Jackson v. State ).
| Decision Date | 24 September 2010 |
| Docket Number | 1090679. |
| Citation | 68 So.3d 211 |
| Parties | Ex parte Esaw JACKSON.(In re Esaw Jacksonv.State of Alabama). |
| Court | Alabama Supreme Court |
OPINION TEXT STARTS HERE
Randall S. Susskind and Alicia A. D'Addario, Equal Justice Initiative, Montgomery, for petitioner.Troy King, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent.WOODALL, Justice.
Esaw Jackson was convicted of three counts of capital murder for (1) killing Pamela Montgomery by shooting her with a rifle fired from a vehicle, see § 13A–5–40(a)(18), Ala.Code 1975; (2) killing Milton Poole III by shooting him with a rifle fired from a vehicle, see § 13A–5–40(a)(18), Ala.Code 1975; and (3) killing Montgomery and Poole during one act or pursuant to one scheme or course of conduct, see § 13A–5–40(a)(10), Ala.Code 1975. He was also convicted of two counts of attempted murder for shooting Denaris 1 Montgomery and Shaniece Montgomery.
The jury recommended, by a vote of 10–2, that Jackson be sentenced to death for the capital-murder convictions. After a sentencing hearing, the trial court sentenced Jackson to death. The trial court also sentenced him to consecutive terms of life imprisonment for the two attempted-murder convictions. After Jackson's motion for a new trial was denied by operation of law, he appealed.
The Court of Criminal Appeals affirmed Jackson's convictions and sentences. Jackson v. State, 68 So.3d 201 (Ala.Crim.App.2009). Jackson raised only two issues on appeal to the Court of Criminal Appeals, both of which related solely to his capital-murder convictions. The Court of Criminal Appeals rejected his argument “that the penalty of death by lethal injection is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.” Jackson, 68 So.3d at 206. That court also rejected his argument “that charging him with three counts of capital murder was multiplicitous and that his resulting convictions and sentence of death for all three counts violated principles of double jeopardy.” Jackson, 68 So.3d at 207. Further, as required by Rule 45A, Ala. R.App. P., the Court of Criminal Appeals reviewed the record for any plain error or defect in the proceeding and found none during either the guilt phase or the sentencing phase of Jackson's trial. After the Court of Criminal Appeals overruled his application for a rehearing, Jackson, through new counsel, petitioned this Court for certiorari review of the capital-murder convictions and sentences of death that the Court of Criminal Appeals affirmed.
Rule 39(a)(2)(A), Ala. R.App. P., provides that, in a death-penalty case, “a petition for writ of certiorari will ... be considered from a decision failing to recognize as prejudicial any plain error or defect in the proceeding under review whether or not the error or defect was brought to the attention of the trial court or the Court of Criminal Appeals.” In his petition for certiorari review, Jackson presents several issues that, according to him, warrant plain-error review. See Rule 39(a)(2)(B), Ala. R.App. P. We granted his petition to consider four of those issues.
“Plain error is defined as error that has ‘adversely affected the substantial right of the appellant.’ ” Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999) (quoting Rule 45A, Ala. R.App. P.), aff'd, 820 So.2d 152 (Ala.2001). “Plain error is ‘error so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.’ ” Ex parte Walker, 972 So.2d 737, 742 (Ala.2007) (quoting Ex parte Trawick, 698 So.2d 162, 167 (Ala.1997)). “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), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001). Plain-error review “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, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). “Although the failure to object will not preclude [plain-error] review, it will weigh against any claim of prejudice.”Sale v. State, 8 So.3d 330, 345 (Ala.Crim.App.2008).
In its opinion, the Court of Criminal Appeals summarized much of the trial testimony, and there is no need to repeat most of that discussion. On February 1, 2006, Pamela Montgomery was operating her automobile; in the vehicle with her were her children, 17–year–old Denaris and 21–year–old Shaniece, as well as 16–year–old Milton Poole III, a family friend. While Pamela was stopped at an intersection, someone fired many rounds from an assault rifle into her vehicle, killing Pamela and Milton and injuring Denaris and Shaniece. Denaris testified that he had seen Jackson drive up beside his mother's car and open fire. Shaniece was not able to identify a shooter. Brandon Carter, a defense witness, testified that he was in Jackson's vehicle at the time of the shooting and that the shots were fired from another vehicle, not by Jackson.
Milton's mother was Loretta Poole. She was acquainted with Jackson, who lived in the same area she lived in. Loretta testified, as stated in Jackson, 68 So.3d at 202, that, approximately two weeks before the shooting, Jackson had told her that he did not like her and that he was going to make her move from the area by “hurt[ing] [her] so bad” that she “ain't going to have no choice but to move.” However, the Court of Criminal Appeals' opinion does not address all Loretta's testimony concerning what the State describes as Jackson's “vague and cryptic threat.” State's brief, at 21. Some of Jackson's claims of plain error relate to the testimony not addressed by the Court of Criminal Appeals.
During the guilt phase of Jackson's trial, Loretta, on direct examination, gave the following testimony:
“
(Emphasis added; parenthetical language original.) This emotional, mostly nonresponsive testimony forms the basis for some of Jackson's claims of plain error.
Jackson correctly observes that “Loretta Poole ... was permitted to provide extremely emotional testimony regarding her opinion of [Jackson's] guilt, despite the fact that she had no personal knowledge of the identity of the shooters.” Jackson's brief, at 8. Loretta was not at the scene of the shooting; nevertheless, she twice expressed her opinion that Jackson had killed her son. Such testimony from a lay witness was clearly inadmissible. Rule 701, Ala. R. Evid., provides, in pertinent part, that a lay “witness's testimony in the form of opinions or inferences is limited to those opinions and inferences which are ... rationally based on the perception of the witness.” ” Musgrove Constr., Inc. v. Malley, 912 So.2d 227, 239–40 (Ala.Civ.App.2003). See also Lewis v. State, 889 So.2d 623, 646 (Ala.Crim.App.2003).2
Jackson argues that Loretta's “extraordinarily prejudicial testimony was improper because it went to the ultimate issue in this case—whether [he] had shot ... Milton and the others in the car with him.” Jackson's brief, at 8 (emphasis added). Although the only disputed issue at trial was whether Jackson had fired a weapon into the vehicle occupied by the victims, Loretta's statements were inadmissible, regardless of whether they are properly characterized as going to the ultimate issue to be decided by the jury. Rule 704, Ala. R. Evid., states: ...
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