Mashburn v. State

• Decision Date: 02 November 2007
• Docket Number: CR-06-0328.
• Parties: Ellis Louis MASHBURN, Jr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

7 So.3d 453

Ellis Louis MASHBURN, Jr. v. STATE of Alabama.

CR-06-0328.

Court of Criminal Appeals of Alabama.

November 2, 2007.

Opinion on Return to Remand April 25, 2008.

Rehearing Denied June 13, 2008.

Certiorari Denied October 24, 2008 Alabama Supreme Court 1071307.

Valarie Lynn Palmedo Goudie, Anniston, for appellant.

Troy King, atty. gen., and Peter J. Smyczek, asst. atty. gen., for appellee.

BASCHAB, Presiding Judge.

The appellant, Ellis Louis Mashburn, Jr., pled guilty to and was convicted of five counts of capital murder for the killings of Clara Eva Birmingham ("Eva") and Henry Owen Birmingham, Jr. ("Henry"). Count I charged him with the robbery-murder of Henry, see § 13A-5-40(a)(2), Ala.Code 1975; Count II charged him with the robbery-murder of Eva, see § 13A-5-40(a)(2), Ala.Code 1975; Count III charged him with the burglary-murder of Henry, see § 13A-5-40(a)(4), Ala.Code 1975; Count IV charged him with the burglary-murder of Eva, see § 13A-5-40(a)(4), Ala.Code 1975; and Count V charged him with murder made capital because he killed Henry and Eva by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975. The trial court engaged the appellant in a thorough colloquy, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Rule 14.4, Ala. R.Crim. P., during which the appellant admitted his guilt and expressed his desire to enter a guilty plea. The appellant entered his guilty plea, and the matter was presented to a jury so the jury could determine whether the State had proven its case against the appellant beyond a reasonable doubt, as required by § 13A-5-42, Ala. Code 1975. After the jury returned a verdict of guilty, the penalty phase proceedings began. By a vote of eleven to one, the jury recommended that the appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death. The appellant filed a motion for a new trial, which was denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

We have reviewed the proceedings before and during the guilt phase of the trial for jurisdictional errors. See § 13A-5-42, Ala.Code 1975. Further, we have reviewed the penalty phase proceedings for any error, whether preserved or plain, as required by Rule 45A, Ala. R.App. P., which 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."

In Haney v. State, 603 So.2d 368, 392 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992), we stated:

"The Alabama Supreme Court has adopted federal case law defining plain error, holding that `"[p]lain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings,' Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981))."

"[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 n. 14 (1982)).

The appellant does not challenge the sufficiency of the evidence to support his convictions. However, we have reviewed the evidence, and we find that it is sufficient to support the convictions. The following facts may be helpful to an understanding of this case:

On October 30, 2002, family members discovered that Henry and Eva had been murdered in their home in Alexandria. The autopsy revealed that they died as a result of multiple blunt and sharp force injuries. There were spatters and pools of blood in the house, and the condition of the scene indicated that there had been a struggle. Blood that matched the appellant's blood type was located in the victims' house. Finally, law enforcement officers retrieved various pieces of Eva's jewelry from the appellant's residence, from Jeremy Butler's vehicle and one of Butler's friends, and from Tony Brooks' girlfriend and mother.

Michael Simpson, the appellant's cellmate at the Calhoun County Jail, testified that the appellant said that he and Brooks used Butler's vehicle; that they drove to the victims' house; and that they attacked the victims with a hatchet and a knife.

I.

The appellant argues that the trial court erroneously denied his motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), after the State used eight of its forty peremptory strikes to remove black veniremembers. The State argues that the appellant's "guilty plea waived his right to raise this issue on appeal." (Appellant's brief at p. 12.) We addressed a similar situation in Key v. State, 891 So.2d 353, 371 (Ala.Crim. App.2002), as follows:

"Key's guilty plea waived this nonjurisdictional claim from review as it relates to the guilt phase. Because the same jury heard the penalty phase of the proceeding, we will review the claim on appeal as it relates to that phase of the trial."

Similarly, we will review the appellant's Batson argument as it relates to the penalty phase of his trial.

After the jury was struck but before it was sworn, the following occurred:

"[DEFENSE COUNSEL]: ... [W]e would like to make a Batson challenge to several of the strikes that were made. My co-counsel is gathering a list. Because of the amount of information involved and the number involved, we are just having a little bit of trouble. We are pursuing that right now. Your Honor —

"THE COURT: Let's go on the record, please.

"[DEFENSE COUNSEL]: Your Honor, again, trying to accumulate these notes, and according to the notes I've been handed and the things we've looked at, we want to make a Batson challenge based on the State's conclusion of number 1, number 12, number 13, number 21, number 24 —

"THE COURT: Wait, one what?

"[DEFENSE COUNSEL]: 1, 12, 13, 21, 24, 31, 63, and 117, 117. Your Honor, all these people that the State chose to strike share one thing primarily in common and that is that they are African American individuals, and when you look at a breakdown of the State's pattern and practice of strikes in this case, it appears that they left similarly situated individuals on the jury panel that had the same characteristics, and according to my precursory look, the responses or the — their demeanor during questioning was no different than white jury members that were left on the panel who are, and I don't want to say similarly situated because, again, it's not an exact same situation, but they are similarly situated. And based on those, we feel the State has exercised a pattern of practice of excluding blacks from this jury panel simply because of their race.

". . . .

"[THE COURT:] Now, your argument is what, please?

"[DEFENSE COUNSEL]: Your Honor, we feel that the State, using the strikes, used them in a discriminatory manner in that the specific strikes of these black people who they did not strike or left on other non black people who shared the same or similar characteristics.

"THE COURT: What are those same or similar characteristics?

"[DEFENSE COUNSEL]: For instance, age, if you look at the ages of the individuals that were struck, there are similarly situated individuals left on the panel that are not struck at all. As far as responses, there's people that were ambivalent on the death penalty issue that were white that were not struck by the State, but when it comes time to striking the black people, the people that had the same or similar responses regarding the death penalty were struck, so that leads me to the obvious conclusion that because there are people that are similarly situated that were not struck and similarly situated people that were struck, I have to look for what these people had in common. And clearly to me, in this case, to make sure the record is appropriately protected, we feel that the common thing that these people have in common is their race and the State has exercised a pattern and practice of striking black jurors based simply on their race.

"THE COURT: Two issues are age and response to questions regarding attitude on capital punishment.

"[DEFENSE COUNSEL]: In a rush, that's the best I could come up with, Your Honor, but that's what we believe makes them similarly situated, except for their race.

"THE COURT: Well, first of all, as an observation that has been previously made, not only by me, but I know by Judge Street on two formal rulings, our District Attorney's office has gone out of its way not to exercise State strikes in a discriminatory manner based on race, gender, ethnicity, nor any other arbitrary factor. The defense has a burden of carrying a showing of discriminatory practice; in fact, the Court has to find a prima facie showing. I'm not asking the State to give me reasons at this point, but does the State have any argument in regard to what we just argued?

"[PROSECUTOR]: Judge, if we could just have a second. Judge, I know this is not your question —

"THE COURT: Well, let me ask one other question too. I know that as a matter of practice, the defense bar searches jury lists, any other outside source of information they have available to them; District Attorney's office searches its own files, searches the various information services that are available to law enforcement and the prosecution. So I guess at this point, do you have anything you want to put into the record that does not appear of record at this time that you have available to you that you wish to show as to why perhaps some of these individuals...