1193, 1204 (4th Cir. 1989) ("After a thorough review of the record, we are convinced that Boggs’ racial bias played no meaningful role in either his conviction or his sentencing. Whether or not the trial court’s refusal to redact the two phrases was the most appropriate exercise of judicial discretion, we decline to fashion a constitutional rule that requires the exclusion of all racially offensive terms in an otherwise admissible confession.").
Also, the circuit court gave the jury the following instruction in its charge to the jury: "I charge you, ladies and gentlemen of the jury, that [Horn’s] use of the N word or any racial slur cannot be considered by you in determining whether he is guilty of any of the crimes he is accused of." (R. 859.) We must presume that the jury followed the court’s instructions. See Wilson v. State, 777 So. 2d 856, 895 (Ala. Crim. App. 1999).
Moreover, we agree with the State that Horn’s characterizations of the two people he said he saw at Nelson’s residence was relevant to his credibility on this claim; therefore, the racial slurs were properly not redacted from Horn’s statement to police. Rule 402, Ala. R. Evid., provides that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or that of the State of Alabama, by statute, by these rules, or by other rules applicable in the courts of this State." Relevant evidence should be excluded only "if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403, Ala. R. Evid.
Based on the foregoing, we cannot say that any error resulted from the inclusion in the redacted statement of the racial slurs in Horn’s second statement to police. Therefore, Horn is due no relief on this claim.
III.
[7] Horn next argues that the circuit court erred in denying his request for an in camera review of a pretrial statement made by State’s witness, Charles Nelson. Specifically, he argues that the circuit court violated the Alabama Supreme Court’s holding in Ex parte Pate, 415 So. 2d 1140 (Ala. 1981).
The record indicates that Charles testified that he lives down the road from Nelson, approximately 400 feet from Nel- son’s mobile home. (R. 692.) He further testified that he had been working on a water line in his yard and had gone up and down the road several times on June 19, 2018. Charles saw a silver vehicle parked at Nelson’s mobile home the afternoon of June 19 along with Cox’s vehicle and Nelson’s vehicle. (R. 703.) The silver vehicle that he identified in a photograph was there when his wife called him into the house at approximately 2:30 a.m. on the morning of June 20. (R. 704.)
On cross-examination, Horn’s counsel questioned Charles about making a statement to police. (R. 706.) The extent of that questioning consisted of the following:
"[Defense counsel]: And when did you first report seeing this vehicle?
"[Charles Nelson]: The day of the -- the day of it happening.
"[Defense counsel]: And who did you report it to?
"[Charles]: Actually, I think I told -- I don’t remember the deputy, but it was one of the police officers.
"[Defense counsel]: Okay. Did you give a written statement?
"[Charles]: At that time, no.
"[Defense counsel]: Have you given a written statement since?
"[Charles]: Yes.
"[Defense counsel]: Have you given any recorded statements?
"[Charles]: Yes.
"[Defense counsel]: Judge, we would ask the Court to conduct an in camera review of the statement. We’ve asked for it in discovery, and we’ve not been provided with a copy of Mr. Nelson’s statement.
"[Prosecutor]: Of course, [defense counsel] knows that under the rules of discovery, we’re not obligated to give him that statement. I object to him making the suggestion that we are.
"THE COURT: Overruled. Overrule the request."
(R. 706.) This was the extent of the questions concerning the witness’s statement to police.
[8] First, we question whether Horn specifically preserved his Ex parte Pate claim, given that Pate was not mentioned or raised in the circuit court. " ‘The function of the objection is to signify that there is an issue of law, and to give notice of the terms of the issue.’ 23 A C.J.S. § 1224 (1989). The objection must be specific enough to put the trial court on notice of the alleged error." Jennings v. State, 588 So. 2d 540, 541 (Ala. Crim. App. 1991). On appeal, Horn argues that the circuit court’s ruling conflicted with the Alabama Supreme Court’s holding in Ex parte Pate. The State asserts in its brief that the circuit court did not comply with the holding in Ex parte Pate but that if any error occurred that error was harmless.
Generally, the State is not obliged to give a defendant a copy of a statement that a State’s witness has made before trial. Rule 16.1(e), Ala. R. Evid., states:
"[T]he discovery or inspection of reports, memoranda, witness lists, or other internal state/municipality documents made by the prosecutor or the prosecutor’s agents, or by law enforcement agents, in connection with the investigation or prosecution of the case, or of statements made by state/municipality witnesses or prospective state/municipality witnesses, is not authorized."
[9] However, once Charles testified, a different rule of discovery became applicable. In Ex parte Pate, the Alabama Supreme Court adopted the rationale of the United States Supreme Court in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), and stated:
"The rule of discovery is different where a prosecution witness has testified on direct examination in the trial of the case.
"In such cases, the defendant, upon laying a proper predicate, is entitled to have the Court, at least, conduct an in camera inspection as outlined in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The trial court could determine initially (1) whether the statement made by the witness before trial differed in any respects from statements made to the jury during trial, and (2) whether the statement requested was of such a nature that without it the defendant’s trial would be fundamentally unfair. Cooks [ v. State, 50 Ala. App. 49, 276 So. 2d 634 (1973).]"
Pate, 415 So. 2d at 1144.
"With its decision in Ex parte Pate, 415 So. 2d 1140, the Alabama Supreme Court clearly adopted a variation of the Jencks Act. … We therefore deem it appropriate to apply federal cases interpreting the Jencks Act in deciding the present case." Duncan v. State, 587 So. 2d 1260, 1262-63 (Ala. Crim. App. 1991). The Jencks Act provides that a witness’s statement is not subject to discovery "until said witness has testified on direct examination in the trial of the case." 18 U.S.C. §3500(1988).
"The purpose of the rule established in Ex parte Pate is to enable the defense to impeach a State’s witness with a prior inconsistent statement. See Annot., Right of Defendant in Criminal Case to Inspection of Statement of Prosecution’s Witness for Purposes of Cross-Examination or Impeachment, 7 A.L.R.3d 181 (1966), cited in Pate, 415 So. 2d at 1143. A statement obtained under Ex parte Pate ‘may be used by a defendant only for impeachment purposes. See Palermo v. United States, 360 U.S. 343, 349, 79 S.Ct. 1217, 1223, 3 L.Ed.2d 1287 (1959).’ Johnson v. State, 555 So. 2d [818] 821 [(Ala. Crim. App. 1989)] (emphasis added)."
