Mack v. State

• Decision Date: 03 April 1998
• Docket Number: No. CR-95-1226.,CR-95-1226.
• Citation: 736 So.2d 664
• Parties: Albert MACK III v. STATE.
• Court: Alabama Court of Criminal Appeals

736 So.2d 664

Albert MACK III v. STATE.

No. CR-95-1226.

Court of Criminal Appeals of Alabama.

April 3, 1998.

Rehearing Denied May 29, 1998.

William Scott Donaldson, Tuscaloosa, for appellant.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.

COBB, Judge.

On the night of July 12, 1993, Patrick Cory Holman's body was found inside the trunk of a partially burned 1974 Oldsmobile Cutlass automobile. The Cutlass was parked on the side of Sanders Ferry Road near the entrance to the Royal Pines subdivision, a suburban neighborhood near Tuscaloosa. He had been killed instantly by a gunshot to the back of his head; his body had been placed in the trunk; and the automobile had been set on fire.

The appellant, Albert Mack III,¹ was indicted for murder, made capital because it was committed during a robbery. See Ala.Code 1975, § 13A-5-40(a)(2). The jury found him guilty as charged and, by a vote of 10 to 2, recommended that he be punished by death. The trial court accepted this recommendation and sentenced the appellant to death. This appeal followed.

Mack does not dispute that he intentionally shot Holman in the back of the head or that the shot killed him. He denies that the shooting occurred during the course of a robbery. Mack's theory of defense is that when he shot Holman, he believed that Holman and Holman's cousin, Carlos Green, intended to kill Mack and/or his friend Roy Craig, Jr.,² because Craig had sold Holman approximately $500 worth of "bad dope." Mack was a friend of both Craig and Holman and had facilitated the drug transaction between Craig and Holman by introducing Holman to Craig.

"Because this case involves the death penalty, this court is obliged under Rule 45A, Ala.R.App.P., to review the record for any error that may have affected the substantial rights of the appellant. However, in Burton v. State, 651 So.2d 641, 645 (Ala.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995), this court noted:

"`"The 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, 1048, 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)."

"`Plain error is error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity, and public reputation of the judicial proceedings.' United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986).'"

Roberts v. State, 735 So.2d 1244 (Ala.Cr. App.1997) (capital murder case).

GUILT PHASE

I.

Mack contends that the trial court erred in refusing to grant a continuance on the first day of trial. The motion for a continuance stated as a ground his alleged diminished mental capacity. According to Mack, during the jury voir dire examination he was under the influence of pain medication to such an extent that he suffered actual irrefutable prejudice.

Mack apparently attempted suicide the morning his trial was to begin. He was treated at approximately 8:00 a.m. in a hospital emergency room and received stitches for cuts to his wrists and neck. The defense alleged that Mack had been administered numbing pain medication at the hospital for these injuries and that that medication rendered him unable to stay awake. He was returned to the jail at about 10:00 a.m. and was then taken to the courthouse for the start of his trial. At 11:55 a.m., before the jury venire was present, the defense moved for a continuance, stating the following:

"MR. WILLIAMS [defense counsel]: [W]e would like to move to continue the proceedings from today on the basis that at approximately 8 a.m. this morning, the defendant injured himself in jail, that he was taken to DCH Regional Medical Center, that at that time he received pain medication and received numerous stitches, that he is in court today with bandages that cannot be concealed, that he has stitches and is still on pain medication. And it is approximately 11:55 now, that he was returned from the hospital around 10 a.m. this morning, that at the present time the defendant cannot effectively assist counsel in defending this case, that he is in pain at the present time. It would be, obviously, prejudicial for him to appear before a jury panel with bandages such as he has had now in court that cannot be concealed.

