Pressley v. State

• Citation: 770 So.2d 115
• Parties: Marcus PRESSLEY v. STATE.
• Decision Date: 15 January 1999
• Court: Alabama Court of Criminal Appeals

770 So.2d 115

Marcus PRESSLEY v. STATE.

CR-97-0102.

Court of Criminal Appeals of Alabama.

January 15, 1999.

Rehearing Denied March 26, 1999.

Dennis W. Jacobs, Birmingham; and John Charles Robbins, Birmingham, for appellant.

Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.

COBB, Judge.

Marcus Pressley appeals from his conviction for two charges of capital murder, see § 13A-5-40(a)(2), Ala.Code 1975. Pressley was tried before a jury on the charges that he murdered John Burleson and Janice Littleton during a robbery in the first degree. Following a guilty verdict on both counts, the jury recommended, by an 11-1 vote, that Pressley be sentenced to death. On October 10, 1997, the trial court sentenced Marcus Pressley to death. This appeal follows. We affirm.

The State's evidence tends to show the following. On the afternoon of July 25, 1996, Marcus Pressley, then 16 years old, entered John's 280 Pawn, a pawnshop on Highway 280, Shelby County, Alabama. A store surveillance camera showed Pressley looking around the store, asking about merchandise, and then leaving the store. Pressley returned to the pawnshop 30 minutes later with LaSamuel Gamble. Inside the shop were John Burleson, the owner, and an employee, Janice Littleton. Pressley and Gamble were armed with handguns and proceeded to rob the pawnshop. Forcing Burleson and Littleton to lie down on the floor behind the counter, Pressley and Gamble spent 15 minutes, in broad daylight, going through the shop, taking guns, jewelry, and about $2,300 cash. Before leaving the store, Pressley approached Burleson and Littleton, who were lying on the floor and, standing over them, shot both of them in the head. As he did so, his .380 revolver repeatedly jammed and Pressley would have to stop and clear the gun before it would fire. Pressley shot John Burleson twice, one bullet striking him in the chin, and the other bullet entering his head above the right eyebrow and travelling through his brain, killing him. Pressley shot Janice Littleton in the back of the head. Burleson died at the store; Littleton was alive when the police arrived, but she subsequently died at the hospital from the gunshot wound. The surveillance camera recorded the entire robbery, including Pressley's shooting Burleson and Littleton.¹ The camera also recorded another person later identified as Steve McKenzie from Boston, Massachusetts, who stayed outside with the truck Pressley and Gamble were driving. An extensive police manhunt led investigators from Shelby County to Birmingham and then to Boston, where Steve McKenzie was apprehended and several of the stolen handguns were recovered. Police then followed Pressley's trail to Norfolk, Virginia, where he was arrested.

I.

Pressley argues that the trial court committed reversible error by conducting individually sequestered voir dire on the entire venire. Specifically, he objects to the physical arrangement under which the individual voir dire was conducted, and argues in his brief to this court that individual voir dire prejudiced him by giving the prosecutor a "free hand" to

"1. Make `nice' with each juror;

"2. Give speeches and educate the juror[s] on how to answer questions in order to survive a challenge for cause on the death penalty issue;

"3. Identify and eliminate every juror who [did] not favor the death penalty but who could nonetheless follow the Court's instructions on the sentencing issue in the penalty phase;

"4. Obtain pretextual reasons for removing as many African-American jurors from the jury as possible;

"5. Prejudice the jurors by telling them the Alabama legislature might change the law pertaining to life without parole and someday someone serving life without parole for capital murder might be paroled from prison."

(App.Br.pg.8.) The record reflects that Pressley made a pretrial motion asking the court to conduct individually sequestered voir dire on those veniremembers who indicated that they had been exposed to pretrial publicity. The trial court decided to conduct individually sequestered voir dire on every veniremember on the subject of pretrial publicity and the imposition of the death penalty. Pressley did not object to this arrangement. During voir dire, the trial court conducted a preliminary voir dire of the venire as a whole, and then allowed both prosecutor and trial counsel to conduct a voir dire examination of the venire. After that voir dire examination, the venire was asked to complete a juror questionnaire. Upon completion of the questionnaire, each veniremember was individually questioned by the court and by counsel. Not once during the individual voir dire did Pressley object to this procedure, or to the physical arrangements made for individual voir dire. Because Pressley did not object to individual voir dire, we review this issue under the plain error rule. Rule 45A, Ala.R.App.P. We note that the failure to object at trial weighs against any claim of prejudice. Kuenzel v. State, 577 So.2d 474, 489 (Ala. Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

We divide this issue into separate discussions of any error resulting from the trial court's allowing individual voir dire as to all veniremembers and any error resulting from the physical arrangements for voir dire, which Pressley says allowed the prosecutor to ingratiate himself with the venire. The remaining arguments alleging improprieties by the prosecutor during voir dire will be addressed elsewhere in this opinion.