DeFries v. State, 597 So. 2d 742, 748 (Ala. Crim. App. 1992).
The Ex parte Pate Court held that before a witness’s statement is discoverable, the defendant should follow the analysis this Court used in Cooks v. State, 50 Ala. App. 49, 276 So. 2d 634 (1983), to establish a proper predicate:
"The first requisite necessary to secure for inspection production of a ‘statement’ of a witness for use on cross examination of the witness is that the statement must be one in writing prepared by him or prepared by another at his instance and signed by him or otherwise authenticated by him. In the instant case there was nothing to indicate by query of the witness by the defense or otherwise that the witness had given to any officer a written statement signed or authenticated by her. There was not laid in the evidence any showing that any statement made by the witness to officers before trial differed in any respect from statements made to the jury during trial. See Bellew v. State of Mississippi, 238 Miss. 734, 106 So. 2d 146, [(1958)] cited with approval in the Mabry [v. State, 40 Ala. App. 129, 110 So. 2d 250 (1959)] case, supra. Neither was there any such showing of inconsistency in testimony given by the witness at a preliminary hearing previously held and the testimony given by her on the trial before the jury. There is no showing that the statement requested, if any, was of such nature that without it the defendant’s trial would be fundamentally unfair. The production for inspection of any such statement as above defined lies within the sound discretion of the court and we find no abuse of that discretion in the ruling here made. See Annotation,
Right of Defendant in Criminal Case to Inspection of Statement of Prosecution’s Witness for Purpose of Cross Examination or Impeachment, 7 A.L.R.3d pp. 181, 217, 219, 213 citing the Mabry case, supra, and the authorities therein noted."
Cooks, 50 Ala. App. at 54, 276 So. 2d at 638.
After the Alabama Supreme Court decided Ex parte Pate, the Court addressed what constitutes a "proper predicate" to warrant an in camera review. In Ex parte Key, 890 So. 2d 1056 (Ala. 2003), the Alabama Supreme Court held:
"In this case, Key laid the proper predicate for an in camera inspection of Tolbert’s statement when he elicited testimony from Tolbert that her statement to the police investigator … had been tape-recorded and that she had seen a copy of the transcript of that tape-recorded statement. Tolbert provided evidence of a statement and provided sufficient verification of the existence of a verbatim statement to justify an in camera inspection of the statement."
The next year in Ex parte Morrow, 915 So. 2d 539 (Ala. 2004), the Alabama Supreme Court stated:
"The State argues that Morrow did not lay the proper predicate and that, therefore, the trial court did not exceed its discretion in refusing to review in camera the audiotaped statement, the videotaped reenactment, and the 911 recording. However, this Court has stated that ‘[a] defendant lays a proper predicate for an in camera inspection of a witness’s statement when the defendant provides evidence that the witness made a statement and that the witness has signed the statement or that the statement can otherwise be authenticated.’ Ex parte Key, 890 So. 2d at 1064. In the present case, the audiotaped statement, the videotaped reenactment, and the 911 recording ‘can otherwise be authenticated.’
"Couch testified that she had given an audiotaped statement to the police, that she had made a videotaped reenactment of the shooting for the police, and that she had telephoned emergency 911 to report the shooting. The district attorney had copies of the statement, the reenactment, and the 911 call. Couch and the police officers and other personnel that participated in taking the statements can authenticate them. Considering that ‘the threshold for verification sufficient to require an in camera inspection is quite low,’ we conclude that Morrow laid the proper predicate for an in camera review of the materials because he presented evidence that they could be authenticated."
When addressing a similar claim as it relates to the Jencks Act (see note 10, supra), the United States Court of Appeals for the Eleventh Circuit stated:
"[T]he defense must establish that the document falls within the reach of Jencks. [United States v.] Gaston, 608 F.2d [607] at 611 [(5th Cir. 1979)]. The district court need not examine the reports in camera when nothing before it suggests a verbatim account or adoption by the witness. Id. When defense counsel fails to establish Jencks applies, the trial court does not err in refusing to order the government to produce reports for inclusion in the record. Id. Jencks does not authorize fishing expeditions, United States v. Graves, 428 F.2d 196, 199 (5th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970); the foundation must be laid before the protections are triggered.
"In the instant case, defense counsel failed to lay that predicate. The only defense lawyer to attempt the foundation, counsel for Hernandez, elicited testimony that the witness had never adopted or approved the reports; the agent never read back his notes or asked Costa to confirm their accuracy (R. 12:1342). In addition, the defense proffered nothing to show the statements were verbatim transcripts. Based on these facts and the controlling case-law, we conclude the trial court properly found the statements did not come under the Jencks Act and therefore were not subject to compelled production."
United States v. Delgado, 56 F. 3d 1357, 1364 (11th Cir. 1995). Federal law discussing the Jencks Act has been used when evaluating an Ex parte Pate claim. See Duncan v. State, 587 So. 2d 1260, 1262 (Ala. Crim. App. 1991).
This Court has recognized the similarities between the federal Jencks Act and the holding in Ex parte Pate:
"Pate applies only to statements in writing prepared by the witness, or on his behalf, and signed or otherwise authenticated by him. Williams v. State, 451 So. 2d 411, 416 (Ala. Cr. App. 1984). " ‘A statement, memoranda, or notes, not read by the witness interviewed and not signed or authenticated by the witness cannot be considered evidence.’ " Id. quoting Cooks v. State, 50 Ala. App. 49, 276 So. 2d 634, 637, cert. denied, 290 Ala. 363, 276 So. 2d 640 (1973)."
Gibson v. State, 555 So. 2d 784, 791 (Ala. Crim. App. 1989).
