Thompson v. State

153 So.3d 84

Devin Darnell THOMPSON

v.STATE of Alabama.

CR–05–0073.

Court of Criminal Appeals of Alabama.

Feb. 17, 2012.

As Modified on Denial of Rehearing Dec. 7, 2012.

Charlotte Morrison, Angela Setzer, and Bryan A. Stevenson, Montgomery; and James O. Standridge and Shelly H. Standridge, Tuscaloosa, for appellant.

Troy King and Luther Strange, attys. gen., and Michael A. Nunnelley (withdrew 06/20/2008), J. Clayton Crenshaw, and Thomas R. Govan, Jr., asst. attys. gen., for appellee.

Opinion

JOINER, Judge.¹

The appellant, Devin Darnell Thompson,² was convicted of murdering Fayette Police Officers Arnold Strickland and James Crump and police dispatcher Leslie “Ace” Mealer during the course of a robbery, violations of §§ 13A–5–40(a)(2), 13A–5–40(a)(5), and 13A–5–40(a)(10), Ala.Code 1975. The jury, by a vote of 10 to 2, recommended that Thompson be sentenced to death. The circuit court followed the jury's recommendation and sentenced Thompson to death. This appeal followed.

The State's evidence tended to show the following. At approximately 6:00 a.m. on the morning of June 3, 2003, Tim Brown, a paramedic with the Fayette Medical Center, was dispatched to the Fayette Police Department. Brown testified that when he approached the station he saw Mealer's body lying on the other side of the door to the police station, which was locked. After he forced his way inside, Brown said, he discovered that Mealer had been shot in the head. He proceeded through the building and found the bodies of Officer Crump and Officer Strickland. Both, he said, had been shot in the head and were lying in a pool of blood.

Testimony showed that at around 3:00 a.m. on the morning of June 3, 2003, Officer Crump and Officer Strickland approached a vehicle parked in the lot of a local restaurant and found Thompson asleep in the vehicle. The dispatcher informed them that the vehicle had been stolen, and the officers took Thompson into custody.

While the officers were booking Thompson they discovered that a dry-cleaning business, near where the car had been stolen, had been burglarized and clothing had been taken from that business. A shoe print had been discovered at the scene of that burglary. The officers removed Thompson's handcuffs in order to take his fingerprints and removed one of his shoes to get a shoe print.

While Thompson was being fingerprinted, he took Strickland's .40–caliber service pistol and shot Strickland in the head. Thompson then crossed the hall and shot Officer Crump in the head. As Thompson walked toward the exit of the police station he encountered Mealer. He shot Mealer multiple times and left the station.

Thompson attempted to reenter the station when he realized that one of his shoes was still inside, but the door had automatically locked when it closed, and he was unable to reenter. Thompson proceeded to the Fayette Fire Station, which was located in the same building as the Fayette Police Department, and told two firemen that “something bad had happened up front.” Thompson then stole a police cruiser and fled the scene. He was arrested later that day near Columbus, Mississippi. The pistol Thompson had taken from Officer Strickland was found in the police cruiser.

At trial, Thompson did not dispute that he shot and killed the police officers and the dispatcher. His defense was that he was not guilty by reason of mental disease or defect. Thompson presented expert testimony to the effect that he was suffering from post-traumatic stress disorder (“PTSD”) at the time of the murders and that he was in a dissociative state; therefore, he argued, he was not responsible for his actions. The State countered Thompson's expert testimony by presenting expert testimony to the effect that Thompson was not in a dissociative state when he committed the murders.

The jury convicted Thompson of six counts of capital murder. A separate sentencing hearing was held, and the jury recommended, by a vote of 10 to 2, that Thompson be sentenced to death. A presentence report was prepared, and a separate sentencing hearing was held before the circuit court. The circuit court found four aggravating circumstances: (1) That the murders were committed during the course of a robbery, § 13A–5–49(4), Ala.Code 1975; (2) that the murders were committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody, § 13A–5–49(5), Ala.Code 1975; (3) that the murders were committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws, § 13A–5–49(7), Ala.Code 1975; and (4) that the multiple murders were committed pursuant to one scheme or course of conduct, § 13A–5–49(9), Ala.Code 1975. After weighing the aggravating circumstances and the mitigating circumstances, the circuit court followed the jury's recommendation and sentenced Thompson 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

According to Rule 45A, Ala. R.App. P., because Thompson has been sentenced to death, this Court must review the lower court proceedings for 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.”

