Mitchell v. State Of Ala.

• Decision Date: 27 August 2010
• Docket Number: CR-06-0827,CC-06-1059
• Parties: Brandon Deon Mitchell v. State of Alabama
• Court: Alabama Court of Criminal Appeals

Brandon Deon Mitchell

v.State of Alabama

CR-06-0827

CC-06-1059

Alabama Court Of Criminal Appeals

OCTOBER TERM, 2009-2010

REL: 08/27/2010

Appeal from Jefferson Circuit Court

WINDOM, Judge.

Brandon Deon Mitchell appeals his four capital-murder convictions and his sentences of death. Mitchell was convicted of three counts of capital murder for taking the lives of Kim Olney, John Aylesworth, and Dorothy Smith duringthe course of a robbery. § 13A-5-40(a) (2), Ala. Code 1975. He was also convicted of an additional count of capital murder because two or more people were murdered by one act or pursuant to one scheme or course of conduct. § 13A-5-40(a) (10), Ala. Code 1975. After the penalty phase of Mitchell's trial, the jury recommended, by a vote of 10-2, that he be sentenced to life in prison without the possibility of parole. The circuit court then ordered and received a presentence report. After holding a sentencing hearing, the circuit court overrode the jury's recommendation and sentenced Mitchell to death on all four counts.

At trial, the State presented evidence indicating that on November 24, 2005, Thanksgiving Day, Mitchell went to Jonathan Floyd's apartment where Roderick Byrd and his sister, Hellena, were staying. Mitchell entered the apartment to discuss his plan to rob the Airport Inn in Birmingham (hereinafter "the Inn") with Byrd. After Byrd agreed to help with the robbery, Mitchell asked Floyd to take them to the Inn. Floyd drove Mitchell and Byrd to the Inn around 2:50 p.m. When Floyd let them out of the car, Mitchell was wearing a white sweatshirt and jeans and Byrd was dressed in all black. After letting Mitchell and Byrd out of the car, Floyd left to visit his "god-sister."

Mitchell and Byrd entered the Inn where they encountered Kim Olney, the desk clerk, and John Aylesworth, a truck driver who was waiting in the lobby for a ride to Texas where he lived. Both Mitchell and Byrd were armed with pistols. Mitchell immediately focused his attention on Olney, who was behind the front desk, while Byrd used his gun to subdue Aylesworth, a former Marine. At some point during the robbery, Dorothy Smith, who was traveling back to New York after visiting her son in Alabama for Thanksgiving, entered the hotel lobby and was also held at gunpoint. During the robbery, Mitchell took money from a cash drawer and unsuccessfully attempted to open a safe located behind the front desk. Mitchell and Byrd also took various items from the three victims, including duffel bags, clothing, and money, before shooting each of them behind the ear at close range with.38-caliber pistols.

A video from the lobby security camera shows Mitchell shooting Olney twice, once in the arm and once in the head. Forensic testing of the projectiles recovered from the sceneand from the victims' bodies established that Olney and Smith were shot with the same.38-caliber pistol and that Aylesworth was shot with a different.38-caliber pistol. The Jefferson County Medical Examiner testified that all three victims died as a result of a gunshot wound to the head.

After the robbery, Mitchell and Byrd fled the scene on foot. They traveled around the Inn and jumped over a fence located behind the Inn, which separated the Inn from a neighborhood. Clifford James and James Jackson, who were sitting on the back porch of one of the houses behind the Inn, saw Mitchell and Byrd, who were carrying several bags, climb the fence and walk off in different directions. James and Jackson were not able to positively identify the individuals they saw climbing the fence, but they testified that one of the men was wearing all black and was carrying a book bag and the other man had lighter skin and was wearing light-colored clothing.

After Mitchell and Byrd separated, Mitchell telephoned Floyd and asked Floyd to pick him up on First Avenue. Floyd met Mitchell on First Avenue and took Mitchell to Mitchell's "god-sister's" house, which was three blocks from Floyd'sapartment. During the ride, Mitchell, who was carrying a blue tote bag, told Floyd that he had "just hit a lick." (R. 891.) After dropping Mitchell off, Floyd went back to look for Byrd. Floyd later returned to his apartment where he found Byrd and Mitchell. Byrd appeared nervous and was shaking and crying. At some point, Mitchell removed his clothing and placed the clothing in the dumpster behind Floyd's apartment. Mitchell later told Floyd that he had killed three people by shooting them behind the ear.

