Michael Anthony Powell v. State of Alabama (Appeal from Shelby Circuit Court: CC-16-942)

Rel: May 3, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

CR-20-0727
_________________________

Michael Anthony Powell

v.

State of Alabama

Appeal from Shelby Circuit Court
(CC-16-942)

COLE, Judge.

Michael Anthony Powell was convicted of capital murder for killing

Tracy Algar during a first-degree robbery, a violation of § 13A-5-40(a)(2),

Ala. Code 1975. The jury, after unanimously finding the existence of two

aggravating circumstances -- that Powell had been previously convicted

of a felony involving the use or threat of violence and that Powell was
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under a sentence of imprisonment when he committed the capital murder

-- recommended by a vote of 11 to 1 that Powell be sentenced to death.

The trial court followed the jury's recommendation. This appeal, which

is automatic in a case involving the death penalty, follows. See § 13A-5-

53, Ala. Code 1975.

On appeal, Powell raises several arguments. His first argument --

that the State, during its rebuttal closing argument, "repeatedly and

erroneously commented on [his] silence" -- requires this Court to reverse

his capital-murder conviction and death sentence. (Powell's brief, p. 12.)

To provide context to Powell's argument, we first set out the evidence

presented at Powell's trial and detail the closing arguments made by

counsel during the guilt phase of Powell's trial.

Facts and Procedural History

At trial, the State's evidence established the following: Just before

11:00 a.m. on October 30, 2016, the Kirkland Chevron gas station on

Route 31 in Alabaster was robbed. During that robbery, Tracy Algar, the

store's clerk, was shot in the back of the head in the bathroom of the gas

station. The gunshot wound caused Algar's death. Surveillance video

from businesses around the gas station showed that, shortly before the

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robbery and murder, a black male wearing a white shirt, black pants, and

a black fedora hat left "The View" apartment complex on foot, walked

northbound on Route 31 toward the gas station, and entered the gas

station. Surveillance video from businesses around the gas station also

showed that, after the time of the murder, the same black male left the

gas station on foot, continued southbound on Route 31 toward The View,

and entered the apartment complex. Sarah Knighten, who was driving

on Route 31 at that time, also saw a black male wearing a white shirt,

black pants, and a black fedora running southbound along Route 31.

At around 11:00 a.m. on October 30, 2016, Miranda Craig -- a

registered nurse who frequented the gas station and who knew Algar --

pulled into the gas station to get gas. When the pump did not turn on,

Craig went inside the gas station to look for Algar. Craig called for Algar,

but she did not respond. Shortly after Craig entered the gas station to

look for Algar, Johnny Lawson also entered the gas station. Eventually,

Craig opened the bathroom door and found Algar dead on the floor. Craig

and Lawson then went outside, and Craig called 911.

When law enforcement arrived at the gas station, they found Algar

lying on the bathroom floor "with a large amount of blood … around her

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face and head." Law enforcement also found an unopened pack of

Newport cigarettes on the counter by the cash register along with a "no

sale" receipt that was time-stamped "10:51 a.m." 1 When law enforcement

had the owner of the gas station, Scott Kirkland, open the cash register,

they found only coins in the register and, according to the accounting

system for the gas station, there should have been around $265 in the

register.

On November 1, 2016, law enforcement released to the public

photos of a "person of interest," which were taken from the surveillance

videos. Two employees who worked at The View apartment complex

recognized Powell as the person of interest. Those employees knew

Powell because he lived in an apartment at The View, and they contacted

law-enforcement personnel and told them that they thought they knew

who was in the photos. Knighten also contacted law enforcement to

1It was explained at trial that "[a] no sale button in a convenience

store on that type of register … is where they can open the drawer up and
it keeps a record of when that drawer was opened" and, normally, the
employee who used the "no sale" button to open the register "would get a
printout and you would initial it, gives us a reason why you opened the
cash register up at that particular time." (R. 1330-31.) Further, it was
explained that the time stamp on the "no sale" receipt is generated "by
Chevron through the satellite. It is their system. So it is going to be spot
on time." (R. 1333-34.)
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report the man she saw running along Route 31 the day Algar was

murdered. Later, law enforcement contacted Knighten and presented

her with a photographic lineup to identify the person she saw running

along Route 31. Knighten identified Powell as the person she had seen.

On November 4, 2016, law enforcement executed a search warrant

on Powell's apartment at The View. During that search, officers found

black pants, white shirts, and a grey fedora hat. Law enforcement also

executed a search warrant at a home belonging to one of Powell's

girlfriends and, in that home, they found a box of Winchester .380

ammunition inside a silver box -- the same brand and caliber as the shell

casing found by law enforcement at the gas station.

After Powell was arrested and while he was incarcerated in the

Shelby County jail, Powell telephoned one of his girlfriends and told her

to find alibi witnesses who would say that he was in Andalusia the day

Algar was murdered. While he was jail, Powell also convinced another

inmate -- David Jackson -- to author a letter confessing to being an

accessory to the murder. Powell had Jackson read that letter on a

recorded jail telephone call. Jackson said that, for his work, Powell "gave

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[him] two packs of cookies," "a tablespoon of coffee," and "one phone call."

(C. 404.) Jackson's "confession letter" provided as follows 2:

"I David Jackson on 11th December 2016 in Shelby Co.
jail am stating this true fact of the matter that Michael Powell
is completely and totally innocent and not guilty of the crimes
and charges that he has been wrongly and falsely charged
with, accused of and did not commit.

"I David Jackson was one of two individuals connected
to this incident or crime sunday October 30th in Alabaster.
The other defendant or individual is James Moore. He is a
older man (Black) have known for over two years in alabaster.
We purchased and used street drugs together from a friend of
his called 'Boy.'

"On Saturday Oct. 29 Moore called me in Birmingham
and said to come to Alabaster for a deal that he would pay me
for.

"[Illegible] We met at the park Moore told me that he
needed me to lookout for him while he got me some money
from his old girlfriend (Tracy) at the Chevron gas station on
first street. (Tracey) was going to give him the money and
state that she had been Robbed.

"Moore stated tracy said that business would be slow
Sunday morning at around 11:00 am.

"James Moore entered the building from the direction of
the hotel. I come from the back left side walking close to the
back of building. Moore entered the station and asked Tracey
for a pack of newports. She placed the cigarettes on the
counter. Moore left the Cigarettes on the counter and showed

2The"confession letter" has been reproduced here without any
grammatical, punctuation, or capitalization corrections.
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her his Cobra 380 pistol, took her into the restroom after I
heard a shot inside Moor ran out of the Building and told me
to be near the motel down the street. [Illegible]. He ran in
the direction of the Shelby Baptist Hospital to get his Black
sport utility vehicle. I ran behind the store and behind
buildings to the back of the hotel where Moore picked me up
on the street.

"He then proceeded to his friend 'Boy's' trailer off of
Simmeville Rd. to purchase Crack and Methamphetamine. I
also noticed Moore had Red spots on his white T shirt that
appeared to be blood. He also wore a Black Kangol Hat with
a white Kangaroo on it, Black boots, Black pants. Mooore
drove back to the park, we smoked the Crack. He also gave
me fifty dollars and a small package of Meth. Afterwards
Moore and I hid the gun and left. I went back after I got my
own car and moved the gun to another spot.

"Moore called me one day later 'Monday' to tell me that
the gun was missing.

"On Monday night October 31 I saw on the news what
Moore had did at the Chevron station. I kept silent.

"On the news friday November fourth I saw that they
had wrongly arrested a innocent man for the crime that I was
involved in.

"I called the alabaster police dept to try to explain that
I knew who actually had committed the crime. I also was told
that they had arrested the right man and was immediately
hung up on.

"On tuesday November 8 I tried to talk to a dective but
was instructed to 'leave it alone' I also was asked my phone
number and a place that we could meet.

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"In Birmingham I was met by two dectives one whom's
name was Josh. They told me to leave it alone or I would not
be saying anything else at all and that 'Nobody was going to
save that "Smart Ass" "Big Mouth" "N[*****]." '

"I told the dectectives it was wrong they laughed saying
that 'I bet that "n[*****]" will not file a lawsuit on us about
this.'

"I apologized to Mr Powell for him being wrongly
accused for something that I was involved in. I also told where
to find Mr James Moore's gun. I refuse to speak to a dectective
or D.A. after their mistakes and threats on my life and bodily
harm. All I wish to say is that Michael Powell is a innocent
man. I can prove this by my words.

"Please share this information with a firm or someone
who can free Mr Powell and please stop these corrupt, Racist
officers from framing a innocent, not guilty man with a crime
that I was involved in october 30 in alabaster at the Chevron
that also harmed Miss tracy.

"After his crimes made the news Mr Moore tried calling
many times leaving messages instructing me to keep my
mouth closed. He also stated that the alabaster police and
detectives would not believe me if I told them. Mr Moore
claims he has always worked for them and that he is also good
friends with the district attorney and that explains why he
never stays in jail long, no matter what he does. He told me
that he has 2 pending charges ([illegible]/lying). This is the
truth, the whole truth and I have nothing else to say about
these wrongdoings, corruption, Racism and this terrible
injustice done to a completely innocent man for actions and
things that I and Mr James Moore are completely guilty for
and of.

"Michael Powell is innocent ... Thank you ...

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"I plan to be present at Michael Powells trial for his
defense. As I stated I have nothing to say to dectives or the
d.a. also I wish for a jury to hear my confession."

(C. 477-84.)

According to Jackson, he did not know it was Powell who had

employed him to author the confession letter. Rather, Jackson said, he

was led to believe that he was assisting an unknown-to-him person in

writing a confession letter because the person could not physically do it.

(C. 401.) Jackson said that he did not write his name in the version of

the confession letter he wrote and, instead, he "drew a blank at the very

beginning of it for [the unknown person] to fill his name in and [he] left

a blank for the date and that's it." (C. 406.) Jackson said that, after he

gave the letter back to Powell, he did not see it again until he was being

interrogated by law enforcement at the jail. (C. 410.) Jackson said that

he was "astonished" when he saw the letter with his name added to it.

(C. 411.)

Finally, while he was in jail, Powell told a different inmate, Kelvin

Hines, about several details of the murder that were not made known to

the public, and Hines spoke to law enforcement about his conversations

with Powell. (R. 2171.) According to Hines, Powell confronted him in the

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jail about having "wrote [his] prosecutor," which resulted in Hines having

to be moved out of the Shelby County jail. (R. 2172-73.) Hines said that

Powell had talked to him about the "money problems" he was having

before Algar's murder, about the type of hat he was wearing in the

surveillance videos, about the evidence in the case, about how his nephew

was going to claim that the box of .380 ammunition that police found was

his, and about how the gas station would be an "easy spot for someone to

rob or do whatever they were going to do if they wanted to do it" because

it had only one functioning camera. (R. 2174-79.) Hines also said that

Powell told him details about Algar's murder:

"He was saying that his attorney had explained to him
that they had blood droppings supposedly on his clothes or
outside of the bathroom. He was saying there was no way that
blood could have got out of the bathroom because of the way
the door was cracked, the way the door was cracked and from
the angle he was in, there is no way that that blood could have
got out of the bathroom."

(R. 2179.) Hines said that Powell told him that "the victim panicked and

made him panic," and that, although he did not admit to shooting Algar,

he mentioned "her brains or something along the lines of that." (R. 2179.)

In his defense, Powell presented testimony from Tina Brown, who

had seen the person-of-interest photos that law enforcement made public.

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Brown said that she telephoned law enforcement because the person of

interest looked like "a man that [she] see[s] walking on a regular basis."

(R. 2275.) Brown said she's seen this person walking through her

"neighborhood, at the stores, outside the neighborhood, and up and down

[Route] 31." (R. 2275.) Brown said she continues to see this person

walking around her neighborhood and last saw him walking three days

before she testified at Powell's trial. (R. 2275.) Brown said that, although

she called law enforcement to report that the person of interest looked

like the man she sees walking around her neighborhood, no one returned

her telephone call. (R. 2278.)

At the end of the guilt phase of Powell's trial, the parties presented

closing arguments to the jury. The State, in its closing argument,

addressed evidence that, it said, showed that Powell had murdered Algar,

including clips from the surveillance videos. It also addressed evidence

that Powell presented in his defense case and the importance of the David

Jackson "confession" letter, which, it alleged, Powell had had Jackson

write. (R. 2359-65.) The State also addressed Powell's missing .380

handgun -- the weapon the State alleged was used to shoot Algar -- as

follows:

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"Now, the gun disappeared. The silver box hidden under
[Powell's girlfriend's] house, bullets in it matching the
description of the bullets that were found and used to kill
Tracy Algar. When he was caught, he began running to alibi
after alibi. When that didn't seem to be working, he ran to
David Jackson, scheming to move this and shift the blame."

(R. 2365-66.)

In his closing argument, Powell's counsel argued:

"Now, the judge has charged you that a defendant has a
right to remain silent. Michael exercised his right to remain
silent in this particular case. You swore that you would not
hold that against him. That is what we are going to ask you
to do right now. You heard the evidence. You heard things
that are going on in this case, but we are going to ask you to
not hold it against Michael Powell because he exercised his
right to remain silent that we all have."

(R. 2369-70.) Powell's counsel then addressed the weaknesses in the

State's evidence and questioned the usefulness of the surveillance videos

that the State had presented to the jury. Powell's counsel also addressed

the .380 ammunition and the lack of evidence linking Powell to the

murder as follows:

"There is a .380 caliber Winchester spent shell found in
the store after individuals went in the store and before the
store was roped off, but they even checked that. No
fingerprints, no DNA belonging to Michael Powell. They lifted
fingerprints off of the silver box, no DNA, no fingerprint lifts
belonging to Michael Powell. They lifted DNA and fingerprint
lifts off of the live rounds that were in the box, no DNA, no
fingerprint lifts connecting Michael Powell.
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"There is doubt all over the place, DNA, ballistics, no
gun. Misidentification problems."

