Dotch v. State , CR–07–1913.

Citation67 So.3d 936
Decision Date11 June 2010
Docket NumberCR–07–1913.
PartiesGarrett DOTCHv.STATE of Alabama.
CourtAlabama Court of Criminal Appeals

67 So.3d 936

Garrett DOTCH
STATE of Alabama.


Court of Criminal Appeals of Alabama.

April 2, 2010.Rehearing Denied June 11, 2010.Certiorari Denied Jan. 14, 2011

Alabama Supreme Court 1091264.

[67 So.3d 948]

Angela Setzer and Randall S. Susskind, Montgomery; Brent F. Powell, Winston-Salem, North Carolina; and Seth A. Tucker and Joseph Zambuto, Jr., Washington, D.C., for appellant.Troy King, atty. gen., and Joshua Bearden, asst. atty. gen., for appellee.MAIN, Judge.

Garrett Dotch appeals his conviction for capital murder for the intentional murder of Timarla Taldon by the use of a deadly weapon while she was in a vehicle, in violation of § 13A–5–40(17), Ala.Code 1975, and his resulting sentence of death. Dotch was indicted for two counts of capital murder: for intentionally killing Taldon by the use of a gun while she was in a vehicle, § 13A–5–40(a)(17), Ala.Code 1975; and for intentionally killing Taldon by shooting her when she was or had been subpoenaed to testify, or had testified in a criminal trial or proceeding, and the murder stemmed from, was caused by, or was related to her role as a witness. § 13A–5–40(a)(14), Ala.Code 1975. The jury found Dotch guilty as to the first count of the indictment and not guilty as to the second count. In the sentencing phase of Dotch's trial, the members of the jury, by a vote of 10–2, returned an advisory verdict of death in favor of life without parole. A separate sentencing hearing was then held before the trial court, and the judge accepted the jury's recommendation and sentenced Dotch to death.

The State's evidence showed the following. Dotch and Taldon attended middle school together and began a dating relationship. Subsequently Taldon moved from her parent's home and rented an apartment; Dotch lived with her until their relationship ended in 2002. (R. 964, 975.) Dotch had dropped out of school at the age of sixteen, but Taldon had completed high school and was attending college at the time of her death.

On September 1, 2003, Lt. Stephanie Smith of the assaults units of the Mobile Police Department testified that she responded to a call at Taldon's apartment concerning a burglary complaint. She stated that the door to the apartment had been splintered and “kicked in.” (R. 817.) She testified that Taldon had suffered bruising to her right eye and that there was blood inside her eye. (R. 817.) Dotch was arrested and pleaded guilty to first-degree burglary and third-degree assault.

[67 So.3d 949]

(R. 818–19.) He was sentenced to 15 years on each conviction, the sentences to be served concurrently. The sentences were split and the time of incarceration was set at time served, and he was placed on 5 years' probation. (C. 641.)

Taldon's mother testified that after the burglary, Taldon purchased a gun. (R. 964–66.) In May 2005, while on probation for the burglary and assault convictions, Dotch was arrested for third-degree domestic violence against Taldon and he again pleaded guilty. (C. 646, R. 835–36.) The Mobile municipal court sentenced him to 180 days, the sentence to run concurrently with the sentences for his other charges. After serving that sentence, Dotch was released to continue his probation for the previous offenses.

From the end of May 2006 until July 1, 2006, Taldon lived with her parents, although she continued to pay rent for her apartment. (R. 967.) Taldon's mother then spent the week following July 1 with her daughter at her apartment. She testified that Dotch telephoned Taldon many times while she was there, although Taldon did not want to talk to him and asked him to leave her alone. (R. 968–69.) When Taldon's mother left the apartment on July 8, 2006, two of Taldon's cousins remained with her at her apartment. (R. 968, 949.)

Taldon's cousin, Jiquisa Thomas, testified that during the first week of July 2006 she was present when Dotch telephoned Taldon approximately 20 times. (R. 950.) In the early morning of Sunday, July 9, 2006, at approximately 2:00 a.m. or 3:00 a.m., she was present at the apartment with her sister, Taldon, and Taldon's current boyfriend. Someone began knocking loudly at the door, and Thomas saw Dotch standing outside the apartment. (R. 951.) Thomas knocked on Taldon's bedroom door and told her that Dotch was at the door. When Taldon went to the door, Dotch attempted to force his way inside, and Taldon tried to shut the door to keep him out. Taldon successfully shut the door, and Dotch left. (R. 952.) Later in the morning, he returned and tried to get Taldon to leave her apartment, stating that he needed to talk to her and that he had placed money for her under her car. (R. 953.) Taldon told him to leave and that she was calling the police. Dotch left before the police arrived. (R. 953–54.)

