Opinion
CR-2022-0789
08-18-2023
Nathan Dwayne Thomas v. State of Alabama
Appeal from Montgomery Circuit Court (CC-18-1330)
KELLUM, Judge.
The appellant, Nathan Dwayne Thomas, was convicted of murder, a violation of § 13A-6-2, Ala. Code 1975, for shooting and killing Charles Jones. He was sentenced as a habitual felony offender to life imprisonment without the possibility of parole.
The State's evidence tended to show the following: On April 23, 2016, Det. D.C. Holley of the Montgomery Police Department was dispatched to the "North Pass" area in response to an emergency 911 call that an individual had been shot. (R. 395.) When Det. Holley arrived, he found Charles Jones on the ground in the back of the residence with a wound to his chest. The medical examiner testified that a bullet had entered Jones's right lung and traveled through his aorta. Jones "bled to death internally from the gunshot wound." (R. 399.)
Alectrice James testified that in April 2016 she was dating Thomas and that they had been together for about two years. On April 23, 2016, she and Thomas were at her home on North Gap Loop and were in her backyard barbecuing with some neighbors, family, and friends. James testified that after several people left, they were sitting outside talking. "And all the sudden I said, uh-oh, y'all, there he go. And then I said, uh-oh, y'all, there he go, [Thomas] got a gun, get down." (R. 336.) James said that Thomas was on the railroad tracks with a gun and that "bullets started flying." (R. 337.) She said that she told Jones to get down and found out later that he had been shot and killed.
Shunacaneice Washington testified that she was James's neighbor and was at James's house on April 23, 2016. She said that someone started shooting and "the first three bullets came across my face, and they hit the wall" and her baby "got grazed" by one of the bullets. (R. 266-67.) She said that during the shooting Jones was standing next to her baby and that afterwards he was on the ground. (R. 266.) Washington said that she did not see who was shooting but that the bullets were coming from the direction of the train tracks. (R. 269.) At one point, she said, she remembered James saying, "He's fixing to shoot or he had a gun or something like that." (R. 278.)
The jury convicted Thomas of murder. The circuit court sentenced Thomas under the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA"), with three prior felony convictions to life imprisonment without the possibility of parole. This appeal followed.
I.
First, Thomas argues that the circuit court erred in denying his motions to remove two prospective jurors for cause because, he says, their answers during voir dire indicated that they could not be impartial.
The record shows that after voir dire, the circuit court asked Thomas if he had any challenges for cause. (R. 138.) Thomas challenged three jurors. The circuit court granted his challenge for juror D.C. and denied his challenges for jurors S.S. and R.B. (R. 1309-40.)
To protect the anonymity of the jurors we are using initials.
"To justify a challenge for cause, there must be a proper statutory ground or '"some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court."' Clark v. State, 621 So.2d 309, 321 (Ala. Cr. App. 1992) (quoting Nettles v. State, 435 So.2d 146, 149 (Ala. Cr. App. 1983)). This court has held that 'once a juror indicates initially that he or she is biased or prejudiced or has deepseated impressions' about a case, the juror should be removed for cause. Knop v. McCain, 561 So.2d 229, 234 (Ala.1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of his previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, 666 So.2d 73, 82 (Ala. 1995). A juror 'need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it.' Kinder v. State, 515 So.2d 55, 61 (Ala. Cr. App. 1986)."Ex parte Davis, 718 So.2d 1166, 1171-72 (Ala. 1998).
"A trial judge's finding on whether or not a particular juror is biased 'is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province.' [Wainwright v.1 Witt, 469 U.S. [412] at 429, 105 S.Ct. [844] at 855 [ (1985)]. That finding must be accorded proper deference on appeal. Id. 'A trial court's rulings on challenges for cause based on bias [are] entitled to great weight and will not be
disturbed on appeal unless clearly shown to be an abuse of discretion.' Nobis v. State, 401 So.2d 191, 198 (Ala. Cr. App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala. 1981)."Martin v. State, 548 So.2d 488, 490-91 (Ala.Crim.App.1988).
Furthermore, the Alabama Supreme Court has held that a circuit court's failure to remove a prospective juror for cause may be harmless error. See Bethea v. Springhill Memorial Hospital, 833 So.2d 1 (Ala. 2002).
"[T]his Court has returned to the 'harmless-error' analysis articulated in the Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), decisions. Because a defendant has no right to a perfect jury or a jury of his or her choice, but rather only to an 'impartial' jury, see Ala. Const. 1901 § 6, we find the harmless-error analysis to be the proper method of assuring the recognition of that right.
"In this instance, even if the Betheas could demonstrate that the trial court erred in not granting their request that L.A.C. be removed from the venire for cause (an issue we do not reach), they would need to show that its ruling somehow injured them by leaving them with a less-than-impartial jury. The Betheas do not proffer any evidence indicating that the jury that was eventually impaneled to hear this action was biased or partial. Therefore, the Betheas are not entitled to a new trial on this basis."Bethea, 833 So.2d at 7.