(R. 2386-87.)

The State, in its rebuttal argument, addressed the missing gun,

telling the jury: "You know there is only one person in this room who

knows where the gun is. One person, he is sitting over there. That guy

knows where the gun is." (R. 2393-94.) Powell's counsel objected to the

State's argument, and the following exchange occurred outside the

presence of the jury:

"[Prosecutor]: If I could. Your Honor --

"The Court: Can you finish the thought?

"[Prosecutor]: It is within the David Jackson letter that
David Jackson told him where the gun is.

"The Court: You are afraid he is headed for comment on
--

"[Powell's counsel]: It is not in the possession of --

"The Court: I think that is what the objection is, yes?

"[Powell's counsel]: Yes, sir.

"The Court: He hadn't finished his --

"[Powell's counsel]: I didn't want him to finish. I thought
it was improper.
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"The Court: Tell them what you are fixing to say.

"[Prosecutor]: The David Jackson letter says that David
Jackson told him where the gun is. That is it, I am not going
to say he didn't tell us or anything like that. I am not a first
year prosecutor, but I appreciate the instruction.

"The Court: That bell hasn't been rung yet. I don't find
that to be improper depending on what comes next of course.
We will resume.

"(End of side-bar.)

"The Court: [Prosecutor], you may continue.

"[Prosecutor]: Thank you, Your Honor. There is one
man in this courtroom who knows where that gun is, one man
and he is sitting right over there next to that jury box. You
remember that letter from David Jackson? I have one copy
here. State's 1001. You have the original, State's Exhibit 223.

"[Powell's counsel]: I still renew my objection.

"The Court: Noted, overruled.

"[Prosecutor]: This letter, I am on page three for
reference, 'I apologize to Mr. Powell for him wrongly -- for him
being wrongly accused for something that I was involved in, I
also told him where to find Mr. James Moore's gun.' That is
what David Jackson said. That is what David Jackson copied
from the defendant's letter. Do you remember him telling us
about that?"

(R. 2394-96 (emphasis added).)

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After the parties' closing arguments, the circuit court charged the

jury. (R. 2421-64.) Thereafter, the circuit court dismissed the alternate

jurors and the remaining jurors retired to deliberate. After its

deliberations, the jury returned a verdict finding Powell guilty of capital

murder. (R. 2492.) Powell's case then proceeded to the penalty phase.

At the conclusion of the penalty phase, the jury unanimously found two

aggravating circumstances to exist beyond a reasonable doubt, and it

recommended by a vote of 11 to 1 that Powell be sentenced to death. The

trial court followed the jury's recommendation.

Standard of Review

Rule 45A, Ala. R. App. P., currently provides:

"In all cases in which the death penalty has been
imposed, the Court of Criminal Appeals may, but shall not be
obligated to, 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."

Recently, this Court explained that it would continue to review the

entire record for plain error in all cases in which the death penalty has

been imposed, but we made clear that our analysis on issues that are

reviewed for plain error may not be as extensive as was our historical

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practice. See Iervolino v. State, [Ms. CR-21-0283, August 18, 2023] ___

So. 3d ___ (Ala. Crim. App. 2023).

In conducting plain-error review, we apply the following standard:

" '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), aff'd, 820 So. 2d 152 (Ala. 2001). Plain error is
'error that is so obvious that the failure to notice it would
seriously affect the fairness or integrity of the judicial
proceedings.' Ex parte Trawick, 698 So. 2d 162, 167 (Ala.
1997), modified on other grounds, Ex parte Wood, 715 So. 2d
819 (Ala. 1998). '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.' Hyde v. State, 778 So. 2d 199, 209
(Ala. Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala. 2000). 'The
plain error standard applies only where a particularly
egregious error occurred at trial and that error has or
probably has substantially prejudiced the defendant.' Ex
parte Trawick, 698 So. 2d at 167. '[P]lain error must be
obvious on the face of the record. A silent record, that is a
record that on its face contains no evidence to support the
alleged error, does not establish an obvious error.' Ex parte
Walker, 972 So. 2d 737, 753 (Ala. 2007). Thus, '[u]nder the
plain-error standard, the appellant must establish that an
obvious, indisputable error occurred, and he must establish
that the error adversely affected the outcome of the trial.'
Wilson v. State, 142 So. 3d 732, 751 (Ala. Crim. App. 2010).
'[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." '
United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L.
Ed. 2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152,
163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982))."
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DeBlase v. State, 294 So. 3d 154, 182-83 (Ala. Crim. App. 2018).

Discussion

I.

As set out above, Powell first argues that, during its rebuttal closing

argument, the State "repeatedly and erroneously commented on [his]

silence." (Powell's brief, p. 12.) The State, on the other hand, argues that

the complained-of comment was proper rebuttal, was not a comment on

Powell's failure to testify, and that "no jury would naturally and

necessarily take it to be a comment on Powell's failure to testify." (State's

brief, pp. 13-14.) We agree with Powell.

Both the United States Constitution and the Alabama Constitution

protect the right of every person to be free from being compelled to give

evidence against themselves. See Art. I, § 6, Ala. Const. 2022, and U.S.

Const. amend. V. The Alabama Supreme Court has held that courts

"must carefully guard against a violation of a defendant's constitutional

right not to testify." Ex parte Williams, 461 So. 2d 852, 853 (Ala. 1984)

(citing Whitt v. State, 370 So. 2d 736, 739 (Ala. 1979)). This Court, citing

and quoting decisions from the Alabama Supreme Court, has provided

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the following framework to be used to determine whether the State has

impermissibly commented on a defendant's right not to testify:

" ' " 'Comments by a prosecutor on
a defendant's failure to testify are
highly prejudicial and harmful, and
courts must carefully guard against a
violation of a defendant's constitutional
right not to testify. Whitt[ v. State, 370
So. 2d 736] at 739 [(Ala. 1979)]; Ex
parte Williams, 461 So. 2d 852, 853
(Ala. 1984); see Ex parte Purser, 607
So. 2d 301 (Ala. 1992). This Court has
held that comments by a prosecutor
that a jury may possibly take as a
reference to the defendant's failure to
testify violate Art. I, § 6, of the
Alabama Constitution of 1901. Ex
parte Land, 678 So. 2d 224 (Ala.), cert.
denied, 519 U.S. 933, 117 S. Ct. 308,
136 L. Ed. 2d 224 (1996); Ex parte
McWilliams, 640 So. 2d 1015 (Ala.
1993); Ex parte Wilson, [571 So. 2d
1251 (Ala. 1990)]; Ex parte Tucker, 454
So. 2d 552 (Ala. 1984); Beecher v. State,
294 Ala. 674, 320 So. 2d 727 (1975).
Additionally, the Fifth and Fourteenth
Amendments of the United States
Constitution may be violated if the
prosecutor comments upon the
accused's silence. Griffin v. California,
380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed.
2d 106 (1965); Ex parte Land, supra;
Ex parte Wilson, supra. Under federal
law, a comment is improper if it was
" ' "manifestly intended or was of such a
character that a jury would naturally
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and necessarily take it to be a comment
on the failure of the accused to
testify." ' " United States v. Herring,
955 F.2d 703, 709 (11th Cir.), cert.
denied, 506 U.S. 927, 113 S. Ct. 353,
121 L. Ed. 2d 267 (1992) (citations
omitted); Marsden v. Moore, 847 F.2d
1536, 1547 (11th Cir.), cert. denied, 488
U.S. 983, 109 S. Ct. 534, 102 L. Ed. 2d
566 (1988); United States v.
Betancourt, 734 F.2d 750, 758 (11th
Cir.), cert. denied, 469 U.S. 1021, 105
S. Ct. 440, 83 L. Ed. 2d 365 (1984). The
federal courts characterize comments
as either direct or indirect, and, in
either case, hold that an improper
comment may not always mandate
reversal.

" ' " 'Consistent with this
reasoning, Alabama law distinguishes
direct comments from indirect
comments and establishes that a direct
comment on the defendant's failure to
testify mandates the reversal of the
defendant's conviction, if the trial court
failed to promptly cure that comment.
Whitt v. State, supra; Ex parte Yarber,
[375 So. 2d 1231 (Ala. 1979)]; Ex parte
Williams, supra; Ex parte Wilson,
supra. On the other hand, "covert," or
indirect, comments are construed
against the defendant, based upon the
literal construction of Ala. Code 1975, §
12-21-220, which created the "virtual
identification doctrine." Ex parte
Yarber, 375 So. 2d at 1234. Thus, in a
case in which there has been only an
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indirect reference to a defendant's
failure to testify, in order for the
comment to constitute reversible error,
there must have been a virtual
identification of the defendant as the
person who did not become a witness.
Ex parte Yarber, 375 So. 2d at 1234; Ex
parte Williams, supra; Ex parte
Wilson, supra; Ex parte Purser, supra.
A virtual identification will not exist
where the prosecutor's comments were
directed toward the fact that the
State's evidence was uncontradicted, or
had not been denied. See Beecher v.
State, 294 Ala. 674, 682, 320 So. 2d 727,
734 (1975); Ex parte Williams, supra;
Ex parte Purser, supra. Yet, in such
circumstances, it becomes important to
know whether the defendant alone
could have provided the missing
evidence.

" ' " 'A challenged comment of a
prosecutor made during ... arguments
must be viewed in the context of the
evidence presented in the case and the
entire ... arguments made to the jury --
both defense counsel's and the
prosecutor's. Ex parte Land, supra;
Windsor v. State, 683 So. 2d 1021, 1023
(Ala. 1994); Ex parte Musgrove, 638 So.
2d 1360, 1368 (Ala.1993), cert. denied,
513 U.S. 845, 115 S. Ct. 136, 130 L. Ed.
2d 78 (1994)."

" ' "Ex parte Brooks, 695 So. 2d 184, 188-89 (Ala.)
(footnotes omitted), cert. denied, 522 U.S. 893, 118

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S. Ct. 233, 139 L. Ed. 2d 164 (1997), quoted in Ex
parte Clark, 728 So. 2d 1126, 1130-31 (Ala. 1998).

" ' "In United States v. Knowles, 66 F.3d 1146
(11th Cir. 1995), cert. denied, 517 U.S. 1149, 116
S. Ct. 1449, 134 L. Ed. 2d 568 (1996), more
specifically addressing the alternative criteria for
a comment to be improper -- the comment was (1)
manifestly intended to be a comment on the
defendant's failure to testify or (2) of such
character that the jury would have naturally and
necessarily taken it to be a comment on the
defendant's failure to testify -- the court stated:

" ' " ' "The question is not whether
the jury possibly or even probably
would view the remark in this manner,
but whether the jury necessarily would
have done so." [United States v.
Swindall, 971 F.2d 1531, 1552 (11th
Cir. 1992), cert. denied, 510 U.S. 1040,
114 S. Ct. 683, 126 L. Ed. 2d 650 ...
(1994) (citations omitted) (emphasis in
Swindall).] "The defendant bears the
burden of establishing the existence of
one of the two criteria." [United States
v. Muscatell, 42 F.3d 627, 632 (11th
Cir.), cert. denied, 515 U.S. 1162, 115
S. Ct. 2617, 132 L. Ed. 2d 859 ... (1995).]
The comment must be examined in
context, in order to evaluate the
prosecutor's motive and to discern the
impact of the statement. [Id.]" '

" ' "66 F.3d at 1163." '

"Smith v. State, 797 So. 2d 503, 539-41 (Ala. Crim. App. 2000)
(quoting Thomas v. State, 824 So. 2d 1, 21-23 (Ala. Crim. App.
21
CR-20-0727

1999), overruled on other grounds by Ex parte Carter, 889 So.
2d 528 (Ala. 2004))."

Smith v. State, [Ms. CR-17-1014, Sept. 2, 2022] ___ So. 3d ___, ___ (Ala.

Crim. App. 2022) (emphasis added). In short, this Court must first

determine whether the comment in question was either a direct comment

or an indirect comment on Powell's failure to testify.

As set out above, during its rebuttal closing argument, the State

told the jury: "You know there is only one person in this room who knows

where the gun is. One person, he is sitting over there. That guy knows

where the gun is." (R. 2393-94.) Powell objected to the prosecutor's

comment, and after the court overruled his objection, the prosecutor

continued: "There is one man in this courtroom who knows where that

gun is, one man and he is sitting right over there next to that jury box."

(R. 2395.)

These comments are nearly identical to the comment made by the

prosecutor in Whitt v. State, 370 So. 2d 736 (Ala. 1979), which the

Alabama Supreme Court held was a direct comment on the defendant's

failure to testify and, because the circuit court failed to promptly remedy

the prejudice caused by the comment, constituted reversible error.

22
CR-20-0727

"In Whitt, supra, the defendant was indicted for first degree
murder arising out of a fatality in an automobile collision. He
was convicted of second degree murder and the conviction was
affirmed by the Court of Criminal Appeals. This Court
reversed, however, finding that the district attorney's
argument to the jury was an impermissible comment on the
defendant's failure to testify. In Whitt, none of the closing
arguments appeared in the record except the statements
objected to by counsel, including the comment regarding the
defendant's failure to testify: 'The only person alive today that
knows what happened out there that night is sitting right
there.' The defendant promptly objected to this remark and
made a motion for mistrial.

