Slaton v. State

• Decision Date: 13 January 1995
• Docket Number: CR-89-848
• Citation: 680 So.2d 879
• Parties: Nathan D. SLATON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 879

680 So.2d 879

Nathan D. SLATON v. STATE.

CR-89-848.

Court of Criminal Appeals of Alabama.

Jan. 13, 1995.

Opinion Modifying Decision on

Denial of Rehearing April 14, 1995.

Oliver W. Loewy, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Sandra Stewart, Asst. Atty. Gen., for appellee.

ON RETURN TO REMAND

MONTIEL, Judge.

On September 30, 1993, this Court remanded this cause to the trial court to determine whether the trial court's secretary was properly designated by the presiding circuit judge to excuse potential jurors, in compliance with this court's holding in Windsor v. State, [Ms. CR-91-1487, August 13, 1993] --- So.2d ---- (Ala.Crim.App.1993) (Montiel and McMillan, JJ., dissenting). The trial court submitted its written findings of fact and conclusions of law to this court on December 15, 1993.

Slaton argues that he was deprived of his right to a fair and impartial jury because the trial judge's secretary had excused prospective jurors from the venire. Slaton maintains that the trial court was not empowered to delegate the duty and responsibility of excusing potential jurors. In February, 1994, the Alabama Supreme Court reversed this court's judgment in Windsor, which held that, without having been designated by the circuit's presiding judge, a circuit clerk's practice of granting the legitimate excuses of potential jurors was reversible error. In overruling this court, the Supreme Court held that, even in the absence of a "formal delegation of power and a proper designation by the presiding judge," the circuit clerk and the circuit clerk's staff properly granted the legitimate excuses of prospective jurors, and what "[was] not a usurpation of legislative authority, but instead, [was] the natural result of an attempt to conform to the spirit, if not the letter, of the statutes." Windsor v. State, [Ms. 1930048, February 18, 1994] ---So.2d ----, ---- (Ala.1994). See § 12-16-145, Code of Alabama 1975.

Furthermore, in this case, the judge's secretary had been designated to excuse potential jurors. In the trial court's written findings on remand, the court stated that as the presiding judge of the circuit, he had designated each of the judges' secretaries, who are confidential employees, "to excuse jurors at the time their judge is assigned the control of the jury."

Based on the Supreme Court's holding in Windsor, as well as because the trial court's secretary had been designated to excuse jurors for specific reasons, we hold that potential jurors were properly excused by the trial court's secretary. Slaton's rights to a fair and impartial jury and to a fair trial were not violated.

This court also remanded this case to the circuit court on an unrelated issue. We determined that the trial court erred when it considered Slaton's juvenile record in deciding that the mitigating circumstance of no prior criminal activity did not exist. Therefore, we remanded this case to the trial court for a determination of whether the trial court would have imposed the death sentence had it not considered Slaton's juvenile record.

We will address the issue of whether the trial court would have sentenced Slaton to death without consideration of his juvenile record later in this opinion. A rendition of the facts in this case is necessary before we can address the other issues Slaton raises on appeal.

Slaton was indicted for murder made capital because it was committed during the rape and intentional killing of Modenia Carrie Phillips. § 13A-5-40(a)(3), Code of Alabama 1975. The jury found the defendant guilty of capital murder and unanimously recommended that he be sentenced to death. The trial court accepted the jury's recommendation and sentenced the defendant to die in the electric chair.

The evidence in this case tended to show the following: between 8:30 a.m. and 9:00 a.m. on May 28, 1987, in Albertville, a neighbor saw 17-year-old Slaton in Mrs. Phillips's yard with a BB gun, shooting at birds. Mrs A friend of Mrs. Phillips's drove up about five minutes after the neighbor saw Slaton leave. The friend testified that he tried the front door, found the door unlocked, and went inside. He said he saw Mrs. Phillips lying on the bathroom floor, and when he tried to use the telephone to call for help, saw that it had been unplugged. The friend then left the house to get Mrs. Phillips's daughter, who worked nearby. When the pair returned to the house and Mrs. Phillips's daughter saw her mother's body, she called police and paramedics. Mrs. Phillips was dead when police arrived.

