McGriff v. State

• Decision Date: 29 September 2000
• Citation: 908 So.2d 961
• Parties: Dennis Demetrius McGRIFF v. STATE.
• Court: Alabama Court of Criminal Appeals

908 So.2d 961

Dennis Demetrius McGRIFF v. STATE.

CR-97-0179.

Court of Criminal Appeals of Alabama.

September 29, 2000.

Opinion on Return to Remand August 31, 2001.

Rehearing Denied November 21, 2001.

William Chris Maddox, Dothan, for appellant.

William H. Pryor, Jr., and Troy King, attys. gen., and Michelle Riley Stephens, asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, Dennis Demetrius McGriff, was convicted of murdering Michael McCree by shooting McCree while McGriff was in a motor vehicle, a violation of § 13A-5-40(a)(18), Ala.Code 1975. The jury found, as the only aggravating circumstance, that McGriff had "knowingly created a great risk of death to many persons" and recommended, by a vote of 10 to 2, that McGriff be sentenced to death. The trial court accepted the jury's recommendation and sentenced McGriff to death by electrocution.

The State's evidence tended to show the following. On October 22, 1996, as McGriff, Ebra "Yetta" Hayes,¹ and Gabriel Knight,² were driving by a residential area on 7th Avenue in Ashford, McGriff leaned out of the car window and fired three shots. One shot hit McCree in the back, fatally wounding him. The coroner testified that McCree died from a gunshot wound that entered his chest cavity through his back; the bullet pierced both lungs and his aorta.

Jeffery McCree, the victim's brother, was present at the shooting and testified to the events surrounding his brother's death. Jeffery testified that on October 22, 1996, he, his brother, Chance Jones, and Alan Shorter were parked in Shorter's car in the parking lot of an abandoned nightclub in Ashford. Approximately 30 or 40 people had gathered in the parking lot. At approximately 5:15 p.m. a shot rang out. Jeffery saw a green car, driven by Yetta Hayes, pass by the club. McGriff was riding in the front passenger seat and was leaning out of the window with a gun in his hand. After the first shot was fired, the group in the parking lot scattered. Michael McCree tried to hide from the flying bullets. Two more shots were fired and the green car drove away. Jeffery then saw his brother lying on the ground; he had been shot in the back. Jeffery and Shorter put Michael in Shorter's car and drove him to Southeast Alabama Medical Center. Attempts to revive him were unsuccessful, and McCree died shortly after reaching the hospital.

Chance Jones also testified that he was with the victim and Jeffery McCree in the club parking lot at the time of the shooting. He said that there were about 30 or 40 people in the area and that McCree was standing beside his car when a green car drove by slowly. According to Jones, McGriff leaned out of the passenger side window, fired one shot, and then fired two shots in succession. After the gunfire stopped, Jones saw that McCree had been shot. Jones walked toward McCree and saw what he described as a liver on the ground near McCree's body. Jones also said that when the green car passed he heard McGriff yell, "I told you I was going to get you."

Police were dispatched to the hospital to investigate the shooting. Deputy Ashley Forehand interviewed Jeffery McCree and Alan Shorter in the loading-dock area near the emergency room entrance. The three had a clear view of the streets near the hospital during the interview. While Forehand was interviewing the two witnesses, a green car passed by the hospital. Jeffery and Shorter identified the car as the car that had been involved in the shooting. Forehand pursued the vehicle, radioed for backup, and stopped the vehicle. McGriff was sitting in the passenger side, Forehand said, and when McGriff opened his door a hard object hit the pavement. A .44 caliber revolver was recovered near the car door. Forensic testing identified this gun as the murder weapon. All three occupants of the car were taken into custody.

Deputy Keith Cook of the Houston County Sheriff's Department testified that while he transported McGriff from Ashford to the county jail, McGriff stated that he had shot McCree and that he would not lose any sleep over it. McGriff also gave a formal statement to police after he was taken to the jail. McGriff told police that he had shot McCree but that he had not intended to kill him. He said that he had been aiming at a car parked near McCree when he fired the fatal shot.

At trial McGriff admitted that he had fired the fatal shot. In opening statement, counsel said that McGriff had fired the shot that had killed McCree but that the crime was not a capital offense because, he said, McGriff did not intend to kill McCree. McGriff's defense was that he had been aiming at the car McCree was standing near when he fired the fatal shot. He called witnesses who testified that earlier in the day of the murder, McCree and McGriff had had a confrontation and that McCree and two others, Jerry Thompson and "Scat" Walker, had been chasing McGriff and his companions and throwing gasoline bombs at the car McGriff was riding in. According to witnesses, these events occurred about five hours before McCree was shot and killed.

Standard of Review

Because McGriff has been sentenced to death, this Court must review the record of the trial proceedings to determine if there was any plain error. Rule 45A, Ala. R.App.P., states:

"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, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

See also Rule 103(d), Ala.R.Evid., which states: "Nothing in this rule precludes taking notice of plain errors affecting substantial rights in a case in which the death penalty has been imposed, even if they were not brought to the attention of the court."

This Court has stated the following about "plain error":

"`Plain error' has been defined as error `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). `To rise to the level of plain error, the claimed error must not only seriously affect a defendant's "substantial rights," but it must also have an unfair prejudicial impact on the jury's deliberations.' Hyde v. State, 778 So.2d 199 (Ala.Cr.App.1998). This court has recognized that `"the plain error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a mis-carriage of justice would otherwise result.'"' 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), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting, in turn, United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982))."

Jackson v. State, 791 So.2d 979 (Ala.Crim. App.2000). We will review the arguments made in brief whether or not they were brought to the attention of the trial court. However, the failure of McGriff to object at trial to any claimed error on appeal will weigh against any claim of prejudice McGriff raises on appeal. James v. State, 788 So.2d 185 (Ala.Crim.App.2000).

Guilt-Phase Issues

I.

McGriff argues that the trial court erred in denying his application for youthful offender status. Specifically, he contends that the probation officer's report, which the trial court relied upon in denying his application, was deficient because the probation officer did not personally interview McGriff before compiling the report.

Section 15-19-1(a), Ala.Code 1975, commonly referred to as the "Youthful Offender Act," states, in part:

"(a) A person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall, and, if charged with a lesser crime may be investigated and examined by the court to determine whether he should be tried as a youthful offender...."

The Alabama Supreme Court, interpreting the obligation of a trial court when a defendant has applied for youthful offender status, stated that a trial court is not obliged to order a full-blown investigation by a probation officer in each instance where such an application is made. The Supreme Court stated in Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (Ala.), on remand, 56 Ala.App. 728, 321 So.2d 243 (Ala.Crim.App.1975):

"While our statute seems to require an investigation in certain cases, we do not read it to require the trial court to order an investigation by a probation officer in every case. In fact, § 266(5) of Tit. 15 places a duty on the probation officers to make such investigations as requested by the court. We read this to mean that referral to the probation officer for an investigation is a discretionary matter with the trial court, not mandatory....

"As we read the statute, the requirement that an investigation be made means only that the trial court should conduct or order such investigation as is necessary in each case, including an investigation by the probation officer, if it sees fit, but not necessarily, for the development of such facts as are required for a determination of whether the defendant is eligible for youthful offender treatment.

"Obviously, the court will not require an investigation by a probation officer in every case. In many cases, sufficient facts for a determination will be available without a probation officer's report.

"The court would naturally consider such matters as the nature of the crime charged, prior convictions, or absence thereof—all of which can be ascertained

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