"We stated in Whitt:

" 'The comment "The only person alive today
that knows what happened out there that night is
sitting right there" is almost identical to the
comment "No one took the stand to deny it" held to
be a direct comment on the defendant's failure to
testify and held to be reversible error in Beecher
[v. State], 294 Ala. 674, 320 So. 2d 727 (1975) (per
Justice Embry). The comment is very close to the
comment made in Warren v. State, 292 Ala. 71,
288 So. 2d 826 (1973). There, this Court held (per
Justice McCall) that the argument "The only one
that said he didn't sell it [marijuana] was the little
brother" was also a direct comment on the failure
of the defendant to testify and constituted
reversible error. It is thus that we must conclude,
based on the holding and rationale of those two
cases, that the comment by the district attorney in
this case was a direct comment on the failure of the
defendant to testify and constituted error to
reverse.'

"370 So. 2d at 738."
23
CR-20-0727

Ex parte Wilson, 571 So. 2d 1251, 1261-62 (Ala. 1990) (emphasis added).

So, just as in Whitt, supra, Beecher v. State, 294 Ala. 674, 320 So. 2d 727

(1975), and Warren v. State, 229 Ala. 71, 288 So. 2d 826 (1973), the

prosecutor's comment in this case -- that "there is only one person in this

room who knows where the gun is" and that he is "sitting right over

there" -- is clearly a direct comment on Powell's failure to testify at trial.

The State, in its brief on appeal, says that "no jury would naturally

and necessarily take [the prosecutor's comment] to be a comment on

Powell's failure to testify," claiming that the prosecutor's comment "on

Powell's knowledge of the gun was not commentary on his failure to

testify, but rather, was a refutation of defense counsel's argument that

the State had the wrong person." (State's brief, pp. 14-15.) But when

Powell objected to the prosecutor's comment at trial, the prosecutor

responded differently, arguing that the comment was appropriate

because "[i]t is within the David Jackson letter that David Jackson told

him where the gun is." (R. 2394.) The State on appeal tries to tie its

"wrong-person" argument to the prosecutor's argument in the circuit

court by saying that, "if Powell told Jackson about the murder weapon

for Jackson to include in the letter, then Powell had knowledge of the
24
CR-20-0727

murder weapon, thereby supporting the conclusion that the State had not

tried the wrong person." (State's brief, pp. 15-16.) Under either theory,

however, the prosecutor's comment was still an impermissible direct

reference to Powell's failure to explain where the gun is, as Powell is the

only person who could have testified as to the whereabouts of the gun.

This is precisely the type of comment that is forbidden under the

Constitution.

Although we recognize that "[a] prosecutor has the latitude to

comment on the fact that the State's evidence is uncontradicted or has

not been denied," we also recognize that "a prosecutor may not make

comments that step over the line drawn by the right of a defendant not

to testify at trial." Ex parte Williams, 461 So. 2d at 853 (citing Beecher,

294 Ala. at 682, 320 So. 2d at 734). The prosecutor's comment in this

case crossed that line, requiring this Court to reverse Powell's capital-

murder conviction and death sentence and to remand this case to the

circuit court for further proceedings.

Although the State's direct comment on Powell's right not to testify

requires this Court to reverse Powell's capital-murder conviction and

death sentence, this Court, in the interest of judicial economy and

25
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efficiency, also addresses some of the other issues that Powell raises on

appeal.

II.

We start with Powell's arguments that the circuit court erred when

it allowed the State to present Jackson's deposition testimony at his trial

because the deposition was taken outside the presence of a judge and

because, he says, it was admitted at his trial when he did not have "an

adequate prior opportunity to cross-examine the witness." (Powell's

brief, p. 18.) Powell's arguments are without merit.

The taking of a deposition in a criminal proceeding is governed by

Rule 16.6(a), Ala. R. Crim. P., and § 12-21-264, Ala. Code 1975. Rule

16.6(a) makes it clear that depositions are permitted in criminal cases

"[w]henever, due to the exceptional circumstances of the case, it is in the

interest of justice that the testimony of a prospective witness be taken

and preserved for use at trial." Further, § 12-21-264(b), Ala. Code 1975,

states that such depositions "shall be taken before the judge in the court's

chambers or at another suitable location as the court may direct and shall

be conducted in the presence of the district attorney or assistant district

attorney, the defendant and his or her attorney, and any other persons

26
CR-20-0727

as the court in its discretion may permit, taking into consideration the

welfare and well-being of the victim or witness." And Rule 16.6(e) allows

either party to use, at trial,

"a part or all of a deposition, so far as otherwise admissible
under the Alabama Rules of Evidence, may be used as
substantive evidence if the witness is unable to be present or
to testify at the hearing because of death or mental illness or
infirmity, or is absent from the hearing and the proponent of
the statement has been unable to procure the witness's
attendance by process or other reasonable means, or the
witness gives testimony at the trial or hearing inconsistent
with that witness's deposition. Any deposition may also be
used by any party for the purpose of contradicting or
impeaching the testimony of the deponent as a witness. If
only a part of a deposition is offered in evidence by a party, an
adverse party may require the offering of all of it that is
relevant to the part offered and any party may offer other
parts."

(Emphasis added). What is more, Rule 16.6(f), Ala. R. Crim. P., requires

that "[o]bjections to deposition testimony or evidence or parts thereof and

the grounds for the objection shall be stated at the time of the taking of

the deposition." Powell raises two arguments concerning Jackson's

deposition.

First, Powell argues that Jackson's deposition does not comply with

§ 12-21-264, Ala. Code 1975, because it was taken outside the presence

of a judge. Although Powell is correct, the judge's absence here was

27
CR-20-0727

invited by Powell. See Albarran v. State, 96 So. 3d 131, 167 (Ala. Crim.

App. 2011) (holding that a defendant cannot invite error and then

predicate a reversal on the error he or she invited).

Indeed, before the parties took Jackson's deposition, Powell's

counsel objected to the taking of the deposition based on having had

inadequate time to prepare to cross-examine Jackson. After the parties

made their arguments, the following exchange occurred:

"The Court: Do y'all need me in here?

"[Prosecutor]: Judge, the State does not. This is a
deposition and a judge is not normally present but I
understand that you would probably be on standby if we do
need you.

"The Court: [Defense counsel], I don't mind staying in
here.

"[Prosecutor]: Whatever y'all think.

"The Court: I mean, you know, generally something that
I may at the preliminary hearing anyway if he was to be
available but --

"[Powell's counsel]: Let me say my client is entitled to a
jury trial. This proceeding is not in front of a jury. You know,
we just object on the record and --

"The Court: I note your objection. I mean --

"[Powell's counsel]: Leave it at that.

28
CR-20-0727

"The Court: And I don't think -- and I think that
anything that's taken down can be redacted at some point in
time if there's something that is obviously, that's not
admissible. It can be redacted or it can even be stricken, the
entire deposition can.

"So I will ... allow y'all to proceed, but I will if y'all want
me to sit in here, but I will be more than happy to do that. So
I will allow y'all to proceed with the deposition.

"[Powell's counsel]: That's fine. You are overruling our
objections, right?

"The Court: Overruling, yes, sir.

"[Prosecutor]: The State defers to the Court on the
matter of whether or not you want to be in here. This is a
deposition where a judge is not normally present but
whatever you think, Judge.

"The Court: If y'all need me, let me know.

"[Powell's counsel]: Defense does not require the Court.

"The Court: I will step out. If y'all need me, I will be
down the hall. All right. We will get the court reporter to
swear Mr. Jackson in."

(C. 387-89 (emphasis added).)

So, although the judge was not present when Jackson's deposition

was taken, the judge absented himself from the deposition only after

Powell's counsel told the judge that he did "not require" the judge to be

29
CR-20-0727

present. 3 Powell cannot now argue that his own voluntary conduct

requires reversal of this case or that the judge's absence from the

deposition prejudiced him. What is more, although invited error in

death-penalty cases can rise to the level of plain error, and although, as

explained above, this Court still examines death-penalty cases for plain

error, we do not find that the invited error here rises to the level of plain

error. Thus, Powell's argument does not entitle him to any relief.

Second, Powell argues that the circuit court erred when it admitted

Jackson's deposition because, he says, his attorneys were not given an

adequate opportunity to "effectively" cross-examine Jackson because the

deposition was scheduled "just days after their appointment." (Powell's

brief, p. 21.) To provide context to Powell's argument on appeal, we set

out some additional procedural history of Powell's case.

On October 30, 2016, the circuit court appointed Mickey Johnson to

represent Powell at a 72-hour hearing, and, at that time, Johnson made

3After Jackson's deposition, the State moved the trial court to enter

a pretrial ruling as to the admissibility of Jackson's deposition testimony
at Powell's trial. During that hearing, Powell objected to the admission
of Jackson's deposition at trial on the basis that it was not done in front
of a judge in violation of § 12-21-264(b), Ala. Code 1975. (R. 232-33.) At
the time Powell raised this argument, however, he had already invited
any error in the judge's not attending the deposition.
30
CR-20-0727

a demand for a preliminary hearing. (C. 34.) On November 17, 2016,

before a preliminary hearing was held, however, Powell was indicted for

capital murder. (C. 26-27.) On November 21, 2016, Powell's case was set

for arraignment. (C. 28.) At the time that his arraignment was set, the

circuit court appointed Victor Portella as Johnson's co-counsel. (C. 28,

30.) Mickey Johnson moved to withdraw from representing Powell on

December 8, 2016 (C. 34), and the circuit court granted his motion the

next day. (C. 36.)

On December 9, 2016, the circuit court appointed Gary Young to

represent Powell. (C. 37.) Thereafter, on December 14, 2016, Portella

moved to withdraw from representing Powell. (C. 38-39.) Two days later,

Young moved to withdraw from representing Powell, citing a "potential

conflict." (C. 40.) The circuit court granted Young's motion the same day

he filed it. (C. 42.) Immediately after granting Young's motion, on

December 16, 2016, the circuit court appointed Everett Wess to represent

Powell (C. 43), and it issued an order setting Powell's arraignment for

December 21, 2016 (C. 44). The circuit court granted Portella's motion to

withdraw on December 21, 2016. (C. 53.)

31
CR-20-0727

On December 16, 2016, the State moved to depose David Jackson

at 9:00 a.m., on December 27, 2016. (C. 45.) On December 20, 2016, Wess

moved the circuit court to appoint Kittren Walker as co-counsel, and the

circuit court granted that motion (C. 51, 54). Thereafter, Wess and

Walker remained as Powell's counsel throughout the trial-court

proceedings.

On December 21, 2016, the circuit court arraigned Powell, and after

Powell pleaded not guilty and not guilty by reason of mental disease or

defect, the circuit court noted that there was a pending notice of

deposition and asked the parties to explain the notice. (R. 6-7.) At that

time, the State explained that it had originally noticed the deposition "of

an individual who may have or who we believe does have significant

information about this case" for December 27, 2016. (R. 7.) But, the State

explained, it had learned that there was a scheduling conflict on that date

and proposed that the deposition take place on December 29, 2016.

Powell's counsel told the circuit court that he had "[n]o objection at this

point," but he qualified his lack of objection at that time "to reserve the

right to object in the event we come up with an objection between now

and then." (R. 7, 9.) So, the circuit court granted the State's motion "as

32
CR-20-0727

it relates to the deposition, the taking of the deposition of David Carson

Jackson as I do find an adequate factual basis recited in the motion and

that he is alleged to be an indispensable and critical witness in these

cases." (R. 8.)

On December 29, 2016, the parties appeared in court for Jackson's

deposition. Before taking Jackson's deposition, Powell's counsel objected

as follows:

"Just for the record, we do object to the deposition being
taken. I note for the record that I was appointed on this case
December the 16th of 2016. My co-counsel, Kitt Walker, was
appointed to this case December the 21st of 2016. We've gone
through the Christmas holidays and we are here on December
the 29th of 2016 and we have received some discovery,
although I note I don't believe that we've received all of the
discovery that would be due in this case in the end.

"My client, you know, these two cases are the
obstruction of justice case and tampering with evidence case.
We have a witness here, Mr. Davis Jackson -- David Jackson.
My client is Michael Powell who is also charged with a capital
murder case and, you know, he's subject to the death penalty
or life without the possibility of parole. This is a very serious
charge, very serious case. Death is different.

"....

"We just want to object for the record. ... We will say that
this deposition violates my client's Sixth Amendment right to
adequate counsel because we have recently been appointed to
this case as noted before.

33
CR-20-0727

"He is unable to adequately confront the witnesses as a
result of this deposition happening in a short period of time
when we've come onto these cases[.]"

(C. 377-79.) Powell's counsel added:

"And in order for it to be said that Mr. Powell has had
an adequate opportunity to confront the witness in this
particular case, we have not had an adequate opportunity to
investigate this particular witness so how can we, how can it
be said two years from now that Mr. Powell had an adequate
opportunity to confront this witness when we have not had an
opportunity to investigate this witness.

"We can't, we can't cross-examine this witness regarding
any of his background, regarding any of his history. He's
obviously a racist. There is a statement that was taken by the
District Attorney's Office. You know, he said some very
disparaging things about African Americans. There's a --
called them N words, called us N words and all those kinds of
things.

"We need an opportunity to investigate this man,
whether or not he's a member of the KKK or any other white
supremacist groups, whether or not --

"....

"His criminal history and a number of other things. It
can't be said that Mr. Powell has had an adequate opportunity
to confront this witness when we've not had an adequate
opportunity to investigate this witness."

(C. 384-85.)

