Ward v. State

814 So.2d 899

John Michael WARD v. State.

CR-98-0800.

Court of Criminal Appeals of Alabama.

February 4, 2000.

Rehearing Denied April 21, 2000.

W. David Nichols, Birmingham, for appellant.

Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for appellee.

FRY, Judge.

The appellant, John Michael Ward, was convicted of the capital murder of a child less than 14 years of age, a violation of § 13A-5-40(a)(15), Ala.Code 1975. The jury, by a vote of 10-2, recommended that Ward be sentenced to death. The trial court imposed the death sentence recommended by the jury.

The record contains a summary of the facts and evidence presented, as rendered by the trial court. In pertinent part, the trial court's order states as follows:

"On April 22, 1997, at 7:28 A.M. an operator at the Baldwin County 911 Center received a call from Michelle Milner Ward, who stated that her baby was not breathing. Ten minutes later paramedics arrived at the Wards residence, a 16' × 7' travel trailer. After receiving Nicholas Ward's body from John Michael Ward (hereinafter `Ward') the paramedics attempted resuscitation by intubation while en route to the South Baldwin Regional Medical Center. The emergency room attending physician, Dr. Robert Revel, examined the infant determining that he was not breathing, had no pulse, was cold to the touch and had rigor mortis. The doctor pronounced the child dead on arrival. In addition to the lack of vital signs, Dr. Revel observed abrasions on Nicholas's scalp, nose and mouth area, pus-like material in his eyes, blood in the ears, bruises on the neck and chest, stool in the diaper, a deformity on his right arm, and crusty material in some nail beds.

"After the examination, Dr. Revel interviewed both parents. The father stated that Nicholas had been struck on the head by a folding chair falling from a shelf and that the baby had had breathing problems later in the day. The mother had wanted to seek medical attention, but that the father did not think it necessary.

"Dr. Harold Reed, a pediatrician, answered the code call in the emergency room. He testified that he also examined the body and found the internal body temperature was 88 degrees.

"Because foul play was suspected, hospital personnel contacted the Baldwin County Sheriffs office. Officer John Stewart arrived first and was followed by Chief Investigator Huey Mack, Jr. Officer Mack also observed abrasions on Nicholas's forehead, nose and mouth, bruises on the chest and arm, and missing toenails. He notified the Baldwin County coroner and the Department of Forensic Science of the unnatural death. Mr. Mack testified that the mother appeared to be upset during the administration of the last rites, but Ward was emotionless.

"Investigator Mack left the hospital and met Chuck Machette, a caseworker with the Baldwin County Department of Human Resources at the Ward residence. The crime scene was photographed and videotaped. Ward and his wife participated in the taping. Mack took into his possession a blood-stained pillow from the bed where the parents said Nicholas had been sleeping the night before. Subsequent DNA testing revealed the blood belonged to Nicholas.

"Dr. James Downs, the state medical examiner, performed the autopsy on Nicholas. He photographed and videotaped the body during the course of the autopsy. The pictures recorded the various injuries to the baby's body. From the autopsy procedure, Dr. Downs concluded that Nicholas had been an infant that failed to thrive. In addition, the child suffered multiple fractures to the arms and ribs and damage to the toenails and fingernails. He opined that Nicholas suffered a spiral fracture of the right arm the day before death. Dr. Downs determined the cause of death to be multiple blunt force injuries and suffocation.

"Michelle Milner Ward testified that early in her relationship with Ward he placed his hand over her mouth and threatened to suffocate her. Ward continued to physically abuse his wife throughout the marriage.

"Nicholas was born in December 1996, as the second child of her marriage to Ward. In January 1997, Mrs. Ward fled to her mother's home in Mobile, taking Nicholas and his sister, April. After remaining there one month, Mrs. Ward and the children moved to Penelope House, a Mobile County Shelter for battered women. After one month there, the mother and children returned to Ward's trailer in Magnolia Springs. Ward inflicted numerous injuries on his four month old son and murdered him by suffocation in the early morning hour of April 22, 1997."

(C. 5-7.)

