Ex Parte Brown, 1061663.

• Court: Supreme Court of Alabama
• Citation: 11 So.3d 933
• Docket Number: 1061663.
• Parties: Ex parte Michael BROWN (In re Michael Brown v. State of Alabama).
• Decision Date: 03 October 2008

11 So.3d 933

Ex parte Michael BROWN

(In re Michael Brown v. State of Alabama).

1061663.

Supreme Court of Alabama.

October 3, 2008.

Rehearing Denied December 19, 2008.

Bryan A. Stevenson and Angela L. Setzer of Equal Justice Initiative of Alabama, Montgomery, for petitioner.

Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for respondent.

LYONS, Justice.

Michael Brown was convicted of two counts of capital murder for the killing of Betty Kirkpatrick. The murder was made capital because it was committed during the course of a robbery and a burglary. The jury recommended by a vote of 11-1 that Brown be sentenced to death, and the trial court followed the jury's recommendation. Brown appealed. The Court of Criminal Appeals unanimously affirmed Brown's conviction and sentence. Brown v. State, [Ms. CR-04-0293, June 29, 2007] ___ So.3d ___ (Ala.Crim.App.2007). Brown petitioned this Court for certiorari review; we granted his petition to review one issue: whether the Court of Criminal Appeals correctly concluded that certain out-of-court statements were admissible under the doctrine of curative admissibility. For the reasons discussed below, we need not decide that issue to affirm the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

The following facts are from the Court of Criminal Appeals' opinion:

"The State's evidence tended to show the following. On October 12, 2001, Ricky Kirkpatrick and his wife discovered the body of his 65-year-old mother, Betty Kirkpatrick, in her mobile home in Hueytown. Her head was covered with a plastic bag and her throat had been cut. A knife and a paper towel were lying on her chest. Betty Kirkpatrick's purse and her gold 1986 Ford Thunderbird automobile were missing. The forensic pathologist testified that Betty Kirkpatrick died of `asphyxia by strangulation and smothering.' (R. 431.) She also had bruises on her face and hands that, he said, were caused by blunt-force trauma.

"Several witnesses testified that they saw Brown driving a gold Thunderbird around the time of the murder. Alisha Spindlow testified that she saw Brown driving a gold Thunderbird and that he told her that he had killed Betty Kirkpatrick. Another individual, Kevin Clayton, testified that he saw Brown two days after the murder, that he was driving a gold Thunderbird, and that he told him that he got the car from a lady and the car would not be `hot' until the lady's body was discovered. Kelly Watkins said that Brown was driving a gold Thunderbird around the time of the murder and that he told her that he had killed the lady who owned it. Watkins said that Brown told her that he had tried to choke the victim but she would not die so he cut her throat with a knife he got from the kitchen of her house.

"Forensic tests were also conducted on the blood-stains found on the paper towel discovered on Betty Kirkpatrick's chest. Carl Mauterer, a forensic scientist with the Alabama Department of Forensic Sciences, testified that one stain was tested and found to be consistent with Brown's blood—Brown could not be excluded as the donor.

"Detective Charles Hagler also testified that Brown told him that he went to Betty Kirkpatrick's mobile home with three other individuals, Robert Smith, Kevin Clayton (who testified at Brown's trial), and Moses Smiley, to rob Betty Kirkpatrick but that Robert Smith killed Kirkpatrick."

Brown, ___ So.3d at ___.

II. Standard of Review

"`This Court reviews pure questions of law in criminal cases de novo.'" Ex parte Morrow, 915 So.2d 539, 541 (Ala. 2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)). However, because Brown was sentenced to death, the Court of Criminal Appeals reviewed the proceedings for plain error.

"Plain error is defined as error that has `adversely affected the substantial right of the appellant.' The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999)."

Hall v. State, 820 So.2d 113, 121-22 (Ala. Crim.App.1999) (additional citations omitted). See also Ex parte Walker, 972 So.2d 737, 742-43 (Ala.2007).