In response, the State argued that it had given Powell "copies of all

of the interviews and we have provided all of the phone calls, videotapes,
34
CR-20-0727

and documents related to this. ... So they do have, as far as I can tell,

complete discovery in this." (C. 386.) Thereafter, the district-court judge

overruled Powell's objection to the taking of Jackson's deposition and the

parties deposed Jackson.

During Jackson's deposition, Powell's counsel took Jackson on voir

dire, questioning him about his availability for a future trial and asking

him if he had provided contact information to the State. (C. 390-92.)

Powell's counsel also thoroughly cross-examined Jackson about his

extensive criminal history (including his arrests in North Carolina, South

Carolina, Georgia, Alabama, and Florida), his history of alcohol and drug

abuse,4 his refusing to meet with Powell's counsel when they came to the

jail to talk to him, his circumstances as to how he ended up in the Shelby

County jail, and his meeting Powell in the jail. (C. 449-59.) Powell's

counsel also questioned Jackson as to why he had been "very

uncooperative" with Powell's counsel and asked him about his statement

in an interview that he "hate[s] black men." (C. 459-63.) Thereafter,

Powell's counsel had the following exchange with Jackson:

4Jackson told Powell's counsel that he had "tried every drug under

the sun just about." (C. 453.)
35
CR-20-0727

"[Powell's counsel]: All right. So as part of your
interview, you referred, you told the detective that I hate
black men. Isn't that correct, sir?

"[Jackson]: I don't hate nobody, sir.

"[Powell's counsel]: So you didn't tell, you didn't say that
in that interview that you hate black men? Get me to that,
please. Just a second, sir.

"[Jackson]: Okay. And, sir --

"[Powell's counsel]: Sir, your hatred is your cross to bear,
not mine.

"[Jackson]: Sir, you wouldn't hate somebody that did you
like that?

"[Powell's counsel]: Sir, I don't hate anybody. I don't live
with that.

"[Jackson]: I don't hate nobody either. You wouldn't hate
a son of a bitch do you like that? All y'all try to do is trick
some goddamn somebody, all you sons of bitches.

"The Deputy: Sit down.

"[Jackson]: See what we can fuck that white man out of.
I already know. I already know.

"(Video playing.)

"[Jackson]: Been in court all day here. Been in court all
day on top of that.

"(Video playing.)

"[Powell's counsel]: That was you, wasn't it?
36
CR-20-0727

"[Jackson]: Absolutely.

"[Powell's counsel]: You said you hate black men?

"[Jackson]: The way y'all do me, yes, sir.

"[Powell's counsel]: Well, earlier when I asked you that
--

"[Jackson]: The way that man done me, you goddamn
right.

"[Powell's counsel]: Earlier when I asked you that, sir,
you said you didn't hate anybody.

"[Jackson]: I don't hate nobody --

"[Powell's counsel]: You said you hate him, you hate
black men, did you not, sir?

"[Jackson]: He tried to make me look like a goddamn
fool. Yes, sir, I do hate you sons of bitches. I said it. There you
go.

"....

"[Jackson]: I hate that son of a bitch and I hate your ass,
too, because you up here trying to make me --"

(C. 463-65.) Powell's counsel then asked Jackson a series of questions

about whether he belonged to "any Neo-Nazi groups," "the Ku Klux

Klan," or "any white supremacist groups," and Jackson denied any

involvement with those groups. (C. 466.) Powell's counsel also

37
CR-20-0727

questioned Jackson about the circumstances surrounding the writing of

the letter. (R. 473-74.) The State did not do any redirect on Jackson.

During a pretrial hearing on the admissibility of Jackson's

deposition testimony, Powell's counsel made the following argument:

"Finally, the defendant argued that admitting into evidence
the deposition testimony of David Jackson would violate the
defendant's right under the confrontation clause of the Sixth
Amendment to the United States Constitution and Crawford
v. Washington, 541 U.S. 36 (2004), case. In support of the
defendant's assertion, the defendant offers the excerpts from
the written transcription of the video deposition of David
Carson Jackson, pages 89 through 104 attached as Exhibit 3
wherein the witness contradicted himself on numerous
occasions, expressed a negative racial attitude towards the
entire African American race, which does not afford the
defendant the guarantees of trustworthiness of his testimony.
The defendant respectfully moves that this Court deny the
admissibility of all the testimony of David Carson Jackson."

(R. 235-36.) Powell's counsel added:

"Another thing I wanted to point out this was a case
where I believe I was appointed on December 16th or so of
2016 and co-counsel was appointed December 21st of 2016,
and this is four years ago. Based on memory, we were like on
Christmas break. I don't even know if I was in the office and
I received a call saying that they wanted to take a deposition
on December 29th during the Christmas break, period. We
had no idea what this deposition was about. My client is
facing the death penalty in this particular case. So we
objected on the record, and we would like to renew that
objection to this entire deposition today. My client is facing
the death penalty. We prepared as best we could, got back
here after Christmas holidays, and I reviewed and co-counsel
38
CR-20-0727

reviewed the information that was provided to us from Mr.
Jackson, and we were still trying to figure it out and still
working on the fly on the 29th. And that is unfair to my client.
Your Honor. And it is our contention that this entire
deposition process was unfair to our client, the defendant Mr.
Michael Powell.

"So in addition to what Mr. Kitt Walker has argued, we
would like the Court to make note of how we were working on
the fly trying to get information, trying to make a
determination as to how to cross examine Mr. Jackson and try
to make a determination as to what he said and what was
going on concerning this entire matter."

(R. 236-37.)

As to Powell's argument that he was not able to adequately cross-

examine Jackson, the circuit court told the parties that it would "defer

ruling on the instant motion until I have read the entire deposition." (R.

253.) Ultimately, the circuit court allowed the State to present Jackson's

deposition testimony to the jury.

Powell argues on appeal that the circuit court erred when it

admitted Jackson's deposition testimony because, he says, his counsel

was not given an opportunity to effectively cross-examine Jackson.

Powell claims that, because of the timing of his counsel's appointment to

his case and the taking of Jackson's deposition, his counsel was "unable

to successfully cross-examine Mr. Jackson on his criminal history," did

39
CR-20-0727

not have "a chance to hire an investigator," and did not have an

opportunity "to review full discovery." (Powell's brief, pp. 23-24.)

Powell's argument is without merit.

Although the Sixth Amendment to the United States Constitution

provides, in part, that, "[i]n all criminal prosecutions, the accused shall

enjoy the right ... to be confronted with the witnesses against him," U.S.

Const., amend. VI, " ' "the Confrontation Clause guarantees only an

opportunity for effective cross-examination, not cross-examination that

is effective in whatever way, and to whatever extent, the defense might

wish." ' Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 96 L. Ed.

2d 631 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct.

292, 88 L. Ed. 2d 15 (1985))." Lane v. State, 327 So. 3d 691, 717 (Ala.

Crim. App. 2020). And Crawford sets forth no rule guaranteeing "some

minimal threshold of adequacy." Lane, 327 So. 3d at 717.

"As the United States Court of Appeals for the Fifth Circuit
has noted, 'the Supreme Court's watershed decision in
Crawford ... did not purport to set forth new standards
governing the effectiveness of cross-examination. To the
contrary, the Court reaffirmed its precedents holding that "an
adequate opportunity to cross-examine" a now-unavailable
witness would satisfy the Confrontation Clause.' United
States v. Richardson, 781 F.3d 237, 244 (5th Cir. 2015) (first
and third emphasis added)."

40
CR-20-0727

Lane, 327 So. 3d at 717. Here, contrary to his argument on appeal,

Powell's counsel was afforded an adequate opportunity to confront and

cross-examine Jackson. And, as set out above, counsel conducted a

thorough cross-examination, in which counsel highlighted Jackson's

extensive interactions with the criminal-justice system, his alcohol and

substance abuse, and his feelings about Powell, specifically, and black

people, generally.

Because Powell was given an adequate opportunity to cross-

examine Jackson, the circuit court did not err when it admitted Jackson's

deposition testimony over Powell's objections that it violated the

confrontation clause. It is also clear that, as suggested by the judge who

offered to preside over the deposition, Jackson's testimony is subject to

pretrial objections and could be "redacted" if redaction is considered to be

appropriate by the circuit court. Accordingly, Powell is due no relief on

this claim.

III.

Next, we turn to Powell's argument that the circuit court erred

when it admitted into evidence surveillance videos from the businesses

surrounding the gas station where Algar was murdered because, he says,

41
CR-20-0727

"the State failed to lay a proper foundation for the authentication and

admission of these videos, opening grave doubts regarding 'reliability and

trustworthiness' of this evidence." (Powell's brief, p. 34.)

It is well settled that

" ' "[t]he admission or exclusion of evidence is a matter within
the sound discretion of the trial court." Taylor v. State, 808
So. 2d 1148, 1191 (Ala. Crim. App. 2000), aff'd, 808 So. 2d
1215 (Ala. 2001). "The question of admissibility of evidence is
generally left to the discretion of the trial court, and the trial
court's determination on that question will not be reversed
except upon a clear showing of abuse of discretion." Ex parte
Loggins, 771 So. 2d 1093, 1103 (Ala. 2000).' "

Floyd v. State, 289 So. 3d 337, 395 (Ala. Crim. App. 2017) (quoting

Windsor v. State, 110 So. 3d 876, 880 (Ala. Crim. App. 2012)).

In the context of authenticating a video for admission as evidence

in a trial, this Court has explained:

"Rule 901(a), Ala. R. Evid., provides that '[t]he
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its
proponent claims.' The authentication requirement is a
relatively low threshold to meet. '[A]ll that is required under
Rule 901' is that the proponent of the evidence make 'a prima
facie showing that the [evidence] ... is likely authentic'; the
proof of authenticity 'does not [have to] establish beyond a
shadow of a doubt the authenticity of the [evidence]' and
' "does not have to be conclusive or overwhelming." ' Royal Ins.
Co. of America v. Crowne Inv., Inc., 903 So. 2d 802, 809 (Ala.
2004) (quoting the Advisory Committee'[s] Notes to Rule 901).
42
CR-20-0727

See also United States v. McDaniel, 433 F. App'x 701, 704
(10th Cir. 2011) ('We have repeatedly instructed that Rule
901[, Fed. R. Evid.,] sets a low bar for admissibility.').

"With respect to the authentication of videos, the
Alabama Supreme Court has explained that '[t]here are two
theories upon which photographs, motion pictures,
videotapes, sound recordings, and the like are analyzed for
admission into evidence: the "pictorial communication" or
"pictorial testimony" theory and the "silent witness" theory.'
Ex parte Fuller, 620 So. 2d 675, 678 (Ala. 1993). These
theories are 'mutually exclusive,' and which theory is
applicable 'depends upon the particular circumstances.' Id.

"The pictorial-communication theory applies 'when a
qualified and competent witness can testify that the ...
recording ... accurately and reliably represents what the
witness sensed at the time in question.' Ex parte Fuller, 620
So. 2d at 678. In other words, the pictorial-communication
theory applies when a witness who observed what is depicted
on the video is available to testify at trial and can testify that
the video accurately reflects what the witness observed. See
Capote v. State, 323 So. 3d 104, 133 (Ala. Crim. App. 2020)
(holding that the pictorial-communication theory was
inapplicable because none of the witnesses who testified at
trial 'were present at the site while the cameras recorded [the
defendant's] activities' (citation omitted)).

"The silent-witness theory, on the other hand, applies
when 'there is no qualified and competent witness who can
testify that the [video] accurately and reliably represents
what he or she sensed at the time in question.' Ex parte
Fuller, 620 So. 2d at 678 (emphasis omitted). In such cases,
the silent-witness theory provides that a video

" 'is admissible, even in the absence of an observing
or sensing witness, because the process or
mechanism by which the [video] is made ensures
43
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reliability and trustworthiness. In essence, the
process or mechanism substitutes for the witness's
senses, and because the process or mechanism is
explained before the [video] is admitted, the trust
placed in its truthfulness comes from the
proposition that, had a witness been there, the
witness would have sensed what the [video]
records.'

"Id. Thus,

" '[w]hen the "silent witness" theory is used, the
party seeking to have the [video] admitted into
evidence must meet the seven-prong Voudrie [v.
State, 387 So. 2d 248 (Ala. Crim. App. 1980),] test.
Rewritten to have more general application, the
Voudrie standard requires:

" '(1) a showing that the device or process or
mechanism that produced the item being offered
as evidence was capable of recording what a
witness would have seen or heard had a witness
been present at the scene or event recorded,

" '(2) a showing that the operator of the device
or process or mechanism was competent,

" '(3) establishment of the authenticity and
correctness of the resulting recording, photograph,
videotape, etc.,

" '(4) a showing that no changes, additions, or
deletions have been made,

" '(5) a showing of the manner in which the
recording, photograph, videotape, etc., was
preserved,

44
CR-20-0727

" '(6) identification of the speakers, or
persons pictured, and

" '(7) for criminal cases only, a showing that
any statement made in the recording, tape, etc.,
was voluntarily made without any kind of coercion
or improper inducement.'

"Ex parte Fuller, 620 So. 2d at 678.

"....

"Since Ex parte Fuller, supra, was decided, Alabama
cases discussing the authentication of videos under the
Voudrie test have dealt almost exclusively with surveillance-
camera videos. See Young v. State, 375 So. 3d 813 (Ala. Crim.
App. 2021); Capote, supra; Petersen v. State, 326 So. 3d 535
(Ala. Crim. App. 2019); Horton v. State, 217 So. 3d 27 (Ala.
Crim. App. 2016); Bohannon v. State, 222 So. 3d 457 (Ala.
Crim. App. 2015); Spradley v. State, 128 So. 3d 774 (Ala.
Crim. App. 2011); Woodward v. State, 123 So. 3d 989 (Ala.
Crim. App. 2011) (dashboard camera from a police officer's
patrol car); Straughn v. State, 876 So. 2d 492 (Ala. Crim. App.
2003); Lee v. State, 898 So. 2d 790 (Ala. Crim. App. 2001);
Pressley v. State, 770 So. 2d 115 (Ala. Crim. App. 1999); and
Ex parte Rieber, 663 So. 2d 999 (Ala. 1995)."

