Benjamin v. State

• Decision Date: 30 September 2005
• Docket Number: CR-03-2040.
• Citation: 940 So.2d 371
• Parties: Brandyn Josephe BENJAMIN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

940 So.2d 371

Brandyn Josephe BENJAMIN v. STATE of Alabama.

CR-03-2040.

Court of Criminal Appeals of Alabama.

September 30, 2005.

Opinion on Return to Remand November 23, 2005.

Rehearing Denied February 3, 2006.

Certiorari Denied April 21, 2006 Alabama Supreme Court 1050637.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael Crespi, Dothan, for appellant.

Troy King, atty. gen., and Tracy Daniel and Corey L. Maze, asst. attys. gen., for appellee.

BASCHAB, Judge.

The appellant, Brandyn Josephe Benjamin, was convicted of capital murder for the killing of Jimmie Lewis. The murder was made capital because the appellant committed it during the course of a first-degree robbery. See § 13A-5-40(a)(2), Ala.Code 1975. By a vote of 10-2, the jury recommended that he be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death. The appellant filed a motion for a new trial, which was denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

The appellant raises some arguments on appeal that he did not raise at trial. Although the lack of an objection at trial will not bar our review of an issue in a case that involves the death penalty, it will weigh against any claim of prejudice the appellant may raise. See Ex parte Kennedy, 472 So.2d 1106 (Ala. 1985). Rule 45A, Ala. R.App. P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review ... whenever such error has or probably has adversely affected the substantial right of the appellant."

"[This] plain-error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982)).

Because the appellant does not challenge the sufficiency of the evidence to support his conviction, a lengthy recitation of the facts is not necessary. However, we have reviewed the evidence, and we have determined that it is sufficient to support the appellant's conviction. The following summary of the relevant facts, which the trial court prepared, may be helpful to an understanding of this case:

"The victim, Jimmie Lewis, had gone to Wiregrass Commons Mall about 9:00 p.m. on the night of November 18, 2000, to pick up his wife, who operated a shop in the mall. He had gone to Mrs. Lewis' shop and determined that she was ready to close, and because it was raining outside, he returned to bring the car closer to the mall exit so that Mrs. Lewis wouldn't get wet. Mr. Lewis had parked his car in a remote area of the mall parking lot. The defendant had gone to the mall with the specific intent of finding a victim to rob. He watched mall security to see how often they made rounds and also parked his car in an area which wouldn't raise suspicion. As Jimmie Lewis approached his car, the defendant appeared and apparently demanded the victim's wallet. A struggle ensued, and the defendant struck the victim several times and shot him twice—once in the chest and once in his leg. The defendant took the victim's wallet and contents and left the scene. The victim was dead when the police and paramedics arrived shortly thereafter. The defendant later related all of the details of the crime to a friend[, Michael Baker,] indicating that he had no remorse for his actions. [Baker] [then] went with his attorney to the District Attorney. The District Attorney arranged for a body wire to be placed on [Baker] so that the police could hear the defendant confess his actions once again to [Baker]. The defendant was then arrested and his room searched. A copy of the Dothan Eagle newspaper account of the crime was found in the defendant's room and later the victim's wallet was also found."

(C.R. 202.) The appellant also made a statement to law enforcement officers in which he admitted that he intended to rob the victim, that he had a handgun with him, and that he and the victim struggled. However, he contended that he unintentionally or accidentally shot the victim during the struggle.

I.

The appellant's first argument is that the trial court erred in denying his motion to dismiss or remand the indictment and denying his motion for a more definite statement because the indictment allegedly was defective. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), he specifically contends that the indictment was defective because it did not set forth the aggravating circumstances upon which the State intended to rely. We addressed and rejected a similar argument in Stallworth v. State, 868 So.2d 1128, 1186 (Ala.Crim.App. 2001) (opinion on return to second remand), as follows:

"Stallworth also argues, in relation to the Ring issue, that his indictment was void because it failed to include in the indictment the aggravating circumstances the State intended to prove. In Poole v. State, 846 So.2d 370 (Ala.Crim. App. 2001), we held that, although Apprendi required that the facts that increased a sentence above the statutory maximum must be submitted to a jury, those facts did not have to be alleged in the indictment. Recently, the Alabama Supreme Court adopted our holding in Poole. See Hale v. State, 848 So.2d 224 (Ala. 2002).

