Kelley v. State
| Decision Date | 05 September 2014 |
| Docket Number | CR–10–0642. |
| Citation | 246 So.3d 1032 |
| Parties | Michael Brandon KELLEY v. STATE of Alabama |
| Court | Alabama Court of Criminal Appeals |
Jessica Oats, Raoul Dieter Schonemann (withdrew 07/11/2013), and William Robert Montross, Jr., Atlanta, Georgia, for appellant.
Luther Strange, atty. gen., and Jess R. Nix and Andrew Lynn Brasher, deputy attys. gen., and Megan Arys Kirkpatrick, asst. atty. gen., for appellee.
On Application for Rehearing
This Court's opinion of March 14, 2014, is withdrawn, and the following opinion is substituted therefor.
Michael Brandon Kelley appeals his convictions for two counts of capital murder and one count of sexual torture. Kelley was convicted of one count of capital murder for taking the life of Emily Milling during the course of a first-degree kidnapping, see § 13A–5–40(a)(1), Ala.Code 1975; a second count of capital murder for taking the life of Emily during the course of sexual abuse, see § 13A–5–40(a)(8), Ala.Code 1975; and one count of sexual torture for acts he committed on Emily, see § 13A–6–65.1, Ala.Code 1975. The jury recommended, by a vote of 10 to 2, that Kelley be sentenced to death for his capital-murder convictions. The circuit court accepted the jury's recommendation and sentenced Kelley to death. It also sentenced Kelley to life in prison for his sexual-torture conviction.1
The State's evidence tended to show the following. On Friday, November 14, 2008, Emily and three friends, William Lloyd, Crystal Parker, and Bobby Norris, went to the Central Club, a nightclub in Leeds. They arrived at the club between 11 and 11:30 p.m. Emily left her purse and cellular telephone in her car and took only her driver's license and car keys into the club.
About an hour after they arrived at the club, Kelley approached the group and asked Lloyd if Lloyd remembered him. Lloyd stated that he did remember Kelley. Kelley then pointed his finger at Emily and called her by her maiden name, Emily Phillips.
Lloyd then saw Emily and Kelley have a conversation that lasted about 15 to 20 minutes. Emily and Kelley then walked up to Lloyd and Norris. Emily gave Norris the keys to her car. She told Lloyd and Norris that she and Kelley were going to go visit Kelley's cousin David Alan Heath and that they would be back in 20 minutes. Stephen Cook, who worked as security at the club, saw Emily and Kelley leave the club together.
Heath looked out his window when his dog started barking and saw Kelley's green Chevrolet Blazer sport-utility vehicle. According to Heath, Kelley stayed in the driveway for around 30 minutes but never came to the door.
Meanwhile at the Central Club, Lloyd worried when Emily had not returned by the time the club closed. Lloyd, Norris, and Parker waited for Emily outside the club after it closed. After waiting for awhile, the three drove Emily's car back to her house so that Parker could get her car and leave. After dropping off Parker, Lloyd and Norris drove around the area of the club looking for Emily. They then went back to the parking lot of the club and waited for Emily for an hour to an hour and a half. After Emily failed to return to the club, Norris drove Lloyd to Lloyd's aunt's house. Norris then went home.
The next day, Curtis Gomer, Kelley's cousin, went to work at Mike's Fabricating. Kelley's father, Mike, owned the fabricating shop, and family members used the dumpsters. Between 7 and 7:15 a.m., Gomer saw Kelley throw a number of garbage bags with blue ties into the dumpster.
Later that same day, Lloyd went to Norris's house to retrieve Emily's car. Lloyd took Emily's car to Kelley's mobile home to look for her. Lloyd knocked on Kelley's door, and Kelley answered. Lloyd testified that Kelley blocked the door. Lloyd asked Kelley about Emily's whereabouts, and Kelley, who Lloyd said was stuttering, shaking, and nervous, said he dropped her off at Heath's residence. Kelley then told Lloyd where Heath lived. Lloyd told Kelley that if he did not find Emily, he was going to go to the police. Lloyd then went to Heath's house and learned that Emily had not been there. When he was unable to find Emily, Lloyd picked up his aunt, and they returned Emily's car to her house. Later, Lloyd's aunt telephoned the police.
On the following Sunday, Larry Phillips, Emily's father, noticed that she was missing. That evening, Larry Phillips, Neil Phillips, Emily's brother, and, at some point, Brandon Milling, Emily's husband,2 searched for her. Later that evening, Brandon Milling and Larry Phillips went to the police station and filed a missing-person report.
