Ex parte Clemons

• Decision Date: 16 January 1998
• Citation: 720 So.2d 985
• Parties: Ex parte Eugene CLEMONS II (Re Eugene Milton Clemons II v. State). 1960904.
• Court: Alabama Supreme Court

Page 985

720 So.2d 985

Ex parte Eugene CLEMONS II

(Re Eugene Milton Clemons II v. State).

1960904.

Supreme Court of Alabama.

Jan. 16, 1998.

Rehearing Denied Aug. 21, 1998.

William F. Mathews, Pelham; and Ellen L. Wiesner and Bryan A. Stevenson, Montgomery, for petitioner.

Bill Pryor, atty gen., and Tracy M. Daniel, asst. atty. gen., for respondent.

KENNEDY, Justice.

Eugene Clemons II was charged with murder. The indictment charged that the murder was made capital murder, on two bases--that it occurred during the course of a robbery and that the victim was a law enforcement officer who was killed in the line of duty. See § 13A-5-40(a)(2) and (a)(5), Ala.Code 1975. Clemons was convicted of the capital offense of murder during a robbery. The jury unanimously recommended that he be sentenced to death by electrocution. The trial court accepted the jury's recommendation and sentenced Clemons to death. The Court of Criminal Appeals affirmed Clemons's conviction and death sentence. Clemons v. State, 720 So.2d 961 (Ala.Cr.App.1996).

The facts are as follows: On May 28, 1992, Douglas Althouse, a special agent with the Drug Enforcement Administration (DEA), was shot and killed during a carjacking in Shelby County. ¹

As part of his job, Althouse was working on an investigation with Sergeant Mark Hobbs of the Hoover Police Department. Hobbs and Althouse planned to meet on the evening of Thursday, May 28, 1992, between 10:00 and 11:00 p.m. to discuss search warrants to be executed the following day. Jefferson County sheriff's deputy Naylor Braswell, who shared an apartment with Althouse, agreed to go with Althouse to meet with Hobbs.

Braswell and Althouse left for the meeting shortly before 10:00 p.m. in Braswell's undercover automobile, a black model Z-28 Chevrolet Camaro. On the way, they stopped at a Chevron service station to look at a telephone book. Their car had a cellular telephone, but Braswell wanted the number of a pizza delivery company so that he and Althouse could order a pizza to be delivered to their apartment after the meeting with Hobbs. Braswell went inside the station, while Althouse remained in the car in the passenger seat.

While inside the service station, Braswell saw a person sitting in the driver's seat of the Camaro and pointing a gun at Althouse's head. Braswell told the store clerk to sound her alarm, as he began to run out the door. She told him that she did not have one, so Braswell turned and told her to telephone "911." As he was heading out the door, Braswell heard several shots and saw Althouse exit the car. Althouse fired his weapon at the Camaro as it sped away. Althouse died shortly thereafter from gunshot wounds.

Testimony at trial revealed that Dedrick Smith had told several persons, including Clemons, that he needed a new engine for his Camaro Z-28. On the evening of the murder, Smith, Clemons, and Kenny Reed drove to a shopping center looking for a Camaro like Smith's. Failing to find one, they proceeded onto the highway in Smith's black Camaro. Clemons spotted Braswell's Z-28 Camaro at the Chevron service station; they stopped and Clemons, carrying a gun, exited the car.

Immediately following the shooting, Clemons drove Braswell's car to the house of a friend, Herman Shannon. After examining the contents of the car and finding a shotgun and a bullet-proof vest with the word "sheriff" on it, Clemons realized that the car was a police vehicle. Clemons subsequently left town and went to his uncle's house in Ohio.

Meanwhile, the Hoover police told FBI agents, who had come to investigate Althouse's murder, that a carjacking group was operating in the West End area of Birmingham. The Birmingham police found Braswell's Camaro in West End, four blocks from Herman Shannon's house. Braswell's shotgun was found on the side of the road near Clemons's house, which was also in West End.

Two days after the murder, Clemons was arrested by FBI agents in Cleveland, Ohio. He made a statement to the agents admitting that he had shot Althouse, but he claimed that he did so in self-defense in response to Althouse's drawing his gun.