Many other states have adopted the harmless-error analysis when reviewing a trial court's failure to remove a juror for cause. See State v. Ellis, 473 P.3d 211, 216 (Utah Ct. App. 2020) ("Assuming the district court violated the Uniform Operation of Laws clause when it declined to remove Juror 30 for cause, the error was harmless beyond a reasonable doubt because, again, there is no suggestion that a biased or incompetent juror sat on the jury."); State v. Jefferson, 302 So.3d 567, 576 (La. Ct. App. 4th Cir. 2020) ("Because the error, if any, committed by the district court is a 'trial error,' Defendant must demonstrate that the verdict was attributable [to] the district court's failure to remove the juror."); Torres v. State, 353 Ga.App. 470, 477, 838 S.E.2d 137, 143 (2020) ("[The appellant] used a peremptory strike to remove the prospective juror, and he has not shown that any of the jurors who ultimately served on his jury were unqualified. Pretermitting whether the trial court erred in failing to excuse the prospective juror for cause, we conclude that [the appellant] has failed to show that he was harmed by the alleged error."); Ward v. Commonwealth, 587 S.W.3d 312, 329 (Ky. 2019) ("[S]uch an error can be shown to be non-prejudicial if the other jurors the defendant would have used his peremptory strikes on do not actually sit on the jury. In that scenario, the error is 'effectively cured' and the defendant's substantive rights are ultimately not violated because he 'received the jury he wanted.'"); State v. Hickman, 205 Ariz. 192, 199, 68 P.3d 418, 425 (2003) ("If important constitutional errors are subject to harmless error review, then, logically, a trial court's erroneous denial of a challenge for cause and the defendant's subsequent use of a peremptory challenge to cure that error should be subject to harmless error review.").
After Bethea, the Alabama Supreme Court in Ex parte Colby, 41 So.3d 1 (Ala. 2009), held that the failure to remove three jurors for cause was not harmless error. In discussing Colby, this Court has stated:
"In Ex parte Colby, 41 So.3d 1 (Ala. 2009), the defendant argued that the trial court erred in denying her challenges for cause as to several jurors, forcing her to use 9 of her 17 peremptory strikes to remove those jurors from the venire. 41 So.3d at 4. The Alabama Supreme Court reversed the judgment after finding that, under its precedent in General Motors v. Jernigan, 883 So.2d 646 (Ala. 2003), multiple errors by the trial court in denying Colby's challenges for cause were not harmless. 41 So.3d at 5. Specifically, the Alabama Supreme Court found that the jury in that case included '"jurors who would likely have been the subject of peremptory challenge[s] had such challenges been available"' to Colby. Id."Petersen v. State, 326 So.3d 535, 559 (Ala.Crim.App.2019).
"A trial court's refusal to excuse a prospective juror for cause is not an abuse of discretion, notwithstanding that the juror
has voiced a seemingly biased opinion, when after further examination and instruction, the juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence."State v. Juniors, 915 So.2d 292, 309-310 (La. 2005).
"It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination techniques that frequently are employed ... [during voir dire].... Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge may properly choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading."Patton v. Yount, 467 U.S. 1025, 1039 (1984).
A.
First, Thomas argues that the circuit court erred in denying his challenge for cause of prospective juror S.S. because, he says, her answers during voir dire showed that she would hold the State to a burden of proof higher than a reasonable doubt and that she would expect Thomas to prove his innocence. Thomas used his eighth peremptory strike to remove juror S.S.
The record shows that during voir dire the prosecutor asked the members of the venire if they could vote to convict only if they were "a hundred percent sure [Thomas's] guilty." (R. 74.) Three prospective jurors raised their hands. (R. 75-76.) The State then asked the jurors if they could follow the instructions given by the circuit court concerning the State's burden of proof. Juror S.S. said that it "would be a hard decision." (R. 78.) The following then occurred:
"[Prosecutor]: But if I get up and preach --
"[S.S.]: (Unintelligible.)
"[Prosecutor]: -- to you, it's got to be beyond a reasonable doubt, not mathematical certainty -
"[S.S.]: Yeah.
"[Prosecutor]: -- and Judge [Jimmy] Pool says that, it's going to be tough on you?
"[S.S.]: It will be tough.
"[Prosecutor]: Okay. But you think maybe you can do it?
"[S.S.]: Maybe I can do it.
"[Prosecutor]: Okay. Fair enough.
"THE COURT: Let me ask a question, okay. Ma'am you're already sworn as a juror, okay.
"[S.S.]: Yes.
"THE COURT: Now, your job as a juror is to listen to all the facts and decide what the true facts are.
"[S.S.]: True.
"THE COURT: And then only to apply the law that I tell you, okay. All right. Now, can you put aside anything else in your mind, and bias or prejudice or sympathy or outrage because somebody is charged with murder, put all of those emotions aside and decide the case based only on the facts of the case and the law that I tell you?
"[S.S.]: I believe that I can.
"THE COURT: Okay. I need a little bit more than that. You going to do what I ask you to do?
"[S.S.]: Yes. I'm going to do what you ask me to do."(R. 78-80.)
Later, during questioning by defense counsel, the following occurred:
"[Defense counsel]: So for you if the defense doesn't have evidence about where Mr. Thomas was, that, to you, would be--
"Potential Juror: Would be a big flag.
"[Defense Counsel]: And when you say a big red flag, would that be something where you could not return a verdict of not guilty if the defense didn't tell you where Mr. Thomas was at?
"Potential Juror: I don't know about that one.
''....
