Sneed v. State

• Decision Date: 21 December 2007
• Docket Number: CR-05-2033.
• Citation: 1 So.3d 104
• Parties: Ulysses Charles SNEED v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

1 So.3d 104

Ulysses Charles SNEED v. STATE of Alabama.

CR-05-2033.

Court of Criminal Appeals of Alabama.

December 21, 2007.

Rehearing Denied February 15, 2008.

Certiorari Denied August 15, 2008. Alabama Supreme Court 1070704.

James Timothy Kyle, Decatur, for appellant.

Troy King, atty. gen., and Peter J. Smyczek, asst. atty. gen., for appellee.

BASCHAB, Presiding Judge.

The appellant, Ulysses Charles Sneed, was indicted for the capital offense of robbery-murder for the 1993 killing of Clarence Nugene Terry. See § 13A-5-40(a)(2), Ala.Code 1975. In 1995, he was tried with codefendant John Hardy, convicted of capital murder, and sentenced to death.¹ We affirmed his conviction and death sentence, see Sneed v. State, 783 So.2d 841 (Ala.Crim.App.1999), but the Alabama Supreme Court reversed his conviction based on the erroneous admission of a redacted statement he had made to law enforcement authorities that implied that he was the sole individual involved in the shooting. See Ex parte Sneed, 783 So.2d 863 (Ala.2000).

In 2006, the appellant was tried a second time and convicted of the capital offense of robbery-murder. After a sentencing hearing, by a vote of 7 to 5, the jury recommended that he be sentenced to imprisonment for life without the possibility of parole. The trial court overrode the jury's recommendation and sentenced the appellant to death. This appeal followed.

The evidence showed that, in the early morning hours of September 7, 1993, the appellant and Hardy entered Bud's Convenience Store in Decatur; shot and killed the clerk, Clarence Nugene Terry; and stole one of the store's cash registers. An autopsy revealed that the victim suffered seven gunshot wounds — two shots to his left cheek, one shot to his forehead, one shot to his left ear, one shot to his left eye socket, one shot to his chest, and one shot to his right hand.

Several days before the robbery-murder the appellant and Christopher Hines drove from Louisville, Kentucky, in Hines' vehicle to visit some of Hines' relatives in Tanner. Sometime after they arrived, they met John Hardy.

On the evening of September 6, 1993, the appellant and Hardy were driving around in Hines' vehicle and were drinking and smoking marijuana. Hardy suggested that they "get some money," and they drove by different convenience stores trying to locate a potential target. The appellant suggested that Bud's Convenience Store might be a good target because only one clerk was working in the store. They drove around the store a few times and parked on the side. Before going into the store, Hardy tore off the sleeves of his shirt and they tied a sleeve around the bottom half of their faces. The sleeves did not disguise their identities.

The entire robbery-murder was recorded on videotape and played for the jury.² The tape shows that the appellant and Hardy entered the store with Hardy pointing a rifle and apparently shooting at the victim. The victim ran behind the counter and tried to hide, but Hardy leaned over the counter and shot him. At the same time, the appellant crawled under the counter and tried to open the two cash registers that were on the counter. As the victim crouched in a ball on the floor behind the counter, Hardy then walked around the counter, pointed the rifle at his head, and shot him in the head repeatedly. While this was happening, the appellant tried unsuccessfully to open both of the cash registers. At one point, the appellant stepped over the victim's body and moved his legs out of the way so he could have better access to one of the cash registers. Finally, Hardy unplugged one of the registers, and the appellant carried it out of the store.

After they left the store, the appellant and Hardy went to Tanner to hide the cash register. The next morning, the appellant, Hardy, and Hines retrieved $48 from the cash register. The manager at Bud's testified that the register that was taken had very little money in it because it was a back up register that had not been used on the day of the robbery-murder. After using the money to buy alcohol and gasoline, the appellant, Hardy, and Hines returned to Louisville, Kentucky.

The investigation led law enforcement authorities to Kentucky, where they discovered Hines' vehicle, which the appellant and Hardy had used in the robbery-murder. The appellant was arrested in Kentucky and was questioned by Lieutenant Dwight Hale and Sergeant John Boyd of the Decatur Police Department. After being confronted with the videotape of the robbery-murder, the appellant admitted his involvement in the robbery.