At trial, the state presented evidence of three separate carjacking incidents that had occurred within the month before Althouse's death. The evidence indicated that in each of them Clemons had deprived the victims of their automobiles at gunpoint.

On this certiorari review Clemons raises 28 issues and numerous subissues, most of which were raised in, and addressed by, the Court of Criminal Appeals. The issues not presented to the Court of Criminal Appeals concerned Clemons's absence during part of the voir dire examination of one potential juror, his attempt to fire his lawyers, and the use of a photograph for in-court identification. At oral argument before this Court on this certiorari review, Clemons's counsel focused on Clemons's absence from the courtroom for most of the trial. We will discuss those issues not raised before the Court of Criminal Appeals, along with the issue of Clemons's absence during most of the trial.

Clemons was not present during part of the individual voir dire examination of one potential juror. The veniremember told the trial court that he had a matter of concern that he preferred not to discuss in front of Clemons. Clemons consented to the questioning of this veniremember in his absence. The veniremember told the court that he was concerned about his personal security and possible retaliation by Clemons's family or friends if Clemons was found guilty. The trial court explained the security measures taken for the jury in a capital case. The veniremember stated that his security concerns would not prevent him from being a fair juror. Afterwards, Clemons's attorney informed Clemons of the juror's concerns. Ultimately, the veniremember did not sit on the jury.

Clemons contends that the trial court should have told him that he had an absolute right to be present during all voir dire examination and contends that a defendant cannot waive his right to be present at any critical stage of the proceedings. The State argues that Clemons's presence during the discussion with the veniremember did not have a reasonable, substantial relation to the fullness of his opportunity to defend against the charge.

Obviously, Clemons did not object at trial as to his absence from the veniremember's examination. Therefore, this claim must be reviewed pursuant to the "plain error rule." Rule 39(k), Ala.R.App.P. Plain error is error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the proceedings. Ex parte Jackson, 672 So.2d 810 (Ala.1995).

During the voir dire examination, the veniremember in question informed the court that he had a matter he wanted to discuss with the court outside Clemons's presence. (R.T. 369.) The court acknowledged Clemons's right to be present at all stages of the trial, but gave Clemons the opportunity to discuss with counsel whether he would consent to the veniremember's request. The court was concerned that if it denied the request, then the veniremember might not tell the parties his concerns. Clemons's counsel wanted to hear what the veniremember had to say. (R.T. 370.)

The veniremember was then questioned in front of the parties, including Clemons; he stated that he had two matters to discuss with the court. He discussed the first matter with Clemons present. It concerned an incident wherein he was arrested for failing to pay a traffic citation; he explained the incident in detail for the court. The veniremember said he had forgotten to put that information on his jury questionnaire.

The veniremember was excused from the courtroom and in his absence the parties, including Clemons, discussed how they wanted to proceed with the second matter. Clemons's counsel told the court that he wanted to consult with Clemons about the veniremember's request, but also wanted the court to know that whatever the veniremember disclosed to the court would be disclosed to Clemons. (R.T. 374-75.) After consulting with Clemons, Clemons's counsel told the court that Clemons consented to the veniremember's request to meet with the court and the attorneys in his absence. Clemons's counsel stated that Clemons's waiver extended only to whatever disclosure the veniremember made to the court and not to any other questioning of the veniremember on matters covered with other members of the venire. (R.T. 376-77.)

The veniremember returned to the courtroom, without Clemons present, he told the court that he was concerned about his personal security and possible retaliation by Clemons's family if Clemons was found guilty of capital murder. The court then briefly explained the security procedures involved in the trial. The court asked the veniremember whether his concerns about security would effect his ability to serve as a juror. The veniremember assured the court that his security concerns would not prevent him from being a fair juror.

A person charged with a felony has a fundamental right to be present at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). That right includes the right to be present at voir dire examination of jurors and empanelling of the jury. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). The right of presence derives from the Confrontation Clause of the Sixth Amendment to the United States Constitution and the Due Process Clauses of the Fifth and Fourteenth Amendments. United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985).

Rule 9.1, Ala.R.Crim.P., acknowledges a defendant's right to be present at every stage of the trial, including the selection of a jury. The rule further provides that a defendant charged with a capital crime may not waive the right to be present. We note that a defendant can lose his right to be present at trial if he insists on disruptive behavior. Allen....