Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, 

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Alabama Court of Criminal Appeals

OCTOBER TERM, 2023-2024

_________________________

CR-18-0599

_________________________

Brett Richard Yeiter

v.

State of Alabama

Appeal from Escambia Circuit Court

(CC-15-42)

On Remand from the Alabama Supreme Court

MINOR, Judge.

A jury convicted Brett Richard Yeiter of capital murder for the 

shooting death of his father-in-law Paul Phillips while Phillips was 

sitting in his parked truck. See § 13A-5-40(a)(17), Ala. Crim. App. 1975. 

The jury unanimously found the existence of two aggravating factors and, 
CR-18-0599

2

by a vote of 10-2, voted for Yeiter to be sentenced to death.1 The trial 

court, believing it had to follow that recommendation under the 2017 

amendment to Alabama's capital-sentencing scheme, sentenced Yeiter to 

death.

On original submission, this Court held that the trial court erred in 

admitting, over Yeiter's objection, evidence during the guilt phase about 

Yeiter's prior convictions and incarceration and that the admission of 

that evidence was not harmless error. We thus reversed Yeiter's 

conviction and death sentence, pretermitting consideration of the other 

issues Yeiter raised on appeal. Yeiter v. State, [Ms. CR-18-0599, Dec. 17, 

2021] ___ So. 3d ___ (Ala. Crim. App. 2021). The Alabama Supreme Court 

reversed this Court's judgment, holding that the error was harmless. 

State v. Yeiter, [Ms. SC-2022-0417, Sept. 2, 2022] ___ So. 3d ___ (Ala. 

2022). 

After reviewing those remaining issues that Yeiter preserved for 

1During the penalty phase, the jury returned special verdict forms 

unanimously finding that the State proved beyond a reasonable doubt 

"that the capital offense was especially heinous, atrocious, or cruel 

compared to other offenses" and that Yeiter "was previously convicted of 

a felony involving the use or threat of violence to a person." (C. 542-43.) 

See § 13A-5-49(2) and § 13A-5-49(8), Ala. Code 1975. 
CR-18-0599

3

appellate review, we find no error. But we hold that the trial court 

applied the wrong capital-sentencing scheme. Because Yeiter was 

charged with capital murder before April 11, 2017, the trial court, not the 

jury, has the final sentencing decision here. We thus vacate the trial 

court's order sentencing Yeiter to death and remand the case for the trial 

court to apply the correct sentencing scheme and to impose a new 

sentence. 

FACTS AND PROCEDURAL HISTORY

On original submission, this Court summarized the evidence 

presented at trial: 

"On the evening of October 26, 2014, Phillips attended 

the Book of Acts Holiness Church, where he was the preacher. 

Phillips's grandson Nathan Blair also attended the church 

that evening. Blair's vehicle was low on oil, so he decided to 

leave it parked in the church parking lot until he could get 

some oil. The next morning, Phillips and Blair returned to the 

church with oil to put in the vehicle. Yeiter, who was Phillips's 

son-in-law and Blair's stepfather, was already in the church 

parking lot. Yeiter was upset because Blair's vehicle was low 

on oil and Blair had allowed his vehicle to run low on oil in 

the past.

"Blair testified that Yeiter 'would try to pour the oil into 

the car, but he would—he would try to push [Phillips], you 

know, like trying to, I guess trying to get him to—agitated, 

you know.' Blair testified that he thought Yeiter was 'trying 

to start a fight with' Phillips and that Yeiter 'grabbed 

[Phillips's] glasses off of his face' and threw them on the 
CR-18-0599

4

ground. Blair testified that once they put oil in the vehicle, 

Phillips sent him to take a bill to Kristen Garner's house, 

which was 'around the corner' from the church. Before he left, 

Blair saw Phillips try to remove a lawnmower from the back 

of his truck and Yeiter tried to 'shake it away' from Phillips. 

"In a statement he made to the police a week later, 

Yeiter said he was trying to help Phillips with the lawnmower 

but that he and Phillips 'got to tussling back and forth with 

the mower' and '[t]hat's when [Phillips] finally said he was 

going to get his gun. "Let me go get my gun," or something like 

that he said. Hell if I know.' Yeiter got in his truck, drove the 

short distance to his house, got his shotgun, and returned to 

the church. When he returned, Yeiter saw Phillips sitting in 

his parked truck, and the engine was running. Yeiter said he 

walked toward Phillips but did not see a weapon. Yeiter said 

he told Phillips to 'pull' his weapon, and then Yeiter shot 

Phillips. Yeiter said he 'believe[d]' he shot Phillips 'right in 

the chest.' Yeiter, however, shot Phillips in the side of his 

head, killing him. 

