Albarran v. State

96 So.3d 131

Benito Ocampo ALBARRAN

v.STATE of Alabama.

CR–07–2147.

Court of Criminal Appeals of Alabama.

July 29, 2011.

Kristen M. Nelson, Bryan A. Stevenson, and Randall S. Susskind, Montgomery, for appellant.

Troy King, atty. gen.; Gerrilyn V. Grant, asst. atty. gen. (withdrew 9/11/2009); Joshua Bearden, asst. atty. gen. (withdrew 8/10/2010); and James Clayton Crenshaw, asst. atty. gen., for appellee.

WINDOM, Judge.

This Court's opinion of February 25, 2011, is withdrawn, and the following opinion is substituted therefor.

Benito Ocampo Albarran appeals his capital-murder conviction and his sentence of death. Albarran was convicted of murder made capital because he shot and killed Officer Daniel Golden, a member of the Huntsville Police Department, while Officer Golden was on duty, see§ 13A–5–40(a)(5), Ala.Code 1975. The jury, by a vote of 10–2, recommended that Albarran be sentenced to death. The circuit court followed the jury's recommendation and sentenced Albarran to death.

The State's evidence tended to show the following. On September 20, 2006, Officer Golden was dispatched to the El Jalisco restaurant on Jordan Lane in Huntsville to respond to an emergency 911 telephone call concerning a domestic disturbance between Albarran and his wife, Laura Castrejon. Castrejon told the 911 operator that Albarran had been drinking and was abusive. Albarran and his wife managed and cooked at the restaurant.

When Officer Golden arrived at the restaurant he got out of his patrol vehicle and approached the door of the restaurant. Albarran walked toward him pointing a .38 caliber Smith & Wesson brand revolver. Officer Golden put his arms in the air. Albarran fired at Officer Golden, and Golden returned fire with his 9 millimeter Beretta firearm until his gun misfired. One of Albarran's shots hit Officer Golden in the lower abdomen, and he fell to the ground. As Officer Golden lay on the ground pleading for his life, Albarran approached him and fired another gun, a .38 caliber Rossi, at him. This bullet lodged in Golden's protective vest. As Golden yelled: “Wait!” Albarran fired two more shots at Golden's head.

Charles Ward, an employee of Warehouse Furniture, a business located next to the El Jalisco restaurant, testified that when he returned to the store's office after making his deliveries, another employee, Chad Steele, yelled, “Oh, my God, a[n] officer's just been shot.” (R. 2123.) Ward said that he went to the back door and opened it so that he could see what was happening. Ward stated that an officer was on the ground and a man behind a black truck picked up a black handgun, “discharged the magazine and pitched the gun.” (R. 2126.) The individual, whom he described as a “Latino gentleman” (R. 2126.), walked toward the car dealership near the restaurant and spoke to an employee of the dealership. Ward said he telephoned emergency 911, and when he went back to the door to look out, he saw the Latino man smoking a cigarette.

Tanisha Thomas testified that she and her husband were driving past the El Jaliscorestaurant when Officer Golden was shot. She said that she saw a police officer backing out of the restaurant and a man, whom she identified at trial as Albarran, in front of Officer Golden shooting at him. Thomas testified that the officer fell to the ground and yelled “Wait!” and that Albarran kept shooting at the officer. (R. 2029.)

William Thomas, Tanisha Thomas's husband, testified: “I saw the police gun jam. Then the Mexican fired the shot and hit him and on impact he went down.” (R. 2086.) He further testified that after the officer went down, Albarran shot him and then walked up to the officer and shot him again.

Corporal Chris Carter of the Alabama State Troopers testified that he was driving down Jordan Lane on August 29, 2005, when he saw a police vehicle in a ditch. He pulled in behind the vehicle and observed an officer on the ground and two Huntsville police officers with their guns drawn in front of the El Jalisco restaurant. He pulled his weapon and walked to the back of the building. Cpl. Carter testified that a male from the car dealership next door said: “[That] is the guy that shot him,” and he pointed at Albarran. Cpl. Carter said that he and several other officers approached Albarran and repeatedly told him to get down and that he failed to respond to their commands, which were given both in English and in Spanish. Cpl. Carter testified that the officers could see both of Albarran's hands so they walked toward Albarran, pulled him to the ground, and handcuffed him.

