Riley v. State

166 So.3d 705

David Dewayne RILEY

v.STATE of Alabama.

CR–10–0988.

Court of Criminal Appeals of Alabama.

Aug. 30, 2013.

Rehearing Denied Dec. 13, 2013.

Certiorari Denied Nov. 21, 2014

Randall S. Susskind and Angela Setzer, Montgomery; and Janice Keeton, Florence, for appellant.

Luther Strange, atty. gen., and Jess R. Nix, deputy atty. gen., and James R. Houts, asst. atty. gen., for appellee.

Opinion

WINDOM, Presiding Judge.

David Dewayne Riley appeals his capital-murder conviction and sentence of death.¹ Riley was convicted of murder made capital for taking the life of Scott Michael Kirtley during the course of a first-degree robbery. See § 13A–5–40(a)(2), Ala.Code 1975. Following the penalty phase of the trial, the jury unanimously recommended that Riley be sentenced to death. After holding a sentencing hearing and weighing the aggravating and mitigating circumstances, the circuit court accepted the jury's recommendation and sentenced Riley to death. On April 13, 2011, Riley filed a motion for new trial. Following a hearing, the circuit court denied Riley's motion.

Facts

On January 10, 2005, Riley shot and killed Kirtley, the cashier at Dandy's Package Store Number 2 (“Dandy's” or “the package store”) in Florence, during a robbery.

Several hours before the robbery, Riley and his friend, Dewon Jones, were walking through a neighborhood near Dandy's when Riley stopped by the store to purchase some soft drinks. On the surveillance tape, Riley is seen walking around the store, looking into two of the store's three security cameras, purchasing two soft drinks, and then leaving the store. After he left, Riley told Jones that he was in a “jam” and was thinking of robbing the store. Jones attempted to dissuade Riley, telling him “it was a crazy idea” (R. 1077), but Riley insisted that he needed the money for his debts. Jones agreed to help, and they devised a plan wherein Jones would serve as the lookout. Later that day the two men returned to the package store.

The package store's surveillance video depicts Riley entering the store and robbing Kirtley. At some point during the robbery, a customer pulled into the parking lot and Jones attempted to telephone Riley to warn him, but the call would not go through. When the customer entered the store and approached the register, Riley calmly backed away, concealed his weapon, and ordered Kirtley to make the sale. (State's exhibit 37.) Riley counted the stolen money and placed it in his pocket while the customer checked out at the register. Riley then allowed the customer to leave before forcing Kirtley into a back room outside the view of the surveillance cameras. The events that took place in the back room cannot be seen on the surveillance video, but they can be heard on the audio portion of the tape. Riley fired a shot, and Kirtley screamed in pain. After a brief pause, Riley fired a second shot. Following a final pause, Riley fired another shot before returning to the main area of the store. Riley collected two of the three videos from the store surveillance cameras before exiting the store with the proceeds of the robbery.

After leaving the package store, Riley and Jones walked to a friend's house where they hid the stolen items in a tree house in the friend's backyard. The two men later met at Jones's house. Riley asked Jones to hide the gun for him. Jones agreed, and Riley placed the gun inside a closet, where it was recovered by law-enforcement officers later that night.

Thomas Newbern went to Dandy's around 7:30 p.m. on January 10, 2005. He noticed that another customer was already waiting, but the clerk was not at the counter. Newbern then went into the back of the store to locate the missing clerk and discovered Kirtley's body. Newbern telephoned emergency 911.

Sergeant Cliff Billingsley of the Florence Police Department was dispatched to the package store where he met Newbern and two female customers. Billingsley entered the cooler door toward the back of the store and observed Kirtley lying on the floor in a pool of blood. Moments later, two firemen arrived and checked Kirtley's vital signs. Billingsley observed a powder or smoke-like substance coming out of the side of Kirtley's head near his ear. As additional officers arrived at the scene, Billingsley noticed that “the cash register area appeared to be disturbed” and that “it was possibly a robbery.” (R. 507.)

As part of their investigation, law-enforcement officers provided the local news media with a copy of the surveillance video to be aired on the news. Shortly after the video aired, David Ashley, an acquaintance of Riley, came forward and identified Riley as the individual on the video. That same evening, Florence Police Officer Chuck Hearn also viewed the surveillance tapes from the crime scene and recognized Riley from a previous encounter. After identifying Riley, Ashley rode with law-enforcement officers to locate Riley's residence.

When the officers arrived at the residence, Riley, who was on the front porch, mistakenly thought that the unmarked police car was a friend's vehicle and began running toward the car. Riley was arrested, given his Miranda² rights, and patted down for officer safety. During the patdown, officers found three packs of cigarettes in Riley's pockets. Officer Hearn testified that one of the packs “had a red mark on it that appeared to be blood.” (R. 619.)

Riley's blue jeans and the pack of cigarettes with the red spot were later sent to the Alabama Department of Forensic Sciences (“DFS”) for DNA testing, which revealed that the spot on the pack of cigarettes was Kirtley's blood. An autopsy of Kirtley's body revealed that he had been shot three times. Two of the gunshots were fired from an intermediate range, indicating that the gun was anywhere from one inch to three feet away, while the third shot was classified as a contact wound, indicating that the shot was fired from an inch or less away.

Standard of Review

Because Riley has been sentenced to death, according to Rule 45A, Ala. R.App. P., this Court 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.” Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999). Although Riley's failure to object at trial 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 (Ala.Crim.App.1991).

Discussion

I.

On appeal, Riley argues that the prosecutor committed reversible error by improperly relying on his accomplice's felony-murder conviction as substantive evidence of Riley's guilt. Riley further argues that the circuit court erroneously instructed the jury, over defense counsel's objection, regarding the differences between felony murder and capital murder in relation to Jones, Riley's accomplice.

Contrary to Riley's assertion, it was defense counsel, not the State, who sought to use Jones's conviction for felony murder as substantive evidence to show that Riley should also be convicted of felony murder as opposed to capital murder. The State, in response, then argued that Riley's participation in the crime differed from Jones's such that Riley should be convicted of capital murder.

The record reveals that Jones, Riley's accomplice, was initially charged with capital murder as a result of his involvement in the robbery-murder that occurred at Dandy's, but that charge was later reduced to felony murder. Jones was ultimately convicted of felony murder and sentenced to 30 years in prison. As part of Riley's defense, defense counsel called Jones as a witness with the intent of eliciting evidence indicating that the shooting was unintentional. (Riley's brief, at 12 n.3.) When Jones's testimony proved to be unhelpful to Riley's defense strategy, defense counsel then impeached Jones by questioning him about his felony-murder conviction and sentence for his participation in the crime. Defense counsel did...