"[Defense Counsel]: Is that similar to the questions [the prosecutor] asked you where it would be difficult for you to make a decision?
"Potential Juror: It would be difficult for me, yeah.
"[Defense Counsel]: Okay. And when you say it would be difficult, is that because that's something that you're not sure that you could do either way?
"Potential Juror: Yeah. Because I would always have doubts of, like, maybe I put someone away, that he was -- his witnesses didn't come forward to place him somewhere else.
"[Defense Counsel]: Understand. I appreciate that, [S.S.]."(R. 111-12.)
This is the first time in this discussion that this "potential juror" is identified by name.
We have also reviewed the entire voir dire and the juror questionnaire that was completed by S.S. "A prospective juror's responses during voir dire cannot be considered in isolation." State v. Michelson, 210 So.3d 893, 898 (La. Ct. App. 2016). "We must consider the entire voir dire examination of the juror 'in full context and as a whole.'" Ex parte Burgess, 827 So.2d 193, 198 (Ala.Crim.App.2000). "Juror questionnaires are part of the voir dire process." Benjamin v. State, 156 So.3d 424, 432 n. 2 (Ala.Crim.App.2013). S.S.'s questionnaire contained no questions concerning the juror's ability to be impartial or to follow the court's instructions. The questionnaire did ask "Is there any reason you feel you should not serve on a jury?" S.S. responded, "I daydream a lot -- hard for me to pay attention." She also indicated that she had previously served on a criminal jury and that the defendant in that case had been found guilty. Also, at the beginning of the voir dire examination the circuit court asked the jurors: "Does anybody in here already have a fixed opinion as to whether Mr. Thomas is guilty or innocent?" No prospective juror responded in the affirmative. (R. 69.)
This Court directed that the juror questionnaires be forwarded to us by the circuit clerk for appellate review.
After voir dire, defense counsel argued that S.S. should be removed for cause:
"There were two different points during the voir dire that [S.S.] could not guarantee following the law.
"One was when the [prosecutor] was talking, and that was regarding beyond a reasonable doubt versus a hundred percent sure. [S.S.] said that she could not convict unless she was a hundred percent sure. And then she walked that back
some to say she could not guarantee that she'd be able to do that or it would be difficult.
"The second part was regarding not considering [Thomas] testifying. And she had a similar stance at that point.
"Given that there are two different points of law in which she seemed to have a genuine and honest issue with guaranteeing whether she could follow those, Your Honor, at this point we would move to strike her."(R. 140-41.) The prosecutor argued that in both instances juror S.S. "walked it back and said, oh, well, it might be difficult, but I can do it. I don't think that's grounds to strike for cause." (R. 141.) The circuit court denied Thomas's challenge for cause of S.S.
In his brief on appeal, Thomas argues that the circuit court erred in failing to grant his challenge for cause based on this Court's holding in Lane v. State, 327 So.3d 691 (Ala.Crim.App.2020). He further argues that this error was compounded because he says, S.S. indicated a second bias and S.S. was not rehabilitated. The State argues that S.S. "did not divulge any matter during voir dire which 'imports absolute bias or favor, and leaves nothing to the discretion of the trial court.'" (State's brief at p. 21.)
In Lane, the State moved that a juror be struck for cause because he had indicated during voir dire that "he would recommend the death penalty only if the State proved its case '100 percent.'" 327 So.2d at 741. On appeal, Lane argued that the circuit court erred in removing this juror. In upholding the circuit court's grant of the State's challenge for cause, this Court stated:
"A prospective juror's indication that he or she will hold the State to a higher burden of proof than that required by law reflects probable prejudice against the State that justifies the trial court in removing the prospective juror for cause. See Rule 18.4(e), Ala. R. Crim. P. (providing that a trial court may remove for cause any prospective juror if 'it reasonably appears that the prospective juror cannot or will not render a fair and impartial verdict'); McGowan v. State, 88 So.3d 916, 920 (Ala.Crim.App.2010) (noting that a trial court '"may remove a potential juror if probable prejudice exists, even if none of the statutory grounds [in § 12-16-150, Ala. Code 1975,] apply"' (quoting Motes v. State, 356 So.2d 712, 718 (Ala.Crim.App.1978))); United States v. Purkey, 428 F.3d 738, 752 (8th Cir. 2005) (no error in removing for cause prospective juror who 'insisted that he would hold the government to a higher burden of proof than reasonable doubt'); and cf. Whatley [v. State, 146 So.3d 437 (Ala.Crim.App.2021)] (fact that prospective juror will hold State to higher burden of proof than that required by law justifies peremptory strike). Here, B.C. provided conflicting responses during individual voir dire with respect to the burden of proof he would require the State to meet. However, it was the trial court, not this Court, who was in the best position to observe B.C.'s demeanor and to gauge the veracity of his responses. Thompson [v. State, 153 So.3d 84 (Ala.Crim.App.2012)]. Thus, because B.C.'s responses during individual voir dire provided a basis for
concluding that he would hold the State to a higher burden of proof than that required by law and that he therefore would not be a fair and impartial juror, we conclude that there was no abuse of discretion in the trial court's decision to grant the State's motion to remove B.C. for cause. McGowan, supra; Purkey, supra."327 So.3d at 742. See also Blanton v. State, 886 So.2d 850, 874 (Ala.Crim.App.2003) ("[T]he fact that a veniremember would hold the State to a higher burden of proof is a race-neutral reason for striking that veniremember.").
