Fletcher v. State

• Decision Date: 07 May 1993
• Citation: 621 So.2d 1010
• Parties: Marcus FLETCHER v. STATE. CR 91-787.
• Court: Alabama Court of Criminal Appeals

Page 1010

621 So.2d 1010

Marcus FLETCHER v. STATE.

CR 91-787.

Court of Criminal Appeals of Alabama.

May 7, 1993.

Bryan Stevenson and Hilary Hochman, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Gail Hampton and Melissa Math, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

The appellant, Marcus Fletcher, was indicted for the capital offense of murder during a robbery, as defined in Ala.Code 1975, § 13A-5-40(a)(2). A jury found him guilty as charged and, by a vote of eleven to one, recommended that he be punished by death. The trial court accepted this recommendation and sentenced the appellant to death. This appeal is from that conviction and sentence.

I

The State's evidence in this case was entirely circumstantial. The appellant contends that this evidence is "simply not strong enough to be 'inconsistent with any rational hypothesis' of [his] innocence." Appellant's brief at 70.

The evidence presented at trial can be summarized as follows:

On the evening of March 1, 1991, Carl Brown was brutally bludgeoned to death in the small combination grocery/delicatessen/gas station that he owned and operated in Athens, Alabama. Brown's body was discovered around 12:30 on the morning of March 2 by his father-in-law, Elton Abernathy, who lived about one-half block from the store. Abernathy went to the store to check on Brown at the request of Brown's wife, who was Abernathy's daughter. Abernathy stated that, although the store "appeared not to be open," the front door was unlocked and the television mounted near that door was on. R. 883-84. Upon seeing Brown's body lying on the floor some five to six steps from the front door, Abernathy returned to his house and telephoned the police.

Officers arriving at the scene observed that the keys to the front door were in the lock on the inside of the door, that some of the lights in the main area of the store were on, that a "closed" sign was hung on the door so that it showed to the outside, and that one of the two gas pump switches was on. The victim was lying on the floor on his right side with his head in a large pool of blood. The victim's wallet, which contained an unspecified amount of cash, was still on the victim's person, as were several items of jewelry. Athens police captain George Clem testified that there were no signs of a struggle in the store. He also stated that there were "what appeared to be drops of blood on the floor near [the victim's] feet," R. 933, that there was "what appeared to be blood on the door of the drink box or cooler located on the east wall near the right side of the body," R. 935, and that there was what "appeared to be blood" on the counter near the cash register, R. 941. The officers did not find anything that appeared to be the murder weapon in or near the store.

The cash register appeared to have been moved from its usual position on the counter and there were what "appeared to be pry marks" on the front of the register. R. 986. The register drawer was open and the tray spaces for the twenties, tens, fives, and ones were empty. There were coins and a number of checks in the tray and "[u]nder the checks ... [were] three one hundred dollar bills and a fifty dollar bill." R. 942. The cash register was located at the closed end of a U-shaped counter. The switches for the gas pumps were located to the side of the cash register.

Ms. Dianne Spence was the victim's only employee at the store. She testified that Friday, March 1, 1991, had been a "good day" business-wise for the store, because many people had been in to pay on their credit accounts. R. 1152. Ms. Spence stated that by the time she left the store around 6:15 p.m., they had accumulated "a lot of cash, a considerable amount of cash." R. 1153. She estimated the amount of cash to have been around $1,000, although she acknowledged on cross-examination that she had initially told the police that she did not know how much cash had been in the register, but that it was probably $500 or more. Ms. Spence testified that when she left the store there were twenties, tens, fives, and ones in the register drawer and that the register was in its usual position on the counter. When she returned to the store at the request of the police during the early hours of March 2, the register had been moved from its usual position and the twenties, tens, fives, and ones were missing from the cash drawer.

Ms. Spence stated that Brown did not make bank deposits at night after closing. Instead, the cash and checks received during the day were placed in a bank deposit bag and hidden in a specific place in the store at night. According to Ms. Spence, only coins were left in the register drawer at night and the drawer was always left open. On the night Brown was killed, police officers found the bank bag on or near the counter where the cash register was located. No cash other than the bills located under the checks was found in the store.

