Brown v. State

• Decision Date: 29 June 2007
• Docket Number: CR-04-0293.
• Citation: 11 So.3d 866
• Parties: Michael BROWN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

11 So.3d 866

Michael BROWN v. STATE of Alabama.

CR-04-0293.

Court of Criminal Appeals of Alabama.

June 29, 2007.

Rehearing Denied August 17, 2008.

Angela L. Setzer and Bryan A. Stevenson, Montgomery, for appellant.

Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for appellee.

WISE, Judge.

The appellant, Michael Brown, was convicted of murdering Betty Kirkpatrick during the course of committing a robbery and a burglary, offenses defined as capital by §§ 13A-5-40(a)(2) and 13A-5-40(a)(4), Ala.Code 1975. The jury, by a vote of 11 to 1, recommended that Brown be sentenced to death. The circuit court followed the jury's recommendation and sentenced Brown to death. This appeal followed.

The State's evidence tended to show the following. On October 12, 2001, Ricky Kirkpatrick and his wife discovered the body of his 65-year-old mother, Betty Kirkpatrick, in her mobile home in Hueytown. Her head was covered with a plastic bag and her throat had been cut. A knife and a paper towel were lying on her chest. Betty Kirkpatrick's purse and her gold 1986 Ford Thunderbird automobile were missing. The forensic pathologist testified that Betty Kirkpatrick died of "asphyxia by strangulation and smothering." (R. 431.) She also had bruises on her face and hands that, he said, were caused by blunt-force trauma.

Several witnesses testified that they saw Brown driving a gold Thunderbird around the time of the murder. Alisha Spindlow testified that she saw Brown driving a gold Thunderbird and that he told her that he had killed Betty Kirkpatrick. Another individual, Kevin Clayton, testified that he saw Brown two days after the murder, that he was driving a gold Thunderbird, and that he told him that he got the car from a lady and the car would not be "hot" until the lady's body was discovered. Kelly Watkins said that Brown was driving a gold Thunderbird around the time of the murder and that he told her that he had killed the lady who owned it. Watkins said that Brown told her that he had tried to choke the victim but she would not die so he cut her throat with a knife he got from the kitchen of her house.

Forensic tests were also conducted on the bloodstains found on the paper towel discovered on Betty Kirkpatrick's chest. Carl Mauterer, a forensic scientist with the Alabama Department of Forensic Sciences, testified that one stain was tested and found to be consistent with Brown's blood—Brown could not be excluded as the donor.

Detective Charles Hagler also testified that Brown told him that he went to Betty Kirkpatrick's mobile home with three other individuals, Robert Smith, Kevin Clayton (who testified at Brown's trial), and Moses Smiley, to rob Betty Kirkpatrick but that Robert Smith killed Kirkpatrick.

The jury found Brown guilty of the two capital offenses charged in the indictment. A separate sentencing hearing was held. See § 13A-5-46, Ala.Code 1975. The jury recommended, by a vote of 11 to 1, that Brown be sentenced to death. A presentence report was then prepared as required by § 13A-5-47, Ala.Code 1975, and the circuit court held a separate sentencing hearing. After hearing testimony the circuit court sentenced Brown to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-53, Ala.Code 1975.

Standard of Review

Brown has been sentenced to death. According to Rule 45A, Ala.R.App.P., this Court must review the record of the trial proceedings for "plain error." Rule 45A, Ala.R.App.P., 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."

In describing this 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).'"

Smith v. State, 795 So.2d 788, 797-98 (Ala. Crim.App.2000), quoting Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999).

The majority of the issues raised on appeal were never brought to the circuit court's attention. The "failure to object at trial does not bar our review of these issues; however, it does weigh against any claim of prejudice he now makes on appeal." Brooks v. State, 973 So.2d 380, 387 (Ala.Crim.App.2006) (opinion on application for rehearing).

Guilt-Phase Issues

I.

