Harrison v. State

• Decision Date: 31 May 2002
• Citation: 869 So.2d 509
• Parties: James A. HARRISON, Jr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

869 So.2d 509

James A. HARRISON, Jr. v. STATE of Alabama.

CR-00-0972.

Court of Criminal Appeals of Alabama.

May 31, 2002.

Opinion on Application for Rehearing January 31, 2003.

L. Joel Collins, Phenix City; and Walter L. Gray III, Phenix City, for appellant.

William H. Pryor, Jr., atty. gen., and Regina F. Speagle, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, James A. Harrison, Jr., was convicted of capital murder for the killing of Thomas Fred Day, Jr. The murder was made capital because the appellant committed it during the course of a first-degree robbery. See § 13A-5-40(a)(2), Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 11-1, that the appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death. The appellant filed a motion for a new trial, which was deemed denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

Because the appellant does not challenge the sufficiency of the evidence to support his conviction, a lengthy recitation of the facts of the case is not necessary. However, we have reviewed the evidence, and we find that it is sufficient to support the appellant's conviction. The following summary of the relevant facts, which the trial court prepared, may be helpful to an understanding of this case:

"Upon the jury verdict of guilty of murder during robbery in the first degree, the court adjudges the Defendant, James A. Harrison, Jr., guilty of the murder of Thomas Fred Day, Jr. during robbery in the first degree in that the Defendant, James A. Harrison, Jr., did intentionally cause the death of Thomas Fred Day, Jr. by cutting or stabbing him with a knife or other sharp instrument, and James A. Harrison, Jr. caused the death of Thomas Fred Day, Jr. during the time that James A. Harrison, Jr. was in the course of committing a theft of property, namely numerous compact discs, and a motor vehicle, a Mazda 626 with Alabama Tag # 57AJ709, the property of Thomas Fred Day, Jr. with intent to overcome his physical resistance or physical power of resistance, while James A. Harrison, Jr. was armed with a deadly weapon, a knife or other sharp instrument.

"The Court finds from the evidence submitted at trial that between January 12, 1998 and January 16, 1998 the Defendant, James A. Harrison, Jr. caused the death of Thomas Fred Day, Jr. by cutting him with a knife. Thomas Fred Day, Sr. had not heard from his son Thomas Fred Day, Jr. for several days and numerous attempts by the Day Family to contact Thomas Fred Day, Jr. had failed. On Friday, January 16, 1998 Thomas Fred Day, Sr. went to his son's home at 1707 18th Ave., Phenix City, Russell County, Alabama to check on his son. When no one came to the door, Thomas Day, Sr. entered the home and found the body of his son, Thomas Fred Day, Jr. and he called the police. Police investigators arrived and noted overturned furniture and signs of a struggle as having occurred in the living room of the Day home. Evidence was presented that items were missing from the home including Compact disc records and Thomas Fred Day, Jr.'s automobile.

"Testimony showed that the victim, Thomas Fred Day, Jr. was a handicapped individual having suffered brain damage and permanent damage to one arm from a previous industrial accident. At the time of his death Thomas Fred Day, Jr. had one arm in a cast from a recent operation which was designed to keep his arm immobile. Opinion testimony from the State of Alabama's Forensic pathologist stated that Thomas Fred Day, Jr. died from having his throat cut and that he was probably lying down or sitting at the time that his throat was cut. It was also testified that Thomas Fred Day, Jr. may have been hit or kicked about the head after his throat was cut.

"The same day that the body of Thomas Fred Day, Jr. was found, the Defendant James A. Harrison, Jr. was arrested in Columbus, Georgia in possession of the vehicle owned by Thomas Fred Day, Jr. Testimony was given that James A. Harrison, Jr. attempted to sell Day's vehicle. Evidence was also submitted that compact discs belonging to Thomas Fred Day, Jr. had been pawned by the Defendant, James A. Harrison, Jr. on January 14, 1998. At the time of James A. Harrison Jr.'s arrest in Columbus, Georgia, a knife was removed from his person by Officer Gregory Ballard of the Columbus, Georgia Police Department.

