Hooks v. State

• Docket Number: CR-21-0410
• Decision Date: 15 December 2023
• Parties: Lavacus Derrell Hooks v. State of Alabama
• Court: Alabama Court of Criminal Appeals

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Lavacus Derrell Hooks v. State of Alabama

No. CR-21-0410

Alabama Court of Criminal Appeals

December 15, 2023

Appeal from Montgomery Circuit Court (CC-19-1351)

COLE Judge.

Lavacus Derrell Hooks appeals his conviction for second-degree assault, a violation of § 13A-6-21(a)(2), Ala. Code 1975,^[1] and his resulting sentence of 20 years' imprisonment, which was split to serve 5 years' imprisonment followed by 2 years' probation.

Facts and Procedural History

Hooks and David Jerome Lee were incarcerated in the same "lockdown" wing of the Montgomery County Detention Center. That wing remains locked down with a "23-1" rotation, meaning that inmates are allowed out one at a time for one hour, but otherwise they are secured in a cell. (R 104.) The cell doors are secured electronically, but there is a history of inmates "jamming" the door locks to prevent them from being secure without alerting detention-center staff. (R. 103-04, 109.)

On August 7, 2019, Lee was on his way to take a shower when Hooks exited his cell and used an unknown object to stab Lee multiple times. Hooks then "skipped" back to his cell. Lee was taken to the hospital to be examined. Lee had multiple lacerations on his left arm and shoulder, a minor puncture wound on the back of his head, and four puncture wounds on his back with lacerations. He had been stabbed approximately eight times. (R. 125-26.)

At trial, the State presented two witnesses, Lieutenant Oscar Richardson of the Montgomery County Detention Center and Investigator M.B. Morrow of the Montgomery County Sheriff's Office. The State presented a jail-surveillance video, which was labeled State's Exhibit 1, photographs of Lee's injuries, and photographs of the cell area after the incident. State's Exhibit 1 was played during the testimony of Lt. Richardson and Inv. Morrow and during the State's closing arguments. Hooks objected to the introduction of State's Exhibit 1 on the ground that the State had failed to lay the proper foundation under the "silent witness" theory.

On February 15, 2022, the jury found Hooks guilty of second-degree assault. (C. 135.) The Montgomery Circuit Court sentenced Hooks immediately after the jury returned its verdict. After argument from counsel, the trial court imposed two different sentences, but after Hooks's counsel objected to both sentences, the trial court imposed a sentence of 15 years and 1 day in prison, which was split to serve 3 years in prison followed by 2 years of probation. (R 205-08.) The following day, the trial court returned Hooks to the courtroom and resentenced him, over defense counsel's objection, to 20 years in prison, which was split to serve 5 years in prison followed by 2 years of probation.

Discussion

Hooks raises four issues on appeal: (1) that the trial court erred when it admitted the jail-surveillance video without requiring the State to lay the proper predicate for the admission of the video, (2) that the trial court erred in instructing the jury on the issue of "flight," (3) that the trial court erred in refusing to instruct the jury on the lesser-included offense of third-degree assault, and (4) that the trial court violated doublejeopardy principles by increasing Hooks's sentence after imposing a legal sentence the preceding day.

I.

As set out above, the State introduced a jail-surveillance video of Hooks stabbing Lee -- State's Exhibit 1 -- during the testimony of Lt. Richardson. Hooks objected to the admission of the video because, he said, the State did not lay the proper foundation to authenticate the video under the silent witness theory. The trial court overruled Hooks's objection and admitted the video, and the video was played for the jury. (R. 99.) Except for the video, there was no other direct evidence that Hooks committed the offense in question. As he asserted at trial, Hooks argues on appeal that the trial court erred in admitting the video into evidence because the State failed to establish a proper foundation for the admission of the video.

