Blackmon v. State

• Decision Date: 05 August 2005
• Docket Number: CR-01-2126.
• Citation: 7 So.3d 397
• Court: Alabama Court of Criminal Appeals
• Parties: Patricia BLACKMON v. STATE of Alabama.

7 So.3d 397

Patricia BLACKMON v. STATE of Alabama.

CR-01-2126.

Court of Criminal Appeals of Alabama.

August 5, 2005.

Opinion Overruling Rehearing August 25, 2006.

Certiorari Denied October 17, 2008 Alabama Supreme Court 1051723.

Brief on original submission filed by Clark Maurice Parker, Dothan, for appellant.

Michael Crespi, Dothan, and Bryan Stevenson, Montgomery, for appellant on application for rehearing.

William H. Pryor, Jr., and Troy King, attys. gen., and Bill Lisenby, Jr., deputy atty. gen., and Stephen Shows, asst. atty. gen., for appellee.

William H. Pryor, Jr., and Troy King, attys. gen., and Bill Lisenby, Jr., deputy atty. gen., and Stephen Shows and Cheryl Ann Schuetze, asst. attys. gen., for appellee on application for rehearing.

McMILLAN, Presiding Judge.

The appellant, Patricia Blackmon, was convicted of capital murder in the beating death of her 28-month old daughter, Dominiqua. See § 13A-5-40(a)(15), Ala.Code 1975, which makes capital the intentional murder of a child under 14 years of age. The jury, by a vote of 10 to 2, recommended that Blackmon be sentenced to death. The circuit court followed the jury's recommendation and sentenced Blackmon to death. This appeal followed.

The State's evidence tended to show that on May 29, 1999, Blackmon telephoned emergency 911 to summons paramedics to her mobile home in Dothan. She told the 911 operator that her child was not breathing. Eddie Smith, a paramedic in Dothan, testified that he arrived at Blackmon's mobile home at around 9:30 p.m. and that he found Dominiqua lying on the floor of the master bedroom—she was wearing only a diaper and blood-soaked socks, was covered in vomit, and was not breathing. There was a hematoma on her forehead and blood on her chest. After the paramedics attempted to revive her, she was transported to Flowers Hospital Emergency Room.

Dr. Matthew Krista testified that he treated Dominiqua when she was brought to the emergency room. He said that he first established an airway but that at 10:22 p.m. she was pronounced dead. Dominiqua's pediatrician, Dr. Robert Head, was also called to the emergency room. Both doctors testified that the child had multiple bruises and contusions and an imprint of the sole of a shoe on her chest.¹ They also said that they observed marks from previous injuries on her body.

Dr. Alfredo Parades, the medical examiner who conducted the autopsy, testified that Dominiqua died of multiple blunt-force injuries to her head, chest, abdomen, and extremities—he detailed some 30 injuries that he discovered on the child's body. Dr. Parades testified:

"She has bruises in the front part of the lower chest and upper abdomen. Bruises around the right groin. She has a fracture, this is the fracture of the leg. And, on her side, she has bruises on the left temporal area above the ear. She has bruises on ... the ear on the left. She had a bruise on the right cheek area. She had a bruise on the side of the heel and foot area. Then on the back, she had multiple bruises on the lower back, bilaterally. That is both sides. Bruises of the buttocks, bruises behind the knee area and below the knee area. And in addition to that, she had numerous linear, what I describe as in parallel, like a train tack. There were numerous injuries with a pale area in between ... the left buttock area."

(R. 873.) Parades also said that Dominiqua had two broken bones and many other injuries that were in various stages of healing. Parades also described many internal injuries. He said that Dominiqua also had an imprint of the sole of a shoe on her chest.

Dr. James Downs, chief medical examiner for the State of Alabama, testified that he compared the sandals Blackmon was wearing on the day of the murder with the scanned image of the victim's chest, and it was his opinion that the imprint on Dominiqua's chest was consistent with the sole of the sandals. Downs also testified that it was his opinion that Dominiqua's recent injuries were consistent with having been made by a pool cue.

