Flowers v. State

• Citation: 799 So.2d 966
• Court: Alabama Court of Criminal Appeals
• Decision Date: 29 October 1999
• Parties: Richard Jerome FLOWERS v. STATE.

799 So.2d 966

Richard Jerome FLOWERS v. STATE.

CR-97-1254.

Court of Criminal Appeals of Alabama.

October 29, 1999.

Opinion on Return to Remand October 27, 2000.

Rehearing Denied December 15, 2000.

Certiorari Denied March 30, 2001.

Beverly J. Howard, Montgomery, for appellant.

Bill Pryor, atty. gen.; and Jeremy W. Armstrong and James R. Hcuts, asst. attys. gen., for appellee.

Alabama Supreme Court 1000577.

COBB, Judge.

Richard Jerome Flowers appeals from his conviction on two counts of capital murder, see § 13A-5-40(a)(13) and (17), Ala. Code 1975. Flowers was tried before a jury on the charges that he intentionally murdered Annie Addy after having previously been convicted of murder in the second degree, and that he intentionally murdered Annie Addy by firing a handgun at Annie Addy while she was inside a vehicle. He was outside the vehicle when he fired the handgun. Following a guilty verdict, the jury recommended, by an 10-2 vote, that Flowers be sentenced to death by electrocution. On March 9, 1998, the trial court sentenced Richard Jerome Flowers to death. This appeal followed.

The State's evidence tends to show the following. On October 20, 1980, Flowers was convicted of murder in the second degree in the Coffee County Circuit Court; he was sentenced to 99 years' imprisonment. He was paroled about six months prior to the murder with which he is now charged.

At the time of the murder, Flowers was living in Montgomery with his sister and her husband and had obtained employment at the Piknik Products plant in Montgomery. Flowers originally had worked the night shift but, after some employees complained about him, he was moved to the day shift. On May 28, 1996, the day after he was moved to day shift, Flowers returned to the Piknik Products plant during the night shift, even though he was not scheduled to work. Flowers asked several employees whether Annie Addy and two other persons were at work. Flowers had brought a handgun with him that night and had hidden it behind a tire of a parked automobile in the employee's parking lot. Flowers saw Annie Addy walking to her automobile in the parking lot during a work break. He followed her into the parking lot, and while she got into her vehicle he retrieved his handgun and then approached Ms. Addy's automobile. He fired his handgun five times through the driver's side window, striking Annie Addy four times as she sat in her automobile. Annie Addy died of gunshot wounds to her chest and abdomen. Flowers disposed of the gun in a nearby dumpster, where it was found by police investigators. The investigators traced the weapon back to Flowers's brother-in-law. Flowers indicated that he believed Annie Addy was one of the people responsible for his shift change.

Flowers argues that the trial court erred in admitting the testimony of Burnett Hawkins, the sole eyewitness to the shooting, from a preliminary hearing. Hawkins had testified at that hearing that he saw Flowers shooting a gun into Annie Addy's automobile. Flowers argues that the State did not meet the "necessity" requirement for the admissibility of former testimony because, he says, the prosecution failed to prove that Hawkins was unavailable for trial and that it had made good-faith efforts to locate Hawkins and present him as a witness. Flowers did not object to the admission of this former testimony when it was first offered. Thus, we review this issue for plain error. Rule 45A, Ala.R.App.P. Plain error is error that "has, or probably has, adversely affected a substantial right of the appellant," or is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Womack, 435 So.2d 766 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983).

In a pretrial motion hearing, the prosecutor moved for the admission of the former testimony of Hawkins. In its written motion, the prosecution gave the following reasons for the admission of the former testimony:

"2. Burnett Hawkins is now living in California and has not been located by the State.

"3. The State is unable to procure Mr. Hawkins attendance for trial despite effort to date."

(C.R. 153.) The prosecutor made the following proffer at the hearing:

"He is out in California. That's the best we can do at this point. What addresses and phone numbers we were given have not proven to be—we couldn't find him."

(R. 43.) Without receiving any evidence from the state regarding what efforts had been undertaken to procure Hawkins's attendance at trial, the trial court granted the motion.

Former testimony is admissible as an exception to the hearsay rule when the declarant is unavailable. Rule 804(b)(1), Ala.R.Evid., defines "former testimony":

"(1) Former Testimony. Testimony of a witness, in a former trial or action, given (A) under oath, (B) before a tribunal or officer having by law the authority to take testimony and legally requiring an opportunity for cross-examination, (C) under circumstances affording the party against whom the witness was offered an opportunity to test his or her credibility by cross-examination, and (D) in litigation in which the issues and parties were substantially the same as in the present case."

