State v. Mitchell

377 So.3d 94

STATE of Alabama

v.Brandon Deon MITCHELL

Brandon Deon Mitchell

v.State of Alabama

CR-18-0739

Court of Criminal Appeals of Alabama.

February 11, 2022

Rehearing Denied May 20, 2022

Certiorari Denied November 18, 2022

Alabama Supreme Court SC-2022-0602

Steve Marshall, att’y gen., and Lauren A. Simpson, asst. att’y gen., for appellant/cross-appellee State of Alabama.

Mary Ann Couch (withdrew 12/30/2019), Lindsey C. Boney IV, Austin W. Holland, and Dexter C. Hobbs, Jr., of Bradley Arant Boult Cummings LLP, Birmingham, for appellee/cross-appellant Brandon Deon Mitchell.

On Application for Rehearing

MINOR, Judge.

This Court withdraws its opinion of August 6, 2021, and substitutes the following in its place.

Brandon Deon Mitchell filed a postconviction petition under Rule 32, Ala. R. Crim. P., challenging his four capital-murder convictions and his resulting death sentence. The Jefferson Circuit Court denied all Mitchell’s claims but one—that his counsel had been ineffective at the sentencing hearing before the trial court when that court overrode the jury’s recommendation, by a 10-2 vote, that the trial court sentence him to life in prison without the possibility of parole. As to that claim, the circuit court granted Mitchell relief, ordering that he receive a new sentencing hearing.

The State appeals that part of the circuit court’s judgment ordering a new sentencing hearing for Mitchell, and Mitchell cross-appeals that part of the judgment denying him relief. For the reasons below, we reverse that part of the judgment granting Mitchell a new sentencing hearing, we affirm the rest of the judgment, and we remand this matter to the circuit court to reinstate Mitchell’s death sentence.

Facts and Procedural History

On direct appeal, this Court summarized the relevant facts from Mitchell’s trial:

"At trial, the State presented evidence indicating that on November 24, 2005, Thanksgiving Day, Mitchell went to Jonathan Floyd’s apartment where Roderick Byrd and his sister, Hellena, were staying. Mitchell entered the apartment to discuss his plan to rob the Airport Inn in Birmingham (hereinafter ‘the Inn’) with Byrd. After Byrd agreed to help with the robbery, Mitchell asked Floyd to take them to the Inn. Floyd drove Mitchell and Byrd to the Inn around 2:50 p.m. When Floyd let them out of the car, Mitchell was wearing a white sweatshirt and jeans and Byrd was dressed in all black. After letting Mitchell and Byrd out of the car, Floyd left to visit his ‘god-sister.’

"Mitchell and Byrd entered the Inn where they encountered Kim Olney, the desk clerk, and John Aylesworth, a truck driver who was waiting in the lobby for a ride to Texas where he lived. Both Mitchell and Byrd were armed with pistols. Mitchell immediately focused his attention on Olney, who was behind the front desk, while Byrd used his gun to subdue Aylesworth, a former Marine. At some point during the robbery, Dorothy Smith, who was traveling back to New York after visiting her son in Alabama for Thanksgiving, entered the hotel lobby and was also held at gunpoint. During the robbery, Mitchell took money from a cash drawer and unsuccessfully attempted to open a safe located behind the front desk. Mitchell and Byrd also took various items from the three victims, including duffel bags, clothing, and money, before shooting each of them behind the ear at close range with .38-caliber pistols.

"A video from the lobby security camera shows Mitchell shooting Olney twice, once in the arm and once in the head. Forensic testing of the projectiles recovered from the scene and from the victims’ bodies established that Olney and Smith were shot with the same .38-caliber pistol and that Aylesworth was shot with a different .38-caliber pistol. The Jefferson County Medical Examiner testified that all three victims died as a result of a gunshot wound to the head.

"After the robbery, Mitchell and Byrd fled the scene on foot. They traveled around the Inn and jumped over a fence located behind the Inn, which separated the Inn from a neighborhood. Clifford James and James Jackson, who were sitting on the back porch of one of the houses behind the Inn, saw Mitchell and Byrd, who were carrying several bags, climb the fence and walk off in different directions. James and Jackson were not able to positively identify the individuals they saw climbing the fence, but they testified that one of the men was wearing all black and was carrying a book bag and the other man had lighter skin and was wearing light-colored clothing.

"After Mitchell and Byrd separated, Mitchell telephoned Floyd and asked Floyd to pick him up on First Avenue.