There was testimony indicating that Blackmon had adopted Dominiqua approximately nine months before she was killed. Testimony also showed that Blackmon had sole charge of the child from the time her father-in-law saw the two of them earlier on the evening of the murder until the time of the child's death. Wayne Johnson, Blackmon's father-in-law, testified that on the night Dominiqua was killed he saw Dominiqua and she was playing and acting normal. He said that Blackmon and Dominiqua left his house at around 8:00 p.m.

A search of Blackmon's mobile home revealed several blood-splattered items. Forensic tests revealed the presence of blood on a broken pool cue, a child's T-shirt, a pink flat bed sheet, a quilt, and two napkins. The blood matched Dominiqua's blood.

Blackmon called several witnesses to testify in her defense. Judy Whatley, an employee of the Department of Human Resources, said that she had had contact with Dominiqua and Blackmon once a month for five months before August 1998 and that she noticed that the two had a good relationship. Tammy Freeman, Blackmon's neighbor, testified that she frequently left her children with Blackmon.

The jury convicted Blackmon of capital murder. A separate sentencing hearing was held, at which the State relied on the aggravating circumstance that the murder was especially heinous, atrocious, or cruel to support a death sentence. After the sentencing hearing the jury, by a vote of 10 to 2, recommended that Blackmon be sentenced to death. The circuit court held a separate sentencing hearing after the presentence report was prepared. The circuit court sentenced Blackmon to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-55, Ala.Code 1975.

Standard of Review

Blackmon has been sentenced to death. According to Rule 45A, Ala.R.App.P., this Court must review this case for plain error. Rule 45A states:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

When discussing the application of the plain-error standard of review, this Court has stated:

"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993)."

Hall v. State, 820 So.2d 113, 121-22 (Ala. Crim.App.1999), aff'd, 820 So.2d 152 (Ala. 2001), cert. denied, 535 U.S. 1080, 122 S.Ct. 1966, 152 L.Ed.2d 1025 (2002). While the failure to object will not preclude our review, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992).

I.

Blackmon argues that the circuit court erred in denying her motion requesting discovery of the transcript of the grand-jury proceedings. Specifically, she argues that, because she was indicted for capital murder, she had a "special" need to review the grand-jury proceedings.

Blackmon was indicted for capital murder in August 1999. In March 2001, Blackmon moved that she be allowed discovery of the transcript, exhibits, and any other memorialization of the grand jury proceedings. The motion listed only one ground in support of the discovery of this evidence—that Blackmon had been indicted for capital murder.

Alabama has long protected the secrecy of grand-jury proceedings. See § 12-16-214, Ala.Code 1975. "The long time rule, sanctioned by our courts, is that the proceedings before a grand jury are essentially secret." Steward v. State, 55 Ala.App. 238, 240, 314 So.2d 313, 315 (Ala. Crim.App.1975). However, a defendant may be allowed to inspect grand-jury proceedings if the defendant meets the threshold test of showing a "particularized need" for breaching the secrecy of those proceedings. As this Court stated in Millican v. State, 423 So.2d 268 (Ala.Crim. App.1982):

"Before a defendant is allowed to inspect a transcript of a State's witness who testified before the grand jury or before a trial judge should conduct an in camera inspection of such testimony, see Palermo [v. United States, 360 U.S. 343 (1959),] and Pate [v. State, 415 So.2d 1140 (Ala.1981)], the defendant should at least and at a very minimum make some offer of proof (1) that the matters contained in the witness' grand jury testimony were relevant to the subject matter of the prosecution; (2) and that there exists an inconsistency between grand jury testimony and trial testimony. Unless defense counsel is merely going on a fishing expedition, he will have some information as to the particular inconsistency in the defendant's testimony. In this case no such showing was made and the existence of any inconsistency between the witness' trial and grand jury testimony was never even alleged. Cooks [v. State, 50 Ala. App. 49, 276 So.2d 634 (Ala.Crim.App. 1973)]. Also, there was no showing that the witness' grand jury...