Clemons v. State

• Decision Date: 20 December 1996
• Docket Number: CR-94-0270
• Citation: 720 So.2d 961
• Parties: Eugene Milton CLEMONS II v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 961

720 So.2d 961

Eugene Milton CLEMONS II v. STATE.

CR-94-0270.

Court of Criminal Appeals of Alabama.

Dec. 20, 1996.

Rehearing Denied Jan. 17, 1997.

William Mathews, Pelham, for appellant.

Jeff Sessions and Bill Pryor, attys. gen., and Tracy Daniel, asst. atty. gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Eugene Milton Clemons II, was charged with two counts of murder made capital because the victim was a law enforcement officer who was killed in the line of duty and the murder occurred during the course of a robbery. See §§ 13A-5-40(a)(5) and 13A-5-40(a)(2), Code of Alabama 1975. The appellant was convicted of the capital offense of murder during the course of a robbery. § 13A-5-40(a)(2). The jury unanimously recommended that the appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

The state's evidence tended to show that on May 28, 1992, Douglas Althouse, a special agent with the Drug Enforcement Administration (D.E.A.), was shot and killed while the appellant and his codefendant stole the automobile in which he was a passenger. Dr. Joseph Embry, state medical examiner, testified that Althouse was shot twice and that the fatal bullet entered the left side of his chest and passed through his heart.

Naylor Braswell of the Jefferson County Sheriff's Department testified that the victim and he were sharing an apartment at the time of the murder. Braswell testified that on May 28 at approximately 10:00 p.m., he and Althouse left the apartment in Braswell's black Camaro automobile, to meet a narcotics officer. Braswell pulled into a service station/convenience store to borrow the telephone book to make a call on his cellular telephone. While he was in the store he noticed that a stocky black male had gotten into his car and was sitting behind the steering wheel, armed with a revolver. At trial, Braswell testified that the appellant looked like the man he saw in his car. He heard two muffled shots, saw Althouse dive out of the car, and saw Althouse shooting at the car. He ran out to Althouse as he collapsed from his injuries. Braswell testified that a bulletproof vest and a shotgun were in the trunk of the car when it was stolen.

Kenny Reed testified that he was at Herman Shannon's house on May 28 when Dedrick Smith stopped by and asked Reed to pick up the appellant to go get "a car." He testified that they picked up the appellant and drove to an area near a service station where the appellant got out of the car. Reed stated that he heard several shots, that there was a break in the shooting, followed by several more shots. The appellant then drove off in a black Camaro automobile and later went to Shannon's house. When Reed arrived at Shannon's house, the appellant said that no one better "open their mouths" because he had just killed a D.E.A. man. He further testified that the week before the murder, the appellant had told him that his car needed a new motor.

Early the next morning following the murder, the stolen Camaro was discovered near Shannon's house. The shotgun in the trunk of the car was recovered on the side of the road near the appellant's house.

Clemons was arrested by Federal Bureau of Investigation (F.B.I.) agents in Cleveland, Ohio. Michael Clemons, the appellant's uncle, who lived in Cleveland, testified that the appellant's sister telephoned him and told him that the appellant would be coming to his house. Michael Clemons testified that he met with the appellant's father and they subsequently met and talked with the appellant. Michael Clemons further stated that the appellant said that he had to shoot a police officer because the officer was trying to kill him and that he had to steal the car to get away.

The appellant raises numerous issues on appeal, some of which have not been preserved by way of objection. Because the appellant was sentenced to death, this court is obliged by Rule 45A, Ala.R.App.P., to search the record for any error that adversely affected the appellant's substantial rights.

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."

Thus, even if no objection was made at trial, this court will review the issue under the plain error doctrine. "While the fact that no objection was made will not preclude review in a case where the appellant has been sentenced to death, it will weigh against any claim of prejudice." Williams v. State, 601 So.2d 1062, 1072 (Ala.Cr.App.1991), aff'd, 662 So.2d 929, (Ala.), cert. denied, 506 U.S. 957, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992). See also Dill v. State, 600 So.2d 343 (Ala.Cr.App.1991), aff'd, 600 So.2d 372, (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

I

Initially, the appellant contends that the trial court erred in denying his motion to dismiss the charges against him because, he says, his constitutional protection against being tried twice for the same offense was violated. The appellant was tried and convicted in federal court for the murder of Althouse. He contends that he was subjected to double jeopardy when he was tried and convicted in the State of Alabama for the same murder.

Article I, § 9, of the Alabama Constitution of 1901 states:

"That no person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury."

Amendment V of the Constitution of the United States states:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The United States Supreme Court resolved this issue in Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). The United States Supreme Court, applying the "dual sovereignty" doctrine, stated the following:

"The sole remaining question upon which we granted certiorari is whether the dual sovereignty doctrine permits successive prosecutions under the laws of different States which otherwise would be held to 'subject [the defendant] for the same offense to be twice put in jeopardy.' U.S. Const., Amdt. 5. Although we have not previously so held, we believe the answer to this query is inescapable. The dual sovereignty doctrine, as originally articulated and consistently applied by this Court, compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause.

"The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the 'peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.' United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852), '[a]n offence, in its legal signification, means the transgression of a law.' Consequently, when the same act transgresses the laws of two sovereigns, 'it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.' Id, at 20.

"In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entitles that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power. See, e.g., United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 1084, 55 L.Ed.2d 303 (1978); Waller v. Florida, 397 U.S. 387, 393, 90 S.Ct. 1184, 1187, 25 L.Ed.2d 435 (1970); Puerto Rico v. Shell Co., 302 U.S. 253, 264-265, 58 S.Ct. 167, 172-73, 82 L.Ed. 235 (1937); Lanza, supra, 260 U.S., at 382, 43 S.Ct., at 142; Grafton v. United States, 206 U.S. 333, 354-355, 27 S.Ct. 749, 755, 51 L.Ed. 1084 (1907). Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own 'inherent sovereignty,' not from the Federal Government. Wheeler, supra, at 320, n. 14, 98 S.Ct., at 1084, n. 14. See Abbate v. United States, 359 U.S. 187, 193-194 [79 S.Ct. 666, 669-70, 3 L.Ed.2d 729] (1959) (collecting cases); Lanza, supra. As stated in Lanza, supra, 260 U.S., at 382 :

" '[E]ach government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.

" 'It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.'

"See also Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Westfall v. United...