Also on July 9, 2006, Dotch telephoned Taldon, and Taldon put him on a three-way call that included her mother. Taldon's mother testified that Dotch did not know that she was listening to the conversation. She stated that she heard him curse Taldon and tell her that he was going to kill her. (R. 971–72.) He also made disparaging remarks about Taldon's current boyfriend. (R. 973.) When Taldon's mother told him to leave her daughter alone, Dotch hung up. Taldon's mother testified that Dotch continued to telephone her daughter and that she instructed Taldon to call the police. (R. 973.) Cellular telephone records indicate that Dotch called Taldon 51 times on that day.

On July 10, 2006, at 9:35 a.m., according to Dotch's cell phone records, he telephoned the Subway sandwich shop where Taldon worked. Willie Rodgers, a co-employee of Taldon's, testified that Taldon routinely parked behind the sandwich shop, as she did on the day of the offense. He testified that he believed that something was wrong with Taldon on that day because of her behavior. However, despite their usual routine, at the close of her shift, he did not walk her to her vehicle. (R. 682.) He testified that she left early while he was in the restroom. A woman from the McDonald's fast food restaurant adjacent to the sandwich shop ran into the

[67 So.3d 950]

sandwich shop, alerting the occupants that something had occurred, and he ran out to the parking lot where he found Taldon dead in her vehicle. (R. 683.) Rodgers testified that Taldon's right hand was in her purse between her legs, resting on a gun. (R. 684.) The driver's side front door was open and her left hand and left leg were out of the vehicle, and the vehicle was in reverse. (R. 683, 689–90.) Rodgers testified that he and a co-employee carried Taldon into the sandwich shop and laid her on the floor. (R. 684.) Emergency personnel soon arrived and declared Taldon dead. (R. 688.)

Tracy Sayer testified that she was at the drive-through of the McDonald's restaurant at the time of the offense. She testified that she heard three “successive pows that sounded like gunshots, coming from the direction of the Subway restaurant area, like in the parking lot.” (R. 693.) She then saw a man running at a “trot” from the parking lot and “there appeared to be something—it was black, kind of like a gun at this person's side holding it still.” (R. 693–94.) 1 She described the man both in her statement 2 and at trial as dark-skinned with short, bushy hair, tall and of medium build. (R. 694.) She testified that he was wearing a white T-shirt and long, dark blue denim shorts. (R. 694.)

Sayer was shown a photographic array at the Subway sandwich shop immediately following the incident, which included the full faces of six men. (R. 698.) She informed the officer that she was not “one hundred percent sure” that the perpetrator's photograph was in the array. (R. 699.) She informed the officer that she had seen “more or less a profile of the face” or the right “side of the body” of the man as he ran away. (R. 698–99.) Therefore, Sayer told the officer that she would feel more comfortable making the identification if she could see the “profile versus a full face.” (R. 700.)

Around 9:00 or 10:00 p.m., she was shown a second photographic array, which consisted of the right profiles of six men. (R. 700–01.) She identified the photograph of Dotch from the array. (R. 701.) At trial, Sayer identified Dotch as the man she had seen “trotting” away from the vehicle in which Taldon's body was found. (R. 695.)

Brittany Slack, an employee of the McDonald's restaurant, testified that she was working at the second drive-through window at the time of the offense. (R. 707.) She testified that she heard gunshots and that after the third shot, she saw someone standing by the side of a vehicle. (R. 707.) Slack described the man as dark-skinned, between 20 and 26 years old, medium height, with a “low haircut.” (R. 707.) She stated that he was wearing a “white shirt and dark blue jean shorts.” (R. 708.) She testified that she saw him shoot at the vehicle and then run behind the McDonald's restaurant. (R. 708.) 3 The officers showed her a photographic array at the McDonald's restaurant and she tentatively identified Dotch as the man she had seen. (R. 710.)

[67 So.3d 951]

Later, the police brought her a single photograph depicting the profile of Dotch and she positively identified him as the man she had seen in the parking lot. (R. 710.) Slack also identified Dotch at trial as the man that she had seen. (R. 708.)

Brandi Moore testified that she was working at the first drive-through window of the McDonald's restaurant at the time of the offense. (R. 721.) She testified that she saw a woman walk to a vehicle in the parking lot of the Subway sandwich shop; a man approached the woman. Moore stated that she saw the man and woman talking, and then the woman got into the vehicle. Moore heard three gunshots and saw the man run behind the McDonald's restaurant. (R. 722–23.) She described the man as African–American, in his “early to mid 20s,” with a “low” haircut, approximately 5'6? to 5'8? tall, and as having a medium complexion. (R. 722.) She also stated that...

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