Phillips was Slaton's next-door neighbor. A short while later, the neighbor saw Slaton standing by Mrs. Phillips's front door, then saw him go into the house. He came out about 30 minutes later, the neighbor testified.

The evidence showed that Mrs. Phillips had been raped, beaten about the head, strangled, and shot in the chest. Semen taken from the victim's vagina matched Slaton's blood type. Slaton was arrested the day after the murder. While being interrogated by police, he gave a statement in which he confessed to shooting Mrs. Phillips during a scuffle over a gun.

I

Slaton argues that in charging the jury during the guilt phase of his trial, the trial court improperly informed the jury that it was getting only a portion of Slaton's statement because there were some inadmissible matters contained in the statement. Therefore, he says, his conviction is due to be reversed. We disagree.

Slaton's trial counsel did not object to the charge. In death penalty cases, failure to object does not preclude appellate courts from reviewing the issue under the plain error doctrine.

"In considering what constitutes 'plain error' in a capital case, the Alabama Supreme Court has looked to the federal court's interpretation of what is 'plain error.' See Ex parte Harrell, 470 So.2d 1309 (Ala.1985); Ex parte Womack, 435 So.2d 766 (Ala.1983), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983).

"In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the Supreme Court stated that the plain error doctrine should be used to correct only 'particularly egregious errors' ... which are those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings'.... The plain error rule should be applied 'solely in those circumstances in which a miscarriage of justice would otherwise result.' Young, supra, 470 U.S. at 16, 105 S.Ct. at 1047.

"Furthermore, the court noted that the plain error doctrine requires that the 'claimed error not only seriously affects "substantial rights" [of the defendant], but that it had an unfair prejudicial impact on the jury's deliberations. Only then would [a] court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice.' Young, supra, 470 U.S. at 16, 105 S.Ct. at 1047, n. 14."

Dill v. State, 600 So.2d 343, 351 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993); see also, Hooks v. State, 534 So.2d 329 (Ala.Crim.App.1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989). See also, Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd 577 So.2d 531 (Ala.1991), cert. denied 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991); Ex parte Hinton, 548 So.2d 562, 568 (Ala.) cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989).

During the trial of this case, portions of a transcript of Slaton's taped confession were read by one of the policemen who took the statement. Those portions were referred to by page number. The statement itself was never admitted into evidence. During its charge to the jury, the trial court gave the following instruction:

"The defendant's statement herein was not admitted nor offered in bulk because there were some inadmissible matters contained in the statement that could not come before you for your consideration. The reason Alabama law precludes a prosecutor from intimating to the jury that there is other evidence he would have introduced were it not for evidentiary rules. Ex parte Washington, 507 So.2d 1360 (Ala.1986). However, case law is silent as to whether the trial court, in its instructions to the jury, can mention that there is evidence the jury has not heard. In a noncapital case, this court has held, "Each case of allegedly improper remarks by a trial judge must be judged on its own peculiar facts." Dooley v. State, 575 So.2d 1191, 1194 (Ala.Crim.App.1990); McNeely v. State, 524 So.2d 375 (Ala.Crim.App.1986), (quoting Oglen v. State, 440 So.2d 1172, 1175-76 (Ala.Crim.App.), cert. denied, 440 So.2d 1177 (Ala.1983)). "While a particular remark by the trial judge may be open to question, in order for it to amount to grossly improper error requiring reversal, it must have influenced the result of the case." Thompson v. State, 503 So.2d 871, 879 (Ala.Crim.App.1986), aff'd, 503 So.2d 887 (Ala.1987), cert. denied, 484 U.S. 872, 108 S.Ct. 204, 98 L.Ed.2d 155, reh'g denied, 484 U.S. 971, 108 S.Ct. 471, 98 L.Ed.2d 410.

that it was not offered or admitted in bulk was for that reason."

In this case, Slaton's statements regarding the rape, beating, strangling, and shooting were brought out in testimony. We find it hard to imagine that the jury would believe something even more prejudicial was being held from them. Also, because page numbers were referred to when the officer testified about the appellant's confession, the jury already was aware that it had not heard the entire statement. The trial court's jury charge was simply an explanation to the jury as to why it was not going to see the statement, and further served to clarify why the jury had not heard the whole statement. The trial court's jury instruction does not rise to the level of plain error requiring reversal.

II

Slaton next contends police continued to question...