Sharifi v. State, CR-04-1185.

CourtAlabama Court of Criminal Appeals
Citation993 So.2d 907
Docket NumberCR-04-1185.
PartiesMohammad SHARIFI v. STATE of Alabama.
Decision Date01 February 2008

James E. McGuirk and Stephen A. Strickland, Birmingham, for appellant.

Troy King, atty. gen., and Richard D. Anderson, asst. atty. gen., for appellee.

WISE, Judge.

The appellant, Mohammad Sharifi, was convicted of murdering Sarah Kay Smith Sharifi and Derrick Brown by one act or pursuant to one scheme or course of conduct, an offense defined as capital by § 13A-5-40(a)(10), Ala.Code 1975. The jury, by a vote of 10 to 2, recommended that Sharifi be sentenced to death. The circuit court followed the jury's recommendation and sentenced Sharifi to death. This appeal followed.

The State's evidence tended to show the following: Sharifi, an Iranian national, came to Huntsville in December 1998 on a six-month tourist visa. Before the visa expired he married Sarah Kay Smith, an American citizen. Following his marriage, Sharifi petitioned to change his immigration status from "tourist" to "legal alien."

Sarah and Sharifi separated in late 1999. Thereafter, Sarah, accompanied by Derrick Brown, met with Sharifi's caseworker at the Immigration and Naturalization Service (now the Department of Citizenship and Immigration Services). As a result of that meeting, Sharifi's petition to become a legal alien was denied, and his immigration status was changed to "illegal alien," because his tourist visa had expired.

Sharifi purchased a .25-caliber pistol on December 6, 1999. On December 13, 1999, Sharifi went to the apartment he had shared with Sarah and forced his way inside. The Huntsville Police were called to the scene, and Sharifi was prevented from removing anything other than his clothes from the apartment. Sharifi left, promising to return. After Sharifi left, Sarah had the locks on the doors to the apartment changed. When Sharifi returned later that same day and discovered that the locks had been changed, he became upset. Sharifi became even more agitated when he learned that although he was not allowed inside the apartment, Derrick Brown was inside. Sharifi demanded of the apartment manager that Brown be removed.

The manager of the apartment complex filed a missing-person report with the Huntsville Police on December 17, 1999, because the manager had not seen Sarah in several days. December 13, 1999, was the last day Sarah and Brown were seen alive. On December 26, 1999, Sarah Sharifi's body was found on the banks of the Tennessee River; it was wrapped in black plastic bags and tied with an electrical cord. On January 1, 2000, Brown's body was found in the Tennessee River; it was partially wrapped in black plastic bags and tied with an electrical cord. Both Sarah and Brown had been shot in the head. Subsequent forensic testing determined that the gun used to shoot both victims was the gun Sharifi purchased in December 1999.

On December 28, 1999, the FBI arrested Sharifi in Los Angeles, California, on an unlawful-flight-to-avoid-prosecution warrant relative to Sarah's murder. In Sharifi's possession at the time of his arrest were the murder weapon, a license tag from Brown's vehicle, Brown's driver's license, one of Brown's credit cards, and a pair of sandals that was later determined to have Sarah's blood on them.

Sharifi was extradited to Alabama and was incarcerated in the Madison County jail awaiting trial for the two murders. During his incarceration, Sharifi met Tasha Borner, another inmate. Sharifi wrote Borner a number of letters professing his love for her and asking her to testify that they were together on the night of December 13, 1999. Borner, who did not meet Sharifi until 2002, turned the letters over to the district attorney and was given a plea deal in exchange for her testimony against Sharifi.

Sharifi's defense was that he was in Los Angeles, California, at the time of the murders. Aghaishahabdin Moughari testified that Sharifi came by his house in Huntsville on December 13, 1999, that Sharifi's car was loaded with his possessions, and that he told him that he was moving to California to find work. Moughari also testified that on December 14, 1999, Sarah came by his house looking for Sharifi.

Sharifi's father, Hossain Sharifi, testified that at the time of the murders he was living in Iran and that he spoke to Sharifi everyday at approximately 2:00 p.m. Huntsville time. He said that on December 13, 1999, he telephoned the apartment Sharifi had shared with Sarah, and a man answered the telephone and gave the phone to Sarah. He further testified that on December 15, 1999, Sharifi telephoned him in Iran and told him that he had moved to California.

The jury chose to believe the State's version of the events and convicted Sharifi of murdering Sarah and Brown during one act or pursuant to one course of conduct. After a separate sentencing hearing, the jury, by a vote of 10 — 2, recommended that Sharifi be sentenced to death. The court then issued an order sentencing Sharifi to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-53, Ala. Code 1975.

Standard of Review

Because Sharifi has been sentenced to death, this Court must review the record for any "plain error." Rule 45A, Ala. R.App.P., provides:

"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."

As we stated in Hall v. State, 820 So.2d 113 (Ala.Crim.App.1999):

"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. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala. 1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993)."

820 So.2d at 121-22.

Guilt-Phase Issues

I.

Sharifi's first 10 issues in his brief to this Court concern the Vienna Convention on Consular Relations ("the Vienna Convention"). Specifically, Sharifi argues that the State violated Article 36 of the Vienna Convention and that we must either reverse and set aside his conviction and order a new trial or, at a minimum, prohibit the death penalty from being enforced in this case.

In February 2003, Sharifi moved that the indictment against him be dismissed because, he says, he was not informed of his right under the Vienna Convention to contact Iranian officials when he was arrested. This motion was denied in June 2004. Sharifi also moved in February 2003 that the State be prohibited from seeking the death penalty because the State violated Article 36 of the Vienna Convention. That motion was likewise denied.

The Vienna Convention is a multilateral treaty that was ratified by the United States in 1969. The treaty regulates consular activities for countries that are signatories to the treaty and provides that if a national, i.e., a citizen of a country, is arrested in a foreign country that country will notify the foreign national's embassy and will make the arrested person accessible to the foreign officials.1 Article 36 of the Vienna Convention provides:

"1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

"(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

"(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

"(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

"2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."

Specifically, Sharifi argues that Article 36 of the...

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