Harrison v. State, [Ms. CR-21-0423, Aug. 18, 2023] ___ So. 3d ___, ___

(Ala. Crim. App. 2023).

Here, the State admitted at trial surveillance videos from

businesses around the gas station where Algar was murdered. The State

alleged that the videos showed Powell traveling on foot from The View

apartment complex where he lived to the gas station and back to The
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View apartment complex around the time that Algar was murdered. Det.

Josh Rauch testified that, as part of the investigation into Algar's death,

law enforcement obtained surveillance videos from Wayne's Auto Service,

Precision Tune Auto Care, Food Depot, Industrial BP, Faith

Consignment, Med Center Shell, Shelby Baptist Medical Center, and The

View Apartments. (R. 1412.) Det. Rauch said that he visited each

business, viewed the surveillance videos at each business, and saved the

videos on a "thumb drive." (R. 1413-16.)

On appeal, Powell raises several arguments about the admission of

the above-mentioned videos. We address Powell's arguments on a video-

by-video basis.

III.A. Wayne's Auto Service

As to the surveillance video recovered from Wayne's Auto Service,

Powell argues that the State failed to establish that Det. Rauch "was

competent to operate" the video-camera system -- i.e., the second Voudrie

requirement. (Powell's brief, p. 37.)

At trial, Det. Rauch said that he met with Rhonda Allinder, the

office manager for Wayne's Auto, who helped him access the surveillance

video. Det. Rauch said that the video showed that at 10:50 a.m. on the

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day Algar was murdered "a male subject wearing a white shirt, black

pants, appeared to be a black male walking from the left to the right of

the screen. He was walking southbound on Highway 31 on the

northbound side of the Highway 31 towards Kirkland Chevron." (R.

1417.) Det. Rauch said that the video, which, he said, was "accurate with

respect to the actual true date and time," "first picked him up at 10:50

a.m. where this male enters the store at 10:52 a.m., and then four

minutes pass and I see the same individual wearing a white shirt, black

pants walk out of the Kirkland Chevron and continue southbound on

Highway 31 before he takes off into a full sprint." (R. 1417-19.) Det.

Rauch said that, after he viewed the video, he downloaded it to his

"thumb drive."

Allinder testified that she met with law enforcement about

"providing some video in relation to a crime that occurred on October 30th

of 2016." (R. 1509.) Allinder said she gave law enforcement access to

their camera system and that the officers were familiar with their

cameras because of prior thefts at their business. Allinder said that the

camera system is "capable of recording what a witness would have seen

if they had been present" and that she knows how to operate the system.

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(R. 1508, 1510.) When the State moved to admit the Wayne's Auto Sales

video, Powell raised no objection. (R. 1510.)

Because Powell did not object to the admission of the Wayne's Auto

Sales video, Powell's argument on appeal is reviewed for plain error only.

After reviewing the testimony in this case, we find no plain error in the

circuit court's admission of the Wayne's Auto Sales video based on Det.

Rauch's "competence" to operate the surveillance-camera system.

III.B. Precision Tune Auto Care

As to the surveillance video recovered from Precision Tune Auto

Care, Powell argues that "the State introduced [the video] from Precision

Tune Auto Care through owner Jamie Martin even though Ms. Martin

was unable to verify that the time and date stamps on the video

recordings were accurate." (Powell's brief, p 41.)

At trial, Det. Rauch testified that he contacted the owner of

Precision Tune Auto Care, Jamie Martin, to view the video. Det. Rauch

said that he drove to Martin's house "where she allowed us to view the

video" on her laptop computer. (R. 1420-21.) Det. Rauch said that the

video showed a "male running out of Kirkland Chevron at 10:56[.] I also

see this same individual, black male wearing a white shirt, black pants

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and I can tell he has a black fedora hat on walking out of the store going

southbound in the same direction that I saw him on the Wayne's [Auto

Sales] video" and that the male was walking toward the hospital. (R.

1421.) After viewing the video, Det. Rauch "immediately saved it to [his]

thumb drive and secured it on [his] person." (R. 1422.)

Martin said that, on October 30, 2016, she telephoned law

enforcement after she watched the Precision Tune Auto Care

surveillance video "to see what may or may not be" on the cameras.

Martin said that the system is "capable of recording what a witness would

have seen if they had been present," that she knows how to operate the

system, that the video given to Det. Rauch is an "authentic and correct"

recording from the system, and that there had been no alterations or

changes to that recording. (R. 1493.) Martin testified that she checked

the time stamps on the system two or three times per day. (R. 1494.)

When the circuit court first admitted the Precision Tune Auto Care

surveillance video, Powell did not object. (R. 1499.) After the court

admitted the video, however, Powell argued that Martin "was unable to

authenticate the actual time and calibration of the time and when the

video was recorded and that type of thing based on [Martin's] testimony."

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(R. 1500.) The circuit court overruled Powell's late objection, finding that

his argument "goes to the weight of the evidence, not the admissibility."

(R. 1500.)

Although Powell objected to the Precision Tune Auto Care video on

the basis that Martin was unable to "authenticate the actual time and

calibration of the time," Powell's objection was untimely because it was

raised after the circuit court had already admitted the surveillance video.

See Jelks v. State, 411 So. 2d 844, 847 (Ala. Crim. App. 1981) ("It has

long been the law in this state that objections to the admission of evidence

must be made at the time the evidence is offered, and must state the

specific grounds so that the trial court may rule on the matter."). Thus,

Powell's argument is reviewed for plain error, and we find none.

Even so, Powell's argument that the State failed to authenticate the

time on the Precision Tune Auto Care video is clearly refuted by the

testimony presented at trial. Indeed, Det. Rauch testified at trial as

follows:

"[Prosecutor]: Detective Rauch, I wanted to clarify one
thing if I could based on your testimony yesterday as I
understood it. I believe yesterday afternoon you testified
concerning some video footage from Precision Tune Auto. I
wanted to ask you was it your testimony that you watched the
footage of the person walking in front of Precision Tune Auto
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dressed in the dark pants, white shirt and a dark colored hat,
that he was heading south?

"[Det. Rauch]: Yes. That's correct.

"[Prosecutor]: And was the time stamp correct on
Precision Tune's video camera system?

"[Det. Rauch]: Yes, it was.

"[Prosecutor]: And what time did Precision Tune's video
show for when that person walked in front of their business
there?

"[Det. Rauch]: 10:55 a.m."

(R. 1436 (emphasis added).) What is more, contrary to Powell's argument

on appeal and his untimely objection at trial, Martin also testified that

she regularly checked the time stamp on the video and that it was

accurate. (R. 1494.)

Because the State presented testimony authenticating the time on

the Precision Tune Auto Care video, Powell's argument that it failed to

do so is incorrect. Thus, Powell is not entitled to any relief on this claim.

III.C. Food Depot

As to the surveillance video recovered from Food Depot, Powell

argues on appeal that the State failed to establish that Det. Rauch "was

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'competent' to operate" the camera system at Food Depot -- i.e., the second

Voudrie requirement. (Powell's brief, p. 36.)

At trial, Det. Rauch said that he "spoke to a Mr. Robert. He was

the manager that was on duty there at the store. Identified who we were

and what we needed. He granted us access as to the security system."

(R. 1423.) Det. Rauch said that the Food Depot surveillance system was

not accurate as to time of day. But to determine the accuracy of the time

shown on the surveillance video, Det. Rauch said that they "pulled up the

system and looked at what time the computer was telling us, the security

system was telling us it was, looked at our phones and verified that it

was fifty-four minutes slow." (R. 1423.) Once they determined how far

off the system's time was, that allowed them to locate the portion of the

video that would show what was happening outside the Food Depot

around the time when Algar was murdered. Det. Rauch said that, when

they located that time on the system, they watched the video, which

showed "the same black male that I have seen from previous videos, black

male, white shirt, black pants, black fedora hat walking through the

parking lot of Food Depot from the time of 10:47 a.m. until the time of

10:49 walking in the middle of Food Depot parking lot walking towards

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Highway 31." (R. 1424.) After viewing the video, Det. Rauch downloaded

it to his "thumb drive and secured it on [his] person where [he] later put

it into evidence." (R. 1425.)

Robert Schneckenberger, the manager of the Food Depot in October

2016, testified at trial that he met with officers and gave them access to

Food Depot's video surveillance system and showed them how to work it

but after that he was not involved. Schneckenberger said that the system

was capable of seeing what a witness would have seen and that he knows

how it was installed, how it functioned, and how to operate the system.

(R. 1515, 1517.) Schneckenberger said that the system "had a thirty day

lap." (R. 1518.) He "looked at [the video] briefly when [the police] were

going through it, but [he] did not spend [any] time on it." (R. 1518.) He

allowed the police to use the system and download something, but he

could not say that the video admitted into evidence was the item they

downloaded and took with them. (R. 1519.)

When the State moved to admit the Food Depot video, Powell

argued only, "Objection. Subject to cross." (R. 1516.) The court admitted

the video "subject to cross." (R. 1516.) After his cross-examination of

Schneckenberger, Powell argued:

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"We would like to renew our objection for [the Food
Depot video]. [Schneckenberger] doesn't know anything
about the recording. He allowed the police to come in and
make a recording of something and he doesn't know what
happened and didn't deal with the timing of the system, and
I don't know that he testified he pushed a button or was in
control of the recording."

(R. 1519-20.) The circuit court overruled Powell's objection finding, in

part, that Powell's argument "goes to the weight of the evidence, not to

its admissibility." (R. 1520.)

In sum, Powell objected to the admission of the Food Depot video

on the basis that Schneckenberger lacked knowledge of how law

enforcement -- i.e., Det. Rauch -- made the recording of the Food Depot

surveillance system video. Powell did not object to Det. Rauch's lack of

"competence" to operate the surveillance system. Thus, Powell's

argument is reviewed for plain error only. We find no plain error in the

admission of the Food Depot video.

III.D. Industrial BP

As to the surveillance video recovered from Industrial BP, Powell

argues that the State failed to establish that Det. Rauch "was competent

to operate" the video-surveillance system at the Industrial BP gas

station. (Powell's brief, p. 36.)

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At trial, Det. Rauch said that a man named Cuong Nguyen helped

him access the surveillance video. (R. 1426.) Det. Rauch said that the

system's date and time stamp was accurate and that he watched the

video around the time Algar was murdered, which showed "the same

person that we have been tracking through all the other videos, white

shirt, black pants moving from left of the screen to right of the screen still

walking southbound on the side of 31." (R. 1426.) Thereafter, Det. Rauch

said that he "retrieved it from that system and put it on [his] thumb drive

where [he] secured it on my person and went back to the police

department and secured it there." (R. 1427.)

Nguyen testified that he knew how to operate the security system

at the Industrial BP and that the system was capable of recording what

a witness would have seen if they had been present. Nguyen said that

he gave officers access to the system so that they could retrieve video

from the time of Algar's murder, and that, after showing the officers how

to search the video system for what they were looking for, he did not have

anything else to do with it. (R. 1522.) He did not view the video with the

police. He does "monitor" the system "roughly every other month" and

makes sure the "date and time matches with [their] register." (R. 1525.)

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When the State moved to admit the Industrial BP video, Powell did

not object, and the circuit court admitted the video "subject to cross." (R.

1522.) After he cross-examined Nguyen, Powell argued generally: "We

object. It is not authenticated and the foundation wasn't laid." (R. 1528.)

The court overruled Powell's objection.

Contrary to Powell's assertion on appeal that there was insufficient

evidence to establish Nguyen's "competence" to operate the Industrial BP

video-surveillance system, Nguyen did testify that he was the manager

of the Industrial BP gas station, that he had worked there for 12 years,

that he has "worked on the security system there," that he knew how to

operate the system, and that he showed the officers how to search the

video system. This was sufficient to establish the second Voudrie

requirement that the operator of the recording devise must be

"competent."

III.E. Faith Consignment

As to the surveillance video recovered from Faith Consignment,

Powell argues that the video was inaccurate as to time of day and that

Det. Rauch "was incapable of establishing the authenticity and

correctness of the ... extremely critical time stamps." (Powell's brief, p.

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38.) Powell also asserts that there was no testimony establishing "that

the recording system at Faith Consignment was capable of recording

what a witness would have seen if they had been present." (Powell's brief,

p. 39.)

At trial, Det. Rauch said that he met with a person at Faith

Consignment who gave him access to the video-surveillance system. Det.

Rauch said that the system was not accurate as to date and time, so he

had to go through the same process he went through with the Food Depot

system. Using that same method, Det. Rauch determined that the Faith

Consignment video-surveillance system was off by 1 hour and 26

minutes. Once Det. Rauch figured out this difference, he was able to

locate the portion of the surveillance video that showed what was going

on outside of Faith Consignment around the time Algar was murdered.

Det. Rauch said that the video showed "what appears to be the same

individual, white shirt, black pants, black male walking southbound on

Highway 31 in the northbound lane. He is only on video for

approximately a minute before he turns left and goes up into the parking

lot of [Shelby Baptist Medical Center] Hospital parking lot." (R. 1428.)