Indeed, in every Alabama case released subsequent to Ex parte Pate, the circuit court had more facts surrounding the witness’s prior statement than what was presented in this case, and each lower court was able to determine whether Ex parte Pate applied. Here, the only two questions that counsel asked Charles was whether Charles had given a prior written statement or a prior recorded statement. Charles was asked no questions concerning the facts surrounding any prior statement, i.e., we do not know if the statement was audio, video, or handwritten and signed by Charles or approved by Charles. Nor was Charles asked whether his trial testimony was consistent with any prior statement. Also, defense counsel did not inform the circuit court of its reason for requesting the prior statement, and there was no testimony indicating that the State was in possession of any statement. Based on the holdings in the above-cited cases, this Court refuses to find error where the record is totally devoid of the circumstances surrounding the prior statement. Thus, we find that no "proper predicate" was established sufficient to trigger Ex parte Pate, i.e., Horn " ‘[failed to provide] sufficient verification of the existence of a [prior] verbatim statement [by Charles].’ " Morrow, 915 So. 2d at 545.
[10] Moreover, this Court has applied the harmless-error analysis to an Ex parte Pate violation. See Duncan State, 587 So. 2d at 1263. We agree with the State that nothing in the record suggests that Horn was denied a fundamental right. There is no indication that Charles Nelson made a prior inconsistent statement to police or that the State was in possession of that statement. Defense counsel thoroughly cross-examined Charles. Defense counsel did not inform the court as to its reasons for requesting the prior statement. Based on the scant record in this case, we decline to find that the circuit court committed reversible error in denying Horn’s request for an in camera inspection of the witness’s prior statement. Accordingly, Horn is due no relief on this claim. IV.
[11] Horn next argues that the circuit court erred in denying his motion for additional funds to pay the private investigator who had been hired to investigate the case.
The record indicates that in October 2019 Horn moved for funds to hire an investigator. (First Supp. R. C. 32.) A hearing was held on the motion, and the circuit court approved funds in the amount of $9,586.04 for that investigator. In March 2020, Horn moved for an additional $6,160 for that same investigator. (First Supp. R. C. 41.) The circuit court denied this motion. (Second Supp. R. C. 38.)
In Horn’s motion for additional funds, Horn merely asserted:
"Since the court’s previous order, Mr. [Max] Hansen has completed the first phase of the investigative process and has almost exhausted the initial budget of $9,586.04. Mr. Hansen estimates that he needs an additional 56-66 hours of budget. This time would be divided as follows: approximately four (4) days of investigative time and two (2) days in trial preparation to provide a full investigation for [Horn]. Mr. Hansen estimates the cost of the additional time to provide a full investigation to be $6,160."
(First Supp. 42.) Horn gave no other basis for the need for an additional $6,160, but merely asserted that the first $9,586.04 was for the initial phase of investigation.
As the Alabama Supreme Court stated in Dobyne v. State, 672 So. 2d 1354 (Ala. 1995):
"[A] defendant, in order to be entitled to funds to pay for an expert, must show more than a mere possibility that he or she will receive useful assistance from the expert. Rather, the defendant must show a reasonable probability that the expert would aid in the defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial. In the past, Alabama decisions have been based upon whether the defendant made an adequate showing of a need for the requested expert. Dubose [v. State], 662 So. 2d [1189,] 1191 [(Ala. 1995)]; see also, Smith v. State, 623 So. 2d 369 (Ala. Cr. App. 1992), cert. denied, 510 U.S. 1030, 114 S.Ct. 650, 126 L.Ed.2d 607 (1993); McLeod v. State, 581 So. 2d 1144 (Ala. Cr. App. 1990); Siebert v. State, 562 So. 2d 586 (Ala. Cr. App. 1989), aff'd, 562 So. 2d 600 (Ala.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 408 (1990); Stewart v. State, 562 So. 2d 1365 (Ala. Cr. App. 1989); McGahee v. State, 554 So. 2d 454 (Ala. Cr. App.), aff'd, 554 So. 2d 473 (Ala. 1989).
"….
"As we stated in Dubose, a defendant seeking expert assistance must show a reasonable probability that the expert would aid in the defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial. Dobyne failed to make such a showing. Dubose involved ‘critical’ DNA evidence that directly linked Dubose to the crime. This Court held that Dubose had made an adequate showing of the need for the requested services of a DNA expert. Here, Dobyne requested funds to hire a neurologist to present evidence of mitigating circumstances at the penalty phase of the trial. While we agree that there can be a need for expert assistance at the penalty phase of a capital trial, Dobyne has not shown that the denial of funds to hire a neurologist resulted in unfairness to him."
Horn’s request for additional funds for an investigator was "no more than ‘undeveloped assertions that the requested assistance would be beneficial.’ Caldwell v. Mississippi, 472 U.S. [320] at 324 n. 1, 105 S.Ct. [2633] at 2637 n. 1, 86 L.Ed.2d 231 [(1985)]." Bush v. State, 695 So. 2d 70, 104 (Ala. Crim. App. 1995). Horn failed to establish that the denial of the additional funds resulted in any unfairness to him. See Dobyne. "[T]he appellant did not make a threshold showing that either of the requested experts would probably assist his defense and that the denial of funds to hire the experts would result in a fundamentally unfair trial." Lee v. State, 898 So. 2d 790, 853 (Ala. Crim. App. 2001). For these reasons, Horn is due no relief on this claim.
V.
Horn next argues that the circuit court erred in denying his motion to suppress his statements to law enforcement. Specifically, Horn argues that the statements he made to law enforcement were not voluntary because, he says, the great weight of the evidence showed that he was too intoxicated to waive his Miranda rights. He further argues in another section of his brief that the circuit court incorrectly applied the law to the facts of the case when it denied his motion to suppress and held that new Miranda warnings were not necessary when Horn was questioned a second time at the Covington County Sheriff's Office.
[12] The record indicates that Horn moved for a determination of the voluntariness and reliability of his statements to police based upon his "mental capacity." (C. 219.) Horn then moved to suppress his statement at the Covington County Sheriff's Office because, he argued, he was not read his Miranda rights a second time before this interview. (C. 222.) A hearing was held on the motion, and four officers testified at the hearing; the testimony was undisputed. "In reviewing a decision of a trial court on a motion to suppress evidence, in a case in which the facts are not in dispute, we apply a de novo standard of review." State v. Otwell, 733 So. 2d 950, 952 (Ala. Crim. App. 1999).
