DeBruce v. State

• Decision Date: 05 March 1993
• Citation: 651 So.2d 599
• Parties: Derrick Anthony DeBRUCE v. STATE. CR 91-881.
• Court: Alabama Court of Criminal Appeals

Page 599

651 So.2d 599

Derrick Anthony DeBRUCE v. STATE.

CR 91-881.

Court of Criminal Appeals of Alabama.

March 5, 1993.

Rehearing Denied May 7, 1993.

Erskine R. Mathis, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Melissa Math and Beth Poe, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

On August 16, 1991, six men ¹ participated in a robbery at the Auto Zone store in Talladega, Alabama. During the course of that robbery Doug Battle was shot and killed. Derrick Anthony DeBruce, the appellant, was indicted and convicted for the capital offense of murder during a robbery, as defined in Ala.Code 1975, § 13A-5-40(a)(2). The trial court accepted the recommendation of the jury and sentenced the appellant to death. This direct appeal is from that conviction.

I.

The appellant argues that the district attorney impermissibly shifted the burden of proof on the element of intent through his misleading comments to the jury.

The prosecutor's comments and the objections of defense counsel, where made, are as follows. During the course of his guilt phase opening remarks, the district attorney commented:

"[District Attorney] Of course, we expect the evidence to be when you point a gun at somebody and aim at somebody and pull the trigger, those are intentional acts. The pointing of the gun, the pulling of the trigger, those are all intentional acts. Of course, the act which follows then of course would be intentional.

"MR. DELGROSSO [defense counsel]: We object to that if it please the Court.

"THE COURT: Overruled.

"....

"[District Attorney] ... I'll submit this to you, that in law and in common sense, if you take a gun with a man laying on the floor and you point it at him and you pull the hammer back and you pull the trigger and you shoot a bullet, that is an intentional act of killing." R. 327-28.

In his guilt phase closing argument to the jury, the assistant district attorney argued:

"And that is for you to decide. That when you take guns in there and you are going to rob the store, some of the natural consequences that can flow from that type of activity, that someone could end up getting killed.

"....

"So all those things, in a chain related back to what someone intended. In other words, did you intend the consequences of those acts? Those acts. That being, having the loaded gun, pointing the loaded gun at somebody, and pulling the trigger." R. 985-86.

During his guilt phase closing argument, the district attorney stated:

"The accomplice is criminally responsible for his acts that are [the] direct natural result of a conspiracy, or a foreseeable consequences of the conspiracy. In other words, what is the foreseeable consequences of six people, armed with weapons, going into a store to rob it, and look at the people in there. There are consequences that can arise from that, somebody could get killed. And that is exactly what happened in this case. Somebody got killed." R. 999.

__________

"But that man over there shot Doug Battle. And when you aim a gun, and you point it, and you pull that trigger, that is just as intentional an act as you can get. You cannot get more intentional than that." R. 1041.

Although the appellant complains of these six instances of allegedly improper argument, objection was raised at trial to only one instance. That objection was a general objection and no specific grounds were stated.

" 'While this failure to object does not preclude review in a capital case, it does weigh against any claim of prejudice.' Ex parte Kennedy, 472 So.2d [1106, 1111 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985) ] (emphasis in original). 'This court has concluded that the failure to object to improper prosecutorial arguments ... should be weighed as part of our evaluation of the claim on the merits because of its suggestion that the defense did not consider the comments in question to be particularly harmful.' Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987). 'Plain error is error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity, and public reputation of the judicial proceedings.' United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986). See also Biddie v. State, 516 So.2d 837, 843 (Ala.Cr.App.1986), reversed on other grounds, 516 So.2d 846 (Ala.1987)."

Kuenzel v. State, 577 So.2d 474, 489 (Ala.Cr.App.1990), affirmed, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991). See also Ex parte McWilliams, 640 So.2d 1015, 1019 (Ala.1993). These principles are applicable throughout this opinion.

We do not consider the prosecutors' remarks to constitute "plain error."

