Brown V. State Of Ala. Appeal From Talladega Circuit Court (CC-01-290), CR-07-1332

CourtAlabama Court of Criminal Appeals
Writing for the CourtWISE, Presiding.
PartiesWakilii Brown v. State of Alabama Appeal from Talladega Circuit Court (CC-01-290)
Docket NumberCR-07-1332
Decision Date25 June 2010

Wakilii Brown
State of Alabama Appeal from Talladega Circuit Court (CC-01-290)


Alabama Court Of Criminal Appeals

REL: 06/25/2010

OCTOBER TERM, 2009-2010

WISE, Presiding Judge.

The appellant, Wakilii Brown, was convicted of three counts of capital murder for the killings of Dotty Jemison ("Dotty") and Cherea Jemison ("Cherea"). Count I charged him with murder made capital because he killed Dotty and Cherea

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pursuant to one scheme or course of conduct, see § 13A-5-40(a) (10), Ala. Code 1975; Count II charged him with the robbery-murder of Dotty, see § 13A-5-40 (a) (2), Ala. Code 1975; and Count III charged him with the robbery-murder of Cherea, see § 13A-5-40 (a) (2), Ala. Code 1975. After a sentencing hearing, 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 Brown to death. Brown filed a "Motion for New Trial and/or Reconsideration of Sentence," which the trial court denied after conducting a hearing. This appeal followed.

Because this is a case in which the death penalty has been imposed, we have reviewed the record for plain error. See Rule 45A, Ala. R. App. P. Although the lack of an objection at trial will not bar our review of an issue in a case involving the death penalty, it will weigh against any claim of prejudice Brown 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."

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"[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 n.14 (1982)).

The following summary of the relevant facts, as prepared by the trial court, may be helpful to an understanding of this case:

"The defendant was indicted, tried and convicted for the capital offense of Capital Murder wherein two or more persons are murdered by the defendant pursuant to one scheme or course of conduct as provided in Section 13A-5-40(a)(10) of the Code of Alabama; the capital offense of Murder, Robbery 1st Degree by the defendant of Dotty Jemison as provided in Section 13A-5-40 (a) (2) of the Code of Alabama; and the capital offense of Murder, Robbery 1st Degree by the defendant of Cherea Jemison as provided in Section 13A-5-40(a) (2) of the Code of Alabama. The victims of Count 1 were Dotty Jemison and Cherea Jemison; the victim of Count 2 was Dotty Jemison; and the victim of Count 3 was Cherea Jemison. The sole perpetrator of these capital offenses was the defendant, Wakilii Brown. The facts leading up to the commission of these crimes are as follows:

"Dotty Jemison lived at 449 Marion Avenue in the Pinecrest area of Sylacauga. Sometime in 2000, Cherea Jemison, Dotty's daughter, moved in with

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Dotty Jemison. Cherea was accompanied by her three children, [F.S.], [T.S.] and [K.S.]1 Sometime in the Fall of 2000, the Defendant also moved in with Dotty Jemison. The defendant had a dating relationship with Cherea Jemison and was the father of [T.S. and K. S.]

"On Friday, March 9, 2001, the defendant did some work with Michael Pope. Michael Pope and Aletha Pope, Michael's wife, paid him for work done and gave him a ride to another location. That was the last time that Michael Pope saw the defendant.

"Saturday, March 10, 2001, was Cherea Jemison's birthday. Family members tried to call the residence at 449 Marion but there was no answer.

"On the same day, the defendant went to the Alabama Trust Bank in Sylacauga to cash a check on Dotty Jemison's account. The teller, Aletha Pope, told him that she could not cash it because it was on an account on First Federal Bank. The defendant left and came back. He then wanted to cash a check from Cherea Jemison's account (State's Exhibit #38 is the check from Cherea's account, dated 3/10/01 for $200). The defendant told Aletha Pope that the baby, [K.S.], was sick and had an upper respiratory problem and was at Children's Hospital in Birmingham. Roxanne Womack, an employee of Children's Hospital in Birmingham, testified that they had no record of a [K.S.] in March of 2001.

"On the same date, a check from the account of Dotty Jemison was cashed by Jennifer Weed, a teller at First Federal Bank. The check was sent from the third drive-through lane, at First Federal Bank in Sylacauga by a black male driving a blue car.

