U.S. v. MAGALLANES

paragraph See Johnson v. State, [Ms. CR-99-1349, October 2, 2009] ___ So. 3d ___, ___ (Ala. Crim. App. 2009) ("In a case such as the present, that involves capital murder and where the jury clearly indicated by their question that they were having difficulty understanding the aggravating and the mitigating circumstances, the trial judge did not abuse his discretion in deciding to send the written instructions back with the jury."); Apicella v. State, 809 So. 2d 841, 862 (Ala. Crim. App. 2000) ("A trial court's determination on whether to submit written charges to the jury in a complex case will not be overturned absent a showing of an abuse of discretion."); Wright v. State, 740 So. 2d 1147, 1150 (Ala. Crim. App. 1999) ("Based on the trial court's finding [that the case was complicated] and the jury's request for the definition of first-degree robbery, we find that the trial court did not abuse its discretion when it gave the jury a written copy of the definition of first-degree robbery.").

Clearly, the circuit court acted within its discretion in allowing the jury to have a copy of its written charges during deliberations. The circuit court did not violate Rule 21.1, Ala. R. Crim. P.

XIII.

Doster next argues that the circuit court failed to secure a reliable and adequate record of the trial proceedings for appellate review because, he argues, there are numerous references to off-the-record discussions in the transcript. Doster states the following in his brief:

"The court went off the record during its guilt-phase charging conference. (R. 2519-20.) While counsel made clear it would express its objections for the record after the conference, in a death penalty case, appellate courts may review for plain error. The failure to record the conference and afford Mr. Doster his right to appeal the trial court's determinations denies him the reliability necessary for imposition of the death penalty. Similarly, there were numerous other, off-the record conversations that were not recorded. See, e.g., R. 2291, 2356, 2374.)"

(Doster's brief, at pp. 108-09.)

The record shows that the following occurred:

"The Court: One last thing. You know, there has been a Motion for Full Recordation, and I have tried to comply with that.

"[Defense counsel]: You have, your honor.

"The Court: I have tried to comply, you know, with putting everything on the record the way you all wanted me to.

"Now, you know, this charge conference is not — I mean, unless you all just want me to have [the court reporter] sitting there typing down our rattlings and ramblings while we try to figure out what should or shouldn't go in the charge —

"[Defense counsel]: Judge, I don't think that's necessary. We can — When we get down to the final cut, we can say what we object to being there or not being there.

"The Court: Yeah. I'll give you every opportunity to state full and vociferous objections to anything you believe I get wrong.

"[Defense counsel]: I don't see the need for the recordation of the charge conference until we get to the end of it. And, insofar as I need to, I withdraw the Motion for Full Recordation with that exception.

"The Court: Okay. All right."

(C. 2519-20.) Clearly, if any error occurred in not recording the charge conference, that error was invited by counsel's actions. Invited error is waived unless it rises to the level of plain error.

Also, the first page reference identified in Doster's brief is when the circuit court is discussing the typographical errors in the transcript of Doster's statements. The record then lists the typographical errors that were contained in the transcript. In another instance, the State was attempting to organize the presentation of an exhibit. Yet in another instance, the prosecutor states that he had evidence the custodian needed to bring into the courtroom — an exhibit that was marked for identification. It is clear that no substantial portions of the record are missing from the record that was certified to this Court. The record filed with this Court consists of 45 volumes.

In Wynn v. State, 804 So. 2d 1122 (Ala. Crim. App. 2000), we stated:

"[W]e note that it should have been apparent to the defense during the trial that the court reporter was not recording certain sidebars. In fact, during the hearing on the appellant's motion for a new trial, trial counsel admitted, `I do recall sidebars without a court reporter taking down the transcript. At least not without my knowledge.' (R. 1944.) Defense counsel could have easily reminded the trial court that it had granted his motion for full recordation of the proceedings and remedied the omissions at that time. Therefore, this error was invited by the appellant.

". . . .

". . . A review of the portions of the record before and after the unrecorded sidebars clearly indicates that the unrecorded sidebars pertained to general, administrative matters, such as notifying the trial court that an objection needed to be made outside of the hearing of the jury and discussing the timing of breaks, that did not affect the outcome of the trial. In fact, on several occasions after an unrecorded sidebar occurred, the trial court stated for the record the substance of what occurred during the sidebar. In addition, the actual objections and discussions about the objections are included in the record on appeal. Therefore, under the facts of this case, we conclude that the error that resulted from the failure to record certain sidebars was harmless."

804 So. 2d at 1143-45.

There is no indication that substantial portions of the record are missing. Therefore, any error in failing to transcribe all the off-the-record discussions was at most harmless. Wynn, 804 So. 2d at 1145.

Penalty-Phase Issues XIV.

Doster argues that his death sentence violates the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002). InRing, the United States Supreme Court held that its earlier decision inApprendi v. New Jersey, 530 U.S. 466 (2000), applied to death-penalty cases; thus, any fact that could increase the maximum penalty to death must be presented to a jury and must be found to exist beyond a reasonable doubt.

A.

First, Doster asserts that by imposing the death sentence the circuit court found that the aggravating circumstances outweighed the mitigating circumstances; therefore, he argues, it made a factual determination that, according to Ring, was within the exclusive province of the jury. Moreover, he argues, the jury found that the mitigating circumstances outweighed the aggravating circumstances, and that factual determination by the jury was rejected by the circuit court.

The Alabama Supreme Court specifically rejected this argument inEx parte Waldrop, 859 So. 2d 1181 (Ala. 2002), and stated:

"Contrary to Waldrop's argument, the weighing process is not a factual determination. In fact, the relative `weight' of aggravating circumstances and mitigating circumstances is not susceptible to any quantum of proof. As the United States Court of Appeals for the Eleventh Circuit noted, `While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard . . . the relative weight is not.' Ford v. Strickland, 696 F.2d 804, 818 (11th Cir. 1983). This is because weighing the aggravating circumstances and the mitigating circumstances is a process in which `the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence.' Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). Moreover, the Supreme Court has held that the sentencer in a capital case need not even be instructed as to how to weigh particular facts when making a sentencing decision. See Harris v. Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995) (rejecting `the notion that "a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required"' (quoting Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988)) and holding that `the Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer').

"Thus, the weighing process is not a factual determination or an element of an offense; instead, it is a moral or legal judgment that takes into account a theoretically limitless set of facts and that cannot be reduced to a scientific formula or the discovery of a discrete, observable datum. See California v. Ramos, 463 U.S. 992, 1008, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) (`Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, . . . the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.'); Zant v. Stephens, 462 U.S. 862, 902, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (Rehnquist, J., concurring in the judgment) (`sentencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does')."

859 So. 2d at 1189. Doster is due no relief on this claim.

Doster also attacks the Supreme Court's decision in Ex parte Waldrop. However, this Court is bound by the decisions of the Alabama Supreme Court and has no authority to reverse or modify those decisions. See § 12-3-16, Ala. Code 1975.

B.

Second, Doster asserts that the use of an element of the capital offense as an aggravating circumstance violates his rights because, he says, it fails to "narrow the class of individuals sentenced to death."

The United States Supreme Court addressed this issue in Lowenfield v. Phelps, 484 U.S. 231 (1988), and stated:

"Here, the `narrowing function' was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that `the offender has a specific intent to kill or to inflict great bodily harm upon more than one person' The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more."

484 U.S. at 246. See also Morris v. State, [Ms. CR-07-1997, February 5, 2010] ___ So. 3d ___ (Ala. Crim. App. 2010). Doster is due no relief on this claim.

C.

Doster next argues that the court diminished the role of the jury in sentencing by referring to its verdict as a recommendation. Doster specifically argues that after Ring, the circuit court's instructions that the jury's verdict was a recommendation runs afoul of Caldwell v. Mississippi, 472 U.S. 320 (1985). In Caldwell v. Mississippi, the United States Supreme Court held that "[i]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S. at 328-29.

"We have repeatedly stated that a trial court does not diminish the jury's role by stating that its verdict in the penalty phase is a recommendation or an advisory verdict. Taylor v. State, 666 So. 2d 36 (Ala. Cr. App. 1994), on remand, 666 So. 2d 71 (Ala. Cr. App. 1994), aff'd, 666 So. 2d 73 (Ala. 1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996); Burton v. State, 651 So. 2d 641 (Ala. Cr. App. 1993), aff'd, 651 So. 2d 659 (Ala. 1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995); White v. State, 587 So. 2d 1218 (Ala. Cr. App. 1990), aff'd, 587 So. 2d 1236 (Ala. 1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992)."

Smith v. State, 795 So. 2d 788, 837 (Ala. Crim. App. 2000).

Also,

"`[The defendant] also argues that Ring requires penalty-phase relief when the jury is told that its verdict is "advisory" or merely a "recommendation." Contrary to [the defendant's] contention, Ring does not address the advisory nature of a jury's sentencing recommendation. [The defendant's] jury was properly informed that under Alabama law, its verdict was an advisory one. See § 13A-5-46, Ala. Code 1975. Thus, the jury was not misled regarding its role in the sentencing decision. See Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Ex parte Taylor, 666 So.2d 73, 88 (Ala. 1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996).'"

Blackmon v. State, 7 So. 3d 397, 432 (Ala. Crim. App. 2005), quoting Duke v. State, 889 So. 2d 1, 43 (Ala. Crim. App. 2002). See also Evans v. State, 975 So. 2d 1035, 1053 (Fla. 2007) ("The Court has also repeatedly rejected objections to Florida's standard jury instructions based onCaldwell v. Mississippi, 472 U.S. 320 (1985)."). Doster is due no relief on this claim.

D.

Doster also argues that Alabama's sentencing scheme is "standardless" and violates the Eighth Amendment and the Equal Protection Clause of the Constitution.

Alabama's death-penalty sentencing scheme has repeatedly withstood constitutional attacks.

"The appellant maintains that the jury override provision of Ala. Code 1975, § 13A-5-47(e), is unconstitutional. He claims that the statute contains no guidelines for the sentencing judge to follow and that the statute violates the Eighth Amendment, particularly in a case where, as here, the jury unanimously recommends a sentence of life imprisonment without parole.