Rule 804(a)(5) provides that a declarant is unavailable when he or she:

"(5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance... by process or other reasonable means."

In Ex parte Scroggins, 727 So.2d 131 (Ala.1998), the Alabama Supreme Court set out the requirements a prosecutor must meet to overcome a defendant's Sixth Amendment right to confront witnesses against him and to be permitted to use the former testimony of a witness the State says is unavailable:

"When the prosecution seeks to introduce, against a criminal defendant, the former testimony of a now unavailable witness, its burden in seeking the witness's presence is enhanced by the defendant's Sixth Amendment right to confront witnesses. Ex parte Wright, 625 So.2d 1135, 1136 n. 2 (Ala.1993). Thus, when at trial the State wishes to use a person's statement against a criminal defendant, in order for that statement to be admissible the State must either produce as a witness the person whose statement it wishes to use or else demonstrate that that person is `unavailable' for the trial. Inmon v. State, 585 So.2d 261, 265 (Ala.Cr.App.1991).

"... In order for the admission of a statement of a witness who is not present at trial to satisfy the right to confrontation of witnesses, the concerns of necessity and reliability must be satisfied. `The necessity concern customarily requires that the prosecution either produce or account for the unavailability of the declarant.' [C. Gamble, McElroy's Alabama Evidence, § 242.01(7), p. 1132 (5th ed.1996)]. See Thompson v. State, 106 Ala. 67, 74, 17 So. 512, 514 (1895). Ohio v. Roberts [448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)] `mandates that the prosecution have made a good faith effort to obtain the presence of the declarant at trial.' C. Gamble, supra, § 242.01(7), p. 1132.

"... Johnson v. State [623 So.2d 444 (Ala.Cr.App.1993)] sets a high standard for proving that the State exercised due diligence in its attempt to procure the presence of a witness:

"`A party seeking to introduce a witness's testimony from a prior proceeding at a subsequent proceeding, must establish the unavailability of the witness and the reasons therefor. Lamar v. State, 578 So.2d [1382] (Ala. Cr.App.1991), cert. denied, Ex parte Lamar, 596 So.2d 659 (Ala.1991). This predicate is fulfilled when the party offering the evidence establishes that it has exercised due diligence in obtaining the witness, but without success. See Matkins v. State, 521 So.2d 1040, 1041-42 (Ala.Cr.App.1987).'

". . . .

"Johnson's standard of clue diligence is based upon Alabama law holding that a declarant is not rendered `unavailable' by absence alone. The party seeking to introduce the declarant's statement has to show that it is unable to procure the declarant's attendance either by legal process or by other reasonable means:

"`If a witness who has given testimony in the course of a judicial proceeding between the parties litigant, before a competent tribunal, subsequently dies; or becomes insane; or after diligent search is not to be found within the jurisdiction of the court, or if that which is equivalent be shown, that he has left the state permanently, or for such an indefinite time that his return is contingent and uncertain, it is admissible to prove the substance of the testimony he gave formerly. The rule is, however, exceptional, and it is essential to the admissibility of the evidence that some one of the contingencies, which are deemed to create the necessity, be satisfactorily shown. Thompson v. State, 106 Ala. 67, 74, 17 So. 512 [(1895)].'

Williams v. Calloway, 281 Ala. 249, 251-52, 201 So.2d 506, 508 (Ala.1967).

"While the question of the sufficiency of the proof offered to establish the predicate of a witness's unavailability is addressed to the sound discretion of the trial judge, the issue is of constitutional significance in a criminal case and especially so in a capital one."

Ex parte Scroggins, 727 So.2d at 133-34.

Here, the State presented no evidence at all concerning its efforts to obtain Mr. Hawkins. Because the State did not even proffer what steps, if any, it took to procure the eyewitness, the trial court could not tell whether the State made a good-faith effort to procure the witness or whether its efforts amounted to due diligence, so as to overcome the requirements of the Confrontation Clause of the Sixth Amendment in this capital murder trial. The State, and the dissent, argues that this Court should accept the mere proffer of the prosecution that Hawkins could not be located because he was in California and "that's the best we can do at this point." That we cannot do. The trial court's...