Russell v. State

• Decision Date: 08 September 2017
• Docket Number: CR–13–0513
• Citation: 272 So.3d 1134
• Parties: Joshua Eugene RUSSELL v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

272 So.3d 1134

Joshua Eugene RUSSELL

v.STATE of Alabama

CR–13–0513

Court of Criminal Appeals of Alabama.

September 8, 2017

As Modified on Denial of State’s Application for Rehearing December 15, 2017

Defendant’s Application for Rehearing Denied March 9, 2018

State’s Certiorari Petition Denied September 7, 2018

Defendant’s Certiorari Petition Denied September 7, 2018

Alabama Supreme Court 1170577

*Note from the reporter of decisions: This case was transferred to Lee County from Calhoun County on the defendant’s motion for a change of venue. Judge Howell, a circuit judge in Calhoun County, tried the case in Lee County.

Randall S. Susskind, Montgomery; and Ryan C. Becker, Montgomery, for appellant.

Luther Strange, atty. gen., and John Selden, asst. gen., for appellee.

JOINER, Judge.

Joshua Eugene Russell was convicted of one count of capital murder for causing the death of Anniston Police Officer Justin David Sollohub while Officer Sollohub was on duty, see § 13A–5–40(a)(5), Ala. Code 1975. During the penalty phase of Russell's trial, the jury, by a vote of 8 to 4, recommended that Russell be sentenced to life imprisonment without the possibility of parole.

After receiving a presentence-investigation report and conducting a sentencing hearing, the circuit court overrode the jury's recommendation, finding that the aggravating circumstances "far outweigh[ed]" the mitigating circumstances, and sentenced Russell to death.¹ Russell filed a motion for a new trial, which the trial court denied. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A–5–53, Ala. Code 1975.

Facts

The evidence at trial established the following: At approximately 10:30 A.M. on August 24, 2011, Russell visited Darrell Dorsey at Dorsey's mother's house on Moore Street in Anniston. Dorsey and Russell had a brief conversation, and while they were speaking Dorsey noticed Russell was carrying a gun on his hip. Russell left and went to a house at the corner of Moore Avenue and 19th Street around 11:00 A.M. Russell spoke to the people sitting on the front porch, and, as he walked away from the house, Officer Sollohub pulled up in his patrol car and stopped Russell. Officer Sollohub put out a call on his radio that he was "out with a black male" at Moore Avenue and 19th Street. Officer William Bostick heard Officer Sollohub's radio call and responded to that location. Officer Sollohub was conducting a pat-down search of Russell when Officer Bostick arrived. As Officer Bostick approached Russell and Officer Sollohub, Russell said to Officer Bostick, "I know you, don't I?," to which Officer Bostick replied, "Yes, you do." At that point, Russell "took off running," and Officer Sollohub followed Russell on foot. Officer Sollohub put out a call that he was in a foot pursuit of a black male. After hearing the call, several officers made their way to Officer Sollohub's general location to provide assistance. Officer Bostick returned to his patrol car to pursue Russell.

Officer Sollohub chased Russell down an alleyway and into the backyard of a nearby residence where Karen Mason and her son, Justin Beard,² were washing a car. While in the backyard, Russell pulled out a gun and shot Officer Sollohub once in the head. Russell then fled the scene and attempted to enter a house on McCoy Avenue where Margaret Gilley and her daughter, Tyler, resided. Gilley told Russell that he could not come into the house, so Russell ran into a vacant house across the street.

When Investigators Justin Hartley and Kyle Price of the Anniston Police Department ("APD") arrived at the scene of the shooting, Beard was standing in the alleyway behind the backyard where Officer Sollohub had been shot, frantically pointing toward the house. Officer Sollohub was lying on the ground motionless and unresponsive, and his firearm remained in its holster. Emergency medical personnel transported Officer Sollohub to the University of Alabama at Birmingham ("UAB") Hospital,³ where he later died.

After arriving at the scene of the shooting, Officer Bostick was ordered "to go out and get the guy" who shot Officer Sollohub. Officer Bostick began driving around the neighborhood, and, while driving on 20th Street, Officer Bostick saw Russell run out of and back into a nearby wooded area. Shortly thereafter, officers created a perimeter around the wooded area where Officer Bostick had last seen Russell.

After he fled the scene, Russell telephoned Shandrika Dotson and asked her if she had heard what happened. Dotson responded that she heard that Russell had shot a police officer. Russell replied "sort of, kind of" and then hung up. Russell also called his sister, Cheryl Bush. Russell told Bush that he was scared because someone was chasing him, and he asked her to come get him. Bush then went to her and Russell's father's apartment, where police officers subsequently appeared and asked Bush to contact Russell. Bush attempted—unsuccessfully—to persuade Russell to turn himself in.