Investigator Mark Odom testified that he arrived at the scene shortly after Horn’s vehicle had been stopped by another police officer and that Horn did not appear to be intoxicated. He said that Horn was coherent, that he was not stumbling around, that he was cooperative with officers, and that his movements appeared to be coordinated; he also said that he did not smell alcohol on Horn’s breath. (R. 46.) Investigator Odom testified that there was nothing that gave him reason to believe that Horn was drunk at that time.
David Hamby, a former investigator with the Covington County Sheriff's Office, testified that he interviewed Horn at the DTF office in Andalusia on June 20, 2018. Hamby testified that before he questioned Horn he read Horn his Miranda rights and that Horn acknowledged that he understood those rights and that he was willing to talk to police. (R. 74.) At the time he questioned Horn, Hamby said, he did not smell alcohol on Horn’s breath. Horn was coherent, appeared to understand the questions that were asked, answered the questions appropriately, and did not slur his speech. Hamby testified that he had no concern that Horn was intoxicated at that time. (R. 75-76.)
Captain Mike Irwin of the Covington County Sheriff's Office testified that he was at the scene when Horn was taken into custody and questioned. He said that, while police waited on a search warrant for Horn’s house, Horn sat on the grass and Captain Irwin spoke to him. Captain Irwin said that Horn did not appear to be intoxicated, that he was well spoken, and that he did not smell the odor of any "alcoholic beverage" on Horn’s breath. (R. 89.) Investigator Ken Harris testified that during Horn’s first questioning at the DTF office he came into the interview while it was in progress. (R. 97.) He said that Horn appeared to be coherent, that he was coordinated, that he appeared to understand questions and was able to respond appropriately, that he had no slurred speech, and that he did not smell of alcohol. (R. 98.) Investigator Harris said that he had no reason to believe that Horn was intoxicated when Horn spoke to police at the DTF office or at the Covington County Sheriff's Office. He said that he interviewed Horn at the Covington County Sheriff's Office after the search warrant had been executed and that he did not give Horn his Miranda rights again because he knew that Horn had already been given those rights earlier in the day. (R. 102.) After Horn made a second statement to police, Investigator Harris took Horn to a nearby Marathon gasoline service station. Horn was not intimidated, promised, or offered anything in exchange for his statement to police.
In its order denying Horn’s motion to suppress, the circuit court made the following findings:
"Prior to interrogating [Horn], Covington County Sheriff's Office Investigator David Hamby told [Horn] that he was not under arrest, but did read [Horn] his Miranda rights and inquired whether [Horn] understood his rights and wished to speak to officers. [Horn] responded affirmatively and, in fact, did proceed to begin speaking with officers.
"Based on the Court’s own review of the interview, this Court does not observe actions, behaviors, or other indicators of an intoxicated person. Further, Investigator Hamby, Covington County Sheriff's Officer Investigator Ken Harris, 22nd Judicial Circuit District Attorney’s Office Investigator Mike Irwin, and DTF Commander Mark Odom each testified that each of them were able to interact with and/or observe [Horn] prior to the interview, and/or during the interview, and/or subsequent to the interview. Each of the four officers testified that none of them ever smelled the odor of alcohol emitting from [Horn], that his speech was not slurred, that he was not unsteady on his feet, that he appeared to understand questions and answered questions appropriately. In short, each officer testified that [Horn] did not exhibit signs of an intoxicated person.
"This Court specifically finds that, if intoxicated at all, [Horn’s] level of intoxication did not rise to nearly that level of intoxication required to make his statements inadmissible.
"At the conclusion of the interview at the DTF office, Investigator Hamby transported [Horn] to his home, where officers intended to execute, and did execute, a search warrant. While at his home, officers observed [Horn] and never completely broke contact with him. "At the conclusion of the execution of the search warrant, Investigator Harris transported [Horn] to the Sheriff's Office for a second interview. [Horn] was provided food and drink and given time alone.
"Investigator Harris did not re-read [Horn] his Miranda rights at the second interview. Investigator Harris testified that he was aware that Investigator Hamby had already read [Horn] his Miranda right, that [Horn] had waived his rights, and, therefore, Investigator Harris did not believe a rereading was necessary.
"At no point between the, reading and voluntary waiver of Miranda rights and the taking of the second interview was [Horn] entirely outside the presence of
law enforcement. This Court sees these events as one continuous transaction. Accordingly, a re-advisement of [Horn’s] Miranda light was unnecessary under the circumstance presented.
"In the Court’s review of each of the recorded interviews, there is no evidence of threats made by officers to [Horn], of any coercive tactics; of of any promises of rewards or leniency or otherwise, made to [Horn], Each of the four aforementioned officers testified that none of them made threats to [Horn], that one of them attempted to coerce [Horn], and that none of them promised him anything in return for his cooperation.
"….
"[Horn’s] motion to determine voluntariness and reliability of statements made by [Horn] based upon [Horn’s] mental capacity and motion to suppress is hereby denied."
(C. 233-35.)
This Court has addressed the voluntariness of a waiver of Miranda rights in Click v. State, 695 So. 2d 209 (Ala. Crim. App. 1996), in which we stated:
"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."
A.
[13–15] First, Horn argues that his statement should have been suppressed because, he says, he was too intoxicated to voluntarily waive his Miranda rights.
" ‘[U]nless intoxication, in and of itself, so impairs a defendant’s mind that he is "unconscious of the meaning of his words," the fact that the defendant was intoxicated at the time he confessed is simply one factor to be considered when reviewing the totality of the circumstances surrounding the confession.’ Carr v. State, 545 So. 2d 820, 824 (Ala. 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 in evidence of the confession, but may affect 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, 1227-28 (Ala. Crim. App. 1990). "[U]nless the accused is intoxicated to the extent of mania, intoxication affects the weight and credibility of a statement rather than its admissibility." Merrill v. State, 741 So. 2d 1099, 1108 (Ala. Crim. App. 1997).
We agree with the circuit court that the motion to suppress was correctly denied because it was not involuntary based on Hom’s intoxication. There was nothing to indicate that Horn was "intoxicated to the extent of mania." Merrill v. State, 741 So. 2d at 1108. Thus, any argument on this basis would affect the credibility of the statements and not their admissibility. Horn was due no relief on this basis.