A.

Any error that resulted from the trial court's conducting individually sequestered voir dire is invited error.

"A party cannot assume inconsistent positions at trial and on appeal, and a party cannot allege as error proceedings in the trial court that were invited by him or were a natural consequence of his own action. Leverett v. State, 462 So.2d 972 (Ala.Cr.App.1984), cert. denied, 462 So.2d 972 (Ala.1984). A defendant cannot invite error by his conduct and later profit by the error. Timmons v. State, 487 So.2d 975 (Ala.Cr.App.), cert. denied, 487 So.2d 975 (Ala.Cr.App. 1986)."

Fountain v. State, 586 So.2d 277, 282 (Ala. Cr.App.1991). "The invited error rule has been applied equally in both capital cases and noncapital cases." Rogers v. State, 630 So.2d 78, 84 (Ala.Cr.App.1991), rev'd on other grounds, 630 So.2d 88 (Ala.1992). Because Pressley moved for individually sequestered voir dire and encouraged the trial court to conduct individual voir dire on the entire venire, he is estopped from raising this issue on appeal. Johnson v. State, 620 So.2d 679, 695 (Ala.Cr.App. 1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993).

B.

We now review Pressley's argument that the physical arrangements for individual voir dire prejudiced him by allowing the prosecutor to "make nice" with the veniremembers. Pressley seems to argue that because the prosecutors sat closer to the veniremembers than did defense counsel, they were able to become inappropriately familiar with the venire.

"`"A trial court is vested with great discretion in determining how voir dire examination will be conducted, and that court's decision on how extensive a voir dire examination is required will not be overturned except for an abuse of that discretion. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Lane v. State, 644 So.2d 1318 (Ala.Cr.App.1994); Harris v. State, 632 So.2d 503 (Ala.Cr.App. 1992), aff'd, 632 So.2d 543 (Ala.1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995)....

"`. . . .

"`"... As a general rule, the decision whether to voir dire prospective jurors individually or collectively is within the sound discretion of the trial court. Waldrop v. State, 462 So.2d 1021 (Ala.Cr. App.1984), cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1988)[(1985)]. This discretion is limited, however, by the requirements of due process. United States v. Hawkins, 658 F.2d 279 (5th Cir.1981); Waldrop v. State."'"

Hyde v. State, [Ms. CR-95-2036, January 30, 1998] ___ So.2d ___, ___ (Ala.Cr.App. 1998), quoting Stewart v. State, 730 So.2d 1203, 1242-43 (Ala.Cr.App.1996).

We have reviewed the entire transcript of the voir dire examination and cannot find in the record a description of the physical arrangement for the individual voir dire. Pressley never objected to the room, the table, or the seating arrangements for the individual voir dire. Only on appeal has Pressley advised the court that the individual voir dire was conducted in a law library adjacent to the courtroom with the parties sitting around two rectangular tables placed end-to-end. Likewise, we have searched the record for instances where the prosecutor became improperly familiar with veniremembers to the prejudice of Pressley. We can find nothing to support the broad allegation of misconduct in Pressley's brief to this court.

This court cannot predicate error on matters as to which the record is silent. "An appellate court may only consider the facts contained in the record on appeal, and it may not presume any facts not shown by that record and make them a ground for reversal." Carden v. State, 621 So.2d 342, 346-7 (Ala.Cr.App.1992). Thus, there is nothing in the record before us to support Pressley's argument that he was prejudiced by the physical layout and the seating arrangements of individual voir dire or that the prosecutor became improperly familiar with the veniremembers. We will not hold a trial court in error based on the bare, unsupported speculations asserted in an appellant's brief. Burgess v. State, 723 So.2d 742, 762 (Ala. Cr.App.1997).

II.

Pressley argues that he was denied a fair trial because, he says, the prosecutor "tried to rehabilitate a juror in front of the entire panel of the jurors on the death penalty issue." Pressley cites this court to the page in the record where he objected to some rehabilitation questions, but does not address what specific...