"On the same day of James A. Harrison, Jr.'s arrest, he was interviewed by Officer Kenneth Youngblood of the Phenix City Police Department. Officer Youngblood received a statement from the Defendant, James A. Harrison, Jr. in which he claimed that on January 13, 1998, he was at the home of Thomas Fred Day, Jr., that Fred cursed him, and accused Harrison of trying to rip him off in a drug deal. Harrison then stated that Thomas Fred Day, Jr. punched him in the ribs. James A. Harrison, Jr. then stated that he pulled a knife out of his pocket and swung at Fred cutting Thomas Fred Day, Jr.'s throat. James A. Harrison, Jr. further admitted that the knife seized from him by Officer Ballard was the same knife he used to cut Thomas Fred Day, Jr. in the throat. The Court considered all the testimony and exhibits presented at trial in making its factual finding."

(C.R.193-95.) Additional facts are included, as necessary, throughout this opinion.

The appellant raises some issues on appeal that he did not raise at trial. Although the lack of an objection at trial will not bar our review of an issue in a case involving the death penalty, it will weigh against any claim of prejudice the appellant may raise. See Ex parte Kennedy, 472 So.2d 1106 (Ala.1985)

. Rule 45A, Ala. R.App. P., provides:

"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... whenever such error has or probably has adversely affected the substantial right of the appellant."

"[This] 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.'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816, 827 n. 14 (1982)).

I.

The appellant's first argument is that, because the State allegedly did not properly authenticate two videotapes of statements he made to law enforcement officers, the trial court improperly admitted the videotapes into evidence. Because he did not present this argument to the trial court, we review it for plain error. See Rule 45A, Ala. R.App. P.

Rule 901(a), Ala. R. Evid., provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." One method for authenticating evidence is through the testimony of a witness who has knowledge that "a matter is what it is claimed to be." Rule 901(b)(1), Ala. R. Evid.

"The traditional predicate for admission [of a videotape] is established by having a witness to testify that the [videotape]... will accurately reproduce the objects or actions which the witness observed."

Charles W. Gamble, McElroy's Alabama Evidence § 123.06 (5th ed.1996) (footnote omitted).

"[W]hen a qualified and competent witness can testify that the ... medium accurately and reliably represents what the witness sensed at the time in question, then the foundation required is that for the `pictorial communication' theory. Under this theory, the party offering the item must present sufficient evidence to meet the `reliable representation' standard, that is, the witness must testify that the witness has sufficient personal knowledge of the scene or events pictured or the sounds recorded and that the item offered accurately and reliably represents the actual scene or sounds."

Ex parte Fuller, 620 So.2d 675, 678 (Ala. 1993).

Sergeant Kenneth Youngblood of the Phenix City Police Department testified about two statements the appellant made regarding this offense. He identified State's Exhibit # 38 as the videotape of an interview he conducted on January 16, 1998; stated that he had watched the videotape; and added that it fairly and accurately depicted the interview. He identified State's Exhibit # 39 as the videotape of an interview he conducted on January 19, 1998; stated that it accurately depicted what happened during the interview; and added that it had not been altered or changed in any way. Youngblood's testimony that the videotapes accurately depicted the interviews was sufficient to establish the authenticity of the videotapes. Therefore, the videotapes were admissible under the "pictorial communication" theory, and the trial court properly admitted them into evidence. Accordingly, we do not find any plain error in this regard.

II.

The appellant's second argument is that, because the State allegedly did not establish a chain of custody for the two videotapes of statements he made to law enforcement officers, the trial court improperly admitted the videotapes into evidence. We addressed a similar argument in Woods v. State, 548 So.2d 611, 614 (Ala. Crim.App.1989), as follows:

"The appellant argues that the trial court erred in admitting a videotape into evidence ... because, he argues, the proper foundation had not been laid. The appellant contends that the recording should be subject to the same foundational analysis as a tape recording.

He also argues that a proper chain of custody was not established for its introduction. However, this court has determined that video recordings are admissible under the rules for the admission of photographic evidence. Molina v. State, 533 So.2d 701 (Ala.Cr.App.1988).

"`We adopt the "better reasoned rule" that "video

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