McMillan v. State

• Decision Date: 23 August 2013
• Docket Number: CR–08–1954.
• Citation: 139 So.3d 184
• Parties: Calvin McMILLAN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

139 So.3d 184

Calvin McMILLAN
v.
STATE of Alabama.

CR–08–1954.

Court of Criminal Appeals of Alabama.

Nov. 5, 2010.
Rehearing Denied Jan. 13, 2011.
Certiorari Denied Aug. 23, 2013

Alabama Supreme Court 1100441.

[139 So.3d 190]

Bryan A. Stevenson, Angela Setzer, and Randall S. Susskind, Montgomery; and Nancy M. Kirby, Prattville, for appellant.

Troy King, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.

MAIN, Judge.

Calvin McMillan was convicted of capital murder for the intentional murder of James Bryan Martin by shooting him in the course of a first-degree robbery, see§ 13A–5–40(a)(2), Ala.Code 1975, and for the intentional murder of James Bryan Martin by shooting him inside a vehicle, see§ 13A–5–40(a)(17), Ala.Code 1975. The trial court sentenced McMillan to death following the jury's 8–4 advisory verdict of life imprisonment without parole. The trial court overrode the jury's recommendation, finding that the aggravating circumstance that the murder was committed during a robbery outweighed the statutory mitigating circumstances concerning McMillan's age at the time of the offense and his lack of criminal history, as well as the nonstatutory mitigating circumstances.

The State's evidence tended to show that on August 29, 2007, Calvin McMillan and Rondarrell Williams drove to the Wal–

[139 So.3d 191]

Mart discount retail store in Millbrook in a white Nissan Sentra automobile belonging to Williams's girlfriend, in order for McMillan “to get him a ride.” (R. 1046.) Williams testified that he knew that McMillan had a gun. The men parked the vehicle by a truck on the outskirts of the parking lot and Williams went into the Wal–Mart store. He purchased some speakers and returned to the vehicle, where McMillan, despite opening and closing the vehicle's front passenger door several times, had remained. After a few minutes, Williams again got out of the vehicle and returned to the store.¹

While Williams was in the store, McMillan got out of the vehicle and began walking around the parking lot, eventually standing by the entrance to the store. He subsequently returned to the vehicle and sat in the front passenger seat with the door open. He then got out of the vehicle quickly, wearing a different shirt than he was wearing when he and Williams had entered the parking lot, and approached a man later identified as the victim.

That same evening, the victim, James Bryan Martin, had driven to the Wal–Mart store in Millbrook following a Montgomery Biscuits minor-league baseball game. He had parked his Ford F–100 pickup truck in the parking lot a few rows from the vehicle driven by Williams and had entered the store. Inside, he had purchased diapers, a Vault brand beverage, and Reese's brand candy. After checking out, he put his bags in his truck.

The victim was then approached by a man later identified as McMillan. Video surveillance of the parking lot of the Wal–Mart store, which was admitted into evidence as a DVD, shows that Martin walked several feet toward McMillan, and then turned and walked back to his truck. The surveillance video also shows that Martin got into his truck and that a few seconds later the brake lights on the truck came on. The video further shows that McMillan also walked toward Martin's truck, hesitated when another vehicle drove down the aisle, and then, when that vehicle passed, McMillan went to the driver's side door of the truck. The video demonstrates that McMillan appeared to shoot Martin and then pull him out of his truck. Martin collapsed on the concrete and McMillan shot him two more times. McMillan got into the truck and started to drive away. He then placed the truck into park, got out of the truck, and appears to have shot Martin again. At that point, McMillan quickly got back into the truck and sped out of the parking lot. Several witnesses who were present in the parking lot or who were in the entrance of the Wal–Mart store approached the victim and called for help.

As the shooting began, the video surveillance shows that Williams walked from the Wal–Mart, hesitated, took a few steps backward, and then walked to his girlfriend's vehicle. Williams placed his bags in the trunk of the vehicle and drove away.

A number of BOLO ² alerts were issued pursuant to descriptions given by witnesses, and they were reissued after the video-surveillance tapes were reviewed. An officer, Corporal Manora of the Montgomery Police Department, who was patrolling the next morning at approximately

[139 So.3d 192]

9:30 a.m., saw a truck matching the description given in the BOLO and began to follow it. The officer called for backup. The truck pulled into an apartment complex and stopped, and the driver jumped out of the truck and ran away. The patrolling officer and another officer who had arrived at the scene chased the driver but were unable to catch him. Neither officer could identify the driver, because they saw him only from behind.

