Lee v. State

• Decision Date: 26 October 2001
• Citation: 898 So.2d 790
• Parties: Jeffrey LEE v. STATE.
• Court: Alabama Court of Criminal Appeals

898 So.2d 790

Jeffrey LEE v. STATE.

CR-00-0084.

Court of Criminal Appeals of Alabama.

October 26, 2001.

Opinion on Return to Remand June 27, 2003.

Rehearing Denied August 22, 2003.

Angela L. Setzer and Bryan A. Stevenson of Equal Justice Initiative of Alabama, Montgomery, for appellant.

William H. Pryor, Jr., atty. gen., and David R. Clark, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, Jeffrey Lee, was convicted of two counts of capital murder for the killings of Jimmy Ellis and Elaine Thompson. The murders were made capital because the appellant committed them during the course of a robbery or an attempted robbery. See § 13A-5-40(a)(2), Ala.Code 1975. He was also convicted of an additional count of capital murder, pursuant to § 13A-5-40(a)(10), Ala.Code 1975, because he killed Jimmy Ellis and Elaine Thompson by one act or pursuant to one scheme or course of conduct. Finally, he was convicted of attempting to murder Helen King. See §§ 13A-6-2 and 13A-4-2, Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 7 to 5, that the appellant be sentenced to imprisonment for life without the possibility of parole for the capital offenses. The trial court overrode the jury's recommendation and sentenced the appellant to death for the capital offenses. It also sentenced him to serve a term of life in prison on the attempted murder conviction. This appeal followed.

The appellant argues that the sentencing order is deficient because the trial court did not state the specific reasons it gave the jury's sentencing recommendation the consideration it gave it, as required by Ex parte Taylor, 808 So.2d 1215 (Ala.2001). We agree. In Taylor, the Alabama Supreme Court stated:

"Under Alabama's capital-sentencing procedure, the trial judge must make specific written findings regarding the existence or nonexistence of each aggravating circumstance and each mitigating circumstance offered by the parties. § 13A-5-47(d), Ala.Code 1975. In making these findings, the trial judge must consider a jury's recommendation of life imprisonment without parole. See § 13A-5-47(e), Ala.Code 1975, (`in [weighing the aggravating and mitigating circumstances] the trial court shall consider the recommendation of the jury contained in its advisory verdict'). Construing subsection (e) together with subsection (d), we conclude that the trial judge must state specific reasons for giving the jury's recommendation the consideration he gave it."

(Footnote omitted.) In this case, although the trial court indicated that it had "given due consideration to the jury's recommendation," (C.R. 126), it did not state the specific reasons it gave the jury's recommendation the consideration it gave it. Accordingly, we remand this case to the trial court with instructions that that court amend its sentencing order to comply with the requirements of Taylor, as set forth above. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

On Return to Remand

BASCHAB, Judge.

The appellant, Jeffrey Lee, was convicted of two counts of capital murder for the killings of Jimmy Ellis and Elaine Thompson. The murders were made capital because the appellant committed them during the course of a robbery or an attempted robbery. See § 13A-5-40(a)(2), Ala.Code 1975. He was also convicted of an additional count of capital murder, pursuant to § 13A-5-40(a)(10), Ala.Code 1975, because he killed Jimmy Ellis and Elaine Thompson by one act or pursuant to one scheme or course of conduct. Finally, he was convicted of attempting to murder Helen King. See §§ 13A-6-2 and 13A-4-2, Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 7 to 5, that the appellant be sentenced to imprisonment for life without the possibility of parole for the capital offenses. The trial court overrode the jury's recommendation and sentenced the appellant to death for the capital offenses. It also sentenced him to serve a term of life in prison on the attempted murder conviction. The appellant then appealed his convictions and sentences to this court.

On October 26, 2001, this court remanded this case to the trial court with instructions that the trial court amend its sentencing order to comply with the requirements of Ex parte Taylor, 808 So.2d 1215 (Ala.2001). On November 14, 2001, the trial submitted its amended sentencing order. Furthermore, on several occasions since the original transcript was submitted to this court, the trial court has submitted supplemental records to this court.¹

The appellant raises several 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 that involves 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 (1982)).

The trial court summarized the facts of the case as follows:

"On December 12, 1998, around noon Jeffrey Lee entered Jimmy's Pawnshop located in Orrville, Dallas County, Alabama, armed with a sawed off shotgun. Immediately upon entering the front door he shot Jimmy Ellis. After shooting Mr. Ellis he shot Elaine Thompson in the face. Continuing his shooting he shot Helen King and again shot Mr. Ellis. Mrs. Thompson and Mr. Ellis died as a result of shotgun blasts from Lee's gun. Mrs. King survived the shooting after lying motionless on the floor pretending to be dead. Lee attempted to take the cash register out of the store but was unsuccessful because of the way it was secured. He left the store and made his escape with his two co-defendants. His actions were captured by a surveillance video and he later confessed after being captured in a motel in Georgia. Lee had been to the pawnshop earlier in the day of the murder where he inquired about purchasing a ring. He left under the ruse of going to get money to pay for the ring but instead returned with a shotgun."

(R. 122.) Additional facts are included throughout this opinion as needed.

I.

The appellant's first argument is that the trial court improperly allowed the State's psychologist, Dr. Kathy Ronan, to testify "based on the inadmissible hearsay and other collateral sources, none of which were admitted into evidence." (Appellant's brief at p. 15.) Because he did not present this argument to the trial court, we review it for plain error. See Rule 45A, Ala. R.App. P.

During its case-in-chief, the defense called Dr. Donald Blanton,² a licensed professional counselor and a certified psychometrist,³ to testify on the appellant's behalf. Dr. Blanton testified that he saw the appellant on two occasions; that he administered a standard IQ test; that the test showed that the appellant's IQ was 67; and that that placed the appellant "in the middle range of mental retardation." (R. 311.) He also tested for organic disturbances, but did not find any; administered a reading, spelling, and math test that showed that the appellant was at the sixth grade level in reading, the second grade level in spelling, and the second grade level in math; and administered an oral psychological test from which he concluded that the appellant was not psychotic but was depressed as a result of his situation.

In rebuttal, the State called Dr. Ronan, a clinical psychologist at Taylor Hardin Secure Medical Facility. On July 8, 1999, pursuant to an order from the trial court, she evaluated the appellant's mental state at the time of the offenses and his competence to waive his Miranda⁴ rights. She explained that, in conducting her evaluation, she followed protocol and obtained any information she could about the case and the appellant's background from both the defense and the prosecution. Based on her evaluation, she concluded "that there was no mental illness or mental retardation that would have impaired his understanding of right or wrong during the time of questioning." (R. 332.)

Dr. Ronan testified that she administered a mental status examination and "some items from IQ tests" to screen for mental retardation, but explained that she "didn't give him the whole test because [she] didn't feel like he needed those, he was not mentally retarded, he was in the more low average range. The school records would suggest that he's even higher than that." (R. 334.) She also testified that she did not find any evidence that the appellant suffered from a mental disease or defect or that he was mentally retarded. She further testified that "you would really have to be looking at someone's IQ level that's much lower than the mentally retarded range before you're talking about someone who couldn't understand right from wrong." (R. 336.)

When the State asked her about Dr. Blanton's conclusions, she testified that she had read his report earlier that day and that she agreed with parts of it and disagreed with other parts of it. She also testified that the results of the intelligence and achievement tests Dr. Blanton administered were "quite low," "inconsistent with my original findings," and "inconsistent with the history of [the appellant's]...