Investigator David Cash, the district attorney's investigator assigned to the Calhoun–Cleburne drug and violent-crime task force, participated in the search for Russell. Investigator Cash testified:

"Investigator NeSmith and [I] were walking the fence line. We saw what we believed to be a body lying against the edge of the fence. We started giving loud verbal commands to show hands, so he got up and ran. We gave chase through the wood line, and he was apprehended just down from where he had ran."

(R. 1116–17.) After Russell was apprehended, Investigator Cash discovered the firearm—a .22 caliber Taurus brand pistol—used to shoot Officer Sollohub lying "approximately 10 feet out of reach from where [Russell] was taken into custody." The thumb safety on the pistol was on when it was discovered.

Russell was transported to the Anniston City jail, where he gave a video-recorded statement to Sgt. Chris Sparks and Investigator Tom Suits of the APD. The State played for the jury a redacted version of Russell's statement, which is summarized as follows:

Russell had left a friend's house and was walking down the street when Officer Sollohub stopped him and asked him if he knew a particular person.⁴ Russell did not know why Officer Sollohub stopped him, but Officer Sollohub asked Russell for his identification and began conducting a pat-down search. Russell explained that when Officer Sollohub stopped him he had outstanding warrants and that the gun, a .22 caliber Taurus brand pistol, was stolen. Russell stated:

"I just take off running, I run down the street, I running around the house, he run around the house. You know, I had a gun, know what I'm saying, I ain't, I just held it up. I was goin' scare his ass, but, like, by the time I held it up and he came around the corner, like, it like, he grabbed and I jerked, and he just got hit."

(State's Exhibit No. 29.)

Sgt. Sparks told Russell that he did not believe that Officer Sollohub had grabbed the gun, to which Russell replied that Officer Sollohub "turned the corner and I held the gun up at the same time" and that Officer Sollohub "was trying to brace himself." Russell stated: "I didn't think he was that close on me, I thought he was still coming around from the other side .... I was just goin' scare him." Russell explained that his reasoning behind scaring Officer Sollohub with the gun stemmed from an earlier incident in which he pointed a cellular telephone at a police officer as if the telephone was a gun. Russell stated: "I seen the way he reacted so I just figured maybe if I do [Officer Sollohub] the same way, this'll make him run on and I can go about my business." Russell could not recall whether Officer Sollohub had his firearm drawn during the chase.

After Russell shot Officer Sollohub, he picked the gun up off the ground before running across the street and hiding in a field, where he was apprehended approximately seven hours later. While Russell was hiding, he could see the officers searching for him; Russell stated that he "started to shoot some more but I didn't." Russell further stated:

"I really coulda got away for real.... I was running away and I turned around to look at [Officer Sollohub]. I hesitated, I started to run back to him, and I was like, ‘Fuck that, hell nah. I be a damn fool.’ But I kind paused for a minute. I was debating should I keep going or should I go back and help his ass .... I don't want nobody to die."

(State's Exhibit No. 29.) Russell apologized "for what happened" and stated, "I was wrong but at the same time, [Officer Sollohub] knows what he did." When asked to elaborate, Russell said, "He knows how it all went down. I can't really explain. It would take both of us to explain but he knows how it went down, though he's in the hospital, wherever he at .... He asked me my information, I gave it to him."

Investigator Mark Osburn of the APD crime-scene unit collected a spent cartridge casing from the scene of the shooting, and he collected the pistol and Russell's cellular telephone from where Russell was apprehended. Investigator Osburn forwarded the pistol and the cartridge casing to the Alabama Department of Forensic Sciences ("ADFS"), and he forwarded the cellular telephone to the U.S. Secret Service.

Dr. Emily Ward, a state medical examiner for the ADFS,⁵ conducted an autopsy on Officer Sollohub's body. Dr. Ward testified that Officer Sollohub died as a result of the gunshot wound

to his head and that the gun was "probably no more than three inches away when the trigger was pulled. Maybe four, but less than six absolutely."

Derrick Headley, a forensic scientist for the firearm and tool-mark section of the ADFS, examined the Taurus pistol and the fired .22 caliber cartridge casing. Headley explained that the pistol has three types of safeties—a thumb safety that blocks the trigger from being pulled and blocks the slide from functioning; a magazine safety that prevents the gun from firing if the magazine is not inserted; and an internal...