Dr. Emily Ward, the State Medical Examiner, testified that Golden died of multiple gunshot wounds. One of the bullets entered his head between his nose and left eye, a second bullet entered his left cheek and lodged in his brain, and a third bullet entered his lower abdomen.

Albarran did not dispute that he shot and killed Officer Golden. Albarran's defense was that he was suffering from a substance-induced psychosis when the shooting occurred, that he was unable to appreciate the wrongfulness of his actions, and that his psychosis robbed him of the ability to form the specific intent to kill. Albarran presented the testimony of Dr. Jose Silva, a forensic psychiatrist. Dr. Silva testified that, in his opinion, at the time of the shooting Albarran was unable to appreciate the wrongfulness of his actions because of his cocaine- and alcohol-induced psychosis and that Albarran believed that his wife and Officer Golden had been sent by the “Devil” to harm him. (R. 3027.) Dr. Silva also said that Albarran was paranoid.

The State countered Dr. Silva's testimony by presenting the testimony of Dr. James Hooper, Chief of Psychiatric Services at Taylor Hardin Secure Medical Facility. Dr. Hooper testified that, in his opinion, Albarran showed “no evidence of any abnormality—behavior interactions or anything else.” (R. 3252.) He testified that when Albarran was at Taylor Hardin, Albarran stated that “he was going to be found not guilty by reason of insanity.”

The jury convicted Albarran of capital murder for the intentional killing of Officer Golden. A separate sentencing hearing was held. During the sentencing hearing, Albarran presented the testimony of numerous individuals and family members from Albarran's home town of Cacahuananshe, Mexico, who testified concerning Albarran's difficult and impoverished life in Cacahuananshe. The jury recommended, by a vote of 10–2, that Albarran be sentenced to death. A sentencing hearing was held before the court pursuant to § 13A–5–47(c), Ala.Code 1975. Dr. Ricardo Weinstein, a forensic neuropsychologist, testified that he administered the Spanish version of the Wechsler Adult Intelligence Scale (“WAIS III”) test to Albarran and determined that his IQ was 71. It was Dr. Weinstein's opinion that Albarran was borderline mentally retarded and that he was functioning at a fourth-grade level. The State presented the testimony of two individuals who had made deliveries to the restaurant and had dealt with Albarran. Both said that they did not believe that Albarran had any mental problems. The circuit court entered a detailed order sentencing Albarran to death.

Standard of Review

Because Albarran has been sentenced to death, this Court, according to Rule 45A, Ala. R.App. P., must search the record for “plain error.” Rule 45A 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 Ex parte Brown, 11 So.3d 933 (Ala.2008), the Alabama Supreme Court explained:

“ ‘ “To rise to the level of plain error, the claimed error must not only seriously affect a defendant's ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury's deliberations.” ' Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998)). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:

“ ‘The Rule authorizes the Courts of Appeals to correct only “particularly egregious errors,” United States v. Frady, 456 U.S. 152, 163 (1982), those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings,” United States v. Atkinson, 297 U.S. [157], at 160 [ (1936) ]. In other words, 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. Frady, 456 U.S., at 163, n. 14.’

“See also Ex parte Hodges, 856 So.2d 936, 947–48 (Ala.2003) (recognizing that plain error exists only if failure to recognize the error would ‘seriously affect the fairness or integrity of the judicial proceedings,’ and that the plain-error doctrine is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result’ (internal quotation marks omitted)).”

11 So.3d at 938. “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.” See Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999). While Albarran's failure to object will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343, 352 (Ala.Crim.App.1991).

Guilt–Phase Issues

I.

Albarran first argues that his statement to police should have been suppressed because he was not properly informed of his Miranda¹ rights in Spanish; therefore, he was unable to knowingly and voluntarily...