Ex parte DeBruce

Decision Date16 September 1994
Citation651 So.2d 624
PartiesEx parte Derrick Anthony DeBRUCE. (Re Derrick Anthony DeBruce v. State). 1921215.
CourtAlabama Supreme Court

Erskine R. Mathis, Birmingham, for petitioner.

James H. Evans, Atty. Gen., Beth Slate Poe, Asst. Atty. Gen., and Melissa G. Math, Deputy Atty. Gen., for respondent.

MADDOX, Justice.

Derrick Anthony DeBruce was convicted of the capital offense of murder committed during the course of robbery in the first degree. § 13A-5-40(a)(2), Ala.Code 1975. In a separate sentencing phase of the trial, DeBruce was sentenced to death. The Court of Criminal Appeals affirmed. This Court automatically granted DeBruce's petition for a writ of certiorari. See Rule 39(c), Ala.R.App.P.

DeBruce raises several issues in his certiorari petition and argues each in his brief to this Court. The issues are the same as were argued in the Court of Criminal Appeals. DeBruce v. State, 651 So.2d 599 (Ala.Crim.App.1993).

The facts are enumerated in considerable detail in the opinion of the Court of Criminal Appeals; therefore, we will not restate them in detail, but we will outline the essential facts for a better understanding of the issues we address. The evidence tended to show that DeBruce and five other men were in the course of robbing a Talladega Auto Zone store and its customers when Doug Battle, unaware of the robbery, entered the store. After the men had completed robbing the store and its customers, the men began to leave the store. As they started out the door of the store, DeBruce allegedly shot Battle in the back as he lay face down on the floor.

Some of the other customers were later able to identify photographs of the men involved in the robbery. The investigation that followed led to DeBruce's indictment and subsequent trial for the capital murder of Battle. At trial, DeBruce contended that it was Lujuan McCants, another of the robbers, who had shot Battle. DeBruce argued that McCants had bragged to two people about killing Battle. McCants, on the other hand, testifying in exchange for a sentence of life imprisonment, said it was DeBruce who had killed Battle.

DeBruce raises numerous issues in his petition for certiorari review. However, we have not limited our review to the issues he raises, but have reviewed the proceeding to see if there is any plain error or defects. 1 Rule 39(k), Ala.R.App.P.

We have reviewed the opinion of the Court of Criminal Appeals, which addresses each of the issues raised by DeBruce. In addition, as Rule 39(k), Ala.R.App.P., requires, we have searched the record of both the guilt-determining phase and the sentencing phase of DeBruce's trial for any plain error or defect that has or probably has adversely affected DeBruce's substantive rights. We find no plain error to reverse or any other error in DeBruce's trial that requires us to reverse either his conviction or his sentence of death. Even though we find no error to reverse, we elect to address one issue on which the judges of the Court of Criminal Appeals disagreed, that is, whether DeBruce's absence from a hearing on pretrial motions violated his rights under the Alabama Constitution, or his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In the Court of Criminal Appeals, there was a dissenting view on this issue. See, DeBruce v. State, 651 So.2d 599 (Ala.Crim.App.1993) (Montiel, J., dissenting "from the majority's holding ... that the appellant's absence from a pretrial hearing and a number of motion hearings [was] not reversible error").

The Court of Criminal Appeals addressed DeBruce's absence from what it described as "a pretrial hearing at which a number of motions were considered," as follows:

"In Harris v. State, 632 So.2d 503, 512 (Ala.Cr.App.1992), this Court held that in a capital case, 'if the appellant's presence ... would have been useless to her defense and if the [pretrial] hearing was not considered to be a "critical stage" of her trial, then we can find no error in the appellant's absence from the hearing.' Here, as in Harris, '[t]he appellant has been unable to suggest or demonstrate any possibility of prejudice resulting from [his] absence.' Id.

"... Although this Court is extremely reluctant to make a finding of harmless error in any case in which the death penalty has been imposed, here it is clear beyond any reasonable doubt that the appellant's absence at the pretrial hearing on various legal motions in no way prejudiced him. Here, as in Ex parte King, 564 So.2d 928, 931 (Ala.1990), the 'hearing necessitated only arguments of law.' "

651 So.2d at 620.

We have examined the transcript of the pre-trial hearing that is the subject of this claim of error, to determine whether the defendant's presence was required by the Constitution of the State of Alabama, the Constitution of the United States, or any law or rule of practice and procedure.