"THE COURT: I would state in response to the motion that the injuries experienced by the defendant were reported to the Court from the jail personnel who were directly there on the scene to have been self-inflicted. And I would further state that in just viewing the defendant as he sits opposite me down now, he has a long-sleeved plaid shirt on and certainly there don't appear to be bandages or injuries on his wrist area. I can barely see the edge of a bandage poking up around the side of his collar. I wouldn't really note that it is a bandage as opposed to maybe a turtleneck shirt if I wasn't alerted to it. Assuming that the jury might discern one or more bandages on him, given the fact that my information is this was self-inflicted by the defendant and also given the fact that he has been released from the hospital or, that is, the emergency room, that the medical personnel did not see any need to detain him or restrict his activities, and given the fact that we will not be receiving a jury in this case until 1:30 this afternoon at the earliest—that is, we wouldn't start the voir dire until then—at which time any pain medication the defendant might have taken should have subsided, I am going to deny the motion for continuance.

"MR. WILLIAMS: I will state for the record that the defense has received no report from any doctor that says he is capable of resuming his normal activities or that he can proceed with the trial.

"THE COURT: I didn't mean to infer such. I was basically relying on my experience with the emergency room physicians that they don't release somebody or at least they don't release them without restrictions if they consider there is some concern about the need for continued immediate health care treatment.

"MR. WILLIAMS: Those are the motions we have at this time, Your Honor." R. 187-89.

After the prosecution and defense attorneys conducted a general voir dire examination of the veniremembers, the venire was split into five panels and the trial court conducted a Witherspoon³ inquiry and continued voir dire examination of those veniremembers that the court deemed needed further investigation. During the trial court's voir dire examination of the first panel of veniremembers, beyond the hearing of the jury venire, the following transpired.

"THE COURT: Ms. B. [veniremember], you answered both when I questioned you concerning any jurors about prior information about this case or the death of Patrick Holman and also when I likewise asked about any person that had knowledge about the Roy Craig case. That is my reason for follow-up questions with you. Would whatever information you received from whatever source have any tendency to affect your impartiality or your verdict in this case? That is to say, do you think that what you have heard could have any tendency or possible tendency to carry over and influence your deliberations and your verdict in this case?

"Mrs. B. [veniremember]: Yes, sir. And I have several problems with it. I mean, first of all, I know the guy was shot in the back of the head. And since we have been in here I have watched [Mack], and he's been dozing off like he doesn't care. And I mean I don't think I could be fair about it, to be honest."

R. 311-12.

When the trial court had concluded its questioning of the first panel the following occurred:

"THE COURT: Counsel, let's talk about the practical mechanics, the options available to us. The options available to us are to go ahead do one more row tonight and tell the other three rows to come back or say we can do two more and have the other two remaining.

"MR. WILLIAMS: My client—you have been observing him. My client has been given some deadening pain medication for the stitches that he received this morning. He's dozed off at least six times while we have been doing the voir dire. Even one of the jurors noticed that he had dozed off and mentioned it. I would request that since he's in such shape that we do one more row of voir dire. It obviously affects the impartiality of the jurors in this case. And tomorrow morning if we have to come back at 8:00 or 8:30—either I want the case continued as the previous motion that I made or—you obviously now have evidence from a juror that observed he was asleep during the trial of the case. The Court observed the defendant dosing off. First I renew my motion for a continuance, and second, I request the Court not to go past one more row of jurors this afternoon.

"THE COURT: I will respond to say that I have not observed your client doze off. That's not to say he has not. I have not been directing my attention to him at any time when he has. Although I have had him in my view from time to time, I have not seen him on occasion when he appeared to have dozed off. Secondly, he seemed quite alert and able to participate right now.

As I have said before, given the cause and effect relationship of why he might be in that shape, I can't allow that to control the conduct of the case. I think a practical thing is to do one more row....

"MR. WILLIAMS: I would request one more fact. When we do select the jury, whatever 14 that we put in the box, that they be instructed by the Court without any comment from the attorneys that Mr. Mack has been on medication during the jury striking process and that no inference would be taken from any of his actions during that time.

...