Floyd met Mitchell on First Avenue and took Mitchell to Mitchell’s ‘god-sister’s’ house, which was three blocks from Floyd’s apartment. During the ride, Mitchell, who was carrying a blue tote bag, told Floyd that he had ‘just hit a lick.’ After dropping Mitchell off, Floyd went back to look for Byrd. Floyd later returned to his apartment where he found Byrd and Mitchell. Byrd appeared nervous and was shaking and crying. At some point, Mitchell removed his clothing and placed the clothing in the dumpster behind Floyd’s apartment. Mitchell later told Floyd that he had killed three people by shooting them behind the ear.

"Later that evening, Mitchell contacted his friend Warika Gunn and asked her for a ride to the bus station in Huntsville. Gunn, who had seen Mitchell’s photograph on the news in connection with the shootings at the Inn, telephoned ‘Crimestoppers,’ an anonymous tip hotline. Mitchell later admitted that he was wanted by the police in connection with a robbery. While in contact with the authorities, Gunn agreed to meet Mitchell in Fairfield at 10:00 p.m. However, Mitchell was subsequently arrested before he could meet Gunn at the arranged location.

"At trial, Robert B[r]axton, a friend of Mitchell’s, and James Floyd III, Jonathan Floyd’s nephew, testified that they had recognized Mitchell’s photograph on a news report and that Mitchell had told them that he had been involved in the hotel shootings."

Mitchell v. State, 84 So. 3d 968, 977-78 (Ala. Crim. App. 2010).

The jury convicted Mitchell of four counts of capital murder—one count for murdering each of the victims during a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and one count for murdering three persons by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975. By a 10-2 vote, the jury recommended that the circuit court sentence Mitchell to life in prison without the possibility of parole. The trial court, however, overrode the jury’s recommendation and sentenced Mitchell to death.

The trial court found that five aggravating circumstances existed:

(1) Mitchell committed the offense while he under a sentence of imprisonment—he was on probation for second-degree kidnapping, first- degree robbery, and discharging a firearm into an occupied vehicle.

(2) Mitchell had a prior felony conviction involving the use or threat of violence.

(3) Mitchell committed the capital offense during the commission of a robbery.

(4) Mitchell killed two or more persons in one act or course of conduct.

(5) The capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses.

(Trial C. 23-24.¹) The trial court found that no statutory mitigating circumstances existed. The court noted Mitchell’s heavy involvement in the murders and his "extensive history with the criminal justice system" including his prior convictions for unlawful breaking and entering of a vehicle, second-degree kidnapping, first-degree robbery, and shooting into an occupied vehicle. (Trial C. 24.)

The trial court found these nonstatutory mitigating circumstances to exist:

(1) Mitchell was taken from his mother at a young age and lived in multiple foster homes.

(2) While he lived with his grandmother, Mitchell was "whipped all the time" and "hit with extension chords and/or pans, tied to chairs, and beat for hours…. Mitchell had a sad and abused childhood."

(3) Mitchell had a good environment with a foster parent, Betty Dickerson, but children bothered him at school because he was a foster child. Mitchell’s school issues led to him being removed from Dickerson’s home.

(4) The jury voted 10-2 for life without the possibility of parole, which the trial court weighed "very heavily."

(Trial C. 24-26.) The trial court stated, however, that,

"[a]lthough the jury’s recommendation weighs heavily in favor of [Mitchell], the court is strongly of the opinion that 10 jurors incorrectly determined that the mitigating factors outweighed the aggravating factors. Even with the jury’s recommendation included as an additional mitigating circumstance, the court is of the opinion that the aggravating circumstances still outweigh the mitigating circumstances. The court is of the opinion that the State resting during the penalty phase without presenting any aggravating circumstances, but being allowed to reopen their case, may have made the jurors deemphasize the weight that should have been attributed to evidence presented in support of the aggravating circumstances. Even if this did not [a]ffect the jury’s deliberations, the court feels strongly that the aggravating circumstances outweigh the mitigating circumstances."

(Trial C. 26.)

This Court affirmed Mitchell’s convictions and death sentence. Mitchell, supra. The Alabama Supreme Court granted certiorari review but then quashed the writ in 2011. Ex parte Mitchell, 84 So. 3d 1013 (Ala. 2011). The United States Supreme Court denied Mitchell’s petition for a writ of certiorari in 2012. Mitchell v. Alabama, 568 U.S. 829, 133 S.Ct. 111, 184 L.Ed.2d 51 (2012).

In November 2012, the Equal Justice Initiative filed a "placeholder" Rule 32 petition for Mitchell. (C. 169-204.) His current counsel took over the case in May 2013 and, over the next three years, filed five amended Rule 32 petitions, plus an amendment to the fifth amended petition. (C. 334, 564,...