In processing the victim's store the night of the murder, Sergeant Floyd Johnson attempted to lift prints from "[e]verything that was ... printable between the cash register and in that ... counter area and where Mr. Brown's body was located." R. 992. Sergeant Johnson lifted a palm print "[f]rom the left side of the cash register, facing the cash register on the left side." R. 1018. Although the bloodstain on the counter near the register appeared to contain a print, Johnson was unable to lift that particular print. Through his print processing, Sergeant Johnson obtained 41 latent prints, 5 of which were taken from the cash register. All of these prints were submitted for analysis, along with the appellant's known prints. The appellant's prints were the only known prints submitted for analysis in this case.

The fingerprint examiner, Marietta Prevost, testified that only 12 of the 41 latent prints were "of value," meaning that the prints could be identified. R. 1073. She identified the latent print taken from the left side of the cash register as the appellant's left palm print. ¹ Ms. Prevost testified that she did not identify any of the other 11 prints of value, although she acknowledged on cross-examination that she could have sent those prints to the Federal Bureau of Investigation for computer comparison to the millions of known prints in its files. She also acknowledged that "a latent fingerprint can last over an extended period of time [ (possibly in excess of one year) ] if it's at a proper location." R. 1069. There was no testimony as to whether any of the other 11 prints of value were prints taken from the cash register.

The pathologist, Dr. Kenneth Warner, testified that the victim's cause of death was "cranial cerebral trauma," or, "in laymen's terms," "[i]njuries to the skull and the brain." R. 1095. The victim had seven lacerations on the back of his head and one laceration on the top of his head. Dr. Warner stated that the victim's injuries were consistent with being hit with a "baseball bat or a tire iron or anything like that," R. 1102, and that the injuries "were non-survivable," R. 1093. The victim also had several defensive type wounds on his left arm and hand.

During cross-examination, defense counsel asked Dr. Warner if "the number and the location of the blows that were inflicted on Mr. Brown ... indicate[d] to [Warner anything] about the person who delivered those blows." R. 1097-98. Dr. Warner replied:

"This was a great deal of overkill. Mr. Brown certainly could have died from one blow to the top of the head which would probably have put him on his knees, and then one blow to the back of his head which would have probably killed him. Yet, he had seven to the back of his head. So, that was six more than was needed which would imply that the person was either influenced by a drug, a stimulating drug, or there was a sexual component to the killing."

R. 1098. Dr. Warner also acknowledged that the circumstances of the killing could also indicate "that the person who delivered these blows was extremely angry with Mr. Brown." Id.

On re-direct examination, the prosecutor ascertained that Dr. Warner had treated people who had "abused cocaine" and who "were involved in drug use." R. 1114. The following then occurred:

"Q. [By the prosecutor:] ... [W]ould you explain why you would expect this kind of assault to have been conducted by someone who had used or abused drugs?

"A. Because of the overkill.

"Q. And what would explain that?

"A. The normal response of an individual who hit someone over the head and sees them fall is one type of behavior. The drug response is a different type of behavior. Anything, overkill kinds of cases are usually explained by a stimulating drug, either amphetamines or cocaine.

"Q. By stimulating drugs, another way to say it maybe in laymen's language, at least in my language, to say that that could make a person, for instance, hyper?

"A. Yes, sir." R. 1114-15.

Defense counsel brought out through Dr. Warner that, at the time of his death, the victim had two hand-rolled marihuana cigarettes in his shirt pocket and had traces of marihuana in his urine, but not in his blood or vitreous humor. In response to questions asked by the trial court, Dr. Warner stated that marihuana "usually makes [a] person calm, mellow," and "[j]ust the opposite" of angry, upset, or argumentative. R. 1103-04. When asked the significance of the fact that there were marihuana traces in the victim's urine and none in his blood or his vitreous humor, Dr. Warner stated that it "would tell [him] that the person was not acutely intoxicated or under the influence at the time of his death." R. 1104. The use of the marihuana "could have been two weeks before" the victim's death and "[p]robably did not" have any effect on his emotional state at the time of his death. Id. Responding to the court's question as to the type of mood or emotion produced by the use of cocaine, Dr. Warner related that "[c]ocaine is just the opposite ...