The following Monday morning, Renee Reaves, a detective sergeant with the Leeds Police Department, was assigned to investigate Emily's disappearance. That same morning, Detective Reaves received a telephone message from Kelley regarding Emily's disappearance. When Detective Reaves returned Kelley's call, Kelley stated that he wanted "to find out what was going on with ... Emily, [he had] heard she was missing and [he] wanted to see what was going on." (R. 622–23.) Kelley told Detective Reaves that he was with Emily Friday night at the club, that he took her to Heath's house, and that he then dropped her off back at the club.3 Kelley also told Detective Reaves that he was a truck driver and was on a job in California.
After the telephone conversation with Kelley, Detective Reaves went to the Central Club and viewed surveillance videos that had been taken inside and outside the club. The videos showed Kelley and Emily leaving the club together but did not show them returning. After viewing the videos, Detective Reaves called Kelley to determine when he dropped her off at the club. Kelley told Detective Reaves that he dropped her off at the club before it closed for the night.
On the same day that he called Detective Reaves, Kelley also called Michael Russo, the president of Certified Motors, Inc., from whom Kelley had purchased the Blazer the previous Wednesday. Kelley told Russo that something had come up and that he would not be able to keep the Blazer. Kelley also told Russo that Russo could keep the down payment Kelley had made on the purchase and that the vehicle could be picked up at K & S Trucking, the company for which Kelley worked.
Meanwhile, Ron Westmoreland, Emily's boss at Stringfellow Lumber Company, learned that she was missing. He organized a search party consisting of 11 to 13 people. They searched the area between Kelley's mobile home and Leeds. The search party found Emily's body between 6:30 and 7:00 p.m. that evening. The body was located in an opening in a wooded area roughly 75 feet off Markeeta Road in Leeds.
Upon discovering the body, the search team contacted law enforcement. Forensic scientists Charlie Landon Pearce, Shane Golden, and Mark Hopwood, and Forensic Investigator Chris Crowe went to where the body was located to process the scene. After processing the scene, Investigator Crowe transported the body to the Huntsville Regional Laboratory Morgue.
Detective Aleisha Reannon Hollman spoke with Russo and located Kelley's Blazer at K & S Trucking. Detective Reaves obtained warrants authorizing officers to search Kelley's Blazer and his mobile home. Detective Hollman then went to K & S Trucking and secured the Blazer with evidence tape. The Blazer was moved to Murray's Garage in Leeds.
After processing the scene where the body was found, the forensic team went to Murray's Garage to search and to process Kelley's Blazer. In the cargo area of the Blazer, Pearce found red/brown stains that tested positive for blood. DNA from the bloodstains in the Blazer matched samples taken from Emily. When the forensic team finished processing the Blazer, they went to Kelley's mobile home. In the mobile home, the team located numerous red/brown stains. The stains were found in the hallway, the east wall, the bathroom, near the back door, the front door, the master bedroom, and the west wall. Of the samples of the stains that were tested for DNA, all were found to match Emily's blood samples. Also, on the west wall was a mixture bloodstain. The DNA testing of the mixture stain revealed that Emily was the donor of the major component and that Kelley was included as a possible donor of the minor component.
In addition to collecting samples of the visible stains, the forensic team sprayed luminol in the mobile home. Pearce testified that luminol is a product that reacts to blood and allows them to detect blood that has been diluted or that is on surfaces that have been cleaned. The luminol showed the outline of a body in the shower and drag marks from the shower to the front door.
On Tuesday morning, Gomer picked up Heath and they went to work at Mike's Fabricating. When they arrived at work, Gomer and Heath went through the dumpster where Gomer had seen Kelley throwing trash bags. Inside one of the trash bags that Kelley had thrown away, Gomer found a woman's shirt and a boot. At that point, Gomer telephoned emergency 911.
Law-enforcement officers and the forensic team responded to the 911 call. The forensic team found the five trash bags with blue ties that Gomer had seen Kelley throw in the dumpster. Inside the bags, they found, among other things, the clothes Emily had been wearing at the club, her sunglasses, her necklace, and her driver's licence. They also found various other male and female clothes and washcloths. Many of these items had red/brown stains on them. The officers also found a sleeping bag with red/brown stains and a toilet plunger with red/brown stains on the handle. DNA testing revealed that the stains on the sleeping bag and toilet plunger consisted of Emily's blood.
The autopsy performed on Emily's body by Dr. Valerie Green indicated that she had been tortured prior to her death. She had a bruise and skin tears around her right eye consistent with being punched. She had cuts on her head and ear, a bruised lip
, and multiple brain hemorrhages. Her neck was scratched and bruised and she had multiple bruises...
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