Det. Rauch then downloaded the video to his "thumb drive and secured

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it on [his] person and took it back to the police department and placed it

in evidence." (R. 1430.)

Jill Leath, the owner of Faith Consignment, testified at trial that

the business had a video-surveillance system, that she knows how to

operate the system, and that around October 30, 2016, police officers

came to her business to view the surveillance video from her store. (R.

1501.) Leath said that the video given to Det. Rauch on a thumb drive

was "authentic and correct" and that there had been no alterations or

changes to that recording. She viewed the thumb-drive video before

giving it to the police to make sure it was what they asked for. (1503,

1506.) Leath also explained that the recording was saved on a "backup

system for seven days." (R. 1502.)

When the State moved to admit the Faith Consignment video at

trial, Powell made the following general objection: "We will object to it at

this point. He has not laid the proper predicate." (R. 1503.) The court

told Powell that it "will admit" the Faith Consignment video "[s]ubject to

cross." (R. 1503.) After Powell's counsel cross-examined Leath, his

counsel merely said, "We note the objection." (R. 1507.) The circuit court

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made no further rulings concerning the admission of the Faith

Consignment video.

First, we question whether Powell's general objection that the State

failed to lay the proper predicate for the admission of the Faith

Consignment video properly preserved for appellate review the specific

argument he raises on appeal that the State failed to show the accuracy

of the time stamp of the video and that the video surveillance system was

capable of recording what a witness would have seen. See, e.g., Foster v.

State, 705 So. 2d 534, 539 (Ala. Crim. App. 1997) (holding that "[a]

general objection is insufficient to preserve error"), and Todd v. State, 380

So. 2d 370, 372 (Ala. Crim. App. 1980) ("Unless the evidence objected to

is patently illegal or irrelevant, an overruled general objection is

insufficient to predicate error on appeal."). A review of the record

indicates that Powell is correct in asserting that there was no testimony

to establish that the recording device used at Faith Consignment was

"capable of recording what a witness would have seen" had the witness

been present at the time. Because we reverse Powell's conviction on other

grounds, we do not have to determine whether this deficiency rises to the

level of reversible error.

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III.F. Med Center Shell

As to the surveillance video recovered from Med Center Shell,

Powell argues that "no testimony established" that Det. Rauch "was

competent to operate this system" (Powell's brief, p. 37), that the Med

Center Shell video was inaccurate as to time of day, and that Det. Rauch

"was incapable of establishing the authenticity and correctness of the ...

extremely critical time stamps." (Powell's brief, p. 38.)

At trial, Det. Rauch said that he met with Maria Canela, a cashier

at the Med Center Shell gas station who assisted him in accessing the

Med Center Shell video-surveillance system. (R. 1430.) Using the same

method that he used for the Food Depot and Faith Consignment videos,

Det. Rauch determined that the Med Center Shell video-surveillance

system was 1 hour and 31 minutes fast. After figuring out the

discrepancy between the system's time and the actual time, Det. Rauch

was "able to cue up an appropriate time frame to look for video footage"

and saw what "appeared to be the same individual that we had been

watching still walking southbound on 31." (R. 1431.) Det. Rauch then

downloaded the video to his "thumb drive and secured it on [his] person

and took it back for evidence." (R. 1432.)

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Canela testified that officers came to the gas station and asked if

they could access the video-surveillance system. Canela said that the

system was capable of recording what a witness would have seen if they

had been present, that she knows how to operate the system, and that

she provided the officers access to the system. (R. 1529.) On cross-

examination, she testified that she looked at the video and saw the police

make a copy of it. (R. 1531.)

When the circuit court admitted the Med Center Shell video, Powell

did not object. (R. 1529-30.) After Powell cross-examined Canela, he told

the circuit court that he "would like to renew [his] objection as to

foundation." (R. 1533.) The court overruled his "renewed" objection. (R.

1533.)

Powell did not object when the circuit court admitted the Med

Center Shell video into evidence. Powell waited until after he cross-

examined Canela to raise any objection to the Med Center Shell video,

but, unlike other video-surveillance evidence previously admitted during

Powell's trial, this exhibit was not admitted "subject to cross." Therefore,

Powell's objection was untimely because it was raised after the circuit

court had already admitted the surveillance video from Med Center Shell.

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See Jelks, 411 So. 2d at 847 ("It has long been the law in this state that

objections to the admission of evidence must be made at the time the

evidence is offered, and must state the specific grounds so that the trial

court may rule on the matter."). Thus, Powell's argument on appeal is

not properly preserved and is reviewed for plain error only. We find no

plain error in the admission of the Med Center Shell video.

III.G. Shelby Baptist Medical Center

As to the surveillance video recovered from Shelby Baptist Medical

Center, Powell argues that videos obtained from Shelby Baptist Medical

Center were inaccurate as to time of day and that Det. Rauch "was

incapable of establishing the authenticity and correctness of the resulting

recordings and the extremely critical time stamps." (Powell's brief, p. 38.)

At trial, Det. Rauch testified that he met with Timothy Jones, "who

is head of the security" at Shelby Baptist Medical Center. (R. 1439.)

After meeting with Jones, Det. Rauch was able to watch the surveillance

videos. Det. Rauch explained that the Medical Center's camera "was on

three different systems. Basically they had numerous cameras, but they

had three different systems and it would operate certain cameras." (R.

1439.) Det. Rauch said that the system was not accurate as to date and

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time, and that he had to engage in the same process he used with the

Food Depot system. Det. Rauch said that "[c]amera 12 was one hour and

thirty-one minutes fast. Camera six was in real-time and the ER camera

was one hour and thirty-one minutes fast." (R. 1439.) After figuring out

these discrepancies in time, Det. Rauch watched the videos from around

the time that Algar was murdered. Det. Rauch said that the "first camera

that [he] viewed, [he] saw this individual come up from Highway 31 still

walking southbound and walked into the parking lot of the hospital. " (R.

1441.) Det. Rauch said that the person is seen on another camera

walking "up the parking deck and then takes a right and walks through

the top half or top portion of the parking deck, the parking lot and walks

from left to right if you are looking at the hospital walking towards 7th

Avenue Northeast." (R. 1442.) Finally, the ER camera showed the

person "turn from the hospital and walking up 7th Avenue Northeast."

(R. 1443.)

Jones testified at trial that officers came to the hospital requesting

access to the video-surveillance system. Jones said that the cameras

were capable of recording what a witness would see if a witness had been

present and that he knew how to operate the cameras. (R. 1534.) Jones

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said that he viewed the videos with the police, that the videos are

"authentic and correct" recordings from the cameras, and that there did

not appear to be any alterations or changes to the recordings. (R. 1535-

36.)

When the State moved to admit the Shelby Baptist Medical Center

video, Powell made no objection, and the court admitted the video

"subject to cross." (R. 1536.) After his cross-examination of Jones, Powell

argued "same objection." (R. 1539.) The court responded, "I will note the

objection."

Because Powell did not object when the circuit court admitted the

video from Shelby Baptist Medical Center, Powell's objection to the

admission of the video after his cross-examination was untimely. See

Jelks, 411 So. 2d at 847 ("It has long been the law in this state that

objections to the admission of evidence must be made at the time the

evidence is offered, and must state the specific grounds so that the trial

court may rule on the matter."). Even so, the objection Powell raised after

cross-examination was only a general objection. Thus, Powell's argument

on appeal was not preserved and is reviewed for plain error only. We find

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no plain error in the admission of the Shelby Baptist Medical Center

video.

III.H. The View Apartments

As to the surveillance video recovered from The View Apartments,

Powell argues that the State failed to present testimony that "established

the authenticity and correctness of the resulting recording or that no

changes, alterations, or deletions had been made to this critical video"

(Powell's brief, p. 40) and that the circuit court improperly admitted "a

video purportedly depicting the path that a person would walk from Mr.

Powell's apartment to one of The View Apartment's security cameras"

under the pictorial-communication theory. (Powell's brief, pp. 40-41.)

At trial, Det. Rauch said that he met with the owner of The View,

Dixie Walker, and the manager of The View, Jennifer Jones, who gave

him access to the video-surveillance system. (R. 1446.) Det. Rauch said

that The View's system was seven minutes fast, which he determined by

using the same method described above. Det. Rauch said that the video

showed "the same black male that I had been watching in all the previous

videos, white shirt, black pants walk from the right-hand side of the

screen to the left." (R. 1446.) Det. Rauch said the person on the video

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would be "heading away from the hospital" and toward The View

Apartments. (R. 1448.) Det. Rauch said that both Walker and Jennifer

Jones identified the person in the video as Powell. Det. Rauch said that

he made a copy of the video from The View Apartments and "secured it

into evidence." (R. 1448.)

Walker testified that in 2016 she was the chief operating officer for

The View Apartments. (R. 1566.) As chief operating officer of The View,

she rented apartment 509 to Debbie Harrell, and on June 16, 2016,

Powell filled out a rental application and moved into apartment 509 with

Harrell. (R. 1566-70.) Walker said that apartment 509 is "downstairs

from our office" and that she is familiar with the "path that [Powell]

would have taken from [apartment] 509 to get to that dumpster." (R.

1571-72.) Walker said that Powell walked a lot of places and that, the

building in which he lived, "when you come out, you go by a little road

that has a dumpster on it." (R. 1572.) Walker testified that The View

has a "security camera that is across the street from the dumpster" and

that "it basically looks at the dumpster and then at the north end of the

building at both our office and [the apartment] Michael Powell lived in."

(R. 1572-73.)

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During Walker's testimony, the State introduced, and the circuit

court admitted, as State's Exhibit 60, a video recording showing the path

a person would have had to walk to go from apartment 509 to the

dumpster located in front of the office to be in view of the security

cameras. Walker said that she had viewed the video and that it fairly

and accurately depicts the route that Powell would have had to take to

get from apartment 509 to the dumpster. (R. 1573.) But Walker said she

did not make the video recording that she viewed. (R. 1573.) When the

State moved to admit State's Exhibit 60, Powell objected and the

following exchange occurred:

"[Powell's counsel]: We would say the proper predicate
has not been laid for admission of this particular exhibit.

"[The State]: Judge, I believe it comes in under the
pictorial theory of a video. [Walker] has been able to
accurately identify that she knows the path from that
apartment to the dumpster, that she has viewed the file and
that it does correctly and fairly depict that path.

"The Court: I will overrule the objection. State's 60 is
admitted and you may publish."

(R. 1574.)

During Walker's testimony, the State also introduced, and the

circuit court admitted, as State's Exhibit 61, four surveillance videos

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from The View Apartments: one video shows Powell walking away from

apartment 509 and walking in front of a dumpster at approximately 7:22

a.m. on October 30, 2016, one video shows Powell walking toward

apartment 509 and walking in front of a dumpster at approximately 7:29

a.m. on October 30, 2016, one video shows Powell walking away from

apartment 509 and walking in front of a dumpster at approximately

10:27 a.m. on October 30, 2016, and one video shows Powell walking

toward apartment 509 and walking in front of a dumpster at

approximately 11:19 a.m. on October 30, 2016. (R. 1579-81.)

Walker testified that the video-surveillance system at The View

was "capable of recording what a witness would have seen had they been

present" and that she knows how to operate the video-surveillance

system. (R. 1574-75.) Walker said that, when she watched the four

surveillance videos from October 30, 2016, she believed that the person

seen walking in each video is Powell. (R. 1577-78.) When the State

moved to admit State's Exhibit 61, Powell's counsel said, "We would

renew our objection." (R. 1579.)

As noted above, on appeal, Powell argues that the circuit court

erred when it admitted both State's Exhibit 60 and State's Exhibit 61.

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As to State's Exhibit 61 (the four surveillance videos), Powell

argues that the State failed to establish "the authenticity and correctness

of the resulting recording or that no changes, alterations, or deletions had

been made to this critical video" (Powell's brief, p. 40) But, as set out

above, Powell did not raise this specific objection in the circuit court.

Instead, Powell made a general objection that he was "renewing" his

objection. It is not clear from the transcript of the proceedings what his

"renewed" objection related to. Powell's general objection is not sufficient

to preserve for appellate review the specific argument he makes on

appeal. Thus, Powell's argument as to State's Exhibit 61 is reviewed for

plain error only, and, although we agree with Powell that the State failed

to satisfy the third and fourth Voudrie requirements as to the

surveillance videos from The View, we do not find that these omissions

rise to the level of plain error.

As to State's Exhibit 60, Powell argues that the circuit court

improperly admitted the video under the pictorial-communication theory.

We agree with Powell.

In Spradley v. State, 128 So. 3d 774, 780-82 (Ala. Crim. App. 2011)

(quoting Ex parte Fuller, 620 So. 2d 675, 678 (Ala. 1993)), this Court

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noted that the key difference between the "silent-witness" theory and the

"pictorial-communication" theory for admitting a photograph or video

recording is that, to admit a recording under the pictorial-communication

theory, the admitting party must present a "qualified and competent

witness who can testify that the ... medium accurately and reliably

represents what he or she sensed at the time in question." In other

words, the witness who lays the foundation for the admission of a

recording under the pictorial-communication theory has to have been

present at the time the recording or photograph was made. If there is no

such qualified witness, the admitting party must rely on the silent-

witness theory to have the recording or photograph admitted into

evidence. Indeed, the two "theories are mutually exclusive, rather than

alternative theories." Spradley, 128 So. 3d at 781. Recently, this Court

explained:

"The pictorial-communication theory applies 'when a
qualified and competent witness can testify that the ...
recording ... accurately and reliably represents what the
witness sensed at the time in question.' Ex parte Fuller, 620
So. 2d at 678. In other words, the pictorial-communication
theory applies when a witness who observed what is depicted
on the video is available to testify at trial and can testify that
the video accurately reflects what the witness observed. See
Capote v. State, 323 So. 3d 104, 133 (Ala. Crim. App. 2020)
(holding that the pictorial-communication theory was
70
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inapplicable because none of the witnesses who testified at
trial 'were present at the site while the cameras recorded [the
defendant's] activities' (citation omitted))."

