Creque v. State

272 So.3d 659

Jordaan Stanly CREQUE

v.STATE of Alabama

CR–13–0780

Court of Criminal Appeals of Alabama.

February 9, 2018

Rehearing Denied May 25, 2018

Certiorari Denied September 21, 2018

Alabama Supreme Court 1170803

Randall S. Susskind and Sia M. Sanneh, Montgomery; and J. Timothy Kyle, Decatur, for appellant.

Luther Strange and Steve Marshall, attys. gen., and Kevin W. Blackburn, asst. atty. gen., for appellee.

WELCH, Judge.

Jordaan Stanly Creque¹ was charged with and convicted of the intentional murders of Jeffrey Mark Graff and Jessie Jose Aguilar, made capital because the murders occurred during the commission of a robbery (Counts II and III), see § 13A–5–40(a)(2), Ala. Code 1975, and because Graff and Aguilar were murdered by one act or pursuant to one scheme or course of conduct (Count I), see § 13A–5–40(a)(10), Ala. Code 1975. The jury recommended, by a vote of 11–1, that the trial court sentence Creque to death. The Morgan Circuit Court sentenced Creque in accordance with the jury's recommendation. This appeal, which is automatic in a case involving the death penalty, follows. See § 13A–5–53, Ala. Code 1975.

Facts

Creque admitted at trial that he and two friends, Cassandra Eldred and Ezekiel Gholston, made a plan to steal money from the Krystal fast-food restaurant where Creque and Eldred were employed. Creque purchased a 9mm handgun and ammunition on August 23, 2011, the day before the murders. In the early morning hours of August 24, 2011, Eldred drove the two men to the restaurant. Creque had been scheduled to work the overnight shift but had failed to do so. Two employees were working at the restaurant that morning—Graff, the manager, and Aguilar. Creque got Graff's attention by knocking on the drive-thru window, and Graff opened the side door to let him in. Creque and Gholston rushed into the restaurant; Gholston was armed with Creque's 9mm gun. They gathered money from the cash registers, and they took the money from the store's safe, which Creque had forced Graff to open. Graff attempted to diffuse the situation and told Creque and Gholston that they could leave and he would wait 10 minutes before he called the police. Creque and Gholston planned to force Graff and Aguilar into the restaurant's cooler. Graff asked if he could get a jacket for Aguilar, and he was allowed to do so.

Creque gave a statement to the police on the morning of the murders, and he admitted that he had intentionally shot and killed both men. At trial Creque admitted that he shot Graff, but claimed it was unintentional and that he had fired the shot while wrestling over the cooler door with Graff, who was pulling on the cooler door in an attempt to keep it closed. Creque shot Graff one time, in the neck; the bullet pierced his spinal column, and he was paralyzed immediately. Aguilar was shot four times. Creque alleged at trial that after he shot Graff, Gholston took the gun from him and shot Aguilar. Both men died at the scene. Eldred drove them from the scene, and the three divided the money.

Creque went to the apartment he shared with his girlfriend, Brittany Orr. Creque put his share of the stolen money in a stereo speaker, and he told her that someone had been shot at the restaurant. He was not injured when he arrived at the apartment but, while at the apartment, with the intention that it would appear that he had been assaulted and forced to take part in the crimes, he cut himself with a razor on his arms and chest and had Orr hit him on the head and chest with a can of peaches. Orr and Creque went to the emergency room. A nurse contacted the police after Creque told medical personnel that he had been assaulted by men who had shot one or more employees at a fast-food restaurant.

Creque was interviewed at the hospital by police officers as a possible witness to the shootings at the restaurant. He initially told the lead investigator, Sgt. Rick Archer,² that he had been riding around with "Taurus," "Quincy," and "Wodie," and that he had been showing them the gun he had purchased earlier that day. He said that they had taken his gun, tortured him, and had forced him to take part in their plan to steal money from the restaurant. However, when the police received additional information from officers investigating the crime, including the fact that Gholston had been at the restaurant, Archer presented that information to Creque and, Archer said, Creque's story "evolved" to account for that information. In Creque's final version of the events, he said that he, Gholston, and Eldred had planned the robbery and that Eldred drove them to and from the restaurant. He described the crime in detail, and admitted that he intentionally shot Graff and Aguilar.

The police recovered cash from Eldred's residence and from the apartment Creque shared with Orr. Gholston led the police to a lake where he had disposed of the gun Creque had purchased, and forensic testing established that the recovered gun was the one from which the fatal shots were fired.

The trial court instructed the jury on the three counts of capital murder charged in the indictment. The court also instructed the jury on felony-murder and robbery as lesser-included offenses. The jury found Creque guilty of the three counts of capital murder as charged in the indictment.

At the penalty phase, Creque presented a variety of evidence offered as support for the imposition of a sentence of life imprisonment without the possibility of parole, including: testimony about his chaotic upbringing that included physical and emotional abuse; evidence about his learning disabilities, educational deficiencies, and the lack of appropriate parental role models; evidence of his chronic abuse of drugs and alcohol; and evidence that he had sustained numerous concussions and other physical injuries during his childhood. The jury recommended that the trial court sentence Creque to the death, and the trial court imposed the death sentence.

Standard of Review

Many of the issues Creque raises 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 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 the scope of plain-error review, this Court stated in Floyd v. State, [Ms. CR–13–0623, July 7, 2017] ––– So.3d –––– (Ala. Crim. App. 2017) :

" ‘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.’ Hall v. State, 820 So.2d 113, 121 (Ala. Crim. App. 1999), aff'd, 820 So.2d 152 (Ala. 2001). Plain error is ‘error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.’ Ex parte Trawick, 698 So.2d 162, 167 (Ala. 1997), modified on other grounds, Ex parte Wood, 715 So.2d 819 (Ala. 1998). ‘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.’ Hyde v. State, 778 So.2d 199, 209 (Ala. Crim. App. 1998), aff'd, 778 So.2d 237 (Ala. 2000). ‘The plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant.’ Ex parte Trawick, 698 So.2d at 167. ‘[P]lain error must be obvious on the face of the record. A silent record, that is a record that on its face contains no evidence to support the alleged error, does not establish an obvious error.’ Ex parte Walker, 972 So.2d 737, 753 (Ala. 2007). Thus, ‘[u]nder the plain-error standard, the appellant must establish that an obvious, indisputable error occurred, and he must establish that the error adversely affected the outcome of the trial.’ Wilson v. State, 142 So.3d 732, 751 (Ala. Crim. App. 2010). ‘[T]he 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, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) )."

I.

Creque argues that the trial court erred when it denied his motion to suppress his statements. Specifically, he argues: that he did not receive warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before he gave his first statement; that a second statement was involuntary because, he says, he did not knowingly, intelligently, and voluntarily waive his Miranda rights after they were read to him; and that a partial audio recording of the second statement was unreliable and should not have been admitted.

In reviewing a circuit court's ruling on a motion to suppress a confession, we apply the standard set out in McLeod v. State, 718 So.2d 727, 729 (Ala. 1998) :

"For a confession, or an inculpatory statement, to be admissible, the State must prove by a preponderance of the evidence that it was voluntary. Ex parte Singleton, 465 So.2d 443, 445 (Ala. 1985). The initial determination is made by the trial court. Singleton, 465 So.2d at 445. The trial court's determination will not be disturbed unless it is contrary to the great weight of the evidence or is manifestly wrong. Marschke v. State, 450 So.2d 177 (Ala. Crim. App. 1984). ...

"The Fifth Amendment to the Constitution of the United States provides in pertinent part: ‘No person ... shall be compelled in any criminal case to be a witness against

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