The most obvious difference in Lane and this case is that the juror was removed in Lane by motion of the State. Here, S.S. indicated that she could follow the circuit court's instructions on the burden of proof. "Jurors who give responses that would support a challenge for cause may be rehabilitated by subsequent questioning by the prosecutor or the court." Johnson v. State, 820 So.2d 842, 855 (Ala.Crim.App.2000). However, S.S. did indicate that it would be a "red flag" for her if defense counsel did not inform the jury where Thomas was at the time of Jones's death. S.S. was asked no further questions about this issue. Nonetheless, Thomas removed S.S. with a peremptory strike; therefore, any error in failing to remove S.S. for cause was harmless. See Bethea, supra. For these reasons, Thomas is due no relief on this claim.
B.
Thomas next argues that the circuit court erred in denying his motion to remove juror R.B. for cause because, he argues, R.B. "showed a probable prejudice to use Thomas's silence or lack of evidence as important in making his determination of guilt or innocence." (Thomas's brief at p. 23.) Thomas used his fifth peremptory strike to remove juror R.B.
The record shows that during voir dire the following occurred:
"[Defense Counsel]: [R.B.] tell us about what you feel as far as in order to return a verdict of not guilty for murder would the defense need to prove what Mr. Thomas was -- where he was, what he was doing, any evidence for you?
"[R.B.]: I wouldn't necessarily say he would have to prove it. Granted, it falls on the State as the burden of proof to prove that he was in that location, that he was -- had intent to do what he -- what he was accused of.
"But as a -- as a man, myself, it's -- behoove him to clear his own name. They have the proof sitting here trying to accuse him of it. It would be wise for him to try with his own evidence to clear his name.
"[Defense Counsel]: Understood. [R.B.] I appreciate that perspective. Just so that I'm clear, I hear you saying that if he had evidence, for you, you'd want to hear what that evidence is?
"[R.B.]: Correct.
"[Defense Counsel]: Okay. It wouldn't necessarily be required for you, but that would be important for you to hear.
"[R.B.]: Yes."(R. 117-18.)
We have also examined the juror questionnaire that was completed by R.B. and the entire voir dire. In response to the question "Is there any reason you feel you should not serve on a jury? R.B. responded "Have to travel to pick up child from school." R.B. also responded that he had previously worked as a Phenix City police officer. Also, as noted previously during voir dire the prospective jurors were asked if they had a fixed opinion of Thomas's guilt, and no juror responded in the affirmative. (R. 69.)
Thomas moved that R.B. be removed for cause. The following occurred:
"[Defense Counsel]: [R.B.] said the defendant should try to clear his own name by presenting his own evidence and that as a man he ought to testify.
"Your Honor, that's inconsistent with the law. He was not questioned as to whether he could follow the law if the Court gave it to him or anything applying that differently, and so, Your Honor, we'd move at this point for him to be struck.
"THE COURT: [Prosecutor].
"[Prosecutor]: Judge, what I recall him saying was that he understood -- he's prior law enforcement officer and he understood what the law was, but that -- when pressed by [defense counsel] he said, well, as a man, I would want to clear my own name, I think that's a good thing to do; but I understand what the law requires me to do, and I understand that the judge is going to give me instructions that are counter to that.
"And I don't believe that rises to the level of him striking him for cause. He didn't say he couldn't do it. He just was being honest with [defense counsel], and he said he understood the law, said he understood how things were supposed to go, and that he could follow your instructions."(R. 142-43.) The circuit court denied the motion to strike R.B.
We agree with the State that R.B.'s responses on voir dire did not indicate that he had an absolute bias against Thomas. R.B. clearly stated that he was aware of the State's burden of proof but that he would wish to clear his name. R.B. never indicated that he would hold it against Thomas if he presented no evidence to clear his name.
"'To disqualify a prospective juror, he must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. Such opinion must be so fixed as that it would bias the verdict a juror would be required to render. Hammil v. State, 90 [A]la. 577, 8 So. 380 [(1890)].' McCorvey v. State, 339 So.2d 1053, 1057 (Ala. Cr. App.), cert. denied, 339 So.2d 1058 (Ala. 1976). 'A "fixed opinion" which will bias a verdict is one that is a conviction or prejudgment, a strong or deep impression which closes the mind of a juror and combats the testimony and resists its force.' Nobis v. State, 401 So.2d 191, 197 (Ala. Cr. App.), writ denied, 401 So.2d 204 (Ala. 1981)."Siebert v. State, 562 So.2d 586, 595 (Ala.Crim.App.1989).
"A trial judge is in a decidedly better position than an appellate court to assess the credibility of the jurors during voir dire questioning. See Ford v. State, 628 So.2d 1068 (Ala.Crim.App.1993). For that reason, we give great deference to a trial judge's ruling on challenges for cause. Baker v. State, 906 So.2d 210 (Ala.Crim.App.2001).' Turner v. State, 924 So.2d 737, 754 (Ala.Crim.App.2002)."Largin v. State, 233 So.3d 374, 409 (Ala.Crim.App.2015).
