Gobble v. State

• Citation: 104 So.3d 920
• Decision Date: 14 September 2012
• Docket Number: CR–05–0225.
• Parties: Tierra Capri GOBBLE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

104 So.3d 920

Tierra Capri GOBBLE
v.
STATE of Alabama.

CR–05–0225.

Court of Criminal Appeals of Alabama.

Feb. 5, 2010.
Opinion on Return to Remand April 30, 2010.
Rehearing Denied July 16, 2010.
Certiorari Denied Sept. 14, 2012

Alabama Supreme Court 1091476.

[104 So.3d 935]

Rebecca Kiley, Marc Shapiro, and Bryan A. Stevenson, Montgomery, for appellant.

Troy King, atty. gen., and Peter J. Smyczek and Richard D. Anderson, asst. attys. gen., for appellee.

MAIN, Judge.¹

The appellant, Tierra Capri Gobble, was convicted of murdering her four-month-old son Phoenix Parrish, an offense defined as capital by § 13A–5–40(a)(15), Ala.Code 1975, because Phoenix was under the age of 14. The jury recommended, by a vote of 10 to 2, that Gobble be sentenced to death. The circuit court followed the jury's recommendation and sentenced Gobble to death.

The State's evidence established the following. On December 15, 2004, Phoenix was rushed to the emergency room of the Southeast Alabama Medical Center in Dothan. He was not breathing and had no pulse. Attempts to resuscitate him were unsuccessful, and he was pronounced dead shortly after he was brought to the hospital. The autopsy showed that Phoenix died as a result of blunt-force trauma to his head—Phoenix's skull had been fractured. Phoenix had numerous other injuries, including fractured ribs, a fracture to his right arm, fractures to both wrists, multiple bruises on his face, head, neck, and chest and a tear in the inside his mouth that was consistent with a bottle having been shoved into his mouth.

Gobble gave birth to Phoenix on August 8, 2004, in Plant City, Florida. The child

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was taken from her custody by the Florida Department of Children and Families (“DCF”) within 24 hours after his birth because of DCF's involvement with Gobble's first child, Jewell, who was 18 months old at the time of Phoenix's death. Jewell had been removed from Gobble's custody in December 2003 by DCF and placed with her paternal uncle—Edgar Parrish. At the time of Phoenix's death Gobble was under a court order to have no contact with her children.² However, Gobble and her boyfriend, Samuel David Hunter, moved in with Phoenix, Parrish, and Walter Jordan in October 2004. In October 2004, Gobble signed an affidavit stating her intent to terminate her parental rights. On December 2, 2004, proceedings were initiated to terminate Gobble's parental rights.

In the early morning hours of December 15, 2004, Gobble was having trouble getting Phoenix to go to sleep because he was “fussin.” At around 1:00 a.m. Gobble went to feed him. After he finished his bottle, she put him back in his crib. At around 9:00 a.m. Gobble checked on Phoenix and found him playing. Gobble went back to sleep and awoke at approximately 11:00 a.m. When she went to check on Phoenix she discovered that he was not breathing. Gobble called Jordan, who was also in the trailer that morning. Jordan went to get Parrish, who was nearby. Parrish returned to the trailer and telephoned emergency 911. When paramedics arrived, Phoenix was unresponsive, and they rushed him to a local hospital.

Dr. Jonas R. Salne, the emergency room doctor who treated Phoenix at Southeast Alabama Medical Center, testified that “[Phoenix] had bruises, contusions, on his face, scalp, and chest. They were everywhere.” (R. 436.) The x-rays showed that Phoenix had a skull fracture, fractures to both wrists, and a fracture to his right upper arm. Dr. Salne testified that it takes “quite a bit of trauma and quite a bit of force” to fracture a skull. (R. 441.) The autopsy report, admitted by agreement of the parties, showed that Phoenix also had fractures to several of his ribs. Dr. Salne testified that Phoenix would have been in tremendous pain from any of the numerous injuries.