III. Analysis

In his petition for a writ of certiorari, Brown argues that the admission of out-of-court statements at his trial violated his right to cross-examination and that the statements were not admissible under the doctrine of curative admissibility. Brown states that the State's theory of the case is that he acted alone in robbing and killing the victim, while the defense theory is that, although Brown was present at the scene, he did not kill Kirkpatrick. Instead, Brown said, three people in addition to him were at the scene, and one of them, Robert Smith, killed her. Brown states that the defense theory of the case was supported by the State's evidence in that his prints did not match any of the readable prints from the victim's car; DNA from a cigarette found in the car excluded both the victim and Brown; and, of two DNA samples collected from the blood on a paper towel found at the murder scene, one excluded Brown and the other included the DNA of at least two individuals, although it did not exclude Brown.

During the testimony of the lead investigative officer, Detective Charles Hagler, the prosecutor, without objection from Brown, elicited evidence that Smith had made out-of-court statements denying his involvement in the crime and implicating Brown. Brown argues that, because he had had no opportunity to cross-examine Smith, his constitutional right to confront witnesses was violated. Brown relies upon Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which holds that "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine."

The Court of Criminal Appeals concluded that the content of Smith's statements was admissible under the doctrine of curative admissibility, reasoning that defense counsel's cross-examination of Hagler opened the door for the prosecutor, on redirect, to elicit the content of Smith's out-of-court statements implicating Brown in the murder. Brown argues that Hagler's testimony regarding Smith's statements violated Crawford, in which the United States Supreme Court held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." 541 U.S. at 68-69, 124 S.Ct. 1354. Therefore, Brown argues, the Court of Criminal Appeals erred in admitting Smith's statements under the doctrine of curative admissibility.

Brown states that in response to the prosecutor's questions Hagler testified that Smith adamantly stated that he was not involved in Kirkpatrick's murder, gave him names of people he was with on the night she was murdered, and specifically implicated Brown in the murder. The admission of these statements, Brown insists, violated his right to cross-examine Smith because, he says, Smith's statements were clearly testimonial, the State failed to establish that Smith was an unavailable witness and the defense had had no prior opportunity to cross-examine Smith. The Court of Criminal Appeals concluded:

"Here, the defense counsel implied on cross-examination that Det. Hagler acted irresponsibly in not investigating Robert Smith. To rebut the matters that were presented on cross-examination the State had a right to question Det. Hagler so that Det. Hagler could explain his actions during the course of the investigation. Under the caselaw cited above, we hold that there was no error, much less plain error."

Brown, ___ So.3d at ___. Brown argues that the above holding by the Court of Criminal Appeals conflicts with Alabama cases establishing that the doctrine of curative admissibility is applicable only where the opposing party has introduced illegal or otherwise inadmissible evidence. See, e.g., Ex parte D.L.H., 806 So.2d 1190, 1193 (Ala.2001); and Varner v. State, 497 So.2d 1135, 1138 (Ala.Crim.App.1986).

In this case, Brown says, the subject of Hagler's investigation was never a forbidden area of inquiry for either party, being the primary topic of his testimony during the State's direct examination; therefore, Brown says, it was not necessary for defense counsel to "open the door" on cross-examination in order for the investigation to be an appropriate subject on redirect. Brown alleges that defense counsel's questioning of Hagler was a direct response to the State's examination and thus was classic impeachment. Specifically, Brown says he never elicited testimony from Hagler as to what Smith told him during questioning and thus never opened the door to such testimony on redirect by the prosecutor. Brown argues that it would have been proper for the State to elicit testimony from Hagler that he had investigated and questioned Smith and later determined that he was not a suspect without introducing Smith's statements implicating Brown in the offense, but that the State was not entitled to rebut defense counsel's effort to impugn the sufficiency of Hagler's investigation by introducing the statements of other suspects. According to Brown, the statements at issue in this case, like those in Crawford, directly undermined the defense theory and thus were severely prejudicial to Brown. Given that Brown's defense centered around the possibility...