The appellant's argument that the above comments created a "mandatory presumption" that the appellant had the intent to kill is based on an erroneous factual contention. Contrary to the appellant's argument, there was evidence supporting the rational and reasonable inference that the appellant intentionally shot the victim. At trial, the State presented evidence that six men participated in the robbery. Five of those men actually entered the Auto Zone store. Each of those five was armed with a firearm. Lujuan McCants, one of the robbers, testified to the effect that the appellant went inside the store armed with a .380 handgun, that McCants heard a gun shot and saw the appellant running out of the store, that the appellant was the last one out of the store, and that once the appellant was in the get-away car, the appellant twice admitted to shooting Battle because "he was trying to protect [McCants]." R. 916, 922-23. According to McCants, Battle refused to get on the floor as directed and called the appellant a "young punk." R. 921. McCants testified that the appellant "took care of the man and hit him down to the ground." R. 920. Other witnesses positively identified the appellant as one of the robbers.

Within the context in which the arguments were made, the above-quoted comments by the prosecutor did not constitute impermissible error.

"This court, in recognizing the government's burden and obligation of proving guilt beyond a reasonable doubt, has recognized that a prosecutor's comment may be so prejudicial as to shift the burden of proof. See Duncan v. Stynchcombe, 704 F.2d 1213, 1216 (11th Cir.1983). Such prosecutorial misconduct, if 'so pronounced and persistent that it permeates the entire atmosphere of the trial,' requires reversal. United States v. Alanis, 611 F.2d 123, 126 (5th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1607, 63 L.Ed.2d 791 (1980) (quoting United States v. Blevins, 555 F.2d 1236 (5th Cir.1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d 761 (1978)). Prosecutors must observe the distinction between the permissible practice of arguing evidence and suggesting inferences which the jury might draw from it and the impermissible practice of arguing suggestions beyond the evidence. See Houston v. Estelle, 569 F.2d 372, 380 (5th Cir.1978). Additionally, prosecutors must refrain from making burden-shifting arguments which suggest that the defendant has an obligation to produce any evidence or to prove innocence. See [In re] Winship, 397 U.S. [358,] at 364, 90 S.Ct. [1068,] at 1072[, 25 L.Ed.2d 368 (1970) ]. We reaffirm the former Fifth Circuit's position that 'the limits of proper argument find their source in notions of fairness, the same source from which flows the right to due process of law.' Houston, 569 F.2d at 380."

United States v. Simon, 964 F.2d 1082, 1086 (11th Cir.1992).

Here, the prosecutors did not argue or imply that the appellant had any obligation to produce evidence. The evidence supports the prosecutor's theory that the appellant intentionally shot the victim. The reasonableness of this hypothesis is best demonstrated by the fact that in his closing argument to the jury, defense counsel argued that "[w]hoever killed him stood up behind him, or over him, while he was laying on the ground and put a bullet in his back. That's why that bullet didn't fall out of his chest. The floor kept it from falling out." R. 1026. The prosecutors's comments simply do not create any impermissible "mandatory presumption" or shift any burden of proof.

II.

The record does not support the appellant's contention that he was denied a fair trial as a result of numerous acts of alleged misconduct by the prosecutor. The prosecutor's actions have been exaggerated and distorted. Without question, the district attorney was vigorous and aggressive in his prosecution of the appellant. However, it is the opinion of this Court, based on our review of the record, that the hard blows struck by this district attorney were not foul.

A.

The appellant filed a written motion to invoke "the rule" prior to the voir dire of the jury venire. CR. 59-65, R. 54. It was within the sound discretion of the trial court to sustain the prosecutor's objection and refuse to allow the appellant's mother and father, who might testify at the sentence phase of the trial, to be excused from "the rule" and to remain in the courtroom during the guilt phase of the trial. Rule 9.3(a), A.R.Crim.P. See also Henderson v. State, 583 So.2d 276 291 (Ala.Cr.App.1990), affirmed, 583 So.2d 305 (Ala.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992). The trial judge made it clear that "[i]f you [defense counsel] tell me one of them is not going to be a witness at any time in any part of the proceedings that might come forth, then I'll exclude them." R. 292. "[T]he decision to exclude or not to exclude witnesses from the courtroom remains a matter of discretion for the trial court." Ex parte Lawhorn, 581 So.2d 1179, 1181 (Ala.), cert. denied, 502 U.S. 970, 112 S.Ct. 445, 116 L.Ed.2d 463 (1991).

B.

The appellant...