Callen v. State

284 So.3d 177

Dontae CALLEN

v.STATE of Alabama

CR–13–0099

Court of Criminal Appeals of Alabama.

April 28, 2017

Opinion Issued on Return to Remand August 11, 2017

Rehearing Denied December 8, 2017

Certiorari Denied November 16, 2018

Alabama Supreme Court 1170219

Bryan A. Stevenson, Alicia A. D'Addario, and Benjamin H. Schaefer, Montgomery, for appellant.

Luther Strange, atty. gen., and Lauren A. Simpson, asst. atty. gen., for appellee.

WELCH, Judge.

The appellant, Dontae Callen,¹ was convicted of murdering Bernice Kelly, Quortes Kelly, and 12–year-old Aaliyah Budgess during the course of an arson; of committing the murders by one act or pursuant to one scheme or course of conduct; and of murdering a child under the age of 14; all offenses defined as capital by §§ 13A–5–40(a)(9), (a)(10), and (a)(15), Ala. Code 1975. The jury, by a vote of 11 to 1, recommended that Callen be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Callen to death. This appeal followed.

The State's evidence tended to show that around 4:00 a.m. on the morning of October 29, 2010, emergency personnel were dispatched to Bernice Kelly's apartment in response to a 911–emergency telephone call that there was a fire in her apartment. Lt. Warren Calvert, a member of the Birmingham Fire Department, testified that his unit was the first on the scene and that he observed smoke coming from one of the apartments on the lower level. He went to the apartment, he said, and tried to open the front door, but it was blocked. (R. 442.) Lt. Calvert said that he pulled an unconscious woman's body from behind the door and was then able to enter and search the apartment because, he said, people were yelling that more people were in the apartment. He found another body, a young female, in the bathroom, and he took her out of the apartment. At that time, Lt. Calvert said, another firefighter yelled at him to stop because he was covered in blood. He further testified that a third body, a male, was also recovered from the apartment. After they discovered that the victims were covered in blood, Lt. Calvert said, they called the police department. Lt. Fitzgerald Mosely, a fire investigator with the City of Birmingham, testified that he investigated the fire, that the fire was not accidental, and that it had multiple points of origin. He further testified that when the firemen arrived Bernice's body was on fire and they had to extinguish that fire to remove her body. Bernice was still alive and was taken to a local hospital where she died later that day.

Dr. Gary Simmons, a forensic pathologist with the Jefferson County Coroner's Office, testified that Bernice Kelly had been stabbed 18 times in her upper body and died of multiple sharp-force trauma; Quortes Kelly had been stabbed 33 times in his upper body and died of multiple sharp-force trauma; and Aaliyah Budgess had been stabbed 25 times to her neck and head and died of multiple sharp-force trauma. None of the three victims had carbon monoxide in their lungs.

Lisa Brown—Bernice's daughter and Quortes's sister—testified that Bernice was Callen's great aunt and that Quortes and Aaliyah were Callen's cousins. Brown said that Aaliyah lived with Bernice so that she could go to a private school in the area and that Quortes also lived with Bernice. Faye Budgess, Bernice's sister, testified that on the evening of October 28, 2010, she was with Quortes, Callen, and Aaliyah at a neighbor's house watching television. She said that Quortes, Callen, and Aaliyah left at about 10:00 p.m. to return to Bernice's apartment. Budgess said that Callen had lived with Bernice until several months before the murders.

Det. Warren Cotton, an investigator with the Birmingham Police Department, testified that he investigated the triple homicide and first came into contact with Callen at the hospital. Callen was nervous, Det. Cotton said, and had cuts on his body and a red substance in one of his ears. Det. Cotton requested that Callen be transported to the police station. At the police station, Det. Cotton said, Callen confessed that he stabbed all three victims, that he lit some clothes on fire with a lighter, and that when the fire started "getting big" he left the apartment through the back door. He said that Quortes was in a bedroom, his Aunt Bernice was near the front door, and Aaliyah was by the bathroom. Callen said that he threw the knife away down the street from the apartment.

Officer Roxanne Murry, an evidence technician with the Birmingham Police Department, testified that she collected various items from the scene and near the scene of the triple homicide. Officer Murry said that in a sewer about one block from the triple homicide she collected two knives, a sandal, red-soaked clothes, and red-stained mittens.

Nathan Rhea, a forensic scientist with the Alabama Department of Forensic Sciences, testified that he performed DNA testing on the red substance collected from one of Callen's ears and the items collected from the scene of the crime and from Callen's residence. Rhea testified that the substance in Callen's ear was blood and that it contained a mixture of Quortes's blood and Callen's blood. Rhea further testified that each of the three victims could have contributed to the blood discovered on one of the knives recovered in a sewer near the crime scene. Also, clothes taken from Callen's residence contained blood that matched Quortes's blood.

In his defense, Callen presented the testimony of Beatrice Brown, Callen's grandmother. Brown testified that several months before the triple homicide Bernice told her that she could no longer financially support Callen and Callen moved in with her, her daughter, and her daughter's children. Brown also testified that Quortes often drank and had not worked in several years before his death.

The jury convicted Callen of the three counts charged in the indictment. A separate sentencing hearing was held and the jury recommended, by a vote of 11 to 1, that Callen be sentenced to death. A presentence report was prepared, and a separate sentencing hearing was held before the circuit court. After weighing the aggravating circumstances and the mitigating circumstances, the circuit court followed the jury's recommendation and sentenced Callen 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 Callen 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."

In discussing this standard of review, this Court in Hall v. State, 820 So.2d 113 (Ala. Crim. App. 1999), stated:

"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. "We confine the operation of the plain-error rule to those cases where the error ‘has or probably has adversely affected the substantial rights of the appellant.’ ... We use it ‘sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ " Ex parte Hodges, 856 So.2d 936, 948 (Ala. 2003).

With these principles in mind, we review the issues raised by Callen.

Guilt–Phase Issues

I.

Callen argues that the circuit court erred in denying his application for youthful offender ("YO") treatment. In a two-paragraph argument in his brief, Callen asserts that his background strongly supported the granting of the application and that the circuit court erred in not giving a reason for denying his request for YO treatment.

At the time of the murders, Callen was 18 years and 2 months old. The numerous Department of Human Resources ("DHR") documents contained in the record show that Callen had been neglected by his mother and father, that he frequently changed residences, and that he had no stable home environment.

The record shows that Callen moved that he be granted YO treatment. The circuit court issued an order referring the case to the county probation office so that an investigation could be made into Callen's background. (C. 34.) A hearing was held on the application. (2 Supple. R. 6–13.) At that hearing the circuit court indicated that she was in possession of a report on Callen's background. At the conclusion of the hearing, the circuit court denied Callen's application. (2 Supple. R. 13.) In the order denying the application, the circuit court stated: "After considering the report filed by the Alabama Department of Probation and Paroles, argument by counsel, comments from the victims' family, and letter sent on behalf of the defendant, Youthful Offender [status] is denied." (C. 35.)

"The trial court has almost absolute discretion in ruling on applications for...