Shaw v. State, CR-10-1502

CourtAlabama Court of Criminal Appeals
Writing for the CourtJOINER
PartiesAubrey Lynn Shaw v. State of Alabama
Docket NumberCR-10-1502
Decision Date18 July 2014

Aubrey Lynn Shaw
State of Alabama



OCTOBER TERM, 2013-2014
REL: July 18, 2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Mobile Circuit Court
(CC-08-1209 and CC-08-1210)

JOINER, Judge.

Aubrey Lynn Shaw was convicted of murdering 83-year-old Doris Gilbert and 79-year-old Robert Gilbert during the course of a burglary and pursuant to one act or course of conduct, offenses defined as capital by §§ 13A-5-40(a)(4) and 13A-5-40(a)(10), Ala. Code 1975, respectively. The jury, by a vote

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of 10 to 2, recommended that Shaw be sentenced to death. The circuit court followed the jury's recommendation and sentenced Shaw to death.

The State's evidence tended to show that on August 20, 2007, police were dispatched to the Gilberts' residence in the Gilbert Stables community after receiving a 911 emergency telephone call concerning a possible double homicide. David James Melton, a law-enforcement officer with Blakeley State Park, testified that he was working patrol on the morning of August 20, 2007, and was dispatched to the Gilberts' house, that he was the first to enter the house, that the door was unlocked, and that when he entered the house he found Doris Gilbert's body lying face up on the bed and Robert Gilbert's body lying face down on the floor near the bed. Dr. F. John Krolikowski, a medical examiner for the State of Alabama, testified that the victims had a total of 50 stab wounds to their bodies, that Doris had 18 stab wounds, and that Robert had 32 stab wounds. The Gilberts, Dr. Krolikowski said, both died as a result of "multiple sharp force injuries." (R. 1234.)

Tera Orellana, a neighbor of the Gilberts, testified that

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on the morning of August 20, 2007, Joanne Shaw--Shaw's mother--knocked on Orellana's door and asked her to come across the street and talk with Shaw because, she said, something "terrible had happened." When Orellana entered Joanne's house, Orellana said, Shaw said to her: "I killed two people." (R. 1000.) Orellana said that she asked who he had killed, and he looked out the window and gestured towards the Gilberts' house. (Joanne's house was approximately 50 yards from the Gilberts' house.) Orellana testified that Shaw kept repeating: "I f___ed up." He asked her to give him a ride, and she left, she told him, to get her keys. Orellana then called one of her neighbors, Karen Rivers, and Rivers called emergency 911. Orellana said that, on the morning of August 20, 2007, Shaw appeared to be "high," was sweating, and was wearing a muscle shirt, shorts, and tennis shoes. She did not notice any blood on him or on the clothing he was wearing.

Herald L. Drake testified that he was the Gilberts' caretaker and that he lived in a trailer behind their house. He said that on August 19, 2007, Shaw came by his residence at around 8:30 p.m. and asked him for $20. He told Shaw that he did not have any money. Drake said that about five minutes

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later Shaw came back and again asked for $20 but that he did not give Shaw any money. Drake also testified that Robert Gilbert kept a .357 Magnum gun on his bedside table and a .38 caliber Charter Arms revolver in the living room. Testimony showed that, after the Gilberts were killed, those two guns were missing from the Gilberts' residence.

James Watson testified that Shaw came by his house on August 19, 2007, and stayed three or four hours, that he left and came back at around 1:00 a.m. on the morning of August 20, that he asked to borrow a T-shirt, that he asked if Watson knew anyone who was interested in buying a .357 Magnum gun, and that Shaw stayed the night at his house.

Corporal Charles Nathaniel Bailey, Jr., a crime-scene investigator with the Mobile County Sheriff's Department, testified that he collected numerous items at or near the scene of the murders. He said that, approximately 1,500 feet from the Gilberts' driveway, police discovered an NBA T-shirt that appeared to have blood on it, that a Charter Arms gun was found about 1,200 feet from the victims' driveway, and that north of the driveway he found a Ruger .357 Magnum revolver. A steak knife was also recovered near the Gilberts' residence,

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and it appeared to have blood on it. Bailey testified that he took several swabs of the substance on the knife and sent the swabs to the Department of Forensic Sciences to be tested. Forensic tests revealed the presence of Robert Gilbert's blood on the recovered knife.

Richard Cayton, a deputy with the Mobile County Sheriff's Department, testified that he assisted in apprehending Shaw, that Shaw was arrested within hours of police discovering the Gilberts' bodies, and that Shaw was found in his mother's house halfway under a bed. Shaw was wearing no shirt or shoes and had what appeared to be blood stains on his socks and pants. A pair of Nike tennis shoes were in the room where he was arrested, and those shoes had what appeared to be blood on them. Forensic tests revealed that the substance on the socks and the tennis shoes was blood and that the blood was consistent with Robert Gilbert's DNA. The tread pattern on those shoes matched the pattern that was left by bloody shoe prints in the Gilberts' garage.

No witnesses testified in Shaw's defense. Shaw's main defense was that he was so intoxicated at the time of the murders he was unable to form the specific intent to kill.

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Shaw also argued that the State had failed to prove that the murders occurred during the course of a burglary because, he said, he was welcome in the Gilbert house.

The jury convicted Shaw of four counts of capital murder as charged in the two indictments. After a penalty-phase hearing, the jury recommended, by a vote of 10 to 2, that Shaw be sentenced to death. The circuit court followed the jury's recommendation and sentenced Shaw 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

Many of the issues that Shaw raises in his brief on appeal were not raised in the circuit court. Rule 45A, Ala. R. App. P., however, requires this Court to review the circuit court proceedings for "plain error." That rule 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."

(Emphasis added.)

In discussing the scope of plain-error review, this

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

"Plain error is defined as error that has 'adversely affected the substantial right of the appellant.' 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. "'The plain error exception to the contemporaneous objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982)).1

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Guilt-Phase Issues


Shaw first argues that the circuit court erred in admitting into evidence a portion of his statement to police.2 Specifically, he contends that the State failed to show that this statement was voluntary or that he had waived his Miranda3 rights.

The record reflects that before trial Shaw moved to suppress his statements to police. In that motion, Shaw argued that the statements he made to police should be suppressed because, he said, they were taken in violation of his right against self-incrimination and his right to counsel. (C. 162.) A hearing was held on the motion. (C. 69-87.) The circuit court found that Shaw invoked his right to counsel and that any statements he...

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