As both parties acknowledge in their briefs on appeal, there are two primary theories for the admission of video evidence. In Ex parte Fuller, 620 So.2d 675, 678 (Ala. 1993), the Alabama Supreme Court held:

"There are two theories upon which photographs, motion pictures, videotapes, sound recordings, and the like are analyzed for admission into evidence: the 'pictorial communication' or 'pictorial testimony' theory and the 'silent witness' theory. [James H. Chadbourn,] Wigmore [on Evidence], § 790 [(1970 &Supp. 1991)]; [2 John W. Strong,] McCormick [on Evidence] § 214 [(1992)]; 6 William A. Schroeder [et al.], Alabama Evidence, [§ 11-3 (1987 &Supp. 1988)]. The 'pictorial communication' theory is that a photograph, etc., is merely a graphic portrayal or static expression of what a qualified and competent witness sensed at the time in question. Wigmore, supra, § 790, and McCormick, supra, § 214. The 'silent witness' theory is that a photograph, etc., is admissible, even in the absence of an observing or sensing witness, because the process or mechanism by which the photograph, etc., is made ensures reliability and trustworthiness. In essence, the process or mechanism substitutes for the witness's senses, and because the process or mechanism is explained before the photograph, etc., is admitted, the trust placed in its truthfulness comes from the proposition that, had a witness been there, the witness would have sensed what the photograph, etc., records. Wigmore, supra, § 790, and McCormick, supra, § 214.

"....The proper foundation required for admission into evidence of a sound recording or other medium by which a scene or event is recorded (e.g., a photograph, motion picture, videotape, etc.) depends upon the particular circumstances. If there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question, then the 'silent witness' foundation must be laid. Under the 'silent witness' theory, a witness must explain how the process or mechanism that created the item works and how the process or mechanism ensures reliability. When the 'silent witness' theory is used, the party seeking to have the sound recording or other medium admitted into evidence must meet the seven-prong Voudrie [ v. State, 387 So.2d 248 (Ala.Crim.App.1980),] test. Rewritten to have more general application, the Voudrie standard requires:

"(1) a showing that the device or process or mechanism that produced the item being offered as evidence was capable of recording what a witness would have seen or heard had a witness been present at the scene or event recorded,

"(2) a showing that the operator of the device or process or mechanism was competent,

"(3) establishment of the authenticity and correctness of the resulting recording, photograph, videotape, etc.,

"(4) a showing that no changes, additions, or deletions have been made,

"(5) a showing of the manner in which the recording, photograph, videotape, etc., was preserved,

"(6) identification of the speakers, or persons pictured, and"

(7) for criminal cases only, a showing that any statement made in the recording, tape, etc., was voluntarily made without any kind of coercion or improper inducement.

"On the other hand, when a qualified and competent witness can testify that the sound recording or other 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."

At trial, the State did not present any witnesses who could testify that the video reliably and accurately reflected what they sensed at the time of the incident. Therefore, the State was required to lay a predicate under the "silent witness" theory to admit State's Exhibit 1 into evidence.

The State called only two witnesses during Hooks's trial. Lt. Richardson -- a shift commander at the detention center -- was the primary witness called by the State to lay a predicate for the video. Lt. Richardson testified that he is familiar with the surveillance system that is installed in the detention center and that he has been trained in how to search for incidents in the system's hard drive. (R. 96-97.) Lt. Richardson testified that the system is "designed to aid us in monitoring the inmate population because it's humanly impossible to see everything -- everyone and everything." (R. 96.) He described the training he had received on the system as "pretty basic and routine." (R. 96.) He further detailed the training as follows:

"The basic training is you utilize the monitors to, like I said, aid in monitoring the inmates, things of that nature. The system records 24/7. There is a database that is primarily utilized by supervisors that we go back -- log into to research incidents; or if we have an issue in a cell block, to try to narrow down, you know, to find out what really happened, yeah."

(R. 96-97.)

Lt Richardson further testified that surveillance footage is kept on a hard drive and could be transferred to a USB drive. He said that the system constantly records and "never" records over footage. (R. 97.) Lt. Richardson stated that he watched the video related to the incident involving Hooks and Lee "when the incident first occurred" and reviewed it again the day of trial. (R. 97-98.) He identified State's...