The pertinent portions of the record show that the following occurred when the several pre-trial motions were heard by the trial court, with the Honorable Jerry L. Fielding, presiding. Appearing at the hearing were District Attorney Robert Ramsey and attorneys Erskine Mathis and William K. Delgrosso, both of Birmingham, for the defendant.

At the beginning of the hearing the following transpired:

"THE COURT: For the record, this is Case Number CC-91-340 in the matter of State of Alabama v. Derrick Anthony DeBruce. This is really a discovery matter, I assume, isn't it?

"MR. MATHIS: Yes, sir.

"MR. RUMSEY: Which one are we on?

"THE COURT: It is 'Motion for Ballistics Test and Fingerprinting.'

"MR. RUMSEY: It is my understanding and what I told Erskine a few minutes ago, basically what I'm doing is having my whole file copied, including the witnesses' statements. I'm just going to turn over the whole file."

During the hearing, defendant's counsel stated that he might wish to file a motion, claiming indigency, although he had hired his counsel, if he needed to some experts to do some independent testing, and ask for the State to pay for those experts. 2

The court next considered the defendant's "Motion To Prohibit Death-Qualification of Prospective Jurors." The substance of the motion was the defendant's contention that being conscientiously opposed to the death penalty should not exclude a prospective juror from the guilt phase of the trial. In essence, the defendant asked for separate juries for the guilt and penalty phases of the trial, if necessary. On this motion, the trial judge said:

"THE COURT: I'll just reserve my rulings on this matter until the time comes for the voir dire examination. I'll have plenty of time to resolve it if it comes up."

The next motion considered at the hearing was the defendant's "Motion for Appointment of Juristic Psychologist." By this motion, the defendant sought to get an expert to assist him in picking a jury and to have the State pay for the expert. After a brief statement by the defendant's counsel in support of the motion and a statement by the district attorney to the effect that he did not think the law mandated it, the trial judge said:

"I'll reserve a ruling on that for the time being. It is all going to depend upon whether or not the pauper status is granted. Then I will have to look and see whether or not it will be appropriate."

The next motion considered was the defendant's "Motion for Witness List." The record shows the following:

"MR. MATHIS: I guess, based on what Robert [the district attorney] told me a while ago, if he is going to open his file to us, we are going to have it. Is that correct, Robert?

"MR. RUMSEY: Sure. I don't know that I will have a witness list per se in the file that would state every witness that I will call. My only thing there is I may not have a chain witness down or I may not have somebody coming until they are ultimately called. My witness list should be the same as the subpoena list. I just don't want to be caught saying you gave me this witness list and now you are calling somebody that--there may be a chain witness."

From the colloquy in the record, it appears that the district attorney, although not required to give defendant his witness list, agreed to do so, but did not want to "get in a trap where I do something that is above and beyond what the rules require and then there is some allegation that I did not have a particular person on there and them start moving to ... a witness starts to take the witness stand and they move to exclude that witness's testimony because it wasn't on the witness list." Defense counsel's concern was that he wanted to "to be able to assure my client and assure anybody looking down the road after [a] while that we gave this as good an opportunity as we possibly could have given it to find [any] exculpatory evidence whatsoever."

The next motion considered was one by the defendant styled a "Motion in Limine," which sought to prevent the State from mentioning that the defendant could be subsequently released if he was not convicted of capital murder and sentenced to death. The trial judge granted the motion.

The next motion discussed was a "Motion for Discovery of Impeaching Testimony." Defense counsel said, "I guess I would be referring to co-defendants who may have made arrangements with you to testify in this matter against my client for whatever carrot may have been offered." The district attorney responded, saying that there had been an offer but no formal agreement. The district attorney then mentioned the names of individuals and the arrangements that had been made with each, as he understood them at that time.

The next motion presented was a "Motion to Suppress." Defense counsel said:

"MR. MATHIS: We are not going to be able to do anything on that without him here, Judge.

"THE COURT: All right, we will carry this over, either later on this afternoon or sometime during the trial.

"MR. MATHIS: Yes, sir."

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