Daniel v. State

• Decision Date: 28 May 2004
• Citation: 906 So.2d 991
• Parties: Renard Marcel DANIEL v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

906 So.2d 991

Renard Marcel DANIEL v. STATE of Alabama.

CR-02-1542.

Court of Criminal Appeals of Alabama.

May 28, 2004.

Opinion on Return to Remand August 27, 2004.

Rehearing Denied October 22, 2004.

Certiorari Denied February 18, 2005

James M. Kendrick, Birmingham, for appellant.

William H. Pryor, Jr., and Troy King, attys. gen., and Anne C. Adams, asst. atty. gen., for appellee.

Alabama Supreme Court 1040204.

BASCHAB, Judge.

The appellant, Renard Marcel Daniel, was convicted of capital murder for the killings of Loretta A. McCulloch and John Wesley Brodie. The murders were made capital because the appellant committed them by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), 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 the trial court denied after conducting a hearing. This appeal followed.

The appellant raises some issues 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)).

The evidence showed that, in September 2001, the victims, Loretta McCulloch and John Brodie, had been dating for approximately five years and were preparing to move into an apartment together. The appellant lived in one of the other apartments, and George Jackson lived in another of the apartments.

Jackson testified that, on the evening of September 26, 2001, he went to the appellant's apartment, and they drank some beer and smoked a marijuana cigarette. That afternoon, they had seen the victims moving into the apartment next to the appellant's. Around 10:30 p.m., they decided to go next door and introduce themselves. At that time, the victims appeared to be very drunk.

The four played cards for a few minutes. At some point, Brodie used the words "brother" and "nigger" while talking to the appellant, and the appellant became upset and "started raising Cain." (R. 198-99.) The victims both apologized, and Jackson tried to calm the appellant by telling him that the victims were drunk and did not mean anything. The argument continued for 5 to 10 minutes, and the victims asked the appellant and Jackson to leave. During the argument, the appellant pulled out a handgun and had it by his side, and McCulloch tried to get it from him and continued to tell them to leave.

Jackson testified that he and the appellant walked out of the apartment, that the appellant asked him for a cigarette, that he said the cigarettes must still be in the victims' apartment, and that McCulloch started holding the cigarettes and taunting the appellant with them. When McCulloch refused to give them to him, the appellant pulled the handgun up and said, "`Bitch, if you don't give me my cigarettes, I'm going to kill you.'" (R. 204.) Jackson tried to convince the appellant to leave, but the appellant refused. Jackson testified that he then went to the appellant's apartment to get his coat and keys; that, as he was leaving the apartment, he saw the appellant standing on the bottom steps to the victims' apartment shooting into the doorway; that he heard four gunshots and saw fire coming out of the end of the handgun; and that the handgun looked like a .45 or a .380. The appellant then ran into his apartment, and Jackson went to his apartment. After he got to his apartment, Jackson heard McCulloch "hollering, `Are you all right? Are you all right,'" and he then heard two more gunshots. (R. 208.) Subsequently, the appellant went to Jackson's apartment and said, "`George, I told you I'm a killer.'" (R. 248.)

Around 7:00 a.m. the next day, Jackson saw the appellant and said, "`Renard, please tell me you ain't killed those folks last night.'" (R. 210.) The appellant indicated that he had and that their bodies were in the doorway. He also "flashed" some bloody bullet cartridges and threw them into the garbage dumpster. (R. 210.) Thereafter, Jackson told his mother and stepfather about the incident, and his stepfather reported the incident to law enforcement authorities.

Julie Farrow lived in the same apartment complex as the appellant, Jackson, and the victims. She testified that, between 10:45 p.m. and 11:00 p.m. on September 26, 2001, while she was taking her dog for a walk, she heard four gunshots in rapid succession. A few minutes later, she heard "a couple or three more" gunshots. (R. 295.) On cross-examination, she admitted that she had told law enforcement officers that the first gunshots were loud and that the subsequent gunshots sounded like they had come from a different firearm because they were not as loud.

K.V. Hill testified that his son was in the business of renting apartments, including those in the apartment complex where the appellant lived, and that he had hired the appellant to work for his son's business. He also testified that the appellant called him around 7:30 p.m. or 8:00 p.m. on September 26, 2001, to request an advance on his pay; that he refused the request; that the appellant called again between 10:30 p.m. and 11:30 p.m. and requested money; and that he agreed to let the appellant come by and get money because he said he did not have any food. After he arrived, the appellant talked for a while and asked if he could sit for a while after Hill went to bed because he did not have a jacket, but he never asked for money. Finally, Hill identified a vehicle that the appellant had had towed to the apartments when he moved in.

James Logan, an evidence technician with the Birmingham Police Department, testified that, on September 27, 2001, he and other officers entered the victims' apartment and secured the scene. At that time, the victims were on the kitchen floor just inside of the door and there were footprints in what appeared to be blood on the kitchen floor. Logan testified that he collected eight shell casings, seven spent projectiles, one live round, beer cans and bottles, and two shoe impressions from inside of the apartment. Four of the spent projectiles were in the wall, and two were in the floor where the victims were. He also testified that it appeared that three of the projectiles that were in the wall had been fired by someone who was on the steps or the ground outside of the apartment door. He further testified that they found two shell casings outside of the victims' apartment; one shell casing in the dumpster to which Jackson referred; and a pair of tennis shoes in the trunk of the vehicle the appellant had had towed to the apartments. The tennis shoes were the same size as two other pairs of shoes officers found in the appellant's apartment.

Forensic testing revealed that the shoe impressions officers recovered were made by tennis shoes that were the same size and pattern as the tennis shoes officers retrieved from the trunk of the vehicle the appellant had had towed to the apartments. Also, DNA testing showed that blood on the right tennis shoe matched McCulloch's DNA profile. Finally, firearms and toolmarks testing showed that the projectiles and shell casings were fired from the same firearm and that that firearm was probably a .380 semiautomatic.

Autopsies revealed that the victims sustained several gunshot wounds and that they died as a result of those wounds. Brodie had a gunshot wound to the head that was made from a distance of three inches to three feet, and McCulloch had a contact gunshot wound to the head. Testing showed that Brodie's blood alcohol content was .32 and McCulloch's was .17.

The appellant testified that, on the evening of September 26, 2001, he and Jackson drank beer and smoked marijuana together and that Jackson suggested that they go meet Brodie and McCulloch. He also testified that, around 8:00 p.m. or 8:30 p.m., they went to the victims' apartment, stayed for 15-20 minutes, and decided to leave and return later to play cards; that they then went back to his apartment, drank some beer, and smoked more marijuana; that, between 9:15 p.m. and 9:45 p.m., they returned to the victims' apartment and played cards; that McCulloch and Jackson got into a fight after McCulloch made comments about Jackson; that Jackson threatened to hurt McCulloch; that Brodie attacked him; and that he heard a gunshot, turned toward Jackson, and heard more gunshots. The appellant further testified that Jackson shot McCulloch in the head and that she fell to the floor; that Jackson shot Brodie in the back, that Brodie fell to the floor and continued to move, and that Jackson grabbed Brodie's head and shot him in the head; and that he returned to his apartment. Finally, he testified that Jackson had a .380 semiautomatic handgun and that the tennis shoes officers recovered from the vehicle he had had towed to the apartments belonged to Jackson.

On cross-examination, the appellant admitted that he had previously told law enforcement officers that Jackson did not have a gun and that he did not think that Jackson was the type of person who would have committed the murders. He also admitted that he made three statements about...