Ward raises several issues on appeal, many of which were not presented to the trial court. Ward, however, was sentenced to death; therefore, the failure to raise these issues at trial does not prevent our review. It does weigh against any claim of prejudice Ward now makes on appeal. See Burgess v. State, 723 So.2d 770 (Ala.1998); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991). "`[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.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting, in turn, United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)).

"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."

Rule 45A, Ala.R.App.P.

Accordingly, we will now address the issues Ward raises for our review.

I.

Ward contends that the trial court erred in admitting slides of photographs and a videotape depicting images of the autopsy. Specifically, he argues that the photographs and videotape were inflammatory, irrelevant, and highly prejudicial. Additionally, he claims that the prosecution intentionally appealed to the jurors' emotions by showing the videotape of the external and internal injuries of the body.

"Photographic evidence is admissible in a criminal prosecution if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence. Kuenzel v. State, 577 So.2d 474 [ (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991) ]."

Pilley v. State, 780 So.2d 870, 882 (Ala.Cr. App.1998), rev'd on other grounds, 789 So.2d 888 (Ala.2000).

In Siebert v. State, 562 So.2d 586 (Ala. Cr.App.1989), this Court stated:

"The same rule applies for videotapes as for photographs: `The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury. Ex parte Carpenter, 400 So.2d 427 (Ala.1981).' Walker v. State, 416 So.2d 1083, 1090 (Ala.Cr.App.1982). See also White v. State, 435 So.2d 1367, 1371 (Ala.Cr.App.1983).

"`These photographs did have "some tendency to prove or disprove some disputed or material issue" or "to illustrate or elucidate some other relevant fact or evidence, or corroborate or disprove some other evidence offered or to be offered." Baldwin v. State, 282 Ala. 653, 655, 213 So.2d 819, 820 (1968). There is irony in a convicted murderer's contending on appeal that pictures of the corpse of his victim might have inflamed the jury. That risk "comes with the territory."'

"Grice v. State, 527 So.2d 784, 787 (Ala. Cr.App.1988).

"`Further, the receipt into evidence of such exhibits lies within the sound discretion of the trial court. Hopkins v. State, 429 So.2d 1146 (Ala.Cr.App.1983).' Burton v. State, 521 So.2d 91, 92 (Ala. Cr.App.1987)."

562 So.2d at 599.

Additionally, in Gentry v. State, 689 So.2d 894, 907 (Ala.Cr.App.1994), this Court stated:

"`It has long been the law in Alabama that "[p]hotographs which show the external wounds in the body of a deceased victim, even though they are cumulative and based on undisputed matters, are admissible. The fact that they are gruesome is not grounds to exclude them so long as they shed light on the issues being tried." Burton v. State, 521 So.2d 91 (Ala.Cr.App.1987). See also Kinder v. State, 515 So.2d 55 (Ala.Cr.App.1986). The fact that a photograph is gruesome and ghastly is no reason to exclude it from evidence, so long as the photograph has some relevancy to the proceedings, even if the photograph may tend to inflame the jury. Magwood v. State, 494 So.2d 124, 141 (Ala.Cr.App. 1985). See also Hutto v. State, 465 So.2d 1211 (Ala.Cr.App.1984); Jones v. State, 439 So.2d 776, (Ala.Cr.App.1983); Godbolt v. State, 429 So.2d 1131 (Ala.Cr. App.1982).'"

Gentry v. State, supra, quoting Bankhead v. State, 585 So.2d 97 (Ala.Cr.App.1989). "`This rule of law applies not only to photographs, but to photographic slides as well. Goffer v. State, 430 So.2d 896 (Ala. Cr.App.1983).'" Gentry, supra, quoting Bankhead. "There is no reason to treat photographs of internal wounds differently than photographs of external wounds." Hammock v. State, 612 So.2d 545, 547 (Ala.Cr.App.1992).

During the testimony of Dr. James Downs, a state medical examiner, a videotape depicting images of the external and internal injuries to the body during the autopsy was shown to the jury.¹ During the playing of the videotape to the jury, Dr. Downs identified the various injuries on the...