"Sentencing by a jury is not constitutionally required. Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). Proffitt v. Florida, 428 U.S. 242, 251-52, 96 S.Ct. 2960, 2966-67, 49 L.Ed.2d 913 (1976), and § 13A-5-47(e) set `out a standard of review for jury override that meets constitutional requirements.' McMillian v. State, 594 So. 2d 1253, 1272-73 (Ala. Cr. App. 1991), remanded on other grounds, 594 So. 2d 1288 (Ala. 1992). The argument that the jury override provision of § 13A-5-47(e) is constitutionally infirm because it allows for the `arbitrary and standardless' imposition of the sentence of death has been repeatedly rejected by the appellate courts of this state. See, e.g., Ex parte Jones, 456 So. 2d 380, 381-83 (Ala. 1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985); McMillian v. State, 594 So. 2d at 1272; Parker v. State, 587 So. 2d 1072, 1098 (Ala. Cr. App. 1991). See also Ex parte Giles, 632 So. 2d 577 (Ala. 1993) (holding that Ala. Const. § 11 `does not preclude judicial override of the jury's sentencing recommendation in a capital case').

"The trial court's sentencing order reflects the fact that the court gave `consideration to the recommendation of the jury in its advisory verdict that the defendant be sentenced to life without parole.' R. 65. The court, however, after independently weighing the aggravating and mitigating circumstances, determined that the aggravating circumstance outweighed the mitigating circumstances and chose not to accept the jury's recommendation. Constitutional and statutory provisions require no more."

Carr v. State, 640 So. 2d 1064, 1073-74 (Ala. Crim. App. 1994). Moreover, as we stated in Sneed v. State, 1 So. 3d 104 (Ala. Crim. App. 2007):

"The appellant further contends that, in light of Ring [v. Arizona, 536 U.S. 584 (2002)], Alabama's standardless override results in the arbitrary application of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments and the Equal Protection Clause. `The United States Supreme Court in Ring did not invalidate its earlier holding in Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995), which upheld § 13A-5-47(e), Ala. Code 1975 — commonly referred to as the judicial-override statute — against constitutional attack.' Tomlin v. State, 909 So. 2d 213, 282 (Ala. Crim. App. 2002), rev'd on other grounds, 909 So. 2d 283 (Ala. 2003). Therefore, the appellant's argument is without merit."

1 So. 3d at 143-44.

"The trial court's sentencing order reflects the fact that the court gave `consideration to the recommendation of the jury in its advisory verdict that the defendant be sentenced to life without parole.' R. 65. The court, however, after independently weighing the aggravating and mitigating circumstances, determined that the aggravating circumstance outweighed the mitigating circumstances and chose not to accept the jury's recommendation. Constitutional and statutory provisions require no more."

Carr, 640 So. 2d at 1074. Doster is entitled to no relief on this claim.

XV.

Doster next argues that Alabama's method of execution, lethal injection, constitutes cruel and unusual punishment.

The Alabama Supreme Court recently addressed this issue and stated:

"The Eighth Amendment to the United States Constitution provides: `Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' `Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, — something more than the mere extinguishment of life.' In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890). However, as the Supreme Court of the United States recently stated in Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008):

"`Our cases recognize that subjecting individuals to a risk of future harm-not simply actually inflicting pain-can qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be "sure or very likely to cause serious illness and needless suffering," and give rise to "sufficiently imminent dangers." Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a "substantial risk of serious harm," an "objectively intolerable risk of harm" that prevents prison officials from pleading that they were "objectively blameless for purposes of the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 842, 846, and n. 9 (1994).'

"___ U.S. at ___, 128 S.Ct. at 1530-31.

"In Baze, two death-row inmates challenged Kentucky's use of the three-drug protocol, arguing `that there is a significant risk that the procedures will not be properly followed-in particular, that the sodium thiopental will not be properly administered to achieve its intended effect-resulting in severe pain when the other chemicals are administered.' ___ U.S. at ___, 128 S.Ct. at 1530. Belisle's claim, like the claims made by the inmates in Baze, `hinges on the improper administration of the first drug, sodium thiopental.' Baze, ___ U.S. at ___, 128 S.Ct. at 1533.

"The Supreme Court upheld the constitutionality of Kentucky's method of execution, Baze, ___ U.S. at ___, 128 S.Ct. at 1538, and noted that `[a] State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.' Baze, ___ U.S. at ___, 128 S.Ct. at 1537. Justice Ginsburg and Justice Souter dissented from the main opinion, arguing that `Kentucky's protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs.' Baze, ___ U.S. at ___, 128 S.Ct. at 1567 (Ginsburg, J., dissenting). The dissenting Justices recognized, however, that Alabama's procedures, along with procedures used in Missouri, California, and Indiana `provide a degree of assurance — missing from Kentucky's protocol — that the first drug had been properly administered.' Baze, ___ U.S. at ___, 128 S.Ct. at 1571 (Ginsburg, J., dissenting).

"The State argues, and we agree, that Belisle, like the inmates in Baze, cannot meet his burden of demonstrating that Alabama's lethal-injection protocol poses a substantial risk of harm by asserting the mere possibility that something may go wrong. `Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of "objectively intolerable risk of harm" that qualifies as cruel and unusual.' Baze, ___ U.S. at ___, 128 S.Ct. at 1531. Thus, we conclude that Alabama's use of lethal injection as a method of execution does not violate the Eighth Amendment to the United States Constitution."

Ex parte Belisle, 11 So. 3d 323, 338-39 (Ala. 2008). For the reasons set out by the Alabama Supreme Court in Belisle, Doster is due no relief on this claim.

XVI.

Doster next argues that he was denied his right to be present at sentencing because he was not in the courtroom when the circuit court issued its written sentencing order. Specifically, he argues: "Though the court imposed sentence in Mr. Doster's presence, the court's order, which contained findings of fact, conclusions of the court, and its ultimate judgment was issued after Mr. Doster was taken from the courtroom." (Doster's brief, at p. 86.)

Section 13A-5-47(d), Ala. Code 1975, provides:

"Based upon the evidence presented at trial, the evidence presented during the sentence hearing, and the pre-sentence investigation report and any evidence submitted in connection with it, the trial court shall enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, each mitigating circumstance enumerated in Section 13A-5-51, and any additional mitigating circumstances offered pursuant to Section 13A-5-51. The trial court shall also enter written findings of facts summarizing the crime and the defendant's participation in it."

Article I, § 6, Ala. Const. of 1901, provides, in pertinent part, that "in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either." This right is incorporated into Rule 26.7, Ala. R. Crim. P., which states: "The defendant has the right to be present at the sentence hearing and at sentencing." "Sentence" is defined in Rule 26.1, Ala. R. Crim. P., as "the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilty." Doster was present when the circuit court orally pronounced his sentence in open court.

Moreover, § 13A-5-47(d), Ala. Code 1975, contains no provision that the circuit court's formal sentencing order be read in the defendant's presence. In fact, § 13A-5-47(d), specifically provides that the formal sentence order "shall be entered." "Enter" denotes that the order should be filed with the appropriate official — the circuit clerk. Doster was not denied his right to be present at his sentence hearing.

XVII.

Doster argues that the circuit court erred in considering prior convictions set out in the presentence report without requiring the State to prove that he was represented by counsel when he was convicted of those prior charges. The presentence report showed that Doster had two prior felony convictions and eight prior misdemeanor convictions. The State did present evidence before trial indicating that Doster had been represented by counsel in the proceedings that resulted in the two prior felony convictions.

Initially, we note that Doster did not object; therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

Section 13A-5-47(b), Ala. Code 1975, specifically provides that a presentence-investigation report shall be prepared before sentencing. This statute states, in pertinent part:

"Before making the sentence determination, the trial court shall order and receive a written pre-sentence investigation report. The report shall contain the information prescribed by law or court rule for felony cases generally and any additional information specified by the trial court. No part of the report shall be kept confidential, and the parties shall have the right to respond to it and to present evidence to the court about any part of the report which is the subject of factual dispute."

Section 15-22-51(a), Ala. Code 1975, provides:

"When directed by the court, a probation officer shall fully investigate and report to the court in writing the circumstances of the offense, criminal record, social history and present condition of a defendant."

Rule 26.3(b), Ala. R. Crim. P., provides that a presentence report contain the following:

"(1) A statement of the offense and the circumstances surrounding it;

"(2) A statement of the defendant's prior criminal and juvenile record, if any;

"(3) A statement of the defendant's educational background;

"(4) A statement of the defendant's employment background, financial condition, and military record, if any;

"(5) A statement of the defendant's social history, including family relationships, marital status, interests, and activities, residence history, and religious affiliations;

"(6) A statement of the defendant's medical and psychological history, if available;

"(7) Victim Impact Statements; and

"(8) Any other information required by the court."

(Emphasis added.)

In Coral v. State, 628 So. 2d 988 (Ala. Crim. App. 1992), we discussed the admission of the contents of a presentence report and stated:

"`Courts are permitted to consider hearsay testimony at sentencing. . . . While hearsay evidence may be considered in sentencing, due process requires both that the defendant be given an opportunity to refute it and that it bear minimal indicia of reliability. . . .' Kuenzel v. State, 577 So. 2d 474, 528 (Ala. Cr. App. 1990), aff'd, 577 So. 2d 531 (Ala. 1991), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991) (quoting United States v. Giltner, 889 F.2d 1004, 1007 (11th Cir. 1989)). See also Smiley v. State, 435 So. 2d 202 (Ala. Cr. App. 1983).

"Section 13A-5-45 provides, in pertinent part, the following:

"`(c) At the sentence hearing evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to the aggravating and mitigating circumstances referred to in sections 13A-5-49, 13A-5-51 and 13A-5-52. . . .

"`(d) Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. . . ."

"These statutory provisions clearly provide for the admissibility of hearsay evidence during the sentencing stage of a capital defendant's trial, so long as the defendant is given a fair opportunity to rebut it. The record in the instant case shows that the appellant was given ample opportunity to rebut the information contained in the presentence report and that he did object to portions of the report during the sentencing hearing. Thus, we find that the trial court could properly have considered the hearsay in the report."