The appellant testified in his own defense and admitted that he assisted in the robbery. However, he stated that he did not know that Hardy was going to shoot and kill the victim. Specifically, he testified:

"We went in to rob. I did not intend for nobody to get killed or get hurt. That wasn't part of the plan. That wasn't part of the plan. We discussed robbing. That is all we did."

(R. 816.)

The appellant raises several arguments on appeal that he did not raise at trial. Although the lack of an objection at trial will not bar our review of an issue in a case involving the death penalty, it will weigh against any claim of prejudice the appellant may raise. See Ex parte Kennedy, 472 So.2d 1106 (Ala.1985). 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 ... whenever such error has or probably has adversely affected the substantial right of the appellant."

"[This] 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, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14, 102 S.Ct. 1584, 1592 n.14, 71 L.Ed.2d 816 n.14 (1982)).

I.

The appellant's first argument is that the jury was improperly informed that he had previously been tried for and convicted of capital murder. The record shows that he moved in limine to prohibit "the State from making any reference to the prior trial, verdict, sentence or appeal of the Defendant." (C.R. 199.) During a pre-trial hearing, the following occurred:

"[THE COURT:] Motion to prevent any reference to a prior trial of the Defendant. Obviously there will be no reference to a prior trial.

"Can we all agree that if there is any testimony that has to come in from that prior proceeding that will be please (sic) referred to as a prior proceeding?

"[PROSECUTOR]: Yes, ma'am.

"THE COURT: Is that okay with everybody?

"[DEFENSE COUNSEL]: Yes, Your Honor. We are in agreement about that.

"THE COURT: That motion is granted.

"Please make sure if you have witnesses who are testifying that they are aware that there can be no prior — there can be no characterization of a prior trial. Okay."

(R. 11-12.)

During the testimony of Brent Wheeler, Deputy Director of the Alabama Department of Forensic Sciences, the following occurred:

"[PROSECUTOR]: And did you — after you analyzed those and checked or tested them, whatever term you used, did you keep those in your custody and control until you brought them to court and introduced them into evidence in another proceeding?

"[WHEELER]: Yes, sir. They were introduced in the first trial.

"[PROSECUTOR]: Yes, sir. Now, do they appear to be in substantially the same condition as they were in at that time?

"[WHEELER]: Yes, sir."

(R. 751-52) (emphasis added). In several other instances, the references were made to a prior proceeding, in compliance with the trial court's instructions. Because the appellant did not object to these references at trial, we review them for plain error. See Rule 45A, Ala. R.App. P.

In Frazier v. State, 632 So.2d 1002, 1007 (Ala.Crim.App. 1993), we held that it was plain error for the prosecutor to comment that Frazier had previously been convicted of the same offense, stating:

"In Lloyd v. State, 53 Ala.App. 730, 733, 304 So.2d 232, cert. denied, 293 Ala. 410, 304 So.2d 235 (1974), this court held that it is reversible error for the prosecution to comment on the result of a defendant's previous trial at a subsequent trial for the same offense. See also Wyatt v. State, 419 So.2d 277, 282 (Ala.Crim. App.1982). As the Fifth Circuit Court of Appeals stated in United States v. Attell, 655 F.2d 703, 705 (5th Cir.1981), `[W]e are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged.'"

Likewise, in Hammond v. State, 776 So.2d 884, 892 (Ala.Crim.App.1998), we held that, "at the sentencing phase of a second or subsequent capital murder trial, it is reversible error for the prosecution to comment on the result of a defendant's previous trial for the same offense." We noted that this is especially true when a prosecutor tells a penalty phase jury that a previous jury recommended that a defendant be sentenced to death. However, we have never held that it is error, much less plain error, for a witness to merely comment about a "first trial" or a prior proceeding. Cf. Hood v. State, 245 Ga.App. 391, 392, 537 S.E.2d 788, 790 (2000) (footnote omitted) (noting that, "[w]here there is no mention of the result of a prior judicial proceeding, the bare reference to an earlier trial does not necessarily imply a conviction and reversal on appeal. The equally rational inference is a mistrial due to the inability to achieve a unanimous verdict"); State v. Lawrence, 123 Ariz. 301, 305, 599 P.2d 754, 758 (1979) (noting that "[w]e are aware of no authority in this jurisdiction supportive of the contention that mere mention of a previous trial mandates reversal on appeal").

In this case, none of the references to a first trial or to prior proceedings specifically informed the jury that the appellant...