B.
[16] Horn next argues that the second interview he gave at the Covington County Sheriff's Office should have been suppressed because police failed to read his Miranda rights before he was interviewed by police. He acknowledges that he was given Miranda rights before the first interview but argues that those rights were stale and insufficient.
[17] "It is well settled that once Miranda warnings have been given and a waiver made, a failure to repeat the warnings before a subsequent interrogation will not automatically preclude the admission of the inculpatory response." Hollander v. State, 418 So. 2d 970, 972 (Ala. Crim. App. 1982).
"Other courts have, in addressing whether Miranda rights have become stale, focused on the circumstances surrounding the interrogation. In Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), Jarrell confessed to murder, kidnapping, armed robbery, and aggravated assault approximately three hours after receiving his Miranda warnings from a police investigator at city hall. Jarrell was never readvised of his rights, even after being arrested. From the time Jarrell received his Miranda warnings until he confessed, Jarrell was escorted from city hall to police headquarters, where he was interviewed by a police sergeant, driven from headquarters to the district attorney’s office, where a polygraph examination was administered, then driven back to police headquarters, where he was arrested by the same police sergeant, and interrogated for an additional 30 to 45 minutes by the sergeant before confessing. Jarrell argued that the Miranda warnings should have been refreshed and that, therefore, the confession was inadmissible. " ‘Under the circumstances of this case, we do not view a confession given less than four hours after the issuance Miranda warnings inadmissible because of the failure to reissue the warnings. Although Jarrell was not technically in custody until he was arrested, he was a suspect from the moment he received his warnings. The record reflects that the warnings given were complete and that Jarrell understood them. Cf. Edwards v. Indiana, 274 Ind. 387, 412 N.E.2d 223, 225-26 (Ind. 1980) (where defendant, not yet a suspect, was given orally his Miranda warnings and record contained no evidence of content of oral advisement, confession given 5 hours later when defendant had become a suspect not admissible). Furthermore, the fact that Jarrell confessed to a state officer (Blannott) other than the one who administered the Miranda warnings (Bishop), does not render the warnings insufficient, especially since, before interrogating Jarrell, Blannott asked Bishop in Jarrell’s presence whether petitioner had received his Miranda warnings. (T.T. 545). See State v. Gallagher, 36 Ohio App.2d [2]9 9, 301 N.E.2d 888 (1973) (change from one state interrogator to another insufficient break to require fresh warnings). Cf. United States v. Hopkins, 433 F.2d 1041 (5th Cir. 1970), cert. denied, 401 U.S. 1013, 91 S.Ct. 1252, 28 L.Ed.2d 550 (1971) (change from state police officer questioning defendant about state crime to federal officer questioning about fed
eral crime; no new warnings required); Mitchell v. State, 3 Tenn, Cr, App. 153, 458 S.W.2d 630 (1970) (questioning regarding different crime occurred on following day; no new warnings required). We conclude that no violation of petitioner’s rights occurred by the failure to reissue the Miranda warnings at the time of arrest because the totality of the facts do not reflect that Jarrell was unaware of his rights, that he was pressured, or that he was mentally deficient or naive about the process that was under way. Additionally, Jarrell had had previous experience with law enforcement officers where his rights were explained.’
"….
"In the present case, 60 hours had elapsed between the time Landrum had been given his juvenile Miranda warnings and the time he confessed. Detective [Mack] Hardeman had given Landrum the Miranda warnings in the early morning of June 4, 2007, after Landrum turned himself into the police department. Nothing indicated that Landrum did not understand the Miranda rights read to him. Landrum refused to talk until one of his parents arrived. …
"Based on the totality of the circumstances, we conclude that Landrum’s Miranda warnings were not stale when he spoke to Detective Hardeman on June 6, 2007. Landrum understood his Miranda rights on June 4, 2007, when those rights were originally read to him."
Ex parte Landrum, 57 So, 3d 77, 84-89 (Ala. 2010).
In this case, the record indicates that Investigator Hamby gave Horn his Miranda right at 8:58 a.m. on the morning of June 20 at the DTF office, Horn’s first statement was given immediately after those Miranda warnings. Horn was questioned a second time at the Covington County Sheriff's Office at 3:12 p.m. that same day. The second interview was conducted by Investigator Harris. The evidence also showed that during the six-hour period from the first statement to the second statement, Horn was in the presence of law enforcement the entire time. We agree with the circuit court that the events during the six-hour period appear to be one continuous chain of events. Based on the totality of the circumstances, we hold that the first Miranda warnings given six hours earlier were not stale when Horn was questioned a second time later that same day. Horn is due no relief on this claim.
VI.
[18] Horn next argues that the evidence presented by the State was not sufficient to support his convictions for murder, arson, and criminal mischief.
[19–21] The record indicates that at the conclusion of the State’s case, Horn moved for a judgment of acquittal "as a matter of law." (R. 713.) Specifically, Horn argued that the State failed to prove a prima facie case for any of the charged offenses, that Horn did not have the intent to kill Nelson, and that the State failed to prove that Horn "intentionally damaged the building by starting or maintaining a fire." (R. 713.) Horn further argued that the State failed to prove that Nelson’s Mazda was "worth more than twenty-five hundred dollars, and the State [failed to] prove that Horn damaged that vehicle." (R. 714.) The circuit court denied the motion. (R. 716.) In a motion for a new trial, Horn also argued that there was not sufficient evidence to support his convictions. (C. 469.)
$2,500 is the threshold amount for a charge of criminal mischief, see § 13A-7-21, Ala. Code 1975.
Horn also argued that the State failed to prove that Horn stole in excess of $500, the amount that was alleged to support the charge of theft. As stated previously, the circuit court granted the motion for a judgment of acquittal as to the theft conviction. (R. 716.)
" ' "In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.' " Ballenger v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998) (quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim. App. 1984), aff'd, 471 So. 2d 493 (Ala. 1985)). ‘ "The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt." ’ Nunn v. State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997) (quoting O’Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992)). ‘ "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision." ’ Farrior v. State, 728 So. 2d 691, 696 (Ala. Crim. App. 1998) (quoting Ward v. State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990)). ‘The role of appellate courts is not to say what the facts are. Our role … is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."