628 So. 2d at 991-92.

"It is clear to this court that the [presentence] report is entirely consistent with Alabama's capital murder statute regarding evidence to be considered in sentencing. Section 13A-5-45(d), Code states, `[a]ny evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.' Further, the report itself is an out-of-court statement and is entirely hearsay. However, it is admissible under § 13A-5-47 Code of Alabama, being specifically called for consideration by the trial court."

Thompson v. State, 503 So. 2d 871, 880 (Ala. Crim. App. 1986). SeeKuenzel v. State, 577 So. 2d 474, 527 (Ala. Crim. App. 1990) ("The inclusion of the defendant's criminal history in the presentence investigative report was proper."). See also United States v. Ramirez, 271 F.3d 611, 612 (5th Cir. 2001) ("In making factual sentencing determinations, a presentence report is considered reliable and may be considered by the trial judge."); State v. Grimes, 143 Ohio App. 3d 86, 90, 757 N.E.2d 413, 416 (2001) ("In [State v.] Cook, [ 83 Ohio St. 3d 404, 700 N.E.2d 570 (1998),] the Supreme Court held that `reliable hearsay, such as a presentence investigation report, may be relied on by the trial judge.'"); State v. Burdett, 134 Idaho 271, 275, 1 P. 3d 299, 303 (Idaho Ct. App. 2000) ("It is well settled that hearsay information believed to be reliable may be set forth in a presentence report, so long as the defendant is afforded an opportunity to present favorable evidence and to explain or rebut the adverse information."); State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997) ("[T]he Tennessee Criminal Sentencing Reform Act of 1989 contemplates that much of the information contained in a presentence report will be hearsay. However, the information is reliable because it is based upon the presentence officer's research of the records, contact with relevant agencies, and the gathering of information which is required to be included in a presentence report."). CompareUnited States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006)("[The defendant] failed to object to the facts of his prior convictions as contained in his PSI and addendum to the PSI despite several opportunities to do so; thus, he is deemed to have admitted those facts."); United States v. Mueller, 902 F.2d 336, 346 (5th Cir. 1990) ("As [the defendant] presented no relevant affidavits or evidence in rebuttal, the district court was certainly free to adopt the findings of the PSI [presentence investigation] without more specific inquiry or explanation.").

"[S]entencing is different from trial, and the constitutional limitations placed on the latter do not apply to the former. Hearsay may be admitted at sentencing, even in death penalty cases, without violating the Constitution. See Roberts v. United States, 445 U.S. 552 (1980); Williams v. New York, 337 U.S. 241 (1949). To implicate constitutional concerns, the evidence must amount to `misinformation.' See United States v. Tucker, 404 U.S. 443, 446-47 (1972); Townsend v. Burke, 334 U.S. 736, 740-41 (1948). So long as the evidence is reliable and the defendant is provided notice and an opportunity to challenge its reliability, no constitutional violation results from the admission of hearsay at sentencing."

Todd v. Schomig, 283 F.3d 842, 853 (7th Cir. 2002).

Here, Doster was given a copy of the presentence report and the opportunity to challenge any inaccurate portions of that report. Doster made no objections to the now challenged presentence report. Nor does Doster argue on appeal that the criminal history as set in the report was inaccurate or that he was not represented by counsel in the proceedings that resulted in any of his prior convictions detailed in the presentence report. The circuit court complied with the requirements of § 13A-5-47, Ala. Code 1975, by correctly considering the uncontested portions of the presentence report.

XVIII.

Doster next argues that the circuit court's sentencing order contains errors.

A.

First, Doster argues that the circuit court erred in relying on a medical evaluation that was not admitted into evidence at Doster's trial. Specifically, Doster asserts that it was error for the court to rely on a mental evaluation that had been completed by Dr. Karl Kirkland, a psychologist, before Doster was tried. Dr. Kirkland concluded that Doster was competent to stand trial.

In the circuit court's sentencing order, the court stated the following in regard to the statutory mitigating circumstance that the "capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance":

"Most telling to this Court, however, are two psychological evaluations conducted in connection with this trial. First, the Defendant was evaluated by Dr. Karl Kirkland, a clinical and forensic psychologist, on or about May 21, 2003, as ordered by this Court, to determine his competency to stand trial and sanity at the time of the crime. Dr. Kirkland saw the Defendant while he was incarcerated in the Alabama Department of Corrections. He noted in his report which is part of the court record of this matter that DOC psychologists had diagnosed the Defendant with personality disorder and major depression. Dr. Kirkland ultimately rendered a diagnosis of major depression, history of polydrug dependence (heroin and amphetamines), history of marijuana abuse, and history of alcohol on Axis I, and mixed personality disorder with antisocial and borderline features on Axis II. Dr. Kirkland went on to find him competent to stand trial and, most importantly, opined that `[t]here is not a mental disorder present associated with the insanity defense' and that the defendant `does not evidence nor report any symptoms of a mental disorder that would be associated with the inability to experience criminality and wrongfulness.' He also noted that there is `no evidence to suggest psychosis or poor reality contact. . . .'"

(C.R. 3388-89.)

After the circuit court issued its sentencing order, Doster objected to the court's findings in this section of its sentencing order. In his motion, Doster asserted that the court should not have relied on a psychological report by Dr. Kirkland because the report had not been offered into evidence. (C.R. 3436.) In response to this motion, the circuit court issued the following order:

"If counsel for the defense has any evidence contradicting, impeaching, or in rebuttal to the report of Dr. Karl Kirkland as submitted to this Court during the Defendant's competency hearing and as contained in the court file of this matter, counsel for the defense should be prepared to present it to this Court at the said hearing."

(C.R. 3440.) At the hearing on this motion, the following occurred:

"[Prosecutor]: If you take Doctor Kirkland's report and you read his findings and you take Doctor Van Rosen's report and you read his findings and then you look at your order and look at how you relied up on Doctor Kirkland's report, in just about the same breath, every time you mention Doctor Kirkland, you talk about how Doctor Van Rosen came to the same thing.

"Doctor Van Rosen is the one that [the defense] hired with the ex parte application and the funds and it's Doctor Van Rosen's report that was entered into evidence at the hearing before Your Honor.

". . . .

"And, if you were to strike Doctor Kirkland from your order, you are still going to come out with the same thing."

(R. 3050.) After the hearing, the circuit court issued the following order:

"If the Court initially erred in considering the psychological report prepared by Dr. Karl Kirkland, the Court essentially reopens that issue, and has now allowed the defense to bring on evidence `contradicting, impeaching or in rebuttal' of the report this day. The Court has fully considered all defense information in that regard. After having done so, the Court is of the opinion that, at this juncture, the report should not be excluded and that the report itself is now properly before it."

(C.R. 3458.)

Section 13A-5-45(d), Ala. Code 1975, provides:

"Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama."

The United States Supreme Court has stated the following concerning a sentencing hearing:

"[O]nce the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court but may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or `out-of-court' information relative to the circumstances of the crime and to the convicted person's life and characteristics."

Williams v. Oklahoma, 358 U.S. 576, 584 (1959).

The circuit court complied with § 13A-5-45(d), Ala. Code 1975, by considering the contents of Dr. Kirkland's report after giving Doster an opportunity to rebut the contents of that report. Moreover, the conclusions in Dr. Kirkland's report were consistent with the conclusions reached by defense expert Dr. C. Van Rosen. Citing Dr. Van Rosen's report, the circuit court stated: "Dr. Van Rosen received a slightly different history from [Doster] but came to a diagnosis similar to that of Dr. Kirkland." (C.R. 3389.)

B.

Second, Doster argues that the circuit court erred in relying on what he says was inadmissible hearsay testimony that was presented at the sentencing hearing. Specifically, he asserts that the circuit court erred in relying on the hearsay statements of police officers concerning Doster's codefendant's statement to police. At the sentencing hearing before the court, the court allowed Scott Connor, an investigator with the district attorney's office, to testify as to what Phillips told police about the shooting. Phillips said that Doster loaded the gun and gave it to him and that he shot LeMaster and that Doster had wanted to stab the victim. Also, the court allowed Elliot King, a former Covington County Sheriff's investigator, to testify about Doster's second escape from the Covington County jail in April 2005 and the events subsequent to his escape. The record shows that counsel objected to the testimony concerning the codefendant's statements and that the circuit court indicated that he would let them testify and that he would determine later whether he would consider the evidence. Also, in the circuit court's sentencing order, the court stated the following after describing the above evidence: "The Court concludes, however, that the testimony in the preceding paragraph should be excluded, being too speculative in nature with respect to what Doster actually did or did not have to do with [a murder committed after Doster's second escape in 2005]." (C.R. 3375.) The court also noted that it would not consider the contents of the codefendant's statement to police when determining Doster's sentence.

There is no indication that the circuit court relied on the contents of Phillips's statement to Connor or King's testimony when sentencing Doster to death.

XIX.

Doster next argues that the circuit court erred in overriding the jury's unanimous recommendation of life imprisonment without the possibility of parole and sentencing Doster to death. Specifically, Doster argues that in overriding the jury's unanimous recommendation, the circuit court failed to comply with the Supreme Court's decisions in Ex parte Carroll, 852 So. 2d 833 (Ala. 2002), and Ex parte Tomlin, 909 So. 2d 283 (Ala. 2003), because, he argues, the court failed to give due consideration to the fact that Doster was not the triggerman, failed to consider the strength of the unanimous recommendation by the jury, erroneously considered that Doster's record was relevant to his future dangerousness, and relied on erroneous factors to override the jury's recommendation.

Section 13A-5-47(e), Ala. Code 1975, commonly referred to as Alabama's judicial-override statute, states:

"In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or Section 13A-5-46(g). While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court."

In Ex parte Taylor, 808 So. 2d 1215 (Ala. 2001), the Alabama Supreme Court first held that when a circuit court override's a jury's recommendation of life imprisonment without the possibility of parole, the court must set out specific reasons for giving the jury's recommendation the consideration that it gave it.