"Also, the holdings in Poole and Hale are consistent with prior caselaw, which holds that aggravating circumstances do not have to be alleged in the indictment. See Ex parte Lewis, 811 So.2d 485 (Ala. 2001), and Dobard v. State, 435 So.2d 1338 (Ala.Crim.App. 1982). Stallworth's argument is not supported by Alabama law."

(Footnote omitted.) Accordingly, the appellant's argument is without merit.

II.

The appellant's second argument is that the trial court erred in admitting the audiotape of the conversation between the appellant and Baker into evidence.

A.

First, the appellant contends that

"[t]he State did not authenticate the tape with the testimony of either party to it. Instead, the State went forward with ... only the testimony of Sgt. Johnson, who claimed to have monitored the conversation from his patrol unit at a distance from the trailer occupied by Donald Doss and Brandyn Benjamin (R466-8). Since Sgt. Johnson was not in the trailer, seeing and hearing the speakers, he could not meet either test for the admissibility of such recordings."

(Appellant's brief at p. 46.)

"The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(a), Ala. R. Evid.

"Sound recordings are admissible `"when a witness testifies they are a reliable representation of the subject sound."' Jackson v. State, 594 So.2d 1289, 1296 (Ala.Cr.App. 1991). See also Ross v. State, 555 So.2d 1179, 1182 (Ala. Cr.App.1989)."

Paige v. State, 621 So.2d 372, 372 (Ala. Crim.App.1993).

"`[W]hen a qualified and competent witness can testify that the sound recording ... accurately and reliably represents what the witness sensed at the time in question, then the foundation required is that for the "pictorial communication" theory. Under this theory, the party offering the item must present sufficient evidence to meet the "reliable representation" standard, that is, the witness must testify that the witness has sufficient personal knowledge of the scene or events pictured or the sounds recorded and that the item offered accurately and reliably represents the actual scene or sounds.'

"Ex parte Fuller, 620 So.2d 675, 678 (Ala. 1993)."

Bates v. State, 669 So.2d 232, 234 (Ala. Crim.App.1995).

"`Although the witness authenticating the recording may be a party to the conversation or someone who overheard it, the witness authenticating a tape-recorded conversation as to identification is not required to be someone who either participated in or personally overheard the subject matter of the recording.

"`In determining whether there is a sufficient showing of accuracy to warrant the admissibility of tape recordings, the governing standard is whether the possibility of misidentification and adulteration is eliminated, not absolutely, but as a matter of reasonable probability, and the trial judge has broad discretion in determining whether the foundation requirements for admissibility are satisfied....'

"23 C.J.S. Criminal Law § 1046(b) at 325 (1989) (footnotes omitted)."

Paige, 621 So.2d at 373. In fact, a witness who listened to a recorded conversation from a remote location may testify as to the recording's authenticity. See Bates, 669 So.2d at 234 (holding that a tape-recorded drug transaction between the appellant and an undercover law enforcement investigator was properly admitted when another law enforcement officer who had monitored and recorded the transaction from a remote location testified that the recording "`fairly and accurately portray[ed]'" the conversation he heard); Paige, supra (holding that a tape-recorded drug transaction between the appellant and informants working for law enforcement authorities was properly admitted when a law enforcement officer who had not seen the transaction but who had listened to and recorded it from a remote location testified that it correctly and accurately reflected the conversation).

Further, one method for authentication or identification is "[i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." Rule 901(b)(5), Ala. R. Evid. Finally,

"`[t]he general rule that a witness may not identify an accused by recognition of his voice, unless he has some basis for...