While the failure to object will not bar our review of any issues Thompson raises on appeal, it will weigh against any claim of prejudice that Thompson makes on appeal. Brooks v. State, 973 So.2d 380, 387 (Ala.Crim.App.2007). “ ‘[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.” ’ ” Burton v. State, 651 So.2d 641, 645 (Ala.Crim.App.1993) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), quoting in turn, United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ).

Guilt–Phase Issues

I.

Thompson argues that the circuit court erred in failing to ensure that his trial was free from all outside influences. Specifically, he argues that the circuit court erred in declining to move his trial to a county that was free from allegedly prejudicial pretrial publicity.

The record shows that in April 2004, Thompson moved for a change of venue, arguing that pretrial publicity had so “saturated the community and prejudiced prospective jurors against [Thompson] making a selection of a fair and impartial jury impossible.” (R. 100.) The State did not oppose the motion, and on August 17, 2004, the circuit court entered an order moving the trial to Lauderdale County. (R. 109; 116.) Sometime later, the court entered the following order, rescinding its August 2004 order and changing venue to Lamar County:

“On August 17, 2004, this Court entered an order on the defendant's motion and the State's consent transferring venue to the Circuit Court of Lauderdale County. The transfer to Lauderdale County was based on two criteria as set forth by [Thompson]: First, Lauderdale County is outside of the Birmingham, Alabama, media market; and, second, that Lauderdale County is similar to Fayette County in population demographics.

“The 24th Circuit consists of Fayette, Lamar, and Pickens Counties. The Court assumed, based on its location, that Lamar County is included in the Birmingham, Alabama, media market. The Court has now determined that Lamar County is outside of the Birmingham market. Furthermore, Lamar County is similar to Fayette County in population demographics. The defendant is African–American and, based on the 2000 United States Census, the percentage of Black or African–American persons in Fayette County is 11.9% and is 12% in Lamar County.

“Accordingly, to provide a pool of impartial prospective jurors and to promote judicial economy and efficiency, it is ordered, adjudged and decreed as follows:

“1. That the venue of this action, for trial, is and it is hereby transferred to the Circuit Court of Lamar County, Alabama....”

(C.R. 207–08.) At the hearing on this motion, defense counsel objected to moving the case to Lamar County and argued that § 15–2–24, Ala.Code 1975,³ prohibited the court from changing venue a second time once venue had been changed.⁴ The Court stated: “Based upon a reading of the statute, that the trial must be removed to the nearest county, free from exception, the move to Lauderdale County would not have been proper, that is not the nearest county, and that the move to Lamar County would be the nearest county, without exception.” (R. 233–34.) Defense counsel then withdrew his motion for a change of venue and stated on the record that Thompson voluntarily and intelligently waived his right to a change of venue. (R. 235.) The court then issued an order stating that the motion for a change of venue had been rendered moot because Thompson had withdrawn his request and that the trial could proceed in Fayette County. (C.R. 209.)

Thompson did not present evidence indicating that pretrial publicity had saturated Lauderdale County or Lamar County, and he withdrew his motion for a change of venue when the court held that to comply with § 15–2–24, the case should be moved to a county nearer to Fayette County—Lamar County. Accordingly, if error did occur it was invited by Thompson's actions.

“ ‘ “ ‘Invited error has been applied to death penalty cases. “An invited error is waived, unless it rises to the level of plain error.” Ex parte Bankhead, 585 So.2d 112, 126 (Ala.1991).’ ” ' See Saunders v. State, 10 So.3d 53, 88 (Ala.Crim.App.2007), quoting Scott v. State, 937 So.2d 1065, 1075 (Ala.Crim.App.2005), quoting in turn Adams v. State, 955 So.2d 1037, 1050–51 (Ala.Crim.App.2003), rev'd on other grounds,

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