In Ex parte Carroll, the Supreme Court reviewed a judicial override of a 10 to 2 jury's recommendation of life imprisonment without the possibility of parole. The Supreme Court found that Carroll's lack of a significant criminal history, the recommendation by the victim's family to spare Carroll's life, and the jury's 10 to 2 recommendation "tip[ed] the scales in favor" of a sentence of life imprisonment. The Supreme Court stated the following concerning § 13A-5-47(e), Ala. Code 1975:

"We take this opportunity to further explain the effect of a jury's recommendation of life imprisonment without the possibility of parole. Such a recommendation is to be treated as a mitigating circumstance. The weight to be given that mitigating circumstance should depend upon the number of jurors recommending a sentence of life imprisonment without parole, and also upon the strength of the factual basis for such a recommendation in the form of information known to the jury, such as conflicting evidence concerning the identity of the `triggerman' or a recommendation of leniency by the victim's family; the jury's recommendation may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance.

". . . .

"`Given the jury's recommendation of life imprisonment without parole; the recommendation of the victim's family that the defendant be sentenced to life imprisonment without parole; the fact that the defendant was 17 years old when he committed the crime; and the circumstances of the crime (particularly that the defendant made no attempt to kill the witnesses to the crime), . . . the sentence of death is excessive and disproportionate."

"852 So. 2d at 828 (Houston, J., concurring in part and dissenting in part). Because of Carroll's age at the time of the offense, his lack of a significant criminal history, and the recommendation of the victim's family that he be sentenced to life imprisonment without parole, the jury's 10-2 recommendation that he not be sentenced to death tips the scales in favor of following the jury's recommendation. We therefore reverse the judgment of the Court of Criminal Appeals as to Carroll's sentence and remand the case for that court to instruct the trial court to resentence Carroll following the jury's recommendation of life imprisonment without the possibility of parole."

852 So. 2d at 836-37.

In Ex parte Tomlin, the jury unanimously recommended that Tomlin be sentenced to life imprisonment; the court's only explanation for overriding its recommendation was that Tomlin's codefendant had been convicted of capital murder and sentenced to death. The Alabama Supreme stated:

"`[T]he death penalty should be carried out only after this Court has found it appropriate to do so by independently weighing the aggravating and mitigating circumstances.' Ex parte Hays, 518 So. 2d 768, 780 (Ala. 1986) (opinion on rehearing). Therefore, while the trial court, acting without the guidance offered by Carroll, gave `serious consideration to the unanimous recommendation of the jury for life [imprisonment] without parole,' we are compelled to treat the jury's recommendation as a mitigating circumstance. Indeed, we must give that mitigating circumstance great weight.

"The weight to be given [a jury's recommendation of life imprisonment without the possibility of parole] should depend upon the number of jurors recommending a sentence of life imprisonment without parole.' [ Ex parte] Carroll, 852 So. 2d [833] at 836 [(Ala. 2002)]. In Carroll, we found that a jury's 10-2 vote for a sentence of life imprisonment without the possibility of parole demonstrated `overwhelming support' of such a sentence. 852 So. 2d at 837. Therefore, it is only logical to conclude that a unanimous recommendation like the one here provides even more `overwhelming support' of such a sentence and, therefore, must be afforded great weight.

". . . .

"[T]he jury's recommendation [of life imprisonment without the possibility of parole] may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance.' Carroll, 852 So. 2d at 836. Here, the trial court overrode the jury's recommendation, because `[t]he other perpetrator in this crime, John Ronald Daniels, was convicted of the capital offense of first degree murder of the same two people and [was] sentenced to death.' Although the jury was not aware of Daniels's sentence, his sentence cannot properly be used to undermine a mitigating circumstance."

909 So. 2d at 286-87.

In order to address Doster's issues regarding the judicial override of the jury's recommendation, we quote extensively from the circuit court's thorough sentencing order. In choosing to override the jury's recommendation and sentence Doster to death, the court stated:

"[T]he jury, following the sentencing phase of the trial, returned a 12-0 verdict recommending that the defendant be sentenced to life imprisonment without parole. Although such a verdict is advisory for this Court and not controlling, the Alabama Supreme Court has mandated the following:

"`Such a recommendation is to be treated as a mitigating circumstance. The weight to be given that mitigating circumstance should depend on the number of jurors recommending a sentence of life imprisonment without parole, and also upon the strength of the factual basis for such a recommendation in the form of information known to the jury, such as conflicting evidence of the identity of the "triggerman" or a recommendation of leniency by the victim's family; the jury's recommendation may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance.'

" Ex parte Carroll, 852 So. 2d 833 (Ala. 2002).

"In any event, there are factors that distinguish this case from those that arose in Carroll. For instance, the victim's family in this case has not recommended leniency. Though a family member did not testify at sentencing, the victim's girlfriend did testify at the initial sentencing phase and did anything but recommend leniency for [Doster]. There is also no dispute here that [Doster], though not the triggerman, played a major role in the victim's death. There are also additional factors that posture this case in such a fashion that judicial override would not conflict with the mandates of Carroll.

"First of all, this Court, in compliance with Carroll, gives the jury's recommendation its proper weight according to the Carroll line of cases, fully recognizing the importance of this non-statutory mitigating circumstance, especially given the number of jurors recommending life without parole. Such a vote often `tips the scales in favor of following the jury's recommendation.' 852 So. 2d at 837. That fact, however, does not prohibit this Court from overriding the jury's verdict, even if unanimous, in an appropriate case. See, e.g., Ex parte Jackson, 836 So. 2d 979 (Ala. 2002), cert. denied, 537 U.S. 1031 (2002) (detailed opinion overriding jury's 12-0 recommendation of life without parole affirmed.) In other words, it is still this Court's duty, ultimately, to consider how the aggravating circumstances and the mitigating circumstances `shake out' when considered together.

"Initially, therefore, this Court makes two points absolutely clear: (1) there are factors in this case that the jury was not privy to in reaching its verdict; and (2) there are factors that this Court believes `could have affected "the strength of the factual basis" for the jury's recommendation that [the defendant] be sentenced to life imprisonment without parole. . . .'" Martin v. State, 931 So. 2d 774 (Ala. Crim. App. 2005).

"a) Factors not known to the jury

"There are several factors that the jury did not have before it that this Court feels would have impacted their verdict. First and foremost, the jury did not have before it the extent of [the defendant's] prior criminal history. As the trial court in Martin noted:

"`. . . this Court had the benefit of reviewing a pre-sentence report before sentencing Martin to death. The jury is in no position to ask for a pre-sentence report to be prepared for [it] prior to fixing [its] recommended punishment. It may well be stretching credulity to assume that a jury, composed of jurors who may be hearing their first criminal case, is in a position to properly weigh the aggravating [circumstances] and mitigating circumstances in arriving at [its] ultimate recommendation.'

" 931 So. 2d at 781-82. This Court has previously commented on the lengthy criminal history that [Doster] possessed. Had the jury been privy to this information, and had they been able to deal with it fairly and without undue prejudice to [Doster], it is highly likely that there would have been greater weight placed on the three aggravating circumstances that were found by the jury. For example, the jury may well have reacted differently in the sentencing phase had they known that Doster was incarcerated for child sexual abuse when he first escaped, because, as stated earlier, such a conviction recognizes a serious risk of recidivism and the need for life-long registration. It may well be that such things would have mattered to the jury, and, likewise, the jury may well have reacted differently in the sentencing phase if they had known Doster had previously committed other crimes of violence and other property crimes.

"Doster's criminal history would likewise tend to decrease the weight the jury may have placed on the mitigating factor of the defendant's alcohol and substance abuse problems, and on the mitigating factor of his troubled youth. Without knowledge of his criminal history, one might be led to believe that his history of substance abuse and other problems led him down a truly uncharacteristic path that culminated in criminal behavior in this case. Yet, in examining his criminal history, one sees a man who, substance abuse problems or not, persists in behaving criminally.

"Additionally, the jury did not have before it the fact that [Doster] escaped from the Covington County jail on a subsequent occasion and that he had pleaded guilty to this offense. A large part of the defense's testimony at the sentencing hearing before the jury involved the defendant's love for his children. This was very emotional testimony. Similarly, the jury heard tapes during the trial of interviews with the defendant during which he would cry when he discussed his love for his boys. To the contrary, the testimony of Chief Deputy Walter Inabinett at the third phase of this trial relating statements made by [Doster] regarding the 2005 escape indicates that [Doster] had no intentions of returning to his children or rendering any future support for them. [Doster], at that time, as he did in the underlying case, simply escaped from custody and ultimately left the state with the intent of never returning.

"Finally, the jury did not have before it evidence of [Doster's] future dangerousness. As argued by the State at the sentencing phase before this Court, future dangerousness is a proper consideration in a capital sentencing scheme. Indeed, future dangerousness is `a subject of inestimable concern at the penalty phase of a capital trial.' McGriff v. State, 908 So. 2d 961, 1013 (Ala. Crim. App. 2001), rev'd on other grounds, 908 So. 2d 1024. Evidence of a defendant's `future dangerousness' is a `valid sentencing factor' in a capital case and is thus `relevant and admissible at the penalty phase of the capital trial.' Supra at 1014. See also, Arthur v. State, 575 So. 2d 1165 (Ala. Crim. App. 1990), cert. denied, 575 So. 2d 1191 (Ala. 1991).

"Evidence of such future dangerousness is exhibited in [Doster's] criminal history as contained in the pre-sentence report, his behavior in the underlying cause, and in his subsequent escape. This Court firmly believes that the defendant continues to be a serious escape risk, even now. In the underlying case, he killed in order to stay free. He ought not have the opportunity to go to that extreme again, especially in light of his conviction in this matter. This Court believes that, had the jury been privy to all the information relating to future dangerousness, it would have impacted their decision making.

"The foregoing militates against allowing the great weight of the jury's mitigating verdict to overcome the three very real aggravating factors that exist in this proceeding. Indeed, had all the above facts been known to the jury at the time of their deliberations as to sentence, it would have likely increased the weight that they themselves placed on the aggravating circumstances and decreased the weight that they placed on the mitigating circumstances.