Later that evening, Mitchell contacted his friend Warika Gunn and asked her for a ride to the bus station in Huntsville. Gunn, who had seen Mitchell's photograph on the news in connection with the shootings at the Inn, telephoned "Crimestoppers," an anonymous tip hotline. Mitchell later admitted that he was wanted by the police in connection with a robbery. While in contact with the authorities, Gunn agreed to meet Mitchell in Fairfield at 10:00 p.m. However, Mitchell was subsequently arrested before he could meet Gunn at the arranged location.

At trial, Robert Baxton, a friend of Mitchell's, and James Floyd III, Jonathan Floyd's nephew, testified that theyhad recognized Mitchell's photograph on a news report and that Mitchell had told them that he had been involved in the hotel shootings.

Standard of Review

Because Mitchell has been sentenced to death, according to Rule 45A, Ala. R. App. P., this Court must search the record for "plain error." Rule 45A 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."

(Emphasis added.)

In Ex parte Brown, 11 So. 3d 933 (Ala. 2008), the Alabama Supreme Court explained:

"'"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."' Ex parte Bryant, 951 So. 2d 724, 727 (Ala. 2002) (quoting Hyde v. State, 778 So. 2d 199, 209 (Ala. Crim. App. 1998)). In United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:

"'The Rule authorizes the Courts of Appeals to correct only "particularly egregious

errors," United States v. Frady, 456 U.S. 152, 163 (1982), those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson,

297 U.S. [157], at 160 [(1936)]. In other words, 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. Frady, 456 U.S., at 163, n. 14.'

"See also Ex parte Hodges, 856 So. 2d 936, 947-48 (Ala. 2003) (recognizing that plain error exists only if failure to recognize the error would 'seriously affect the fairness or integrity of the judicial proceedings, ' and that the plain-error doctrine is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result' (internal quotation marks omitted)).

11 So. 3d at 938. "The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal." Hall v. State, 820 So. 2d 113, 121 (Ala. Crim. App. 1999). Although Mitchell's failure to object at trial will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So. 2d 343 (Ala. Crim. App. 1991).

I.

Mitchell first argues that numerous instances of prosecutorial misconduct occurred during the State's guiltphase closing arguments and that he was thereby deprived of a fair trial. Specifically, he contends that the prosecutor, during the guilt-phase closing arguments, improperly commented on Mitchell's failure to testify, injected victim-impact evidence, and invoked religion. (Mitchell's brief, at 7.) Mitchell, however, failed to first present these arguments to the circuit court. Therefore, this Court will review them for plain error. See Rule 45A, Ala. R. App. P.

"In judging a prosecutor's closing argument, the standard is whether the argument ""so infected the trial with unfairness as to make the resulting conviction a denial of due process.""" Sneed v. State, 1 So. 3d 104, 138 (Ala. Crim. App. 2007) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986), quoting in turn Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871 (1974)). In Ex parte Windsor, the Alabama Supreme Court held:

"'"While th[e] failure to object does not preclude review in a capital case, it does weigh against any claim of prejudice." Ex parte Kennedy, 472 So. 2d [1106,] at 1111 [(Ala. 1985)] (emphasis in original). "This court has concluded that the failureto object to improper prosecutorial arguments... should be weighed as part of our evaluation of the claim on the merits because of its suggestion that the defense did not consider the comments in question to be particularly harmful." Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th Cir. 1985), cert, denied, 484 U.S. 872, 108 S. Ct. 201, 98 L. Ed. 2d 152 (1987). "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). See also Biddie v. State, 516 So. 2d 837, 843 (Ala. Cr. App. 1986), reversed on other grounds, 516 So. 2d 846 (Ala. 1987).'"

683 So. 2d. 1042, 1061 (Ala. 1996)(qu...