"Even proof that the veniremember is biased or has a fixed opinion is insufficient. There must be proof that the opinion was so fixed that it would bias the verdict of the veniremember. Clark v. State, 443 So.2d 1287 (Ala. Cr. App. 1983). If the veniremember indicates that he or she can lay aside that impression or opinion and render a verdict based on the evidence presented in court, the juror is not subject to challenge for cause. Minshew v. State, [542 So.2d 307 (Ala.Crim.App.1988),] Mahan v. State, 508 So.2d 1180 (Ala. Cr. App. 1986)."Smith v. State, 698 So.2d 189, 200 (Ala.Crim.App.1996).
Moreover, as we stated above, Thomas used his fifth peremptory strike to remove R.B. This Court has recognized that the failure to grant two challenges for cause may be harmless. In Doster v. State, 72 So.3d 50 (Ala.Crim.App.2010), we stated: "The record also shows that neither A.B. nor J.T. served on Doster's jury and that they were removed by the defense's use of two of its peremptory strikes. Thus, any error in not removing these two jurors for cause was harmless." 72 So.3d at 71-72. But see Ex parte Colby, supra, (not harmless when trial court erroneously denied three challenges for cause); General Motors Corp. v. Jernigan, 883 So.2d 646 (Ala. 2003) (not harmless error for the trial court to erroneously deny five challenges for cause of General Motors).
For the above reasons, Thomas is due no relief on this claim.
II.
Thomas next argues that the circuit court denied him his constitutional right to a fair trial when, he says, it denied him the opportunity to fully cross-examine and impeach Alectrice James, a material State witness. In his brief, Thomas relies on Ball v. State, 337 So.2d 31 (Ala.Crim.App.1976), and Ex parte Jenkins, 474 So.2d 140 (Ala. 1985), to support his argument.
The record shows that during defense counsel's cross-examination of James, the following occurred:
"[Defense Counsel]: You also claim that the person who shot the gun put the gun in your face, right?
"[James]: How could he put the gun in my face when I'm on the porch and he on the train track? I didn't, no, sir.
"[Defense Counsel]: Ma'am didn't you testify in court previously that the shooter put the gun in your face when they shot?
"[James]: No, sir.
"[Defense Counsel]: Just so that we're clear, June 28th, 2018, you testified in court under oath what happened on April 23rd, 2016, correct?
"[James]: Yes, sir.
"[Defense Counsel]: Okay. You testified in Montgomery County court; correct?
"[James]: Yes.
"[Defense Counsel]: Okay.
"[Prosecutor]: [Defense counsel,] can you tell me or show me what you're referencing?
"[Defense counsel]: Sure.
''....
"[Prosecutor]: Judge, my objection is twofold. One, I haven't been provided with this transcript. It's from a protection from abuse order that Ms. James was involved in from Mr. Thomas back in, apparently, 2018. That would be my first objection.
"My second objection would be -- and normally I wouldn't do this. I would just come on out with it. But if they're going to use this, I think that the jury is entitled to know where this transcript comes from. They've asked that about every single statement that everyone has made in this entire trial, so have I.
"You've told me not to get into prior bad acts. I've taken great pains -- I've taken great with Ms. James to not get involved in any kind of domestic situation, and now [defense counsel] is trying to enter court testimony without providing us -- and we have asked for at the beginning of this reciprocal discovery.
''....
"[Defense Counsel]: First off, let's -- to make sure that the record is clear, no notice of discovery has been filed by the State in this case. [The prosecutor] has never asked for discovery or reciprocal discovery in this case. That's first off.
"Second of all, this transcript is publicly available. What's good for the goose is good for the gander, Your Honor. They said the same thing about everything else, that it was publicly available, so they could have gone and gotten this....
"Your Honor, specifically, under Rule 613, [Ala. R. Evid.,] I am allowed to cross-examine the witness with their prior statement. We talked about this Rule earlier.
"I'm also allowed under Rule 613(b) to use extrinsic evidence of a prior inconsistent statement of the witness but only once I have given the witness an opportunity to either admit or deny that statement.
"Judge, I've given Ms. James an opportunity to admit or deny the statement. She says that she did not make that statement. Judge, at this point, with the transcript, then I can go ahead and impeach her under Rule 613(b) as I've met that predicate.
''....
"THE COURT: '(b) Extrinsic evidence of a prior inconsistent statement of a witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or to deny having made it.'
"The witness has been confronted with the circumstances of the statement. Now, [defense counsel], if you go into this statement any further, that is going to involve the circumstances of the statement. Not only have you opened the door, but you slung it wide open.
"You want to proceed, you may, but at your peril with [the prosecutor].
"[Defense Counsel]: Judge, If I can make a record. I have brought up nothing as far as any prior incident. All I have brought up is this specific statement about whether Ms. James saw the person put the gun in her face on April 23rd, 2016.
"THE COURT: [Defense counsel,] you can't have your cake and eat it too. Here's what the rules says: 'Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or to deny having made it.'
"[Defense Counsel]: Correct. And I --
"THE COURT: You've got to tell her when and where the statement was made.
"[Defense Counsel]: Correct. I did that. June 28th, 2018, in the Montgomery County courthouse. I specifically asked her that. She confirmed that that's where she had it. She said --
"THE COURT: Circumstances are it was a domestic dispute between [James] and [Thomas]. One more question and he's going to get to go into it. Do it at your own risk. You're welcome to."(R. 370-76.)