Harrison v. State, [Ms. CR-21-0423, Aug. 18, 2023] ___ So. 3d ___, ___

(Ala. Crim. App. 2023).

Here, although Walker testified that she was familiar with what

was depicted in the video that was admitted as State's Exhibit 60, Walker

testified that she did not make the video. What is more, Walker did not

testify that that she was present when the video recording was made.

Thus, the circuit court erred when it admitted State's Exhibit 60 under

the pictorial-communication theory.

Of course, our finding of error here does not bar the State from

seeking to admit State's Exhibit 60 at Powell's retrial for Algar's murder.

Indeed, the State may still admit that exhibit under the silent-witness

theory or, if it chooses to, under the pictorial-communication theory by

presenting a qualified witness who was present when the video was

recorded. We also note that, although the circuit court's error is subject

to harmless-error review, such a review is unnecessary here because we

are reversing Powell's conviction and death sentence on other grounds.

IV.

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Finally, we address Powell's argument that the circuit court erred

when it "admitted unsigned and unauthenticated letters provided by

[Kelvin Hines] in violation of State and Federal law." (Powell's brief, p.

76.) According to Powell, "[t]he State introduced an unsigned letter

allegedly written by Mr. Powell that was provided by a jailhouse snitch

named Kelvin Hines, who admitted that if he saw an opportunity to get

less time for his life sentence he would 'take advantage of it.' " (Powell's

brief, p. 77.) Powell claims that the State "failed to establish direct proof

that the letter contained Mr. Powell's handwriting: they did not introduce

any exemplars of [his] writing for the jury to compare, call a witness who

could testify that this was [his] handwriting, or engage a handwriting

expert who could provide expert testimony establishing that Mr. Powell

wrote this letter or that it was in reply to a previous letter." (Powell's

brief, p. 77.) Powell's argument is without merit.

In Capote v. State, this Court addressed the standard used to

determine whether a circuit court properly admits a letter allegedly

written by the defendant at a trial:

" ' " 'The admission or exclusion of
evidence is a matter within the sound
discretion of the trial court.' Taylor v.
State, 808 So. 2d 1148, 1191 (Ala. Crim.
72
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App. 2000), aff'd, 808 So. 2d 1215 (Ala.
2001). 'The question of admissibility of
evidence is generally left to the
discretion of the trial court, and the
trial court's determination on that
question will not be reversed except
upon a clear showing of abuse of
discretion.' Ex parte Loggins, 771 So.
2d 1093, 1103 (Ala. 2000). In addition,
'[t]rial courts are vested with
considerable discretion in determining
whether evidence is relevant, and such
a determination will not be reversed
absent plain error or an abuse of
discretion.' Hayes v. State, 717 So. 2d
30, 36 (Ala. Crim. App. 1997)."

" 'Gavin v. State, 891 So. 2d 907, 963 (Ala. Crim.
App. 2003).'

"Woods v. State, 13 So. 3d 1, 23 (Ala. Crim. App. 2007).

"Rule 901(a), Ala. R. Evid., provides: 'The requirement
of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent
claims.' 'A writing may be authenticated by evidence of the
contents or substance of the writing when taken in
conjunction with the circumstances out of which it was
written.' Charles W. Gamble and Robert J. Goodwin,
McElroy's Alabama Evidence § 111.01(1) (6th ed. 2009). See
also Rule 901(b)(4), Ala. R. Evid. (providing that a piece of
evidence may be properly authenticated by its '[a]ppearance,
contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances').

"In Washington v. State, 539 So. 2d 1089 (Ala. Crim.
App. 1988), this Court held:
73
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" ' "Before a letter is received in evidence, it is
necessary to lay a foundation establishing its
identity and authenticity, as by introducing proof
as to the source of the letter or proof of the
handwriting or signature of the sender." Howard
v. State, 347 So. 2d 574, 575 (Ala. Crim. App.
1977). Here, there was no proof regarding the
defendant's handwriting and the letters bore no
signature. Nevertheless, even "unsigned letters
may be received in evidence if properly connected
with a person as being his actual letter, by the
introduction of competent evidence showing it to
be so." Silva v. Exchange Nat'l Bank, 56 So. 2d
332, 335-36 (Fla. 1951).

" 'The question before us is whether the
letters were "properly connected" with the
defendant even though no witness saw him write
the letters or place them in his truck for delivery.
"The authenticity of a letter may be established in
more than one way. It may be established directly
by proof of handwriting or by indirect or
circumstantial evidence." Casto v. Martin, 159
W.Va. 761, 230 S.E.2d 722, 727 (1976); Maynard v.
Bailey, 85 W.Va. 679, 102 S.E. 480 (1920);
Deaderick v. Deaderick, 182 Ga. 96, 185 S.E. 89
(1936).

" '....

" 'Finally, although "the mere contents of a
written communication ... are of themselves
usually not sufficient evidence of genuineness," 7
Wigmore, Evidence § 2148 at 746, "[t]he contents
of a writing may be critical in establishing
admissibility. When the contents of a letter are of
such nature that the letter could not have passed
74
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between any parties except the purported writer
and the person to whom it was delivered, the letter
is admissible." Casto v. Martin, 230 S.E.2d at 727
(footnotes omitted). See also People v. Adams, 162
Mich. 371, 127 N.W. 354, 360 (1910) (letters
purporting to come from defendant to witness,
referring to a subject previously discussed by
them, were admissible although it was not shown
that he signed or sent them).

" '....

" 'The sufficiency of the predicate required for
the authentication of letters is largely within the
discretion of the trial judge, and will be reviewed
only for an abuse of discretion. Casto v. Martin,
230 S.E.2d at 727; State v. Huffman, [141 W.Va.
55,] 87 S.E.2d [541] at 554 [(1955)]. We find no
abuse of discretion here. The letters were properly
admitted for the jury to determine their actual
authorship. Maynard v. Bailey, 102 S.E. at 482.'

"539 So. 2d at 1097-99."

Capote, 323 So. 3d at 121-22. Here, the State presented sufficient

evidence tending to connect Powell to the letter provided by Hines.

At trial, Hines testified that, while he was in the Shelby County

jail, he spoke with Powell about Powell's case. Powell told Hines that

there was a picture of him "floating around and it had a picture of a hat,"

but "you couldn't see his face because the hat was pulled down over his

eyes." (R. 2176-77.) Powell also told Hines that there was no way the

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eyewitness who said that she saw him running down the road "could have

identified him driving that fast, the speed limit you had to drive and it

was busy." (R. 2177.) Hines said that Powell talked to him about a box

that he had that contained .380 ammunition that matched the

ammunition found at the crime scene but that Powell said that he had a

nephew who was going to tell people that the box and ammunition

belonged to the nephew. (R. 2178.) Hines testified that Powell told him

that the Chevron gas station where Algar worked had only one camera.

(R. 2178-79.) Hines further testified that Powell

"never specifically said that he shot the lady, but he did say
-- he talked about brains. He was talking about her brains or
something along the lines of that. And he just -- like I had
said, he went on to say there was no way that the blood could
have got on him from the way he had the door closed, the way
he had the gun stuck in; it was no way."

(R. 2179-80.)

Hines also explained that, in addition to talking to each other about

their cases, Powell wrote him letters that were "passed back and forth

through the door." (R. 2181.) Hines then identified a letter that, he said,

Powell wrote to him while they were in the Shelby County jail, which was

admitted as State's Exhibit 292. (R. 2183.) The letter provided:

"Sorry it took me so long to respond been busy.
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"Didn't give the devils in the D.A.'s Office my DNA.
They've got to use what's already on file and that's what my
lawyer told them.

"I'm just sitting & waiting on trial so I can expose the
prosecution and detectives as liars with the video footage of
me down south. I would like to know the cases you've got that
are like mine.

"Glad you got the cases off you (the crack charges)

"Now the point is what are you gonna do? Cop out or go
to trial?

"This is a number to stay in contact with me (***) ***-
**** My wife # Lady J. My lawsuit has been filed and should
be getting served on them soon.

"These inmates need to start filing lawsuits on this jail.
The beds are a safety hazard and the new memo on the door
is making them have to use the toilet & sink to get on the top
bunks which is dangerous.

"Hope you get your biz straight with your snow bunny.

"The Fed inmate over here made the jail give him a free
indigent writing package. It had 6 stamps, pen, and paper.
Filed a grievance & stated how they're obligated to do that
each week for a Fed inmate.

"Whatever decision you make on your case whether to
cop out or go to trial. Look at the evidence they claim to have.

"[Illegible]."

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(Supp. C. 332-33.) Powell objected to the admission of the Shelby County

jail letter, arguing only that "[i]t is not signed by Michael Powell." (R.

2181.)

On appeal, Powell maintains that the letter was improperly

admitted because it was "unsigned." He also argues that the State failed

to provide any "direct proof that the letter contained Mr. Powell's

handwriting" and that the State "failed to establish circumstantial

evidence that the letter was written by Mr. Powell." (Powell's brief, pp.

77-78.) Contrary to Powell's arguments, the State presented sufficient

evidence connecting Powell to the letter. First, Hines testified that

Powell gave him the letter. Further, as quoted above, the letter included

the telephone number for "Lady J," who Powell described in the letter as

"my wife." During trial, the State presented testimony from Elise

Johnson, who testified that she was Powell's girlfriend and that she

would talk to Powell on the telephone and communicate with him via text

message. Johnson said that, at that time, her telephone number was the

telephone number the author of the letter provided to Hines as a means

to stay "in contact" with the author. The information related to the

telephone number, by itself, was sufficient to connect Powell to the

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unsigned letter and, thus, was sufficient to authenticate that letter for

its admission at trial. Of course, whether Powell actually authored the

letter was a question for the jury to resolve, not a question of the

admissibility of the letter. Thus, the circuit court did not abuse its

discretion in admitting the letter Hines said was authored by Powell.

Conclusion

Because the State directly commented on Powell's right not to

testify during its rebuttal closing argument, this Court must reverse

Powell's capital-murder conviction and his death sentence and remand

this case to the circuit court for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

Kellum and Minor, JJ., concur in the result. McCool, J., dissents,

with opinion, which Windom, P.J., joins.

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McCOOL, Judge, dissenting.

I respectfully dissent from the decision to reverse Michael Anthony

Powell's capital-murder conviction and death sentence based on Powell's

argument that the State directly commented on his failure to testify. I

do not believe that the prosecutor's comment was an improper comment

on Powell's failure to testify. Instead -- in the context in which it was

delivered in this case -- the comment was a proper comment on the

evidence, as well as a proper "argument in-kind" by which to rebut

defense counsel's comment that the State had failed to produce the

murder weapon.

I. Analysis

Before analyzing the issues in this case, I believe it prudent to set

forth the law regarding improper commentary on a defendant's failure to

testify. Our jurisprudence in this regard is, and indeed ought to be,

extremely fact- and case-specific. Prosecutors are given wide latitude

under the law to comment on all reasonable inferences from the evidence,

as well as to "argue in-kind" to arguments made by defense counsel.

Concerning a prosecutor's comments about the evidence, this Court has

stated:

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"Questions about the propriety of counsel's statements
in closing argument are matters for the broad discretion of the
trial court. See, e.g., Gobble v. State, 104 So. 3d 920, 947 (Ala.
Crim. App. 2010) (quoting Acklin v. State, 790 So. 2d 975,
1002 (Ala. Crim. App. 2000)). A prosecutor may argue every
legitimate inference from the evidence 'and may examine,
collate, shift and treat the evidence in his own way.' Taylor v.
State, 666 So. 2d 36, 64 (Ala. Crim. App. 1994). A prosecutor's
arguments are to be examined in the context of the complete
closing arguments and in the context of the evidence as a
whole. The standard of review is not whether the defendant
was prejudiced by a comment, but whether the comment 'so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.' Darden v. Wainwright, 477
U.S. 168, 169, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986)."

Woodward v. State, 123 So. 3d 989, 1028 (Ala. Crim. App. 2011). When

examining the complained-of comment, the main inquiry is whether the

comment was "(1) manifestly intended to be a comment on [the

defendant's] failure to testify or (2) … it was of such a character that the

jury would have naturally and necessarily taken it to be a comment on

[the defendant's] failure to testify." Smith v. State, [Ms. CR-17-1014,

Sept. 2, 2022] ___ So. 3d ___, ___ (Ala. Crim. App. 2022).

Furthermore, in our analyses of the comments made in such cases,

context is always key. It is a well-known principle of biblical exegesis

that "a text without a context is usually a pretext." See e.g., R. Scott

Clark, Any Text Without A Context is Pretext for a Prooftext,

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https://heidelblog.net/2010/11/any-text-without-a-context-is-pretext-for-

a-prooftext/ (November 30, 2010). 5 Although this principle is theological

in origin, the present case is ripe for application of this principle of

contextual analysis as well. Indeed, the main opinion purports "to

provide context to Powell's argument," ___ So. 3d at ___; however, I

believe they ultimately ignore the context, although not for pretextual

reasons, and reach the wrong conclusion in doing so. As I will discuss

later, I believe the main opinion errs by simply examining the bare

statements and comparing them to the bare statements in prior cases,

ultimately failing to properly evaluate and weigh the context in which

these statements are made. Indeed, as I will argue, our jurisprudence

demands that we take a "deep dive" into the context (when available, as

in the present case) in which a prosecutor's comments are made in order

to determine whether these comments cross the line into improper

commentary on the defendant's failure to testify.