"b) Additional factors affecting the strength of the factual basis for the jury's recommendation

"There are also additional factors that should be taken into consideration in giving the jury's recommendation its proper weight, specifically the jury's emotionalism and the brevity of their deliberations. When the verdict was read in open court following the guilt phase of the trial, [Doster's] family became visibly emotional. Simultaneously, this Court observed several jurors become emotional as well in reaction to the impact of the guilty verdict. As required by § 13A-5-45(a), the sentencing phase before the jury was conducted `as soon as practicable after [Doster] [was] convicted.' Thus, after a short recess, the Court required the parties to proceed with arguments and evidence pertaining to sentence. During such hearing, the defense put [Doster's] mother on the stand, who was so emotional that she had difficulty speaking. During the course of her testimony, she asked the jury to spare her son's life. Following closing arguments, the jury deliberated for only a few minutes before returning their verdict.

"In Ex parte Taylor, 808 So. 2d 1215 (Ala. 2001), cert. denied, 534 U.S. 1086 (2002), the Alabama Supreme Court upheld a trial judge's override of a jury's recommendation of life imprisonment without parole. In that case, the trial judge noted the following:

"`[W]hile the jurors in this case, were cooperative, harmonious, diligent, and attentive, some jurors' outbursts of emotion after they found the defendant guilty of capital murder indicated that they were overwhelmed by their impending duty to consider the death penalty as required by law.'

" 808 So. 2d at 1219. This Court has observed much the same in this matter.

"Based on these things, this Court finds that the jury's verdict was overly impacted by the emotionalism present in the courtroom environment during the sentencing hearing. The brevity of their deliberation in the face of three strong aggravating circumstances, the nonexistence of any statutory mitigating circumstances, and the weakness of the various nonstatutory mitigating circumstances (other than the jury verdict itself) lead this Court to view the jury verdict favoring life [imprisonment] without parole as not absolutely controlling. The Court further finds that, in the weighing of this case, it should not accept the jury recommendation.

"In summary, this Court has found that three aggravating circumstances were established by the evidence, beyond a reasonable doubt. Those have been compared to and weighed against: the absence of any statutory mitigating circumstances; and the existence of seven nonstatutory mitigating circumstances (including the jury's unanimous verdict recommending that the defendant be sentenced to life imprisonment without parole). Each aggravating circumstance and mitigating circumstance is discussed at length in the previous pages and will not be reiterated here, except to add that, in the judgment of this Court, none of the mitigating circumstances, individually or collectively, are entitled to substantial weight, especially when considered in relation to the nature of this crime, with the exception of one: the jury's verdict and vote count. Regardless, this Court finds that even the strong weight that should be so given to that mitigating factor has been overcome, for various reasons, as set out previously.

"Accordingly, after careful and deliberate consideration of all circumstances, this Court is convinced beyond a reasonable doubt that the aggravating circumstances substantially overbear the mitigating circumstances, including the jury verdict. This conclusion is based on all the prior content and reasoning of this entire decision, as set forth in the preceding pages.

"This Court does not relish its role of having to overrule the jury's verdict, but it is a responsibility placed on the Court by Alabama law. As stated in Harris v. Alabama, 513 U.S. 504 (1995):

"`The Constitution permits the trial judge, acting alone, to impose a capital sentence. It is thus not offended when a State further requires the sentencing judge to consider a jury's recommendation and trusts the judge to give it the proper weight.'

" 513 U.S. at 515. The Alabama Legislature, in enacting the capital murder statutes, has taken this position and has put the burden of making this decision on the shoulders of this Court. As another trial judge once noted and as the Alabama Court of Criminal Appeals has quoted:

"`This Court has no doubt that juries conscientiously attempt to balance [the aggravating and mitigating circumstances], but it was recognized by the Legislature from the beginning that this final decision should be in the hands of an experienced jurist and not a jury who may be sitting for the first time.'

" Martin v. State, 931 So. 2d 774, 781-82 (Ala. Crim. App. 2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2890, 165 L.Ed.2d 921 (2006). This judge has sworn an oath to uphold the law of this State, and this is a duty the Court does not take lightly.

"The United States Supreme Court has recognized that `certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.' Gregg v. Georgia, 428 U.S. 153 (1976). The undersigned notes that multiple defendants have been sentenced to death for committing only one of the capital offenses that this defendant has been convicted of. See, e.g., Hodges v. State, 856 So. 2d 875 (Ala. Crim. App. 2001), aff'd, 856 So. 2d 936 (2003), cert. denied, 540 U.S. 986 (2003) (intentional murder committed during a robbery); James v. State, 788 So. 2d 185 (Ala. Crim. App. 2000), cert. denied, 532 U.S. 1040 (2001) (intentional murder committed during a burglary); Hardy v. State, 804 So. 2d 247 (Ala. Crim. App. 1999), aff'd, 804 So. 2d 298 (Ala. 2000), cert. denied, 534 U.S. 1043 (2001) (intentional murder committed during a robbery); Neal v. State, 731 So. 2d 609 (Ala. Crim. App. 1997), aff'd, 731 So. 2d 621 (Ala.), cert. denied, 527 U.S. 1027 (1999) (murder committed during a burglary). Comparisons to such cases indicate that death is the appropriate sentence herein, and that same is not disproportionate or excessive.

"In the judgment of this Court, it has ample justification to override the jury's verdict and hereby does so."

(C.R. 3401-10.)

A.

First, Doster argues that the circuit court failed to give due consideration to the fact that Doster was not the triggerman. In the circuit court's sentencing order, the court found that Doster's role as the nontriggerman was a nonstatutory mitigating circumstance, and the court gave this circumstance little weight. (C.R. 3401.) We have repeatedly held that a nontriggerman may be convicted of capital murder and sentenced to death. See Killingsworth v. State, [Ms. CR-06-0854, November 13, 2009] ___ So. 3d ___ (Ala. Crim. App. 2009); Sneed v. State, 1 So. 3d 104 (Ala. Crim. App. 2007); Gamble v. State, 791 So. 2d 409 (Ala. Crim. App. 2000); Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991); Womack v. State, 435 So. 2d 754 (Ala. Crim. App. 1983).

Here, the circuit court made detailed findings concerning Doster's participation in the murder, and it found that Doster's participation was not minor even though he was not the triggerman. "Of course, the weight to attach to this nonstatutory mitigating circumstance is within the discretion of the trial court."Hodges v. State, 856 So. 2d 875, 893 (Ala. Crim. App. 2001).

B.

Second, Doster asserts that the court failed to give the jury's unanimous verdict sufficient weight.

The court found that the jury's advisory verdict was a nonstatutory mitigating circumstance that was entitled to great weight. It is clear upon reading the sentencing order that the circuit court scrupulously complied with the Supreme Court's directions in Ex parte Carroll and Ex parte Tomlin.

The Alabama Supreme Court has not held that a circuit court may never override a unanimous jury recommendation of life imprisonment without the possibility of parole. In fact, in Ex parte Jackson, 836 So. 2d 979 (Ala. 2002), the Supreme Court upheld a judicial override of a jury's unanimous recommendation for life imprisonment without the possibility of parole and stated:

"In this case, before determining the sentence, the trial court considered all the available evidence; heard arguments on aggravating circumstances and mitigating circumstances; entered written findings of fact summarizing the offense and Jackson's participation in it; made specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, each mitigating circumstance enumerated in § 13A-5-51, and any additional mitigating circumstance offered pursuant to § 13A-5-52; weighed the advisory verdict of the jury; considered and weighed the presentence-investigation report; considered and independently weighed the mitigating circumstances and the aggravating circumstances; and stated specific reasons for giving the jury's recommendation the consideration it gave the recommendation, see Ex parte Taylor[,808 So. 2d 1215 (Ala. 2001)]. After following this procedure, the trial court concluded that the aggravating circumstances outweighed the mitigating circumstance and imposed the death penalty, overriding the jury's recommendation.

"We commend the trial court for its thorough sentencing order and especially for its explanation for its override of the jury recommendation. The trial court found two statutory aggravating circumstances: (1) that the capital offense was committed while Jackson was engaged in a robbery or an attempted robbery, and (2) that the capital offense was committed by a person under sentence of imprisonment. The trial court found one statutory mitigating circumstance: that Jackson was 18 years old at the time of the offense. It is evident from the trial court's sentencing order that it independently weighed the aggravating circumstances and the mitigating circumstance. Additionally, the trial court provided a detailed analysis of its consideration of the jury's recommendation of a sentence of life imprisonment without the possibility of parole and the reasons it rejected that recommendation and sentenced Jackson to death. There is no evidence in the record before us indicating that bias, passion, or prejudice were factors in the trial court's imposing the death sentence."

836 So. 2d at 990.

Here, the circuit court properly found that the jury's recommendation of life imprisonment without the possibility of parole was a mitigating circumstance that, based on the fact that the recommendation was unanimous was entitled to great weight. The court stated that it felt compelled to override the jury's recommendation based on evidence that the jury was not privy to in reaching its recommendation. First, the circuit court noted that the court had access to Doster's extensive criminal record. The court then noted that the jury was never informed what offense that Doster was convicted of and was serving his sentence for when he escaped from the Covington County jail, nor was the jury informed that Doster escaped a second time in 2005. The court then found that the jury was very emotional during sentencing, that Doster's mother cried when she testified, that the court noticed that jurors were visibly upset, and that the jurors deliberated for only a few minutes after Doster's mother begged them to spare her son's life.

Doster had prior felony convictions for sexual abuse in the first degree and for receiving stolen property in the first degree. He had prior misdemeanor convictions for harassment, menacing, disorderly conduct, driving under the influence, criminal mischief, assault in the third degree, and criminal trespass which, the court said, spanned an eight-year period. The court also noted that it could consider the 16 convictions connected to this case because he was convicted and sentenced for those convictions before the sentencing hearing in this case. See Ex parte McWilliams, 640 So. 2d 1015, 1023 (Ala. 1993) ("`As used in sections 13A-5-49(2) [aggravating circumstances] and 13A-5-51(1) [mitigating circumstances], these terms refer to events occurring before the date of the sentence hearing.'").