McGlocklin v. State, 910 So. 2d 154, 156 (Ala. Crim. App. 2005).
Section 13A-6-2(a), Ala. Code 1975, provides that a person commits the crime of murder if: "[w]ith intent to cause the death of another person, he causes the death of that person or of another person."
Section 13A-7-42(a), Ala. Code 1975, states that "[a] person commits the crime of arson in the second degree if he intentionally damages a building by starting or maintaining a fire or causing an explosion."
Section 13A-7-21, Ala. Code 1975, provides "(a) A person commits the crime of criminal mischief in the first degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, he or she inflicts damage[s] to property … [i]n an amount exceeding two thousand five hundred dollars ($2,500)."
In brief, Horn argues that his convictions were based solely on circumstantial evidence, that he offered an explanation as to why he was in possession of over $500, and that he told police that when he left Nelson’s mobile home another vehicle pulled into Nelson’s yard. However, he says, the State "offered no evidence that proves appellant’s statements to be false." (Horn’s brief at p. 50.) He further asserts that no murder weapon was ever recovered, that the evidence did not exclude the possibility that someone else planted the jeans in his washing machine, that the State did not prove the value of the car that was subject of the criminal-mischief charge, and that the State did not prove that Horn had any motive to kill Nelson. The majority of Horn’s arguments center on his claims that because Horn offered an explanation for some of the State’s incriminating evidence, the State failed to prove that his rendition of the facts was false; therefore, he argues, he could not be convicted of the offenses.
[22–28] The arguments made above deal with the credibility and the weight of the evidence the State presented versus the credibility of the evidence that Horn presented. "[C]redibility questions are within the exclusive province of the jury." Frazier v. State, 663 So. 2d 1035, 1037 (Ala. Crim. App. 1995). "The question of the credibility of witnesses is for the jury and its finding is conclusive on appeal." Collins v. State, 412 So. 2d 845, 846 (Ala. Crim. App. 1982). " ‘When the jury has passed on the credibility of evidence tending to establish the defendant’s guilt, this Court cannot disturb its findings.’ " Town v. State, 293 So. 3d 975, 980 (Ala. Crim. App. 2019).
"With respect to the weight of the evidence, it is well-settled that any ‘inconsistencies and contradictions in the State’s evidence, as well as [any] conflict between the State’s evidence and that offered by the appellant, [go] to the weight of the evidence and [create a question] of fact to be resolved by the jury.’ Rowell v. State, 647 So. 2d 67, 69–70 (Ala. Crim. App. 1994)."
Williams v. State, 10 So. 3d 1083, 1087 (Ala. Crim. App. 2008). "The question of intent is hardly ever capable of direct proof. Such questions are normally questions for the jury. McMurphy v. State, 455 So. 2d 924 (Ala. Crim. App. 1984); Craig v. State, 410 So. 2d 449 (Ala. Crim. App. 1981), cert. denied, 410 So. 2d 449 (Ala. 1982) ." Loper v. State, 469 So. 2d 707, 710 (Ala. Crim. App. 1985). " ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ " White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989), quoting White v. State, 294 Ala. 265, 272, 314 So. 2d 857, 863-64 (1975). " ‘[M]otive is not an element of the burden of proof resting on the State. …’ " Mayberry v. State, 419 So. 2d 262, 266 (Ala. Crim. App. 1982), quoting McDonald v. State, 241 Ala. 172, 174, 1 So. 2d 658, 660 (1941).
The State’s evidence, as set out more thoroughly in the first part of this opinion, established that Horn was with Nelson near the time and place of Nelson’s death, that blood discovered on a pair of Horn’s jeans matched Nelson’s blood, that blood found in Horn’s car matched Nelson’s blood, that a pile of clothes in Horn’s backyard had been set on fire, that Horn was in possession of $579 in cash when he was arrested, and that Horn had asked to borrow money from Nelson earlier on the day of his death, that Nelson’s wallet was discovered empty after the murder, that the evidence showed that both fires at Nelson’s residence were intentionally set, and that the evidence indicated that Nelson’s car was valued at over $2,500 when it was set on fire and destroyed. Together with the evidence detailed at the outset of this opinion, the State presented sufficient evidence for the circuit court to submit the case to the jury for the jury to determine Horn’s guilt. There is no reason to disturb that verdict. The circuit court did not err in denying Horn’s motion for a judgment of acquittal. Hom is due no relief on this claim.
For the foregoing reasons, we affirm Horn’s convictions for murder, arson in the second degree and criminal mischief in the third degree.
AFFIRMED.
Windom, P.J., and McCool and Minor, JJ., concur. Cole, J., dissents, with opinion. COLE, Judge, dissenting.
James Benton Horn was convicted of murder, a violation of § 13A-6-2, Ala. Code 1975, second-degree arson, a violation of § 13A-7-42, Ala. Code 1975, and first-degree criminal mischief, a violation of § 13A-7-21, Ala. Code 1975. He was sentenced, as a habitual felony offender, to life imprisonment for the murder and arson convictions and to 20 years’ imprisonment for the criminal-mischief conviction. This Court affirms Horn’s convictions and sentences. In so doing, this Court in Part III of its opinion rejects Horn’s argument that "the circuit court erred in denying his request for an in camera review of a pretrial statement made by State’s witness, Charles Nelson [(‘Charles’)]," who lived near the victim, Bruce Nelson ("Bruce"), who saw a "silver vehicle" at Bruce’s house around the time Bruce was murdered, and who gave a statement to law enforcement about what he had seen that was not provided to Horn in discovery. Because the circuit court’s denial of Horn’s request for an in camera inspection of Charles’s statement to law enforcement violates Ex parte Pate, 415 So. 2d 1140 (Ala. 1981), and the cases that follow Pate, I respectfully dissent.