A. Statements Were Proper Commentary on the Reasonable
Inferences from the Evidence.

5On the date this opinion was released, this document was available

online at this web address.
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First of all, I believe the context in which these comments were

made shows that they were proper commentary on the reasonable

inferences from the evidence. In the present case, as set forth in the main

opinion, the allegedly improper comments by the prosecutor are: "You

know there is only one person in this room who knows where the gun is.

One person, he is sitting over there. That guy knows where the gun is.

…. There is one man in this courtroom who knows where that gun is, one

man and he is sitting right over there next to that jury box." (R. 2395.)

When taken in proper context, the prosecutor's comment was clearly a

fair comment on the evidence that was presented at trial. See Woodward,

123 So. 3d at 1028 (holding that the prosecutor's argument was not a

comment on the defendant's failure to testify because "[t]he prosecutor's

comment was directed to the strength of the State's case and to the

corresponding weakness in the defense's theory of the case, and it was a

fair comment based on the prosecutor's inferences from all the evidence

in the case"). Specifically, as set forth in the main opinion, the State

presented evidence indicating that Powell convinced another inmate --

David Jackson -- to author a letter confessing to the murder. Part of that

letter stated that Powell knew where the gun is. The letter stated: "I

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apologized to Mr[.] Powell for him being wrongly accused for something

that I was involved in. I also told him where to find Mr[.] James Moore's

gun." The comment by the prosecutor that Powell knew where the gun

was hidden appears to me to be a clear reference to this letter that was

admitted into evidence.

Although the main opinion ultimately reaches the wrong

conclusion, it does set forth the context surrounding the prosecutor's

statements, as follows:

"At the end of the guilt phase of Powell's trial, the
parties presented closing arguments to the jury. The State,
in its closing argument, addressed evidence that, it said,
showed that Powell had murdered Algar, including clips from
the surveillance videos. It also addressed evidence that
Powell presented in his defense case and the importance of
the David Jackson "confession" letter, which, it alleged,
Powell had had Jackson write. (R. 2359-65.) The State also
addressed Powell's missing .380 handgun -- the weapon the
State alleged was used to shoot Algar -- as follows:

" 'Now, the gun disappeared. The silver box
hidden under [Powell's girlfriend's] house, bullets
in it matching the description of the bullets that
were found and used to kill Tracy Algar. When he
was caught, he began running to alibi after alibi.
When that didn't seem to be working, he ran to
David Jackson, scheming to move this and shift
the blame.'

"(R. 2365-66.)

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"In his closing argument, Powell's counsel argued:

" 'Now, the judge has charged you that a
defendant has a right to remain silent. Michael
exercised his right to remain silent in this
particular case. You swore that you would not hold
that against him. That is what we are going to ask
you to do right now. You heard the evidence. You
heard things that are going on in this case, but we
are going to ask you to not hold it against Michael
Powell because he exercised his right to remain
silent that we all have.'

"(R. 2369-70.) Powell's counsel then addressed the
weaknesses in the State's evidence and questioned the
usefulness of the surveillance videos that the State had
presented to the jury. Powell's counsel also addressed the
.380 ammunition and the lack of evidence linking Powell to
the murder as follows:

" 'There is a .380 caliber Winchester spent
shell found in the store after individuals went in
the store and before the store was roped off, but
they even checked that. No fingerprints, no DNA
belonging to Michael Powell. They lifted
fingerprints off of the silver box, no DNA, no
fingerprint lifts belonging to Michael Powell. They
lifted DNA and fingerprint lifts off of the live
rounds that were in the box, no DNA, no
fingerprint lifts connecting Michael Powell.

" 'There is doubt all over the place, DNA,
ballistics, no gun. Misidentification problems.'

"(R. 2386-87.)

"The State, in its rebuttal argument, addressed the
missing gun, telling the jury: 'You know there is only one
85
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person in this room who knows where the gun is. One person,
he is sitting over there. That guy knows where the gun is.'
(R. 2393-94.) Powell's counsel objected to the State's
argument, and the following exchange occurred outside the
presence of the jury:

" '[Prosecutor]: If I could. Your Honor --

" 'The Court: Can you finish the thought?

" '[Prosecutor]: It is within the David Jackson
letter that David Jackson told him where the gun
is.

" 'The Court: You are afraid he is headed for
comment on --

" '[Powell's counsel]: It is not in the
possession of --

" 'The Court: I think that is what the
objection is, yes?

" '[Powell's counsel]: Yes, sir.

" 'The Court: He hadn't finished his --

" '[Powell's counsel]: I didn't want him to
finish. I thought it was improper.

" 'The Court: Tell them what you are fixing to
say.

" '[Prosecutor]: The David Jackson letter says
that David Jackson told him where the gun is.
That is it, I am not going to say he didn't tell us or
anything like that. I am not a first-year
prosecutor, but I appreciate the instruction.
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" 'The Court: That bell hasn't been rung yet.
I don't find that to be improper depending on what
comes next of course. We will resume.

" '(End of side-bar.)

" 'The Court: [Prosecutor], you may continue.

" '[Prosecutor]: Thank you, Your Honor.
There is one man in this courtroom who knows
where that gun is, one man and he is sitting right
over there next to that jury box. You remember
that letter from David Jackson? I have one copy
here. State's 1001. You have the original, State's
Exhibit 223.

" '[Powell's counsel]: I still renew my
objection.

" 'The Court: Noted, overruled.

" '[Prosecutor]: This letter, I am on page three
for reference, 'I apologize to Mr. Powell for him
wrongly -- for him being wrongly accused for
something that I was involved in, I also told him
where to find Mr. James Moore's gun.' That is
what David Jackson said. That is what David
Jackson copied from the defendant's letter. Do you
remember him telling us about that?"

"(R. 2394-96 (emphasis added).)"

Powell, ___ So. 3d at ___ (footnote omitted).

This context demonstrates that the State was not commenting on

the failure of the defendant to testify; rather, the State was arguing the
87
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reasonable inferences from the evidence. Powell cannot arrange for

someone to write a bogus confession letter that states that Powell knows

where the gun is and then prohibit the State from commenting on that

evidence during closing argument. The context here establishes that the

prosecutor's argument was a fair comment on the evidence; therefore, it

was not manifestly intended to be a comment on Powell's failure to testify

and the jury would not have naturally and necessarily taken it to be a

comment on Powell's failure to testify.

B. Statements Were Proper "Argument In-Kind."

Secondly, I believe the context shows that the prosecutor's

comments were "argument in-kind," responding properly to the defense

attorney's arguments. Specifically, Powell's counsel stated: "There is

doubt all over the place, DNA, ballistics, no gun. Misidentification

problems." (R. 2387) (emphasis added). I believe the prosecutor had the

right to "argue in-kind" by responding that Powell knows where the gun

is, much like the prosecution in Mitchell v. State, 84 So. 3d 968 (Ala.

Crim. App. 2010). In Mitchell, the defendant, who had been convicted of

capital murder and sentenced to death, argued that the prosecutor

improperly commented on his failure to testify during the guilt

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phase. Specifically, the defendant alleged that the following comments

were improper: "No gun. We don't have a gun. Where is the gun? I don't

know. He knows. He knows where the gun is." Mitchell, 84 So. 3d at

979. In substance, the prosecutor's comments in the present case and the

prosecutor's comments in Mitchell are exactly the same. However, in

Mitchell, this Court held that the comments did not constitute an

impermissible reference to the defendant's failure to testify, specifically

holding:

"To the extent Mitchell asserts that the prosecutor
commented on his failure to testify when the prosecutor
stated that Mitchell knew where the murder weapon was
located, this argument is without merit. Contrary to
Mitchell's assertion, the prosecutor's comments were not
made in an attempt to draw attention to the fact that Mitchell
had not testified. Instead, the prosecutor was simply
responding to defense counsel's argument that the State had
failed to meet its burden of proof because it had not produced
the murder weapons. Cf. Ballard v. State, 767 So. 2d 1123,
1135 (Ala. Crim. App. 1999) ('A prosecutor has a right to reply
in kind to the argument of defense counsel. This "reply-
inkind" doctrine is based on fundamental fairness.'); Harris v.
State, 2 So. 3d 880, 920 (Ala. Crim. App. 2007) (same); Brown
v. State, 11 So. 3d 866, 903 (Ala. Crim. App. 2007) ('Where a
matter has been gone into by one party to a cause, the other
party has the right to explain away anything, if he can, that
may have been brought out to his detriment.') (citations and
quotations omitted). Reviewed in context, this statement was
'not manifestly intended or was of such a character that a jury
would naturally and necessarily take it to be a comment on
the failure of the accused to testify.' Gavin [v. State], 891 So.

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2d [907,] 981 [(Ala. Crim. App. 2003)]. On the contrary, this
comment simply relayed the message that law enforcement
had not recovered the murder weapons because Mitchell had
disposed of them. Consequently, the prosecutor did not
improperly comment on Mitchell's failure to testify."

Mitchell, 84 So. 3d at 980.

The main opinion in the present case, on the other hand, relies on

Whitt v. State, 370 So. 2d 736 (Ala. 1979), in which the Alabama Supreme

Court held that the prosecutor's comment was an impermissible direct

comment on the defendant's failure to testify. The main opinion finds

that the comments in the present case "are nearly identical to the

comment made by the prosecutor in Whitt." ___ So. 3d at ___. The main

opinion then states that the comment in the present case, like the

comment in Whitt, "is clearly a direct comment on Powell's failure to

testify at trial." ___ So. 3d at ___.

I disagree, however, with the main opinion's assertion that the

comments in the present case are "nearly identical" to the comments in

Whitt. The comment in Whitt that was held to be an improper comment

regarding the defendant's failure to testify was "[t]he only person alive

today that knows what happened out there that night is sitting right

there." Whitt, 370 So. 2d at 737. Unlike the comments in the present

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case, the comment in Whitt did not talk about a gun or any other specific

piece of evidence but instead referenced generally the fact that there was

no living witness besides the defendant. Thus, contrary to the assertion

in the main opinion, the comments in the present case are not "nearly

identical to the comment made by the prosecutor in Whitt." More

importantly, the Supreme Court in Whitt did not have any context for

the prosecutor's comments, and for this reason especially I question the

main opinion's heavy reliance on Whitt in its analysis of the prosecutor's

comments in this case. In fact, the Whitt Court stated that the record

was completely devoid of context, as follows: "It seems self-evident that

it cannot be 'argument in kind' when we do not have the defense counsel's

argument to which this comment is said to reply. The record does not

contain the closing arguments in this case." Whitt, 370 So. 2d at 738. The

clear implication of that statement is that if the Court had had context

in that case, the result might have been different.

I believe that we should view Mitchell, rather than Whitt, as more

determinative to the outcome of the present case. In the present case,

"[t]he prosecutor's comments were not made in an attempt to draw

attention to the fact that [Powell] had not testified. Instead, the

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prosecutor was simply responding to defense counsel's argument that the

State had failed to meet its burden of proof because it had not produced

the murder weapon[]." See Mitchell, supra. Furthermore, "reviewed in

context, this statement was 'not manifestly intended or was of such a

character that a jury would naturally and necessarily take it to be a

comment on the failure of the accused to testify.' Gavin, 891 So. 2d at 981.

On the contrary, this comment simply relayed the message that law

enforcement had not recovered the murder weapon[] because [Powell]

had disposed of [it]. Consequently, the prosecutor did not improperly

comment on [Powell]'s failure to testify." See Mitchell, supra. 6

II. Conclusion

Finally, let me reemphasize my belief that context is crucial to any

analysis of allegedly improper comments on the defendant's failure to

testify. As I have already stated, any such analysis must necessarily be

6I note that there was no objection in Mitchell, so plain error would

have been applicable, but this Court did not simply hold that the
prosecutor's comments did not rise to the level of plain error. Instead,
this Court held that the defendant's argument was "without merit," and
this Court unequivocally stated that "the prosecutor did not improperly
comment on Mitchell's failure to testify." Thus, the lack of an objection
in Mitchell is not relevant to the present case.

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fact- and case-specific. Unfortunately, at least from my perspective,

rather than engaging in an in-depth analysis of context, the main opinion

merely compares the bare statements in the present case to the bare

statements in Whitt and pronounces that the comments in the present

case are impermissible commentary on the defendant’s failure to testify

simply because they are "nearly identical." To put it another way, rather

than delve into a deeper contextual analysis in the present case, where

we do have the context of the prosecutor's comments, the main opinion

simply compares statement to statement, and I believe in doing so gets it

wrong. I believe this approach ignores the context-driven holding of

Whitt and leads to an improper result in this case.

Because I believe that, in the context of this case, the prosecutor's

comment is not an improper comment on Powell's failure to testify but

instead is a proper comment on the evidence and a proper "argument in-

kind" to rebut defense counsel's comment that the State had failed to

produce the murder weapon, I must respectfully disagree with the main

opinion. I do not believe that these statements were "(1) manifestly

intended to be a comment on [the defendant's] failure to testify or (2) of

such a character that the jury would have naturally and necessarily

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taken [them] to be a comment on [the defendant's] failure to testify."

Smith v. State, [Ms. CR-17-1014, Sept. 2, 2022] ___ So. 3d ___, ___ (Ala.

Crim. App. 2022).

Based on the foregoing, I respectfully dissent.

Windom, P.J., concurs.

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