After reviewing the circuit court's very thorough order, it is clear that the circuit court meticulously complied with Alabama Supreme Court law when overriding the jury's recommendation. Our review of the record also convinces this Court that although Doster was not the man who fired the fatal shot he was a major participant in the events leading to LeMaster's death and even lead Phillips to the site of the murder. The circuit court's conclusions and findings negated the application of the mitigating circumstances that Doster had no significant history of prior criminal activity and that Doster was an accomplice and that his participation was relatively minor — §§ 13A-5-51(1) and 13A-5-51(4), Ala. Code 1975. The Supreme Court has held that these are valid considerations when overriding a jury's recommendation of life imprisonment without the possibility of parole. See Tomlin. Also, we are not presented with a situation like Carroll where the court overrode a jury's 10-2 recommendation for life imprisonment and the defendant had no significant criminal history and the victim's family requested leniency. Nor is this case similar to the facts presented in Tomlin where the circuit court's only explanation for overriding the jury's unanimous recommendation for life imprisonment was that the defendant's codefendant had been sentenced to death. "We commend the trial court for its thorough sentencing order and especially for its explanation for its override of the jury recommendation," Jackson, 836 So. 2d at 990, and find no valid legal basis to disturb the court's override of the jury's recommendation in this case.

C.

Doster next asserts that the circuit court erred in finding that his criminal history was relevant to his future dangerousness.

However, in McGriff v. State, 908 So. 2d 961 (Ala. Crim. App. 2000), rev'd on other grounds, 908 So. 2d 1024 (Ala. 2004), we noted that evidence indicating future dangerousness was relevant and admissible in Alabama pursuant to § 13A-5-45(d), Ala. Code 1975. This section states:

"Any evidence which has probative value and is relevant to sentence shall be received at the sentencing hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama."

See Simmons v. South Carolina, 512 U.S. 154, 162 (1994) ("This Court has approved the jury's consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant's future dangerousness bears on all sentencing determinations made in our criminal justice system."). The circuit court correctly considered Doster's future dangerousness.

D.

Doster next argues that the court erred in stating that the jury's emotionalism and its brevity in reaching a verdict in the penalty phase were valid considerations.

However, the Alabama Supreme Court in Ex parte Taylor, specifically held that it is a valid consideration to consider the emotionalism of the jury when overriding a jury's recommendation. 808 So. 2d at 1219.

XX.

Last, as required by § 13A-5-53, Ala. Code 1975, we address the propriety of Doster's capital-murder conviction and sentence of death.

Doster was convicted of murdering LeMaster during the course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975; during the course of a burglary, see § 13A-5-40(a)(4), Ala. Code 1975; and by shooting LeMaster while LeMaster was inside a dwelling, see § 13A-5-40(a)(16), Ala. Code 1975.

The record shows that Doster's sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. See § 13A-5-53(b)(1), Ala. Code 1975.

The circuit court found that the aggravating circumstances outweighed the mitigating circumstances. The court found three aggravating circumstances. First, the court found that the murder was committed while Doster was under a sentence of imprisonment for his conviction for sexual abuse in the first degree, § 13A-5-49(1), Ala. Code 1975. Second, the court found that the murder was committed during the course of a robbery, § 13A-5-49(4), Ala. Code 1975. Third, the court found that the murder was committed during the course of a burglary, § 13A-5-49(4), Ala. Code 1975.

This Court has held that: "If the actions committed during the course of the murder support the finding that more than one of the enumerated underlying felonies was committed, then a trial court may apply § 13A-5-49(4) more than once." Hodges v. State, 856 So. 2d 875, 889 (Ala. Crim. App. 2001).

The court found no statutory mitigating circumstances. In accordance with § 13A-5-52, Ala. Code 1975, the court found the following nonstatutory mitigating circumstances: that Doster had a history of substance abuse and addiction, that Doster had mental-health issues that included his struggle with depression and his antisocial behavior, that Doster had had a troubled youth, that Doster was willing to take responsibility for his property crimes, that Doster was a good father to his two young boys, that Doster was not the triggerman, and that the jury's advisory recommendation was life imprisonment without the possibility of parole. The circuit court weighed the aggravating circumstances against the mitigating circumstances and determined that the aggravating circumstances outweighed the mitigating circumstances and sentenced Doster to death.

Section 13A-5-53(b)(2), Ala. Code 1975, requires that this Court independently weigh the aggravating and the mitigating circumstances. After an independent weighing we agree that the death penalty was the appropriate sentence in this case. See § 13A-5-53(b)(2), Ala. Code 1975.

Section 13A-5-53(b)(3), Ala. Code 1975, requires that we determine whether Doster's sentence is disproportionate or excessive to penalties imposed in similar cases. Doster's sentence is neither. "In fact, two-thirds of the death sentences imposed in Alabama involve cases of robbery/murder." McWhorter v. State, 781 So. 2d 257, 330 (Ala. Crim. App. 1999). See also Walker v. State, 932 So. 2d 140 (Ala. Crim. App. 2004) (burglary/murder).

Finally, as required by Rule 45A, Ala. R. App. P., we have searched the record for any error that may have adversely affected Doster's substantial rights and have found none.

For the foregoing reasons, Doster's convictions for capital murder and his sentences of death are due to be, and are hereby, affirmed.

AFFIRMED.

Welch, Windom, and Kellum, JJ., concur. Main, J., concurs in the result.

ted "driving" on the shoulder is irrelevant. Since it is readily apparent that the purpose of Neb. Rev. Stat. § 60-6,142 is to prevent drivers from using the shoulder as a thoroughfare or primary travel area and Deputy Peterson is obligated to understand this law, it is simply unreasonable for him to believe that briefly crossing onto the shoulder violated Neb. Rev. Stat. § 60-6,142. As a result, Deputy Peterson could not have had an objectively reasonable belief that the defendant violated § 60-6,142. Therefore, the court finds that Deputy Peterson did not have probable cause to pull the defendant's vehicle over for violating Neb. Rev. Stat. § 60-6,142 and adopts the F R of the magistrate judge in this regard.

But see United States v. Gutierrez , 2008 WL 2415300, at *4, 5 (D. Neb. June 12, 2008) (stating "[t]he other conduct observed by [the officer], specifically driving over the center line and driving onto the shoulder of the road are also violations of Nebraska statute" and finding that the officer "had an objectively reasonable basis for believing the [vehicle] was in violation of Nebraska statutes and had breached any of three different traffic laws"); United States v. Heir , 107 F. Supp. 2d 1088, 1094 (D. Neb. 2000) (stating "[d]riving the vehicle onto the shoulder area and following another vehicle by less than two seconds provided the basis for [the officer] to stop the defendant, pursuant to NEB.REV.STAT.ANN § 60-6, 140 and 142" because "[s]uch moving violations provide probable cause for a traffic stop") (sic).

II. Impaired Driver

The government argues that even if Deputy Peterson did not have probable cause to believe the defendant violated Neb. Rev. Stat. § 60-6,142, the circumstances presented Deputy Peterson with a reasonable suspicion that an impaired driver was operating the vehicle, sufficient to justify the traffic stop. The court finds that the traffic stop was not justified. Deputy Peterson did not have a reasonable suspicion that an impaired driver was operating the defendant's vehicle.

A police officer may stop a moving vehicle, even if he or she lacks probable cause, "to investigate a reasonable suspicion that its occupants are involved in criminal activity." United States v. Winters , 491 F.3d 918, 921 (8th Cir. 2007) (quoting United States v. Hensley , 469 U.S. 221, 226 (1985)). "Reasonable suspicion must be based on `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the investigative stop'." United States v. Long , 532 F.3d 791, 795 (8th Cir. 2008) (quoting Winters , 491 F.3d at 921). Reasonable suspicion is "less difficult to meet than the probable cause standard." Long , 532 F.3d at 795. It requires more than a hunch, but not more than a minimal, articulable, and objective justification for the investigatory stop. Id.

The court finds there was no objective evidence suggesting the driver of the defendant's vehicle was an impaired driver. First, a fair distance separated the two instances the vehicle crossed onto the shoulder. Second, each time, the vehicle was only on the shoulder for about one second. Third, of the two times the vehicle touched the shoulder, one was at the Interstate 680/80 junction, a location Deputy Peterson knew confused drivers. Finally, the defendant did not engage in any irregular driving other than the two instances already mentioned, including during the mile and a half Deputy Peterson followed the defendant after observing the last incident and before Deputy Peterson finally activated his lights. Although there is some authority from the Eighth Circuit suggesting crossing onto the shoulder may lead to a reasonable suspicion regarding the driver's ability to operate a vehicle, taken together, the circumstances do not present an objective belief of an impaired driver.

See United States v. Long , 532 F.3d 791, 794-795 (8th Cir. 2008) (finding reasonable suspicion when vehicle crossed center line and shoulder) (emphasis added); United States v. Mallari , 334 F.3d 765, 766, 767 (8th Cir. 2003) (finding reasonable suspicion when vehicle without rear license plate illuminated drove onto shoulder three times) (emphasis added).

Additionally, the court finds significant the fact that the government only first argued that reasonable suspicion of an impaired driver was justification for the stop at the end of the defendant's motion to suppress hearing. See Filing No. 28, Pl.'s Br. in Opp'n to Mot. to Suppress; Filing No. 34, Tr. 50:18-23. The government only did so after the defendant's attorney asked Deputy Peterson on cross-examination a leading question suggesting that impairment may have also been a justification for the traffic stop. Tr. 38:13-18. Deputy Peterson did not testify as to the alleged impairment until cross-examination. Even though Deputy Peterson asked the defendant whether he was "ok to drive," the circumstances of this case suggest the possibility of an impaired driver was simply the government's post-hoc rationalization brought about only because the defense brought its possibility to the government's attention. III. Consent to Search

The magistrate judge's F R suggests the same result. The Honorable Thomas D. Thalken, former United States Deputy Attorney General, found that Deputy Peterson did not have an objectively reasonable belief that the defendant was impaired because the objective circumstances should have presented Deputy Peterson a suspicion of a confused driver, not an impaired one. Filing No. 35 at 7. Even though the magistrate judge did not expressly state it in his F R, it is easy to infer that he addressed the impaired driver issue so quickly because he found Deputy Peterson was not a credible witness. The magistrate judge is the best judge of credibility, because he is the one who heard and saw Deputy Peterson testify.