As quoted above, the circuit court did not prevent Thomas from questioning James about a prior inconsistent statement but ruled that the State would then be allowed to question James concerning the circumstances surrounding that prior inconsistent statement. It was defense counsel's decision not to continue that line of questioning. Most likely, counsel made this decision because James's prior statement was made during a hearing on a motion for an order for protection from abuse -- a motion that James had filed against Thomas.
Regarding the cases relied on by Thomas, the Alabama Supreme Court in Ex parte Jenkins, held that the circuit court erred in limiting defense counsel's ability to cross-examine the rape victim. 474 So.2d at 141-42. This Court in Ball v. State, held that the circuit court erred in limiting the defendant's ability to cross-examine the witness "concerning any different versions of the shooting he may have related to others following the occurrence." 337 So.2d at 37. However, this case does not involve a circuit court's ruling denying
Thomas the opportunity to cross-examine a state witness. The issue is whether the circuit court correctly found that the circumstances surrounding the prior inconsistent statement were admissible pursuant to Rule 613(b), Ala. R. Evid.
Rule 613(b), Ala. R. Evid., provides, in pertinent part:
"Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or to deny having made it."
In addressing the scope of this Rule, this Court in Collins v. State, 206 So.3d 682 (Ala.Crim.App.2015), stated:
"'When a witness, on cross-examination, denies having made a statement out of court which is inconsistent with the witness' testimony on direct examination, the only available move for the impeaching party is to bring on extrinsic proof-either in the form of writing, tape recording or impeaching witness who can testify as to the prior inconsistent statement. Before such extrinsic evidence may be elicited, however, it is the general rule that the impeaching party must lay a proper predicate by asking the witness being impeached
whether such a statement was made, specifying with reasonable certainty the time, the place, the person to whom such supposed statement was made and the substance of the statement. The witness likewise must be given an opportunity to admit or deny having made the statement. This foundational requirement is continued under the Alabama Rule of Evidence:
"'"Rule 613. Prior Statements of Witnesses.
"'"....
"'"(b) Extrinsic evidence or prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or deny having made it...."'
"Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence § 157.01(1) (b) (6th ed. 2009) (footnotes omitted).
"Here, defense counsel asked Walton, 'Have you ever made a statement to Mr. Collins that folk protect folk or disciples protect disciples....' (R. 598.) Walton denied making such a statement and said that his gang did not have anything to do with the case. Thus, Walton was confronted with the inconsistent statement. However, defense counsel failed to provide Walton with any additional information regarding the particular circumstances under which the statement was
allegedly made. Walton was not confronted with the time nor the place of the statement. Defense counsel's general question lacked the specificity necessary to put Walton on notice of the alleged inconsistent statement.
"'The basic reason for the requirement that the predicate question specify time, place, content of the supposed statement, and the person to whom made, is to enable the faculties of the mind of the witness to be put in motion with memory aided by the train of ideas which such circumstances would be likely to suggest in reference to the subject matter under inquiry and thereby be aided in recalling to memory whether the witness made the statement; and, if the witness recalls making it, to give an explanation of the apparent conflict between the witness' testimony and such prior statement. In a word, the requirement is a matter of fairness.' Gamble and Goodwin, McElroy's Alabama Evidence § 157.01(2) (footnote omitted). Because defense counsel failed to lay the required predicate when confronting Walton with his prior statement, Gaston's testimony was properly excluded."Collins v. State, 206 So.3d 682, 691-92 (Ala.Crim.App.2015). See Smitherman v. State, 627 So.2d 1116, 1121 (Ala.Crim.App.1993) ("To impeach a witness by evidence of a prior inconsistent statement, the party seeking to impeach must lay a proper predicate by establishing that the witness made the prior statement, including establishing with reasonable certainty, when the statement was made, where the statement was made, and to whom the statement was made.").
Smitherman was released prior to the effective date of the Alabama Rules of Evidence.
Initially, we question whether Thomas established a sufficient predicate for the admission of the prior inconsistent statement, given that the only circumstance that Thomas presented concerning that statement was that it occurred on June 28, 2018, in Montgomery County. We agree with the circuit court that more was required by Rule 613, Ala. R. Evid, based on this Court's holding in Collins and the clear wording of the rule.
We note that during defense counsel's cross-examination of James, counsel concentrated on discrepancies between James's previous statements to police and her trial testimony. Counsel questioned James extensively about discrepancies in her testimony concerning the 911 call and who had made that first call and what she said on the call she made to 911, (R. 361); that she had previously told a detective that one bullet had hit her arm but that at trial she said she had not been hit, (R. 366); that she said that Jones had been shot in the head but that at trial she said a bullet "had scraped his face," (R. 367), and that she had told police that the person shooting had on blue jeans but also said he was wearing all black. (R. 387). The 911 calls were also played to the jury during her cross-examination. James was cross-examined concerning prior inconsistent statements that she had made to police.
Accordingly, the circuit court did not err in finding that the State would have an opportunity to question James concerning the circumstances of the prior statement if Thomas wished to pursue that line of questioning. See Collins, supra. Accordingly, Thomas is due no relief on this claim.
III.