"Blair returned to the church in time to hear the 

gunshot. He saw Yeiter in the parking lot holding a 'long' gun 

in his hand. Yeiter drove away, and Blair went to Phillips's 

truck and saw that Phillips was shot. He returned to Garner's 

house, and she telephoned 911. 

"Yeiter stopped at Suncoast Sod, a business near the 

church. He went inside and told Toni Casey, who was 

Phillips's niece,1 that he had shot Phillips. Yeiter gave his 

mobile phone to Casey and told her he did not need it 

anymore. Casey telephoned 911 and told them the Phillips 

family had 'mentally abused' Yeiter for years and that they 

'just drove him crazy.'

"Emergency personnel responded to the scene within 20 

minutes. Phillips was still breathing, but there was no 

evidence showing that he regained consciousness after Yeiter 
CR-18-0599

5

shot him. Police did not find a gun on Phillips or in his vehicle. 

"Yeiter drove west for a few days, using credit cards to 

buy gas and alcohol. He told law enforcement that he 'threw 

[the shotgun] out in the woods somewhere' in Arkansas. He 

said he kept the gun with him until then because he 'didn't 

know whether [he] was going to kill [himself] yet or not.' Law 

enforcement arrested Yeiter in Texas, and authorities 

returned him to Alabama. 

"Law enforcement in Alabama interviewed Yeiter a 

week after the shooting. He told the police that he had 

consumed 'half a gallon' of liquor beginning around 7 a.m. the 

day he shot Phillips. He said that when he drove to his house 

to get his gun, he 'thought about it all the way [to his house] 

and all the way back.' When he made his statement to the 

police a week after the shooting, Yeiter said he 'would still 

[shoot Phillips] again because [Phillips has] had me over the 

years so fricking mad about everything.' He said, 'I did it .... 

Nothing is going to justify it.' He then told the police that he 

had 'been up there to Atmore before' on work release for firstdegree theft of property and that he had a prior conviction in 

Michigan. 

"An Escambia County grand jury indicted Yeiter for 

capital murder in January 2015. Before trial, Yeiter moved 

to suppress the statement he had made to the police, and he 

moved the trial court to remove any references to prior bad 

acts, including his prior convictions. The trial court denied the 

motions. 

"At the end of the guilt phase of Yeiter's trial, the jury 

found him guilty of capital murder. The next day, after the 

evidence was presented at the penalty phase, the jury 

returned special verdict forms showing that it unanimously 

found (1) that Yeiter had a prior felony conviction involving 

the use or threat of violence to a person and (2) that Yeiter's 

crime was especially heinous, atrocious, or cruel as compared 
CR-18-0599

6

to other capital offense. The jury recommended, by a vote of 

10-2, that the trial court sentence Yeiter to death. That same 

day, without holding a separate hearing or entering a 

sentencing order, the trial court sentenced Yeiter to death. 

"_______________

"1Casey also testified that her cousin Kim was married 

to Yeiter."

Yeiter v. State, ___ So. 3d at ___ (footnotes and citations to the record

omitted).

STANDARD OF REVIEW

"Rule 45A, Ala. R. App. P., was amended on January 12, 

2023, to state:

"'In all cases in which the death penalty has been 

imposed, the Court of Criminal Appeals may, but 

shall not be obligated to, notice any plain error or 

defect in the proceedings under review, whether or 

not brought to the attention of the trial court, and 

take appropriate appellate action by reason 

thereof, whenever such error has or probably has 

adversely affected the substantial right of the 

appellant.'

"Before Rule 45A was amended, this Court was required to 

conduct plain-error review in all cases in which the death 

penalty had been imposed. Although Rule 45A now provides 

that plain-error review is discretionary in such cases, this 

Court has explained that it will continue to conduct plainerror review in all cases in which the death penalty has been 

imposed. Iervolino v. State, [Ms. CR-21-0283, Aug. 18, 2023] 

___ So. 3d ___, ___ (Ala. Crim. App. 2023). However, that does 

not mean that this Court will provide a detailed analysis, or 
CR-18-0599

7

even any analysis, of those claims that were not properly 

preserved for appellate review, as it historically did when 

plain-error review was mandatory. Id.

"The standard this Court employs in conducting plainerror review is well settled:

"'"'The standard of review in reviewing a claim 

under the plain-error doctrine is stricter than the 

standard used in reviewing an issue that was 

properly raised in the trial court or on appeal.'

Hall v. State, 820 So. 2d 113, 121 (Ala. Crim. App. 