Because Deputy Peterson did not have probable cause or reasonable suspicion to stop the defendant's vehicle, the evidence obtained as a result of that illegal traffic stop is considered inadmissible "fruit" of that illegal stop unless means sufficiently distinguishable from the illegal activity allowed him to obtain the evidence and, therefore, purge the primary taint. United States v. Yousif , 308 F.3d 820, 829-30 (8th Cir. 2002) (citing Wong Sun v. United States , 371 U.S. 471, 484-85, 488 (1963)). This result is required by the exclusionary rule, the primary purpose of which is to deter future unlawful police conduct and remove the incentive to disregard an individual's constitutional rights. Michigan v. Tucker , 417 U.S. 433, 447 (1974) (quotation omitted). "The controlling question is `whether granting establishment of the primary illegality, the evidence which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Yousif , 308 F.3d at 829 (quoting Wong Sun , 371 U.S. at 488).

The magistrate judge, discussing the issue of consent for this court's benefit in case this court decided the initial traffic stop was lawful, found that the defendant consented voluntarily to Deputy Peterson searching the vehicle. Filing No. 35 at 10. The magistrate judge then discussed this issue with regard to whether the search exceeded the scope of the defendant's consent. In its objection to the magistrate judge's F R, the government argues that even if there was no probable cause or reasonable suspicion to stop the defendant's vehicle, the defendant gave consent sufficient to break the nexus between the illegal stop and the resulting seizure of evidence. This court, however, finds that the defendant's consent to search was not sufficient to purge the taint of the initial illegal traffic stop.

A voluntary and consensual search does not violate an individual's Fourth Amendment rights. United States v. Meza-Gonzalez , 394 F.3d 587, 592 (8th Cir. 2005). A court may find that a consent is voluntary if it is "the product of an essentially free and unconstrained choice by its maker, rather than the product of duress or coercion, express or implied." United States v. Griffith , 533 F.3d 979, 984 (8th Cir. 2008) (internal quotation omitted). "Voluntariness is a question of fact to be determined from all the circumstances,' not just by focusing on a single statement made by the officer." United States v. Moreno , 280 F.3d 898, 900 (8th Cir. 2002) (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 231 (1973)). Circumstances the court must consider include the details of the interrogation and the characteristics of the accused. Griffith , 533 F.3d at 984.

Relevant details of the interrogation may include: (1) the length of the detention; (2) whether the police threatened, physically intimidated, or punished the defendant; (3) whether the defendant consented while in custody; (4) whether the defendant relied upon misrepresentations the police made; (5) whether the defendant was in a public or secluded place; and (6) whether the defendant objected or stood by silently while the search occurred. Id. at 984. Relevant details of the defendant may include: (1) the defendant's age and/or education; (2) whether the defendant was intoxicated; and (3) whether the defendant consented after being informed of his or her right to withhold consent. Griffith , 533 F.3d at 984. A court does not apply these factors mechanically. Id. Instead, they serve as a guide to the court's analysis. Id.

Voluntary consent purges the primary taint of an illegal stop if it was "sufficiently an act of free will." Moreno , 280 F.3d at 900 (quoting United States v. Ramos , 42 F.3d 1160, 1164 (8th Cir. 1994), cert. denied, 541 U.S. (1995)). However, "[V]oluntary consent to search, which was preceded by an illegal police action does not automatically purge the taint of an illegal [seizure]." United States v. Alvarez-Manzo , 570 F.3d 1070, 1077 (8th Cir. 2009) (internal quotation omitted) (alterations in original). The Supreme Court provided three factors for courts to consider to determine if consent is sufficiently an act of free will so that it purges the primary taint of an illegal stop: (1) the temporal proximity of the illegality and the consent; (2) the purpose and flagrancy of the official misconduct; and (3) the presence of intervening circumstances. Moreno , 280 F.3d at 900 (citing Brown v. Illinois , 422 US 590, 603-04 (1975); United States v. Tovar , 687 F.2d 1210, 1215 (8th Cir. 1982)); Yousif , 308 F.3d at 830.

Consent is less likely to purge the taint of misconduct the closer in time it occurs relative to the initial misconduct. Compare Brown 422 U.S. at 604 (taint not purged with two-hour gap), with Hale v. Henderson , 485 F.2d 266, 267-69 (6th Cir. 1973) (taint purged with two-day gap), cert. denied , 415 U.S. 930 (1974), and United States v. Owen , 492 F.2d 1100, 1108 (10th Cir. 1974) (taint purged after four-day gap), cert. denied , 419 U.S. 965 (1974). The defendant gave the alleged voluntary consent only 20 minutes after the illegal stop. This length of time is not sufficient to purge the primary taint. See Brown , 422 U.S. at 604.

Deputy Peterson stopped the defendant's vehicle despite having no legal justification to do so. As Deputy Peterson testified, he followed the defendant's vehicle because it had out-of-state license plates. He witnessed the defendant's vehicle cross over onto the shoulder of the highway on two occasions, separated by a fair distance, the later of which occurred at a location where he knew drivers often got confused. After one and a half miles and the defendant "follow[ing] every traffic law requirement," Tr. 31:19-25, 32: 3-6, Deputy Peterson finally decided to activate his lights and pull over the defendant's vehicle. No more than 15 minutes into his encounter with the defendant, he believed there were drugs in the vehicle.

An officer advising a defendant of his or her right to refuse consent to search before a search takes place is usually an intervening circumstance that supports the voluntariness of a defendant's consent. See Moreno, 280 F.3d at 901. However, this is the case only if the officer advises the defendant of his or her right to refuse consent before the defendant consents to the search. See Griffith , 533 F.3d at 984 (advice of right to refuse consent prior to defendant's consent supports voluntariness). Here, the defendant consented to the search before he was informed of his right to withhold consent.

Looking to all of the circumstances, the court finds that the defendant's consent was not sufficient to purge the taint resulting from the initial illegal traffic stop. The defendant was secluded in a police cruiser after the police pulled him over for an invalid reason and then began asking him incriminating questions. This is an inherently coercive situation. Additionally, the defendant consented to the search only 20 minutes after the police pulled him over for an invalid reason and before he was advised of his right to refuse consent. Accordingly, the defendant's motion to suppress is granted and evidence obtained from the traffic stop and subsequent search is suppressed.

THEREFORE, IT IS ORDERED:

1. The government's objection to the magistrate judge's F R, Filing No. 36, is overruled as set forth herein;

2. The defendant's motion to suppress, Filing No. 25, is granted as set forth herein; and

3. The F R of the magistrate judge, Filing No. 35, is adopted in part and rejected in part.

[*] This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA UNITED STATES OF AMERICA, ) ) Plaintiff, ) 8:00CR61 ) vs. ) ORDER ) DARYL GRAUMANN, ) and TROY E. MARTIN, ) ) Defendants. ) Before the court is filing no. 34, the "Report and Recommendation" of Magistrate Judge Thomas D. Thalken. In his Report and Recommendation, Magistrate Judge Thalken recommends that this court grant the two motions to supress (filing nos. 17 and 21) filed by the defendants, Daryl Graumann and Troy E. Martin. The government has filed a Statement of Objection (filing no. 35) to Magistrate Judge Thalken's Report and Recommendation (filing no. 34). Accordingly, the court has conducted an independent and de novo review of the record concerning Magistrate Judge Thalken's Report and Recommendation (filing no. 34), including the transcript (filing no. 33) and accompanying exhibits related to the hearing held by Magistrate Judge Thalken on May 3, 2000 on the defendants' motions to suppress (filing nos. 17 and 21). See 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.

BACKGROUND

On February 4, 2000, Trooper Danny Covert of the Nebraska State Patrol was on duty and traveling east on Interstate 80. (filing no. 33 at 11:5-22) While driving east, Trooper Covert observed that he was overtaking a recreational vehicle also headed East on Interstate 80. (filing no. 33 at 47: 15-19) When the recreational vehicle was approximately 70 yards ahead of Trooper Covert's cruiser, Trooper Covert observed the recreational vehicle momentarily drift approximately one foot onto the south shoulder of Interstate 80. (filing no. 33 at 41: 16-21; 58: 13-17) Believing that the driver of the recreational vehicle had violated Neb. Rev. Stat. § 60-6,142 which prohibits vehicles from driving on the shoulder of a highway, Trooper Covert pulled over the recreational vehicle. (filing no. 33 at 36: 8-11; 37: 21-25; 84:14-22) During the traffic stop, Trooper Covert discovered a large quantity of marijuana located in the recreational vehicle.

The Nebraska Rules of the Road define "shoulder" as "that part of the highway contiguous to the roadway and designed for the accommodation of stopped vehicles, for emergency use, and for lateral support of the base and surface courses of the roadway." Neb. Rev. Stat. § 60-661.

Each of the defendants subsequently moved to suppress all evidence obtained by the government during, and as a result of, the traffic stop. In their motions to suppress (filing nos. 17 and 21), the defendants contended that Trooper Covert did not have probable cause to pull over their recreational vehicle, because a vehicle's momentarily crossing the line separating the highway from its shoulder is not a violation of the Nebraska Rules of the Road, Neb. Rev. Stat. §§ 60-601 — 6,374 (1999). After an evidentiary hearing on the defendants' motions to suppress (filing nos. 17 and 21), Magistrate Judge Thalken filed his Report and Recommendation in which he recommended that "Graumann's motion to suppress (Filing no. 17) and Martin's motion to suppress (Filing no. 21) be granted." (filing no. 34 at 5) In recommending that the court grant the defendants' motions to suppress (filing nos. 17 and 21), Magistrate Judge Thalken stated that "[w]hile driving on the shoulder of a highway is a violation of Nebraska Revised Statute § 60-6,142, briefly crossing over a white line onto the shoulder area, without more, does not constitute a violation of Nebraska law." (filing no. 34 at 3) Objecting to Magistrate Judge Thalken's Report and Recommendation (filing no. 34), the government asserts that briefly crossing onto the shoulder area of an interstate highway is a violation of Neb. Rev. Stat. § 60-6,142, and, therefore, Trooper Covert had probable cause to stop the defendants' recreational vehicle.