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(State's Exhibit #42 is a check for $200 on Dotty's account)

"On Sunday, March 11, 2001, neither Dotty Jemison or Cherea Jemison was at church services at the Rising Star Church in Sylacauga. The pastor and family tried to call the residence at 449 Marion, but did not get an answer.

"On the same date, an anonymous call was placed to Sylacauga Police Department at 5:31 p.m. stating that there was a problem at 449 Marion Ave. Officer Doug Kemp was dispatched to 449 Marion Avenue for a welfare check. No one answered the door and he left the residence. Later that night, at 9:36 p.m., a second caller identified himself as Mr. Adam Murrell and stated that there could be dead bodies in the house. Police officers were again dispatched to 449 Marion Ave. Investigator Mike Smith of Sylacauga Police Department made entrance into the residence through a window and found two bodies. One body of a black female was found in an unlocked bedroom covered with two blankets. She appeared to be dead. The second body was found in a locked bedroom. It was a black female whose ankles and wrists were bound with duct tape and green tape.

"Rozell Lohman, from the Alabama Department of Forensic Sciences, testified that a latent print of value has 9 points or better. He identified the latent prints on inside of a cardboard cylinder that was found next to the body of Dotty Jemison. Latent #1 is the left thumb of the defendant. Latent #2 is the left index finger of the defendant. No other latents of value were found.

"Dr. Joseph Embry of the Birmingham Department of Forensic Sciences preformed the autopsies of Cherea Jemison and Dotty Jemison. He testified that Cherea Jemison had a wound in the midline of her face, lacerations deep to the bone, fractured nasal bones and blood under the skin of her eye lid. She

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also had a laceration in her left ear. Her head was shaved to observe her other wounds. State's Exhibit #4 shows the right side of her head and depicts 10 lacerations in her scalp, above her right ear, back of her head and upper part of her right ear. Dr. Embry testified that the lacerations appear to be caused by a blunt object. State's Exhibit #5 shows the upper right side of her head and lacerations to the top of her head. State's Exhibit #11 shows two lacerations behind her left ear, which overlies a large basal skull fracture. There were defensive wounds on her hands, suffered from defending off blows. State's Exhibit #14 shows blue bruising and swelling in the ring and little finger of her left hand. Dr. Embry testified that the rigor indicated that it was thirty-six to forty-eight hours after death. The rigor was consistent in Dotty and Cherea Jemison.

"Dr. Embry also testified that Dotty Jemison was bound at the ankles, wrists and was gagged with silver duct tape. There was also green tape on her ankles. State's Exhibit #27 depicts four lacerations to the right side of Dotty Jamison's head and behind her right ear. There was a pattern injury on the top front of Dotty Jemison's head that was consistent with the claw end of a hammer. State's Exhibit #21 depicts the right ring finger was completely fractured. State's exhibit #23 shows bruising and swelling between the thumb and forefinger. Dr. Embry testified that Dotty Jemison died as a result of blunt force trauma to the head and that the wounds to Dotty Jemison and Cherea Jemison are similar.

"On Monday, March 12, 2008, a stand off began with the defendant and the Cleveland Crisis Intervention team. Sgt. Larry Hughes testified that he was the Assistant to the Commander of the Crisis Intervention Team in Cleveland, Ohio and that the defendant was barricaded in 405 East 152nd Street in Cleveland. The stand off with the police lasted for

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over 24 hours and the defendant only surrendered after being gassed with several canisters of a chemical agent. Sgt. Hughes testified that he was aware of the BOLO for a blue Mazda 626, which was the property of Cherea Jemison and that it was located within close proximity to the barricaded residence. (State's Exhibit 21) This was the same blue Mazda 62 6 automobile that was given to Cherea Jemison by Reverend Henry Sanders.

"[T.S.], [F.S.], and [K.S.], the children of Cherea Jemison, were taken from the defendant's mother's residence in Cleveland, Ohio and placed in the custody of social services. At the trial of this case, [T.S.] testified that in 2001 she was four years of age and lived with her mom, Cherea, Wakilii, [T.S.], [F.S.] and Ambo (Dotty Jemison). [T.S.] testified that she called the defendant dad when he wasn't fussing and Wakilii when he was fussing. She testified that the last time she saw her Mom, Cherea Jemison, was in the hallway of their home. [T.S.] testified that Cherea was in the hallway fussing with the defendant and that is what woke [T.S.] up. Her two brothers, [F.S.] and [K.S.], were asleep. [T.S.] looked out of her bedroom door and saw her

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