1999), aff'd, 820 So. 2d 152 (Ala. 2001). Plain error 

is 'error that is so obvious that the failure to notice 

it would seriously affect the fairness or integrity of 

the judicial proceedings.' Ex parte Trawick, 698 

So. 2d 162, 167 (Ala. 1997), modified on other 

grounds, Ex parte Wood, 715 So. 2d 819 (Ala. 

1998). 'To rise to the level of plain error, the 

claimed error must not only seriously affect a 

defendant's "substantial rights," but it must also 

have an unfair prejudicial impact on the jury's 

deliberations.' Hyde v. State, 778 So. 2d 199, 209 

(Ala. Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala. 

2000). 'The plain error standard applies only 

where a particularly egregious error occurred at 

trial and that error has or probably has 

substantially prejudiced the defendant.' Ex parte 

Trawick, 698 So. 2d at 167. '[P]lain error must be 

obvious on the face of the record. A silent record, 

that is a record that on its face contains no 

evidence to support the alleged error, does not 

establish an obvious error.' Ex parte Walker, 972 

So. 2d 737, 753 (Ala. 2007). Thus, '[u]nder the 

plain-error standard, the appellant must establish 

that an obvious, indisputable error occurred, and 

he must establish that the error adversely affected 

the outcome of the trial.' Wilson v. State, 142 So. 
CR-18-0599

8

3d 732, 751 (Ala. Crim. App. 2010). '[T]he plain 

error exception to the contemporaneous-objection 

rule is to be "used sparingly, solely in those 

circumstances in which a miscarriage of justice 

would otherwise result."' United States v. Young, 

470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 

(1985) (quoting United States v. Frady, 456 U.S. 

152, 163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d 816 

(1982))."'

"Iervolino, ___ So. 3d at ___ (quoting DeBlase v. State, 294 So. 

3d 154, 182-83 (Ala. Crim. App. 2018))."

Henderson v. State, [Ms. CR-21-0044, May 3, 2024] ___ So. 3d ___, ___ 

(Ala. Crim. App. 2024). Because we are vacating the trial court's order 

sentencing Yeiter to death, we have not reviewed the record for plain 

error, nor have we reviewed the issues Yeiter raises in his brief on appeal 

but did not raise in the trial court.

DISCUSSION

I. MOTION TO DISQUALIFY THE DISTRICT ATTORNEY'S 

OFFICE

In August 2016, Yeiter moved to disqualify the District Attorney's 

Office for the 21st Judicial Circuit. (C. 167.) The trial court held an 

evidentiary hearing on the motion in November 2018. (R. 120.) James 

Eric Coale, an Assistant District Attorney for the 21st Judicial Circuit, 

testified that he was at that time and had been a partner for 22 years 
CR-18-0599

9

with the law firm Otts, Moore, Coale, Godwin, Stearns & Darby. Coale 

testified that Michael D. Godwin was the supernumerary district 

attorney for the 21st Judicial Circuit. Coale testified that, while he was 

also an assistant district attorney, he or his law office prepared 

documents in December 2015 for an uncontested answer-and-waiver 

divorce on behalf of Kimberly Yeiter. Coale testified that he took the 

divorce papers to the Escambia County jail, that Yeiter signed them, and 

that the chief deputy for the Escambia County Sheriff's Office, Michael 

E. Lambert, notarized the documents.2 Coale testified that he had no 

communication with Yeiter except telling him that the paperwork was 

there, asking him if he was ready to sign, and pointing out what Yeiter 

needed to sign. Coale said that he did not speak with Yeiter about the 

capital-murder charges and that he had not "participated in any capacity 

in the prosecution of Mr. Yeiter." (R. 133.) He also testified that Stearns, 

another partner in his law firm and an assistant district attorney, in no 

way participated in representing Kimberly in the divorce from Yeiter. 

After hearing this testimony and arguments from the parties, the trial 

2Coale did not testify as to when he took the documents for Yeiter 

to sign, but Yeiter's motion asserts that it happened on December 17, 

2015. (C. 168.) 
CR-18-0599

10

court denied Yeiter's motion to disqualify the district attorney's office. (R. 

143.)

On appeal, Yeiter argues that the trial court erred in denying the 

motion to disqualify the District Attorney's Office for the 21st Judicial 

Circuit. (Yeiter's brief, p. 76.) He argues that the trial court "[i]gnor[ed] 

the risk that Mr. Yeiter's Sixth Amendment right to counsel was violated 

when Mr. Coale, an officer of the State, met with Mr. Yeiter outside the 

presence of his attorneys and after formal charges had been initiated, see

Moran v. Burbine, 475 U.S. 412, 431 (1986), and erroneously 

determin[ed] that there was no conflict of interest." (Yeiter's brief, p. 78.) 

