Jackson v. State

• Decision Date: 07 February 2020
• Docket Number: CR-18-0454
• Citation: 317 So.3d 1018
• Court: Alabama Court of Criminal Appeals
• Parties: Allen Devante JACKSON v. STATE of Alabama

317 So.3d 1018

Allen Devante JACKSON

v.STATE of Alabama

CR-18-0454

Court of Criminal Appeals of Alabama.

February 7, 2020

Thomas M. Goggans, Montgomery, for appellant.

Steve Marshall, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen.

COLE, Judge.

Allen Devante Jackson appeals his convictions for attempted murder, a violation of §§ 13A-6-2 and 13A-4-2, Ala. Code 1975, and for discharging a firearm into an unoccupied dwelling, a violation of § 13A-11-61, Ala. Code 1975, and his resulting concurrent sentences of 20 years in prison and 10 years in prison, respectively.

Facts and Relevant Procedural History

Because Jackson does not challenge the sufficiency of the State's evidence, only a brief recitation of the facts underlying his convictions is necessary here. On the night of April 7, 2017, Brandious Davis, a friend of Jackson's, agreed to an unarmed fist fight with Jeremy Nixon because of a dispute involving Nixon's former girlfriend, Tierra Todd. The two met at a designated location in a residential neighborhood in Northport, Alabama. Jackson and his aunt, Nakiesha Tate, were also present, along with a few other people, including Brittany Hall.

Before the fight began, Tate patted down both fighters and found no weapons. Shortly after Davis and Nixon began fighting, Nixon was shot multiple times. One of the bullets fired at Nixon went through the living room window of a nearby house. No one was home at the time.

After the shooting, Davis and Jackson left the scene in Jackson's car and went to a birthday party for Davis's sister. According to Davis, Jackson drove the speed limit when they left.

After he was shot, Nixon was taken to a hospital, where he stayed for several months. As a result of the shooting, Nixon has permanent disabilities, including nerve damage in both hands.

When the police arrived at the scene, investigators found eight 9-mm shell casings on the ground near "a large pool of blood." (R. 190.) That evening, Tate told the police that Jackson admitted to the shooting and that she saw a gun in Jackson's hand. Hall told the police that she heard "about five gunshots" and that she saw a "gray Nissan speed off after that without lights with two passengers." (R. 151.)

The morning after the shooting, Todd learned that the police were looking for her. Todd decided "to head down to the police station because it was ... too much for [her] to handle." (R. 168.) Jackson drove Todd to the Sheriff's Office in his silver Nissan Altima automobile. After they arrived at the sheriff's office, the police searched Jackson's car and found an empty Ruger brand pistol case. The police later recovered a 9-mm Ruger pistol from one of Jackson's family members. Thereafter, Jackson was arrested.

In June 2017, Jackson was indicted for attempted murder and for discharging a firearm into an unoccupied dwelling. Jackson's jury trial began on October 15, 2018.

During Jackson's trial, a dispute arose concerning the statement Hall had given to the police on the night of the shooting. The State called Hall as a witness, but, when it asked her about the shooting, Hall claimed that she did not remember it. The State then showed Hall a copy of her handwritten statement to the police, which Hall recognized, identified as being done in her handwriting, confirmed that it was signed by her, and confirmed that her statement was true. When the State asked Hall whether her statement refreshed her recollection of the shooting, Hall responded, "No." (R. 147.) The State then asked Hall to read her statement into the record, Jackson objected, and the following exchange occurred outside the presence of the jury:

"[Jackson's Counsel]: Judge, the witness has said several times she does not remember. She did make a statement to the police. If the statement is admissible for any purpose, it cannot be for substantive evidence but only for impeachment or an inconsistent statement. I probably need to take a look at it and see if there's any inadmissible hearsay in it as well. She's made clear she doesn't remember anything about that night. She's been shown the statement and says it doesn't refresh her memory, and I don't think they should be able to ask her any questions directed towards the idea that anything she says at this point would be considered as substantive evidence of anything.

"[Prosecutor One]: My argument would be that this witness is intentionally not wanting to testify and not remember. She's been shown the statement to refresh her recollection. She continues to say that she is not refreshed.

"The Court: Are you saying, [Jackson's counsel], that it is not admissible, the statement itself, since the foundation has been laid that she gave the statement, that's her writing, that's her signature?

"[Jackson's counsel]: But it cannot be admitted as substantive evidence. I had this come up in a capital case in Dothan last year.

"The Court: What is an impeachment?