Thomas next argues that the circuit court erred in sentencing him under the HFOA because, he says, the State failed to give him notice of the specific prior convictions it intended to rely on for application of the HFOA.
The record shows that, after Thomas was convicted, the circuit court ordered that a presentence report be prepared. (C. 252.) A sevenpage presentence report was prepared and served on all parties. (C. 25359.) At the beginning of the sentencing hearing, the circuit court asked Thomas's attorney if he had discussed the report with Thomas and if there were any inaccuracies. Counsel replied that he had discussed the report with Thomas and that he had no corrections to the report. (R. 672.) The presentence report showed that Thomas had prior felony convictions for manslaughter, assault in the second degree, and promoting prison contraband. (C. 255.) Thomas requested that the circuit court sentence him under the sentencing guidelines to between 19 years and 85 years and that, if the sentence was under the HFOA, he be sentenced to between 15 years and 99 years or life. (R. 673.) The State responded that the appropriate sentence was life imprisonment without the possibility of parole. (R. 673.) Defense counsel admitted a copy of a document entitled "Notice of Discovery" that had been filed by the State. In this document, the State asserted that at that point in time it was aware of only one prior felony conviction -- murder. (Thomas's Sentencing Exhibit 1.) Thomas argued that, according to the Alabama Supreme Court's holding in Connolly v. State, 602 So.2d 452 (Ala. 1992), the State was required to give sufficient notice of what felonies it intended to rely on for purposes of the HFOA. (R. 673.) He further asserted that the State gave notice of only one felony conviction. The following discussion occurred at sentencing:
It appears that the exhibits introduced at the sentencing hearing were renumbered starting with Exhibit 1. Thus, there are two defense exhibits numbered 1 in the record.
"[Defense Counsel]: ... At this point, the State has to provide adequate notice of the felonies in which they are trying to proceed under the Habitual Offender Act. We've been provided no certifications of any type of previous conviction.
"(Pause to confer.)
"....
"[Defense Counsel]: It appears, I guess, [the prosecutor] did give [defense counsel] some certifieds, but that does not change anything, Judge, due to the fact that the State's still required under Alabama law, specifically Connolly v. State, 602 So.2d 452, to provide sufficient notice of what prior felonies they intend to use for the enhancement of -- under the Habitual Offender Act. This case has been pending since -
"[Prosecutor]: 2016.
"[Defense Counsel]: -- 2016 and the only notice that the State has provided the defendant is one murder charge in CC-91-1647, which is incorrect. That's actually a manslaughter charge. And so based upon that being the only -- being a Class B felony, we're down to the 15 to 99.
"The State's notice of discovery, which I guess they usually travel under, for notice of the priors only lists that as the prior in which the State would be invoking for the purposes of HOA.
"THE COURT: Mr. [Prosecutor]?
"[Prosecutor]: Judge, I'm under no obligation to sit down and discuss what their priors are. They're correct. They've had six years. They knew what Mr. Thomas's record was.
"We've been talking about it through several different switches of attorneys what his priors were. I talked about it
with these gentlemen when they were discussing whether or not Mr. Thomas was going to take the witness stand.
"This isn't any surprise on them that well he's got three prior felonies. We've talked about it. They know about it. Mr. Thomas knows about it. The Court knows about it. The probation officer knows about it. This isn't something that's just out of the blue oh, by the way, you've got three prior felonies. They've known about this for six years.
"And I -- quite honestly, I'm befuddled by their objection to it. I've got three prior certifieds that I'll read into the record and provide to the Court.
"THE COURT: Okay. Do that now.
"[Prosecutor]: All right. Judge, we've got Case Number 911647, that's a manslaughter; we've got a case out of Birmingham, which is 99-1170, which is an assault in the second degree; and we have a case out of Escambia County, which is 03-413, and that is a promoting prison contraband.
"Judge, we were -- when you called this case, we were in the process of making copies. I will submit these to the Court, but I'd ask that you let me make some copies first."(R. 673-75.) The State presented sufficient documentary evidence to show that Thomas had three prior felony convictions. Thomas does not contest the validity of the documents presented by the State at the sentencing hearing to prove those prior three convictions.
Rule 26.6(b)(3)(ii), Ala. R. Crim. P., provides that: "At a reasonable time prior to the [sentencing] hearing, the defendant shall be given notice of the prior conviction or convictions upon which the state intends to proceed."
"Although application of the HFOA is mandatory, the state must still comply with Connolly v. State, 602 So.2d 452 (Ala. 1992). The Alabama Supreme Court, in Connolly, stated that a defendant must be given notice of two things with respect to sentencing before the HFOA may be invoked. He must be given notice of the state's intention to invoke the HFOA at sentencing and he must be given notice of the specific prior felony convictions on which the state intends to rely."Cunny v. State, 629 So.2d 693, 695 (Ala.Crim.App.1993).
The Alabama Supreme Court in Connolly v. State, 602 So.2d 452 (Ala. 1992), also held that: "Written notice is not required; oral notice will suffice." Connolly, 602 So.2d at 454. "Notice of the State's intention to proceed under the Habitual Felony Offender Act is effectuated when the appellant is informed of this fact in open court." Garrett v. State, 480 So.2d 58, 61 (Ala.Crim.App.1985).
