Morris v. State , CR–07–1997.

CourtAlabama Court of Criminal Appeals
Writing for the CourtMAIN, Judge.
Citation60 So.3d 326
PartiesAlfonzo MORRISv.STATE of Alabama.
Docket NumberCR–07–1997.
Decision Date16 April 2010

60 So.3d 326

Alfonzo MORRIS
STATE of Alabama.


Court of Criminal Appeals of Alabama.

Feb. 5, 2010.Rehearing Denied April 16, 2010.Certiorari Denied Sept. 17, 2010

Alabama Supreme Court 1091052.

[60 So.3d 335]

Anna P. Engh and Gregory M. Lipper, Washington, D.C.; and Randall S. Susskind, Montgomery, for appellant.

[60 So.3d 336]

Troy King, atty. gen., and Gerrilyn V. Grant and Joshua Bearden, asst. attys. gen., for appellee.MAIN, Judge.

On April 3, 2003, Alfonzo Morris was convicted of two counts of capital murder for the intentional killing of Miriam Rochester during the course of a first-degree burglary, see § 13A–5–40(a)(4), Ala.Code 1975, and the intentional killing of Miriam Rochester during the course of a first-degree robbery, see § 13A–5–40(a)(2), Ala.Code 1975. Following a sentencing hearing, the jury returned an advisory verdict of death, by a vote of 10–2. A sentencing hearing was held before the trial court, and Morris was sentenced to death. Following an automatic appeal to this Court, his conviction and sentence were reversed, and the cause was remanded for further proceedings. Morris v. State, 956 So.2d 431 (Ala.Crim.App.2005). This Court determined that Morris was denied his rights to due process and a fair trial because he was not provided with funds to hire an independent mental-health expert.

On November 26, 2007, a hearing was conducted pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, (2002), to determine whether Morris is mentally retarded and therefore not subject to execution under the Eighth Amendment of the United States Constitution. After hearing the evidence and arguments of counsel, the trial court applied the test set out in Atkins and determined that Morris is not mentally retarded.

On April 7, 2008, Morris was again tried for the two counts of capital murder. The jury was unable to reach a verdict, and the trial court declared a mistrial. A third trial began on May 5, 2008.

The State's evidence showed that on February 24, 1997, Miriam Rochester, who was 85 years-old, used a walker, and weighed 92 pounds, was beaten to death in her home. Rochester had transformed her home into a duplex and had taken in a boarder, Elizabeth Russell, who was also elderly and in poor health. The two ladies had become friends, and, on the night of the offense, at approximately 9:30 p.m., Rochester telephoned one of Russell's sons to inform him that Russell had become ill and was being taken to the hospital.

A rescue unit and fire engine arrived at the house at approximately 9:00 p.m. and were shown to Russell by Rochester. The paramedic who was the driver of the rescue unit testified that the “house was very neat and orderly.” (R. 201.) After Russell was assessed and the ambulance called, the paramedic testified that she went outside to check on her truck. She testified that she saw someone “fooling around my rescue unit acting like he was looking in the windows, fooling with the doors.” (R. 203.) She then asked the person if there was a problem and if she could help him. The man, whom she identified in court as Morris, walked up to her and asked what was happening and who was sick; he insisted that he wanted to go inside the house. The paramedic testified that at one point Morris attempted to bypass her and enter the house, but she prevented him from doing so. He told her that “he lived in that area and he knew everybody and he had a right to go in there.” (R. 205.)

Although Morris smelled strongly of alcohol, the paramedic testified that Morris understood what she was telling him and that his responses were appropriate. As the paramedic saw the rescue crew carrying Russell out to the ambulance, she also saw Morris finally turn and walk away. The paramedic thereafter stepped into the ambulance and through the opened back doors of the vehicle saw that Morris had returned. She informed her partner that

[60 So.3d 337]

Morris had been causing trouble previously, and her partner instructed him to leave. The paramedic testified that she saw Morris walk approximately half of a block away as the rescue crew left.