Yeiter cites Davenport v. State, 157 Ga. App. 704, 278 S.E.2d 440 (1981), 

as a decision that, he says, "addressed an almost identical issue." (Yeiter's 

brief, p. 79.) 

In Davenport, Martha Davenport was convicted in June 1978 of 

aggravated assault against her husband Harold Davenport. Before the 

assault, Martha had filed for divorce from Harold in October 1975. 

Harold retained Robert Keller to represent him in the divorce, which was 

pending from October 1975 until October 1978. In July 1977, Keller was 

appointed district attorney of the Clayton Judicial Circuit but did not 
CR-18-0599

11

withdraw as Harold's attorney in the divorce action until October 1978. 

157 Ga. App. at 705, 278 S.E.2d at 441. 

Martha shot Harold in April 1976, and a grand jury indicted her in 

June 1976. Martha was arraigned in October 1977, after Keller became 

the district attorney. Keller signed Martha's plea of not guilty at her 

arraignment. An assistant district attorney handled all pretrial motions 

and Martha's trial, but Keller was present at the counsel table during the 

trial. 157 Ga. App. at 705, 278 S.E.2d at 441.

The Georgia Court of Appeals held that Martha was due a new trial 

because of "Keller's role in the prosecution of the case against her." 157 

Ga. App. at 705, 278 S.E.2d at 441. 

"While we do not believe Mr. Keller would act intentionally in 

any manner which would prejudice a criminal case prosecuted 

by his office, we are constrained to hold that he should not 

have participated in any way in the prosecution of the 

aggravated assault case against Mrs. Davenport. It is clear 

that he was cognizant of information and incidents that 

occurred between the victim and appellant by virtue of his 

representation of Mr. Davenport in the divorce proceedings. 

Under such circumstances there is at least the appearance of 

impropriety, and we must conclude that appellant was denied 

fundamental fairness in the state's prosecution of the charges 

against her. 'The administration of the law, and especially 

that of the criminal law, should, like Caesar's wife, be above 

suspicion, and should be free from all temptation, bias or 

prejudice, so far as it is possible for our courts to accomplish 

it ...' Nichols v. State, 17 Ga. App. 593, 606, 87 S.E. 817 
CR-18-0599

12

(1915). In our opinion public policy prohibits a district 

attorney from prosecuting a case, even though he does not 

actually try the case himself, while representing the victim of 

the alleged criminal act in a divorce proceeding involving the 

accused."

Davenport v. State, 157 Ga. App. 704, 705-06, 278 S.E.2d 440, 441 (1981).

First, Davenport is distinguishable because the trial court found

that Coale had no role in Yeiter's prosecution. The trial court cited 

evidence showing that Coale was "walled off" from the prosecution. (R. 

144 "There is a firewall. There's no relationship between Mr. Coale and 

this case whatsoever."). 

Yeiter argues, however, that it is "immaterial" that

"Coale never participated in any capacity in the prosecution 

of Mr. Yeiter ... because Mr. Stearns—Mr. Coale's partner in 

their private law firm—was one of the lead prosecutors in Mr. 

Yeiter's case. Under these circumstances it was possible that 

Mr. Stearns 'obtained confidential information which would 

be helpful' in Mr. Yeiter's prosecution."

(Yeiter's brief, p. 80 (citing State v. Hatfield, 218 Neb. 470, 473, 356 

N.W.2d 872, 875 (1984).) In Hatfield, the Nebraska Supreme Court 

stated:

"We do agree that a prosecuting attorney who himself, 

or a member of his same firm, has represented the spouse of 

a defendant should be disqualified from prosecuting such 

defendant for a crime arising out of the marriage relationship. 

Disqualification would also be proper where, because of such 
CR-18-0599

13

representation, it is shown that the attorney has obtained 

confidential information which would be helpful in such 

criminal prosecution."

218 Neb. at 473, 356 N.W.2d at 875 (citations omitted). Neither scenario 

identified by the Nebraska Supreme Court, however, is present. Unlike 

the crime in Davenport, Yeiter's crime did not "aris[e] out of the marriage 

relationship." And the only evidence before the trial court was that Coale 

had no role in Yeiter's prosecution and that Stearns had no role in 

Kimberly's divorce. Nothing suggests that either attorney obtained 

confidential information used against Yeiter in the capital-murder 

prosecution. 