The main opinion correctly explains that "[g]enerally, the State is not obliged to give a defendant a copy of a statement that a State’s witness has made before trial." 381 So. 3d at 492 (citing Rule 16.1(e), Ala. R. Crim. P.). The main opinion also correctly recognizes that, "once Charles testified [at trial], a different rule of discovery became applicable" -- namely, the discovery rule articulated by the Alabama Supreme Court in Ex parte Pate, supra. 381 So. 3d at 492. In Ex parte Pate, the Alabama Supreme Court explained that,
"[i]n such cases, the defendant, upon laying a proper predicate, is entitled to have the Court, at least, conduct an in camera inspection as outlined in Palermo v. United States, 360 U.S. 343, 79 S. Ct. 1217, 3 L.Ed. 2d 1287 (1959). The trial court could determine initially (1) whether the statement made by the witness before trial differed in any respects from statements made to the jury during trial, and (2) whether the statement requested was of such a nature that without it the defendant’s trial would be fundamentally unfair. Cooks [v. State], [50 Ala. App. 49, 276 So. 2d 634, cert. denied, 290 Ala. 363, 276 So. 2d 640 (1973)]."
415 So. 2d at 1144. And the Alabama Supreme Court has made clear that " ‘[a] defendant lays a proper predicate for an in camera inspection of a witness’s statement when’ " (1) "‘the defendant provides evidence that the witness made a statement,’ " and (2) " ‘that the witness has signed the statement or that the statement can otherwise be authenticated.’ " Ex parte Mor row, 915 So. 2d 539, 544-45 (Ala. 2004) (quoting Ex parte Key, 890 So. 2d 1065, 1064 (Ala. 2003)).
At trial, Charles testified on direct examination about what he saw at Bruce’s house, which was about 400 feet from his house, the day Bruce was murdered. Charles explained that, on the day Bruce was murdered, Charles had been working at his house "most of the evening" fixing a broken water pipe and that he stopped working at 2:30 a.m. when his wife "yelled at [him] and told [him] [he] was keeping [his] son up." (R. 698, 701-02.) Charles explained that, as he was working on the water pipe that day, he saw "a silver car that [he had] never seen before" at Bruce’s house and that the car was still there when he stopped working at 2:30 a.m. (R. 703-04.) Charles identified photographs of Horn’s car as the car he had seen at Bruce’s house. (R. 703.) On cross-examination, the following occurred:
"[Horn’s counsel]: Now, I’ve attempted to communicate with you about this before; correct?
"[Charles]: Yes, sir.
"[Horn’s counsel]: Okay. And you did speak with me a little bit; correct?
"[Charles]: Very little.
"[Horn’s counsel]: Okay. You would agree that you didn’t provide me with a lot of information that you just provided here today; correct?
"[Charles]: I don’t feel like I gave you none of them.
"[Horn’s counsel]: Okay. And when did you first report seeing this vehicle?
"[Charles]: The day of the -- The day of it happening.
"[Horn’s counsel]: And who did you report it to?
"[Charles]: Actually, I think I told -- I don’t remember the deputy, but it was one of the police officers.
"[Horn’s counsel]: Okay. Did you give a written statement?
"[Charles]: At that time, no.
"[Horn’s counsel]: Have you given a written statement since?
"[Charles]: Yes.
"[Horn’s counsel]: Have you given any recorded statements?
"[Charles]: Yes."
(R. 705-06 (emphasis added).) Thereafter, Horn’s counsel asked the circuit court to conduct an in camera review of Charles’s statement to law enforcement. (R. 706.) The State objected to Horn’s request on the basis that it is "not obligated to give him that statement." (R. 706.) The circuit court denied Horn’s request. (R. 706.)
Based on this exchange, the main opinion concludes that the circuit court did not err when it refused to conduct an in camera inspection of Charles’s recorded statement to law enforcement. First, the main opinion "question[s] whether Horn specifically preserved his Ex parte Pate claim" because Horn’s counsel did not Cite Pate to the circuit court when counsel asked the court to conduct an in camera inspection. Although an objection must be sufficiently specific so that the circuit court is put on notice of the alleged error, I am not aware of any caselaw from this Court that requires counsel to object and cite a specific case to the circuit court to preserve an argument for appellate review. This Court’s rules concerning preservation of arguments for appellate review are burdensome enough without having to add the extra requirement that counsel cite a case to the circuit court to preserve an argument for appellate review. "[T]rial courts are ‘presumed to know the law and to follow it in making their decisions.’ Ex parte Slaton, 680 So. 2d 909, 924 (Ala. 1996), cert. denied, 519 U.S. 1079, 117 S. Ct. 742, 136 L.Ed. 2d 680 (1997)." Maples v. State, 758 So. 2d 1, 39 (Ala. Crim. App. 1999). Here, Horn’s request for an in camera inspection of Charles’s statement to law enforcement was sufficient to apprise the circuit court of the error Charles alleges on appeal. Thus, I believe Horn’s argument is preserved for appellate review.
Second, the main opinion concludes that Horn’s counsel’s questions to Charles did not establish a "proper predicate" that was "sufficient to trigger Ex parte Pate," i.e., Horn ‘ "[failed to provide] sufficient verification of the existence of a [prior] verbatim statement [by Charles]. …" ’ Morrow, 915 So. 2d at 545." The main opinion explains that Hom failed to establish the "proper predicate" because:
"Here, the only two questions that counsel asked Charles was whether Charles had given a prior written statement or a prior recorded statement. Charles was asked no questions concerning the facts surrounding any prior statement, i.e., we do not know if the statement was audio, video, or handwritten and signed by Charles or approved by Charles. Nor was Charles asked whether his trial testimony was consistent with any prior statement. Also, defense counsel did not inform the circuit court of its reason for requesting the prior statement, and there was no testimony indicating that the State was in possession of any statement. Based on the holdings in the above-cited cases, this Court refuses to find error where the record is totally devoid of the circumstances surrounding the prior statement."
381 So. 3d at 495. But the Alabama Supreme Court’s holdings in Pate and in Morrow do not require a person to establish whether a statement to law enforcement is recorded using a specific medium or whether the witness’s trial testimony is consistent with the prior statement to law enforcement or to provide the circuit court with any reason for requesting the witness’s statement to law enforcement. Rather, the "proper predicate" as set out in Morrow is simple:
The main opinion also states that there was no "testimony" indicating that the State possessed Charles’s statement. The main opinion, however, does not explain precisely how a defendant who requests a Pate inspection of a witness’s prior statement to law enforcement is to go about securing such testimony. Should Horn’s counsel have called the assistant district attorneys who prosecuted Horn to testify at Horn’s trial? In any event, the State’s response to Horn’s request was not that they did not have Charles’s statement; rather, the State responded that they were not required to give Horn Charles’s statement, which indicates that the State did have it.