ANALYSIS

"It is well established . . . that any traffic violation, no matter how minor, provides a police officer with probable cause to stop the driver of the vehicle." United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995) (citing cases). In what appears to be a case of first impression in this Circuit, the sole issue in this case is whether Trooper Covert actually witnessed a violation of Neb. Rev. Stat. § 60-6,142 when he observed the defendants' recreational vehicle momentarily drift partially onto the shoulder of Interstate 80. Section 60-6,142, entitled "Driving on highway shoulders prohibited; exceptions," provides as follows:

No person shall drive on the shoulders of the highways, except that:

(1) Vehicles may be driven on the shoulders of highways (a) by federal mail carriers while delivering the United States mail or (b) to safely remove a vehicle from a roadway;

(2) Implements of husbandry may be driven on the shoulders of highways; and

(3) Bicycles may be operated on paved shoulders of highways included in the state highway system other than Nebraska segments of the National System of Interstate and Defense Highways.

Neb. Rev. Stat. § 60-6,142.

Whether a vehicle's momentarily being partially on a highway shoulder constitutes "driving" on a highway shoulder in violation of Section 60-6,142 was addressed by Judge John P. Icenogle of the District Court for Buffalo County, Nebraska. In State v. Latham, No. CR 98-57 (Buffalo County, Neb. Sept. 10, 1998), Judge Icenogle held that:

It is readily apparent that the type of activity being prohibited by the statute, 60-6,142, is using the shoulders of a highway as a thoroughfare or a primary travel area. This is readily ascertainable insomuch as the statute provides exceptions for the use of the shoulder as a primary travel area in certain situations involving mail carriers, removal of vehicles from roadways, driving implements of husbandry down the shoulders of a highway, and the operation of bicycles on paved shoulders.

* * * * *

The purpose of 60-6,142 is not to criminalize an inadvertent momentary crossing onto the shoulder, the use of the shoulder by drivers for emergency situations such as fixing flat tires, or as a pretext to stop otherwise suspicious vehicles.

Id. at 3. The court has examined Judge Icenogle's persuasive opinion concerning whether Section 60-6,142 is violated by a vehicle's moving partially onto the shoulder of a highway. Cf.Hillside v. Enterprises, Inc. v. Continental Carlisle, Inc., 147 F.3d 732, 735 n. 4 (8th Cir. 1998) ("It is not the place of the federal courts . . . to reexamine state court determinations of state law questions.").

Although the government cites opinions rendered by the Eighth Circuit Court of Appeals for the government's position that briefly driving onto a highway shoulder violates Section 60-6,142, the court finds the cited cases are distinguishable on their respective facts. For example, most of the decisions cited by the government involved drivers who were engaged in conduct that violated other provisions of the Nebraska Rules of the Road. See, e.g., United States v. Pollington, 98 F.3d 341, 342 (8th Cir. 1996) ("On March 29, 1995, after the fourth time Trooper Christopher Thompson saw the tires of a motor home go over the interstate shoulder line, he pulled the vehicle over.") (emphasis added); United States v. Miranda-Garcia, 23 F.3d 1331, 1333 (8th Cir. 1994) ("Trooper Schenck . . . observed a U-Haul rental truck in front of him drive its right wheels onto the shoulder of the roadway three times, once as far as two and one-half feet off the traveled portion of the interstate.") (emphasis added); United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) ("Trooper Chitwood observed Barahona's vehicle change lanes without using a turn signal, and then drive partially onto the shoulder of the road and back onto the highway.") (emphasis added); United States v. Cortez, 935 F.2d 135, 142 (8th Cir. 1991) ("In the present case, Sergeant Elliott observed the van Cortez was driving go onto the highway's shoulder twice and then cross into the passing lane as another car was trying to pass it.") (emphasis added).

Drifting repeatedly onto a highway shoulder would undoubtedly give an officer probable cause to stop the vehicle for violation of Section 60-6,196 (Driving under influence of alcoholic liquor or drug) or Section 60-6,212 (Careless driving).

In addition, the defendant in at least one of the cases cited by the government did not even contest the validity of the initial traffic stop. See, e.g., United States v. Portmann, 207 F.3d 1032, 1032 (8th Cir. 2000) (defendant stopped for driving onto the shoulder of an interstate highway; however, lack of probable cause for the initial stop of the vehicle not raised by Portmann).

When confronted with facts similar to those found in the present case, courts have frequently suppressed all evidence obtained from such traffic stops, because there was insufficient justification for an initial stop of the vehicles. See, e.g.,United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000) ("We can not . . . agree that one isolated incident of a large motor home partially weaving into the emergency lane for a few feet and an instant in time constitutes" a violation of Tennessee law.);United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) ("We do not find that an isolated incident of a vehicle crossing into the emergency lane of a roadway is a violation of Utah law.");United States v. Ochoa, 4 F.Supp.2d 1007, 1012 (D. Kan. 1998) ("The court finds under the facts of this case that Ochoa's single crossing onto the shoulder was not a violation of Kansas law."); United States v. Gastellum, 927 F.Supp. 1386, 1393 (D. Col. 1996) (suppressing evidence obtained from a traffic stop and concluding that "a single instance of weaving over the shoulder" did not violate Colorado law).

The court is mindful that one of the purposes of enacting the Nebraska Rules of the Road was to "make more uniform highway traffic laws between states." Neb. Rev. Stat. § 60-602(1). Indeed, the Nebraska legislature expressed its intention that the Nebraska Rules of the Road "be so interpreted and construed as to effectuate their general purpose to make uniform the laws relating to motor vehicles." Neb. Rev. Stat. § 60-604.

In this case, Trooper Covert observed the recreational vehicle for approximately 60-90 seconds before stopping the vehicle. (filing no. 33 at 40:16-18) While overtaking the defendants' recreational vehicle, Trooper Covert did not observe the recreational vehicle exceed the speed limit (filing no. 33 at 37:19-20), nor did he see the vehicle weaving in its own lane (filing no. 33 at 37:21-25). The recreational vehicle, which is approximately 35 feet long (filing no. 33 at 12:6-8), and wider than a police cruiser (filing no. 33 at 36:18 — 37:13), drove on the shoulder for approximately 25-30 feet (filing no. 33 at 41:22-24), a distance which is less than one length of the recreational vehicle. There was a wind blowing toward the south at the time of the traffic stop (filing no. 33 at 38:4-6), and the recreational vehicle is a taller vehicle (filing no. 33 at 36:15-17), making the vehicle more susceptible to gusts of wind.See Freeman, 209 F.3d at 466 (motor home weaving once onto shoulder on a windy day does not establish probable cause to justify a traffic stop); Gregory, 79 F.3d at 978 (U-Haul truck weaving once onto shoulder does not establish probable cause to justify a traffic stop). No other vehicles were in the vicinity of the recreational vehicle at the time the vehicle briefly moved onto the shoulder. (filing no. 33 at 56:14 — 57:1)

Exhibit 102, received during the May 3, 2000 hearing, shows the defendants' recreational vehicle completely occupying the entire width of the interstate shoulder after being stopped.

Although Trooper Covert testified during the May 3, 2000 hearing that the recreational vehicle traveled on the highway shoulder for a distance of 40-50 feet (filing no. 33 at 13:9-12), the court shall credit Trooper Covert's earlier testimony on February 16, 2000 during a preliminary hearing in Dawson County District Court that the recreational vehicle traveled on the highway shoulder for a distance of only 25-30 feet (filing no. 33 at 41:22-24).

While Trooper Covert testified at the evidentiary hearing before Magistrate Judge Thalken on May 3, 2000 that the trooper was concerned that the driver of the recreational vehicle might be impaired (filing no. 33 at 39:7 — 40:3), the court finds that merely driving momentarily, and apparently inadvertently or inattentively, onto the shoulder is insufficient to provide an officer with probable cause to believe that the driver is impaired. See United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993) ("[I]f failure to follow a perfect vector down the highway or keeping one's eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy."). As the Nebraska Supreme Court observed in Richardson Gillispie v. State, 263 N.W.2d 442 (Neb. 1978), "it is a matter of common knowledge that careful drivers not only may on occasion, but frequently must, use the shoulders to some extent as a part of the highway. . . ." Id. at 446. In addition, the court notes that Trooper Covert did not express his concern that the driver of the recreational vehicle might be impaired until the hearing before Magistrate Judge Thalken on May 3, 2000 on the defendants' motions to suppress (filing nos. 17 and 21). The court finds it significant that Trooper Covert did not mention his concern about the defendants' impairment during the preliminary hearing on February 16, 2000 in Dawson County District Court, and that he did not note such a concern in his written report of the incident.

Upon review of the language of Section 60-6,142, and the exceptions to the rule stated therein, the court finds and concludes that the Nebraska legislature did not intend to prohibit a driver from momentarily drifting over the shoulder line of an interstate highway on a single occasion. Rather, the Nebraska legislature enacted Section 60-6,142 to prohibit drivers from "driving" on the shoulder, that is, using the shoulder as a thoroughfare or a primary travel area. Construing Section 60-6,142 in this manner effectuates the purpose of the Nebraska Rules of the Road of making "more uniform highway traffic laws between states." Neb. Rev. Stat. § 60-602(1). Accordingly, the court concludes that the defendants did not violate Section 60-6,142 when their recreational vehicle momentarily drifted approximately one foot onto the south shoulder of Interstate 80 on a single occasion.

Therefore, based on a de novo review of the record, the court concludes that the defendants' recreational vehicle was illegally stopped, and, therefore, any evidence derived from the traffic stop will be suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963). Accordingly, after carefully conducting a de novo review of the entire court record, the court finds and concludes that filing no. 34, the Report and Recommendation of Magistrate Judge Thalken is accurate, complete, and in accordance with applicable law. Consequently, the court finds and concludes that filing no. 34, the Report and Recommendation of Magistrate Judge Thalken, shall be, and hereby is, adopted in it entirety.

THEREFORE, IT IS ORDERED:

(1) That filing no. 35, the "Government's Objection to Magistrate's Report and Recommendation," filed by the plaintiff, the United States of America, is overruled;

(2) That upon de novo review, filing no. 34, the "Report and Recommendation" of Magistrate Judge Thomas D. Thalken, is adopted in its entirety;

(3) That filing no. 21, the "Motion to Suppress," filed by the defendant, Troy E. Martin, is granted; and

(4) That filing no. 17, the "Motion to Suppress," filed by the defendant, Daryl Graumann, is granted. BY THE COURT: ________________________________________ THOMAS M. SHANAHAN United States District Judge