"With reference to notice to defendant as required by the provisions of Title 13A-5-9, Code of Alabama 1975 and Rule 6(b)(3)(ii), Alabama Temporary Rules of Criminal Procedure, [now Rule 26.6(b)(3)(ii), Ala. R. Crim. P.] the trial court noted that the appellant had received a copy of the presentence investigative report, indicating that the State intended to proceed against the appellant as a habitual felony offender.
"With reference to the requirement of notice under Rule 6(b)(3)(ii), the defendant was entitled to reasonable notice, but
such need not have been in writing. We are of the view that reasonable notice was here given as required by the aforesaid rule. See Wilson v. State, 428 So.2d 197 (Ala.Crim.App.1983); Weeks v. State, 473 So.2d 589 (Ala.Crim.App.1985); Garrett v. State, 480 So.2d 58 (Ala.Crim.App.1985) and Humber v. State, 481 So.2d 452 (Ala.Crim.App.1985)."Nesbitt v. State, 531 So.2d 37, 42 (Ala.Crim.App.1987).
Later, this Court in Cooper v. State, 632 So.2d 1342 (Ala.Crim.App.1993), limited its holding in Nesbitt and stated:
"We do not believe that the presentence report contained in the record, which lists prior convictions, amounted to sufficient notice of the felony convictions that the state intended to prove at the sentencing hearing. While we are aware of our holding in Nesbitt v. State, 531 So.2d 37 (Ala. Cr. App. 1987), that a defendant's receipt of a presentence report constitutes notice of the state's intent to proceed under the Habitual Felony Offender Act, we are not willing to extend that holding to allow the presentence report to supply sufficient notice of the specific prior convictions upon which the state intends to rely."Cooper, 632 So.2d at 1344.
After Cooper, the Alabama Supreme Court in Ex parte Howington, 622 So.2d 896 (Ala. 1993), addressed the notice requirement of Rule 26.6(b)(3)(ii), Ala. R. Crim. P., and acknowledged this Court's holding in Nesbitt. That Court stated:
"The Court of Criminal Appeals has held that Rule 26.6(b)(3)(ii), Ala. R. Crim. P., does not require written notice and that a presentence report can satisfy the notice
requirement. See Nesbitt v. State, 531 So.2d 37, 42 (Ala. Cr. App. 1987). Also, that court has held that a determination of how much notice is 'reasonable' is a matter left to the trial court's sound discretion. Humber v. State, 481 So.2d 452 (Ala. Cr. App. 1985).
"On the question of the sufficiency of the notice here, the record reflects that the State gave Howington prior oral notice of its intent to use the three prior convictions for enhancement purposes. Implicitly, the record also shows that the trial court found that the amount of notice given was reasonable. Furthermore, the record reflects that a presentence report was ordered and that the report listed the prior convictions. According to our understanding of the record on appeal, certified copies of three prior felonies were presented to the court at the initial sentencing hearing, and the petitioner and his counsel received notice of the State's intent to seek enhancement shortly after the jury found him guilty.
"Based on the foregoing, we conclude that the State gave Howington adequate notice as required by Rule 26.6(b)(3)(ii)."Howington, 622 So.2d at 899-901. Written notice of the specific prior felonies that the State is relying on is not required and oral notice of those felonies is sufficient.
The record is clear that Thomas was given notice that the State intended to proceed under the HFOA and that the State gave written notice that it intended to use a prior murder conviction from Montgomery County -- CC-1991-1647. At a pretrial-motion hearing, the prosecutor stated: "Mr. Thomas has a prior conviction for manslaughter. He was originally charged of murder and convicted of murder, but the appellate court sent it back and he went to trial again and was convicted of manslaughter and got a 20-year sentence in 1991. He then got a new charge of a pistol without a permit in 2014." (R. 24.) At the sentencing hearing, the prosecutor stated that it had discussed Thomas's prior felony convictions with trial counsel because, he says, they discussed whether Thomas would testify, given his prior felony convictions. Both the presentence report and the notice of discovery show that the State intended to rely on all of Thomas's prior felony convictions for enhancement purposes under the HFOA. Defense counsel also admitted at the sentencing hearing that he had been provided with "certifieds." (R. 675.) "This Court held in Connolly v. State, 602 So.2d 452, 454 (Ala. 1992), that a '[d]etermination of the "reasonableness" of the notice period is left to the trial judge's discretion, because the trial judge is present and is familiar with the circumstances of the case.'" Ex parte Crews, 797 So.2d 1119, 1122-23 (Ala. 2000).
Part of the confusion in this case could possibly be attributed to the fact that Thomas had numerous attorneys from June 2016 through January 2021. (C. 41; 90; 100; 117; 148; and 154.) The last motion for defense counsel to withdraw was denied by the circuit court. (C. 158.)
Based on this Court's review of the entire record, we cannot say that the circuit court abused its discretion in finding that Thomas had sufficient notice both of the application of the HFOA and the specific felonies that the State intended to rely on to invoke the HFOA. Accordingly, Thomas is due no relief on this claim.
For the foregoing reasons, we affirm Thomas's conviction for murder and his sentence as a habitual felony offender to life imprisonment without the possibility of parole.
AFFIRMED.
Windom, P.J., and McCool and Minor, JJ., concur. Cole, J., concurs in the result.