A large number of law-enforcement personnel, including a helicopter crew, arrived at the scene, and a crowd of onlookers gathered. Calvin McMillan, who was among the crowd, later stated that he informed an officer that he had some belongings in the truck and asked if he could retrieve them. (R. 1240–41.)

The truck was taken into custody by the Millbrook Police Department and driven to the Alabama Bureau of Investigation where it was processed for fingerprints. Thirty-three of the fingerprints found in the truck matched McMillan's.

The truck was then picked up and inventoried by officers from the Millbrook Police Department. The truck contained a bag with McMillan's clothing, as well as a DVD movie that had been rented by Martin. Another bag in the truck contained McMillan's clothing. Officers also found the 9mm High Point brand automatic pistol used to shoot Martin hidden under some clothing in a compartment behind the front seat. A karaoke machine, televisions, and an iron were also found in the truck. McMillan's wallet with his Alabama driver's license and McMillan's Hyundai Motor Manufacturing contractor's identification card were also located in the truck. Officers found documents pertaining to the ownership of the truck, including one from MAX Federal Credit Union, which contains Martin's signature as the borrower, and McMillan had signed on the line purporting to be a co-borrower for the truck.

Two disposable cameras were found in the truck. The film from those cameras was subsequently developed one of the pictures was a photograph of McMillan pointing a pistol resembling the murder weapon at the camera,³ a photograph of a 9mm High Point pistol positioned on a pile of money, another photograph of the pistol placed on a pillow or bedding, and two photographs of McMillan making hand gestures at the camera. There was also a photograph of a closet containing a striped shirt and a camouflage hat that matched the description of the shirt and hat worn by the man who had shot Martin.⁴ Among the clothing found in the truck was a black shirt with a neon skull that resembled the shirt worn by the man in Williams's girlfriend's vehicle the first time he had gotten out of the vehicle.⁵ The officers also found a pair of black Dickie brand shorts like those worn by the man who shot Martin; in the pocket of those shorts was a 9mm shell casing and a Reese's brand candy wrapper.

McMillan gave a statement indicating that he had been given a ride to Montgomery in the truck belonging to Martin by a man named Melvin Ingram Browning and

[139 So.3d 193]

that Browning had driven away with McMillan's possessions in the truck. The State introduced evidence at trial indicating that McMillan had a Social Security card for a Melvin Eugene Browning in his wallet. (R. 1240.) Melvin Eugene Browning testified that his wallet had been lost years before this incident and that he was in the Lee County jail at the time of the offense. The State presented evidence to substantiate Browning's whereabouts at the time of the offense.

At trial, McMillan denied that he was the man who committed the offense and challenged the strength and credibility of the State's evidence.

I.

McMillan argues that the trial court erred in admitting his statement, which he says was unconstitutionally obtained after he had invoked his right to counsel. McMillan alleges that police officers improperly reinitiated the interrogation after he had requested counsel when the officer remained silent for several minutes and then asked McMillan to initial a waiver-of-rights form concerning his invocation of right to counsel. Thus, McMillan argues that although he unambiguously invoked his right to counsel, the police improperly subjected him to further interrogation before securing counsel. McMillan further asserts that because the State offered no proof that his subsequent statement was not made in response to police questioning, which was the State's burden, the statement was inadmissible. He argues that this erroneous admission caused his defense extreme prejudice and therefore constituted reversible error.

The State presented testimony at trial that McMillan gave a statement to an investigator with the Millbrook Police Department, Investigator Kirk Pelham, and another officer.⁶ Investigator Pelham testified that he interviewed McMillan at the Millbrook Police Department and that the statement was recorded. After being informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), McMillan indicated that he wanted an attorney. Investigator Pelham testified that he then “stopped, ... gathered [his] stuff, and began to leave the room.” (R. 1228.) In response to his actions, Investigator Pelham testified that McMillan stated, “ ‘What, I can't answer questions?’ ” (R. 1228.) To which, Investigator Pelham confirmed that he could not. Thereafter, McMillan stated that he wished to continue with the interview, and Investigator Pelham asked if he understood all of his rights and...