Townes v. State

253 So.3d 447

Tawuan TOWNES

v.STATE of Alabama

CR–10–1892.

Court of Criminal Appeals of Alabama.

December 18, 2015.

Rehearing Denied March 17, 2017

Certiorari Denied October 20, 2017

Alabama Supreme Court 1160523

Bryan A. Stevenson, Randall S. Susskind, and Angela Setzer, Montgomery, for appellant.

Luther Strange, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.

On Return to Remand^*

WINDOM, Presiding Judge.

This Court's opinion of June 13, 2014, is withdrawn, and the following opinion is substituted therefor.

Tawuan Townes appeals his conviction for capital murder and his sentence of death. Townes was convicted of murder made capital for intentionally killing Christopher Woods during the course of a burglary. See § 13A–5–40(a)(4), Ala.Code 1975. The jury, by a vote of 10–2, recommended that Townes be sentenced to death. The Houston Circuit Court accepted the jury's recommendation and sentenced Townes to death.

Facts

Townes had plans to rob Woods, a known drug dealer. Woods lived in a house in Dothan with his girlfriend, India Starks. On November 13, 2008, Townes and Cornelius Benton drove to Woods's house. Townes was armed with a .22 caliber rifle, and Benton was armed with a .380 caliber pistol that belonged to Townes's brother. Townes and Benton wore dark clothing and obscured their faces to conceal their identities. Townes also wore a toboggan cap.

Around 2 p.m., Starks heard Townes and Benton bang on the door, and, as Woods looked outside, they kicked open the door and entered the house. Woods said, "Please don't do this.... Man, don't do this. Please don't do this." (R. 437.) Woods backed away and sat in a chair, at which point the men "told him to shut up and just tell [us] where it's at." (R. 437.) As Woods begged for his life and Starks's life, Benton repeatedly hit him in the face to force Woods to give them money. Townes shot Woods in the chest with the .22 caliber rifle and Benton continued to hit Woods. Benton then shot Woods in the leg, after which he resumed hitting Woods in the face and demanding money. Starks heard Woods screaming and begging, "Man, don't do this." (R. 450.)

After Woods was shot the second time, Starks ran to a neighbor's house to telephone emergency 911. As Starks was escaping, one of the men asked, "Where you going, bitch?" (R. 451.) While Starks was on the telephone with emergency 911, she saw the two men leave. Starks went back to Woods's house to attend to Woods. According to Starks, the room where the attack occurred was ransacked, Woods was slumped over in the chair, and her cellular telephone was missing. Woods died as a result of the bullet wound to the chest.

When Townes was arrested, he was in possession of the SIM card from Starks's cellular telephone.¹ After Townes was arrested, he gave a statement to police officers. In his statement, Townes admitted that he and Benton went to Woods's house to rob Woods because Townes needed money. Townes, however, adamantly denied intending to kill Woods. Townes stated that he intended to scare Woods when he shot the .22 caliber rifle and that the rifle used only "little bullets." (C. 500.)

After hearing closing arguments of counsel and being instructed on the law by the circuit court, the jury convicted Townes of murder made capital because it was committed during the course of a burglary.

Standard of Review

This Court has explained:

" ‘When evidence is presented ore tenus to the trial court, the court's findings of fact based on that evidence are presumed to be correct,’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) ; ‘[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,’ Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986) ; and we make ‘ "all the reasonable inferences and credibility choices supportive of the decision of the trial court." ’ Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761."

State v. Hargett, 935 So.2d 1200, 1203 (Ala.Crim.App.2005). A circuit court's "ruling on a question of law[, however,] carries no presumption of correctness, and this Court's review is de novo." Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997). Thus, "[w]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment." Ex parte Jackson, 886 So.2d 155, 159 (Ala.2004).

Further, because Townes has been sentenced to death, this Court must search the record for plain error. Rule 45A, Ala. R.App. P., 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 (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 alsoEx 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 Townes'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).

I.

On appeal, Townes first argues that the circuit court's jury instructions regarding intent erroneously created a mandatory presumption on the issue of specific intent to kill, which alleviated the State's burden to prove Townes's specific intent. Specifically, Townes argues that the circuit court erroneously instructed the jury that " ‘intent must be inferred if the act was done deliberately and death was reasonably to be apprehended or expected as a natural and probable consequence of the act.’ " (Townes's brief, at 12 (quoting R. 824).) According to Townes, the circuit court's instruction created a mandatory presumption on the issue of specific intent, relieved the State of its burden to prove intent, and violated Townes's right to due process. Townes did not raise this argument below; therefore, this issue will be reviewed for plain error only. Rule 45A, Ala. R.App. P.

It is well settled that "[t]he Due Process Clause of the Fourteenth Amendment ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ "

Williams v. State, 710 So.2d 1276, 1334 (Ala.Crim.App.1996) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ). Thus, in a prosecution for capital murder, the State bears the burden of proving beyond a reasonable doubt that the defendant had the specific intent to kill. See § 13A–5–40(b), Ala.Code 1975; Heard v. State, 999 So.2d 992, 1005 (Ala.2007) ("[A] defendant must have the intent to kill in order to be found guilty of a capital offense." (citing § 13A–5–40(b), Ala.Code 1975, and Ex parte Woodall, 730 So.2d 652, 657 (Ala.1998) ("No defendant can be found guilty of a capital offense unless he had an intent to kill." (citing Beck v. State, 396 So.2d 645, 662 (Ala.1981) and Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) )))).

" ‘In Sandstrom [v. Montana, 442 U.S. 510 (1979) ], the Supreme Court [of the United States] held that instructions which a reasonable jury could interpret as an "irrebuttable direction by the court to find intent" violate a defendant's due process rights. Sandstrom, 442 U.S. at 517, 99 S.Ct. at 2455–56.’ " Blackmon v. State, 7 So.3d 397, 435 (Ala.Crim.App.2005) (quoting Hart v. State, 612 So.2d 520, 529 (Ala.Crim.App.1992) ). According to the Supreme Court, the principle that a defendant cannot, consistent with the Due Process Clause of the Fourteenth Amendment, be convicted unless the State proves beyond a reasonable doubt each element of the crime, "prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime." Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (citations omitted).

" ‘The threshold inquiry in ascertaining the constitutional analysis applicable to [a jury instruction relating to presumptions] is to determine the nature of the presumption it describes.’ " Francis...