At approximately 10:00 p.m., Russell's son telephoned Rochester to update her on Russell's condition. He received a call from his brother about an hour later, informing him that the brother had been to Rochester's house at his mother's request and that the door was open and the house appeared to have been ransacked. Both of Russell's sons then went to the house and without entering determined that the house had been vandalized. They attempted to telephone Rochester and then telephoned the police.

The police and rescue units arrived around midnight, among them the same paramedic who had earlier cared for Russell. She testified that she originally believed that Russell was the deceased. However, because of the number of police officers present, she determined that the death was not believed to be due to natural causes. She informed the officers that she had been called to the house earlier on that night and that the house had not been in disarray. She also told them about Morris's presence and behavior. She did not know his name at that time but gave the officers his description.

The first officer who had arrived at the scene testified that there were “pry marks” on the door, indicating forced entry. (R. 261.) He took a description from the paramedic of the man who had attempted to gain entry into the house and, after the scene was processed, he left at approximately 4:00 a.m. and resumed his patrol of the area. At approximately 5:00 a.m., he observed a man fitting the description of the person who had earlier attempted to enter Rochester's house. The man appeared to be intoxicated and was staggering down the middle of the street. The officer asked the man questions and he responded in a “slurred, but logical way.” (R. 265.) The officer determined that it was not safe for the man to continue and arrested him for public intoxication. The officer identified Morris at trial as the man he had arrested. He asked the man if he was carrying any weapons, and he responded that he had a pocketknife in his right front pocket. (R. 267.) He also stated that he had other items in his pockets that he described as “junk.” (R. 267.) The officer stated that the items were pieces of costume jewelry. He also had a couple of pills and a cigarette in his pockets. Morris identified himself as “Anthony Morris” and gave the officer an address for his residence.1 (R. 270.)

Before the officer left the scene of Morris's arrest, the paramedic was brought to that location to determine if she could identify him as the man she had seen earlier. The paramedic testified that she was certain that he was the man she had seen earlier at Rochester's house. (R. 223.) Morris was taken to the administrative building where officers concluded that he was too intoxicated to be interviewed. He was taken to jail for the night and interviewed the following day.

Rochester's granddaughter and Russell's son identified some of the jewelry taken from Morris as belonging to the victim and Russell.2 Blood found on Morris's shoe was determined to be Rochester's

[60 So.3d 338]

and a cigarette butt found in the Rochester's house contained Morris's DNA.

Morris testified at trial that he had been drinking on the day of the offense and had gotten into an argument with the man with whom he had been living. He left the house and eventually began gambling with a man known as “Cue Ball.” (R. 433.) He testified that he won a bag of jewelry from “Cue Ball” and that, as he was attempting to gather the jewelry, “Cue Ball” snatched money from him and a fight ensued. He stated that other gamblers got involved in the altercation, because they did not want him to leave since he was winning. Morris stated that he suffered cuts and bruises, as well as a laceration over his eye, in the altercation. He testified that “Cue Ball” threw the jewelry at him and that he picked it up and walked to a Huddle House restaurant for breakfast. He stated that he became belligerent with the waitress because he had been drinking, and he was forced to leave. He also testified that after eating he put a cigarette in his mouth but did not light it.

Morris testified that he then encountered a police officer who indicated that Morris appeared to have been drinking and arrested him for public intoxication. Morris stated that he was taken in the police car “to the scene of a crime in a house” (R. 441), where a woman identified him. (R. 443–444.) While he was standing in front of the police vehicle, he stated that a dog “came from somewhere” and ran around his feet. (R. 444.) He was subsequently taken to the hospital to treat the laceration to his eye and then was taken to the jail.

Because Morris has been sentenced to death, this Court must review the proceedings below for plain error, under Rule 45A, Ala.R.App.P., which 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.”

This plain-error standard of review has been addressed by this court as follows:

“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. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is ‘particularly egregious' and if it ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct....

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