Brown argues that his trial counsel, Franklin Neumann, had a conflict of interest because Neumann had previously prosecuted a case against Brown and that previous conviction was used as an aggravating circumstance to support the death sentence in this case. He asserts that as a result of the conflict, Neumann's performance was deficient.

When this matter was brought to the circuit court's attention, Brown stated on the record that he waived any conflict. Thus, Brown invited any error. "`Invited error has been applied to death penalty cases. "An invited error is waived, unless it rises to the level of plain error." Ex parte Bankhead, 585 So.2d 112, 126 (Ala. 1991).'" Scott v. State, 937 So.2d 1065, 1075 (Ala.Crim.App.2005), quoting Adams v. State, 955 So.2d 1037, 1050-1051 (Ala. Crim.App.2003). Accordingly, we review this claim for plain error. See Rule 45A, Ala.R.App.P.

The following occurred when this matter was discussed at a pretrial hearing:

"The Court: All right. This is CC-02-348, the State v. Michael Lee Brown.

"[Defense counsel]: Judge, in fine tuning some things yesterday and last night, I ran across the aggravating circumstances that the State had provided us. And I happened to check the case numbers themselves, and I found one of the cases that was disposed of in Judge Pearson's court in 1994. And I happened to look at it and I noticed that the prosecutor's name on it was me. And so, I don't—I didn't remember Michael, and Michael had never brought it up to me, and I don't know—I couldn't remember whether I had ever discovered it earlier and talked about it with Michael, but at any rate, I informed [the prosecutors] this morning about it. And then I talked to Michael about it. And Michael has an independent recollection, which I don't, that he recalls that I was not the prosecutor in the case; is that right, Michael?

"The Defendant: Yes, sir.

"[Defense counsel]: There was somebody he said was much younger than me. So anyway, I find that to be understandable since during that time while I was in Judge Pearson's court, cases were assigned to a specific DA, and it would not be uncommon for someone else to handle someone else's cases if it were a plea of guilty, which it was. He was represented by Ron Harris, and there was a plea of guilty on the case; isn't that right, Michael?

"The Defendant: Yes, sir; yes, sir.

"[Defense counsel]: As I said, I did inform you of that and we discussed it this morning, and you told me that I wasn't the prosecutor. And I said I don't remember ever seeing you before until being appointed on this case. And so with that in mind, I am sure you don't have any objection to continuing on the case. We never dealt—

"The Defendant: No, sir.

"[Defense counsel]: And I just want to let the Court know that.

"The Court: It appears from [defense counsel's] lack of recollection and your independent recollection that there is no conflict, but if any conflicts exist, you, at this time, wish to waive that; is that correct?

"The Defendant: Yes, ma'am."

(R. 6-7.)

The record shows that in 1995 Brown pleaded guilty to attempted rape in the first degree. The case-action-summary sheet for that case lists another assistant district attorney as the prosecutor who was present at the guilty-plea hearing. (Supp. R. 72.) The court suspended Brown's sentence and placed him on probation. In 1997, Brown was charged with violating the terms of his probation. The first page of the case-action-summary sheet for the probation-revocation proceeding lists Franklin Neumann as the assistant district attorney who prosecuted that violation. The remainder of the case-action-summary sheet for the probation revocation is not in the record; therefore, we do not know if Neumann was the assistant district attorney present during the hearing on Brown's probation revocation. However, the record does show that Neumann did not prosecute Brown on the attempted-rape charge.

In Brownlee v. State, 666 So.2d 91 (Ala. Crim.App.1995), we addressed a similar issue and stated:

"The appellant argues that one of his defense attorneys had a conflict of interest because that attorney was shown as the prosecutor on the case action summaries used to prove the appellant's felony convictions in 1979 and 1980. He argues that that conflict rendered the appellant's counsel ineffective.

"During the appellant's trial, defense counsel Burton Dunn noticed that he was named as the prosecutor in the cases resulting in the appellant's prior felony convictions. This fact was brought to the attention...