"[Jackson's counsel]: Well, I don't know. I guess they would say that she does remember something. I don't know that it would be impeaching anything really. I don't think it's admissible at all. If it's admissible for anything, it would be she does remember, but seems to me it's confusing. Your Honor.

"The Court: All right. I think he's right as far as the extrinsic evidence, impeaching versus substantive. Do you have any different view on it, [Prosecutor Two]?

"[Prosecutor Two]: I think they're saying she does not remember the events of that evening today. I think that we should be allowed to go into what she told that night.

"The Court: Yeah. I think that [Jackson's counsel] is just arguing, yeah, it can come in, but I need to give a limit[ing] instruction[ ] on whether it's impeaching her or incorporated as substantive evidence by the jury.

"[Prosecutor Two]: I think she just doesn't want to be here.

"The Court: Hang on just a second.

"[Prosecutor One]: All right. Judge, I think Rule 803(5), [Ala. R. Evid.,] the following may not be excluded by the hearsay rule even though the declarant is available as a witness. That being recorded recollection and a memorandum for record concerning about a matter about which a witness once had knowledge but now has insufficient recollection to unable the witness to testify fully and accurately shown to have been made or doctored by the witness, then the matter expression of the witness's memory and to reflect that knowledge correctly [sic]. And if admitted, that memorandum or record itself may not be offered as an exhibit but may be read into evidence but itself may not be offered as an exhibit.

"The Court: 803(5)?

"[Prosecutor One]: 803(5). And I think we'll have to waive the predicate. I can't refresh her memory before it can be read into the record.

"[Prosecutor Three]: Which is the rightness in her mind at the time.

"The Court: And are there statements of others?

"[Prosecutor One]: It is a statement she gave to police at the crime scene.

"The Court: I guess it's past recollection recorded. I'm going to--I'll let you go forward.

"[Prosecutor One]: I'm just going to have her read her statement into evidence.

"THE COURT: Okay. Thank you."

(R. 148-51.) Hall then read her statement to the jury. Jackson did not cross-examine her.

After the State rested its case, Jackson moved for a judgment of acquittal, which the circuit court denied. Jackson did not put on a defense case; instead, he rested and argued to the jury that he shot Nixon in defense of Davis. Jackson argued that Davis fell during the fight, that he thought Nixon was gaining the upper hand in the fight, and that he believed that Nixon was about to inflict serious injury on Davis.¹ The jury rejected Jackson's defense theory and returned guilty verdicts on both charges.

On November 19, 2018, the trial court sentenced Jackson to 20 years in prison for his attempted-murder conviction and to 10 years in prison for his discharging-a-firearm conviction. Those sentences were to run concurrently.

On December 18, 2018, Jackson filed a motion for a new trial. The trial court denied that motion on February 11, 2019. This appeal follows.

Discussion

I.

Jackson argues on appeal that the trial court abused its discretion in admitting Hall's statement as a recorded recollection under Rule 803(5), Ala. R. Evid., because, he says, the State did not establish the foundation for admissibility under that rule. Specifically, Jackson claims that the State failed to establish that Hall did not have an insufficient recollection about the shooting, she simply did not want to testify. Jackson concludes that the prosecution's statement that Hall was intentionally not wanting to testify is fatally inconsistent with the argument that the statement was admissible as a recorded recollection under Rule 803(5), Ala. R. Evid. Jackson, however, did not make this specific argument in the trial court.

It is well settled that, "in order for this Court to review an alleged erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated, and a ruling on the objection must be made by the trial court." Shouldis v. State, 953 So. 2d 1275, 1284 (Ala. Crim. App. 2006) (citing Ingram v. State, 729 So. 2d 883 (Ala. Crim. App. 1996) ). It is equally well settled that

"[o]nly those grounds of objection presented to the trial court can serve as a basis for reversal of its action. Bland v. State, 395 So. 2d 164 (Ala. Cr. App. 1981). The trial judge will not be placed in error on grounds not assigned in the objection. Knight v. State, 381 So. 2d 680 (Ala. Cr. App. 1980). Even though evidence may have been inadmissible on different grounds, the defendant is bound by the specified grounds of objection. Turley v. State, 356 So. 2d 1238 (Ala. Cr. App. 1978)."

Bolding v. State, 428 So. 2d 187, 191 (Ala. Crim. App. 1983).

Here, as set out above, when the State asked Hall to read her statement to the jury, Jackson made a general objection as to the admissibility of Hall's statement....