Musgrove v. State, 6 Div. 736

CourtAlabama Court of Criminal Appeals
Citation638 So.2d 1347
Docket Number6 Div. 736
PartiesDonnis George MUSGROVE and David Walter Rogers v. STATE.
Decision Date25 November 1992

Tommy Nail, Birmingham, for appellant Rogers.

Dwight Driskill, Birmingham, for appellant Musgrove.

Don Siegelman, Atty. Gen., and Melissa G. Math and Sandra Stewart, Asst. Attys. Gen., for appellee.


McMILLAN, Judge.

In Rogers v. State, 630 So.2d 88 (Ala.1992), the Alabama Supreme Court, reversing this Court's decision, held that the trial court properly admitted the evidence of flight and the evidence of the other collateral offenses in the instant case and remanded the cause for proceedings consistent with that opinion. Therefore, we are now addressing the remaining issues raised on appeal.


Appellant Musgrove argues that the admission of Rogers's confession at their consolidated trial requires that the judgment be reversed, because, he says, its admission violated his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and by Alabama law. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, this court has previously determined in the original opinion that, because both appellants sought to have their cases consolidated for trial, they are now estopped from complaining of any error on those grounds. This court further held that the consolidation was proper. Appellant Musgrove was advised that Rogers's statement would be used as evidence at trial. The prosecutor even advised Musgrove that the testimony concerning Rogers's statement would not be admissible against him in a separate trial.

In the present case, no objection was made at trial on these grounds and, therefore, this alleged violation of Bruton would have to rise to the level of plain error, pursuant to Rule 45A, A.R.App.P. "Plain 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). This alleged error did not rise to the level of plain error. Not only did the appellant invite any error on this ground by agreeing to the consolidation, Timmons v. State, 487 So.2d 975 (Ala.Cr.App.1986), but also the record indicates that the trial court instructed the jury, on more than one occasion, that only that evidence admitted against appellant Musgrove could be considered in the determination of his guilt or innocence. The court further specifically instructed the jury that Rogers's confession could not be considered against Musgrove.

Furthermore, although Musgrove complains that the prosecutor's statement during his closing argument concerning this confession was prejudicial error, the record indicates that this remark was made during rebuttal closing argument and was based on the evidence presented at trial. Therefore, there was no error. Evans v. State, 389 So.2d 567, 572 (Ala.Cr.App.1980), overruled on other grounds, Frazier v. City of Montgomery, 565 So.2d 1255 (Ala.Cr.App.1990).


Both appellants argue that their death sentences were obtained in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), as well as in violation of the Eighth and Fourteenth Amendments to the United States Constitution and of Alabama law, because, they argue, the prosecutor made emotional appeals during his closing argument. The appellants cite four arguments made by the prosecutor during his closing argument. The complained-of arguments are as follows:

"The decision you make should not be an emotional decision--these are emotional things that we talk about, but your decision should be based on what is right, but I know this, I know I saw a little girl for the first time and I called her little girl because she is 19, 20, or 21 years old maybe, I saw her for the first time in my life last February when Jeff was conducting a preliminary hearing and I had some other matters to take care of that day and Jeff handled it for me. And afterwards I met Elizabeth Barron, Libby Barron, and I met an angry, scared, unsophisticated little girl from Robinwood who had her husband taken away from her just a scant few months before and was left with a little baby girl who was in her arms when her husband died choking in his own blood. When I met Libby I just didn't know what we could do with this case. I did not know if Libby would be able to control herself to handle the anger she had within her, and she was angry and not just at the people that had done this to her husband, she was angry at everyone; she was angry at everyone and she didn't trust anyone. I told her to trust me. I told her to trust us and we would get through this thing. I told her I made her no guarantees because there aren't any guarantees in life. I told her I would do everything I could do humanly possible, everything I could do to see to it that the men who did this to her husband were brought to justice and for the past year, although I have worked on other cases--I have had to assume my normal duties here at the district attorney's office for the past year--I have worked on this case."


"After you returned a verdict of guilty today I sat and thought and I listened to people in the courtroom and I watched people and I watched Donnis Musgrove and David Rogers and I just sat and thought. And all I could think of is what a terrible waste, what a terrible waste those two men, they could have been something. They could have been productive citizens; they could have been good people. They made decisions, each of them individual decisions to go a different path. They have hurt not just themselves, they hurt not just Libby Barron and her relatives, not just Mooder Barron, the ill will they have done has spread out like ripples in a pond. The lives that they have affected, the people that they have hurt, because of choices that they've made. These are not crazed teenagers on drugs or on alcohol--both of these men are grown men, 38, 39 years old, and they took a path in life, they took the wrong path."


"Why impose the death penalty? Can forgiveness be had Libby Barron if she is so disposed at some time in her life and can find it in her heart to forgive those two men? Her daughter, Amber, as she grows older and finds out what happened to her father, at some time in her life may find it within her heart to forgive those men for the loss she suffered. Mooder's mother, back there in the court may some time find it within her heart to forgive those men for the loss she suffered."


"We all go home tonight, but I tell you now, this is important, this counts, this matters, this matters not just for Libby Barron, not just for Mooder's mother and for his memory, for Amber, or for me or this courtroom, this matters in our society, we must separate the civilized from the uncivilized and that is what I ask you to do--I ask you to separate the civilized from the uncivilized and that is what I ask you to do, I ask you through your sentence of death to say to Donnis Musgrove, to say to David Rogers you have forfeited the right to live with the civilized people of this world."

The appellant made no objections to these comments. Therefore, in order to constitute reversible error, the comments must rise to the level of plain error. Rule 45A, A.R.App.P. See Smith v. State, 588 So.2d 561 (Ala.Cr.App.1991).

In McWilliams v. State, 640 So.2d 982 (Ala.Cr.App.1991), this court noted that the United States Supreme Court has overruled the pertinent holding from Booth v. Maryland, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). In Payne v. Tennessee, supra, the United States Supreme Court held:

"Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities. We think the Booth Court was wrong in stating that this kind of evidence leads to the arbitrary imposition of the death penalty. In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. See Darden v. Wainwright, 477 U.S. 168, 179-183 [106 S.Ct. 2464, 2470-72, 91 L.Ed.2d 144] (1986)."

Payne v. Tennessee, 501 U.S. at 825, 111 S.Ct. at 2608. Pursuant to the United States Supreme Court holding in Payne v. Tennessee, supra, there was no error in the prosecutor's comments.


Both appellants argue that the admission of identification testimony violated their rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and under Alabama law. Specifically, both appellants contend that Libby Barron's in-court identification of them was unreliable because of unduly suggestive pretrial procedures. The appellants contend that their photographs, used in the array for pretrial identification, were "out of focus" when compared to the other photographs in the array. The appellants failed to object on this specific ground at trial or in their motion to suppress and raised only the general issue that the pretrial identification was "unduly suggestive" in the motion for new trial. The issue of the photograph's clarity is raised for the first time on appeal and therefore must rise to the level of plain error to require reversal. Rule 45A, A.R.App.P.

The record indicates that a hearing was held on the appellants' ...

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