(1) " ‘the defendant provides evidence that the witness made a statement,’ " and
(2) ‘"that the witness has signed the statement or that the statement can otherwise be authenticated.’ "
915 So. 2d at 544-45 (quoting Ex parte Key, 890 So. 2d at 1064). Horn satisfied both requirements.
As set out above, Charles testified that he made a statement to law enforcement about the presence of the silver car at Bruce’s house and that the statement he provided to law enforcement was both written and recorded. Although it is not clear whether Charles’s statement was recorded with an audio device or with a video device, " ‘the threshold for verification sufficient to require an in camera inspection is quite low' " and certainly Charles’s recorded statement (regardless whether it is by audio or video) can be authenticated. See Ex parte Morrow, 915 So. 2d at 544 ("In the present case, the audiotaped statement, the videotaped reenactment, and the 911 recording ‘can otherwise be authenticated."). Even the State agrees on appeal that "it appears that Horn laid the proper predicate by simply eliciting testimony that Charles gave the statements to law enforcement." (State’s brief, p. 37.)
Because Horn established a sufficient predicate to warrant an in camera inspection of Charles’s statement to law enforcement, the circuit court erred, as the State concedes on appeal, when it denied Horn’s request. But that conclusion does not end our inquiry.
As the main opinion correctly points out, this Court has applied a harmless-error analysis to a Pate claim. But this Court has done so only once. See Duncan v. State, 587 So. 2d 1260 (Ala. Crim. App. 1991). Furthermore, the reason why this Court held that the Pate error in Duncan was harmless has no application in this case. In Duncan, this Court found that, although the circuit court erred when it refused to conduct an in camera inspection of a report that was written by an Alabama Beverage Control Board agent who testified at Duncan’s trial, that error was harmless. This Court explained:
"At the close of his case-in-chief, the prosecutor provided defense counsel with a copy of Agent Bedgood’s report. The appellant does not argue that he received the report ‘too late in the trial to serve his interests’ nor does ‘he indicate in any way how he might possibly have been harmed by the delay.’ United States v. Haldeman, 559 F.2d 31, 77-78 (D.C. Cir. 1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L.Ed. 2d 250 (1977). See also id., nn. 111 and 112. In fact, the appellant has not even alleged that this report, which is not a part of the record before this Court, contained information which would have assisted him in his cross-examination of Agent Bedgood. Furthermore, after receiving the report, the appellant did not seek to recall Agent Bedgood. See United States v. Guerra, 334 F.2d 138, 142 (2d Cir.), cert. denied, 379 U.S. 936, 85 S. Ct. 337, 13 L.Ed. 2d 346 (1964) (where Jencks Act materials were provided in an untimely manner, the defendant’s failure to recall the witness precluded him from asserting on appeal that ‘the delay in production worked to his disadvantage’). Cf. United States v. Pope, 574 F.2d 320, 327 (6th Cir.), cert. denied, 436 U.S. 929, 98 S. Ct. 2828, 56 L.Ed. 2d 774 (1978) (where trial court allowed witness to be recalled, error occasioned by late production of the witness’s statement was rendered harmless). Instead, after the interchange quoted above, defense counsel resumed cross-examination of Agent Bedgood and never again mentioned the matter of her case report. Under the circumstances of this case, the trial court’s error in denying the appellant access to this report was undoubtedly harmless. Leach v. United States, 320 F.2d at 672; Rule 45, A. R. App. P.
"Moreover, defense counsel clearly acquiesced in the trial judge’s plan to hold an in camera review of the case report after cross-examination of Agent Bedgood and ‘is now estopped to complain of any alleged insufficiency of that action. Cf. Phillips v. State, 527 So. 2d 154, 156 (Ala. 1988) ("a defendant cannot by his own voluntary conduct invite error and then seek to profit thereby").’ Lochli v. State, 565 So. 2d 204, 299 (Ala. Cr. App. 1990)."
Duncan, 587 So. 2d at 1263.
Here, unlike in Duncan, the State never provided to Horn a copy of Charles’s statement (either written or recorded) to law enforcement. Although this Court faulted Duncan for not explaining how he might possibly have been harmed by the delay in getting the Agent’s report, for not arguing that the report contained information that would have assisted him in his cross-examination of the agent, and for not seeking to recall the agent after he received the report, none of those reasons for finding the Pate error in Duncan harmless warrant finding the error harmless in Horn’s case.
Similar to Duncan, the main opinion finds that any Pate error here is harmless based on reasons that would be applicable if, like Duncan, Horn had actually been provided with a copy of Charles’s statement:
"[N]othing in the record suggests that Horn was denied a fundamental right. There is no indication that Charles Nelson made a prior inconsistent statement to police or that the State was in possession of that statement. Defense counsel thoroughly cross-examined Charles. Defense counsel did not inform the court as
to its reasons for requesting the prior statement."
381 So. 3d at 495. To be sure, the record here does not establish that Charles’s prior statement was inconsistent with his trial testimony, but it is impossible for Horn, or any defendant, to make such a showing when he is not provided the statement. Moreover, although Horn’s counsel cross-examined Charles, that cross-examination was limited by the Pate error, and it is impossible for this Court to conclude -- or for Horn to argue -- how his cross-examination of Charles could have been limited when he was not given access to Charles’s statement.
In my view, the circuit court erred when it did not conduct an in camera inspection of Charles’s statement, and that error does not fall within the parameters of the only case in which this Court has found such an error to be harmless. Accordingly, I would remand Horn’s case to the circuit court
"to determine whether the statements made by the witnesses before trial differed in any respect from the statements made by the witnesses to the jury during the trial and, whether the statements requested were of such a nature that without them the defendant’s trial was fundamentally unfair."
Ex parte Pate, 415 So. 2d at 1144-45. Although it is possible that the circuit court’s findings on remand would warrant affirmance of Horn’s Pate argument on return to remand, it is premature to affirm the circuit court’s judgment at this stage. Thus, I respectfully dissent.