Officer Tracy McCord of the Houston County Sheriff's Department testified that Gobble was taken into custody several hours after Phoenix was taken to the hospital and was questioned by police. Gobble told McCord that she was Phoenix's primary caretaker even though Parrish was his guardian, that she would occasionally get frustrated with him when he would not go to sleep, that she could have broken his ribs from holding him too tightly, and that when she was holding Phoenix she leaned down in the crib to get his blanket quickly and Phoenix's head might have struck the side of the crib at that time.

Tori Jordan testified that she had known Gobble for about two or two and one-half years and that she had periodically babysat for Jewell over a period of about five months. She said that Gobble had told her that “if she couldn't have [her children], no one could.” (R. 256.)

Gobble testified in her own defense and portrayed Hunter as abusive and domineering. She also testified that she was the primary caretaker for the children, that she was under a court order to not be around her children, and that several days

[104 So.3d 937]

before his death she noticed that Phoenix had bruises on his body, but, she said, she did not do anything because she was scared. Gobble further testified that she was the only person to have contact with Phoenix for the 10 hours immediately preceding his death. She did not telephone 911 when she realized he was not breathing, she said, because she did not want to get into trouble. During her cross-examination, the State introduced a letter written by Gobble in which she wrote that she was responsible for Phoenix's death. In the letter Gobble writes: “It's my fault that my son died but I didn't mean for it [to] happen.” (C. 1979.)

The jury convicted Gobble of capital murder. A presentence report was prepared and a separate sentencing hearing was held. The jury recommended, by a vote of 10 to 2, that Gobble be sentenced to death. The circuit court followed the jury's recommendation and sentenced Gobble to death. This appeal, which is automatic in a case involving the death penalty, followed. See§ 13A–5–53(a), Ala.Code 1975.

Standard of Review

Because Gobble has been sentenced to death this Court must review the lower-court proceedings for plain error. Rule 45A, Ala.R.App.P., states:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

In discussing the scope of the plain-error rule we have stated:

“ ‘Plain error’ has been defined as error ‘ “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, 769 (Ala.1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). ‘To rise to the level of plain error, the claimed error must not only seriously affect a defendant's “substantial rights,” but it must also have an unfair prejudicial impact on the jury's deliberations.’ Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala.2000). This Court has recognized that ‘ “[t]he plain-error exception to the contemporaneous-objection rule is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ ” ' Burton v. State, 651 So.2d 641, 645 (Ala.Crim.App.1993), aff'd, 651 So.2d 659 (Ala.1994), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).”

Brooks v. State, 973 So.2d 380, 387 (Ala.Crim.App.2007). Although Gobble's failure to object will not bar this Court's review of any issue, it will weigh against any claim of prejudice Gobble makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991).

Guilt–Phase Issues I.

Gobble asserts that the circuit court erred in denying her motion for a change of venue because, she argues, the publicity surrounding the case was extensive and prejudiced her ability to obtain a fair jury pool in Houston County.

The record shows that Gobble moved for a change of venue and that a lengthy pretrial hearing was held on the motion. At the hearing Gobble presented the testimony

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of Natalie Davis, a professor of political science at Birmingham Southern College and the owner of Davis and Associates, a jury-consulting firm. Davis testified that her firm conducted a survey of Houston County residents by telephone and spoke to 340 individuals. She said that of those individuals 57% had heard about the case. Those individuals who had heard about the case were then asked if they believed Gobble was guilty or not guilty. Davis testified that 46.5% said that Gobble was either guilty or probably guilty; however, 50.6% refused to answer the question.

Gobble also presented the testimony of Lauren Davis, the custodian of records for WTVY television station; Wayne May, the custodian of records for Channel 4 television station; Ken Curtis, the custodian of records for WDHN television station; Latanya Smedley, the custodian of records for the Dothan Eagle newspaper; and John Daniels, the custodian of records for WOOF radio station. The videotapes of coverage of the case by WSFA, Channel 12, were admitted into evidence by stipulation. May, Curtis, and Daniels testified that in their opinion the media coverage of Phoenix's murder was no greater than the coverage in any other murder case.

When reviewing a trial court's ruling on a motion for a change of venue, we apply the following principles:

“A trial court is in a better position than an appellate court to determine what effect, if any, pretrial publicity might have in a particular case. The trial court has the best opportunity to evaluate the effects of any pretrial publicity on the community as a whole and on the individual members of the jury venire. The...