In a footnote, Yeiter asserts that "Mr. Coale's conflict of interest 

was imputed to Mr. Stearns," and Yeiter cites, with no explanation, Rule 

1.10(a), Ala. R. Prof'l Conduct. Rule 1.10(a) provides: "While lawyers are 

associated in a firm, none of them shall knowingly represent a client 

when any of them, practicing alone, would be prohibited from doing so by 

Rules 1.7, 1.8(a)-1.8(k), 1.9, or 2.2." Yeiter has not shown that Coale or 

Stearns had a conflict, however, and thus no conflict could be imputed 

under this rule. 

Finally, Yeiter asserts:
CR-18-0599

14

"[T]he settlement agreement between Mr. Yeiter and 

Kimberly Yeiter, which Mr. Yeiter signed while incarcerated 

at Escambia County Jail awaiting trial for capital murder 

after being cornered by Mr. Coale outside the presence of his 

attorneys, awarded significant property to Kimberly Yeiter. 

This transference of high-value marital property, combined 

with the relationship between the divorce and the alleged 

crime that preceded the divorce, undoubtedly planted 

improper seeds of motivation in the State's mind and created 

a great risk that the State would fail to 'execute its 

discretionary function in an evenhanded manner.'" 

(Yeiter's brief, pp. 80-81 (emphasis added) (quoting State v. Cope, 50 P.3d 

513, 515 (Kan. Ct. App. 2002).) Yeiter contends that "[p]articipation by 

the District Attorney's office in Mr. Yeiter's capital murder trial caused

'injury to the entire system of justice,' Hannon, 266 So. 2d at 829, and 

denied Mr. Yeiter the 'fundamental fairness assured by the Due Process 

Clause of the Fourteenth Amendment.' Ganger, 379 F.2d at 714." 

(Yeiter's brief, p. 81.) 

First, there is no evidence of Coale "cornering" Yeiter at the jail. 

Nor was there merely an "alleged crime that preceded the divorce"—

Yeiter in fact murdered Phillips. And Yeiter has not explained or shown 

what "improper seeds of motivation" could have been "planted ... in the 

State's mind." In short, Yeiter's arguments on this issue lack merit. He 

is due no relief.
CR-18-0599

15

II. DENIAL OF YEITER'S MOTION TO USE JUROR 

QUESTIONNAIRES

Yeiter argues that the trial court erred in denying his "unopposed" 

motion for juror questionnaires. (C. 243, 391; R. 264.) (Yeiter's brief, p. 

31.) We disagree.

A trial court has broad discretion in handling voir dire, and its 

rulings will not be reversed without a showing of an abuse of that 

discretion. McWhorter v. State, 781 So. 2d 257, 322 (Ala. Crim. App. 

1999). The trial court's broad discretion extends to whether to permit a 

juror questionnaire. Brown v. State, 11 So. 3d 866, 885 (Ala. Crim. App. 

2007). 

Yeiter has not shown that the trial court abused its discretion in 

denying his request for juror questionnaires. The voir dire here covers 

almost 1,000 pages of the transcript. (R. 340-1303.) Yet Yeiter cites no 

instance of an adverse ruling during voir dire.3 Given the extensive voir 

3Yeiter also argues in this part of his brief that the trial court erred 

by "repeatedly rushing and limiting voir dire." (Yeiter's brief, p. 32.) 

Yeiter cites these pages from voir dire as examples of the trial court's 

allegedly erroneous conduct during voir dire: R. 475, 479, 694-95, 711, 

713, 727, 762, 764, 770, 779, 823-25, 864, 890, 895-97, 920, 934-935, 939, 

1122, 1177. Those cited pages include comments directed to both counsel 

for Yeiter and the State. Those pages show no objection from Yeiter. 

Thus, this issue was not preserved for review. 
CR-18-0599

16

dire conducted by the parties and the trial court, Yeiter is due no relief 

on this issue. 

III. REMOVAL OF PROSPECTIVE JURORS S.T. AND T.Y.

Yeiter argues that the trial court erred by granting the State's 

motions to remove prospective jurors S.T. and T.Y. for cause. (Yeiter's 

brief, p. 54.) 

Prospective juror S.T.: When the trial court asked the 

veniremembers if they had fixed opinions against capital punishment, 

prospective juror S.T. raised her hand. (R. 696.) In response to 

questioning from the trial court, S.T. stated: "I don't believe that one 

man should impose death on any other person." (R. 697.) When defense 

counsel asked, "[b]ut do you accept the fact that our State has decided to 

make [the death penalty] part of the judicial system," S.T. stated that she 

did accept that fact and that she understood that jurors must follow the 

law. (R. 698-99.) She also stated that she "[w]ould be able to follow the 

court's instructions and put aside personal feelings." (R. 699-700.) The 

State then asked S.T. whether she would "[e]ver be able to vote to impose 

the death penalty," and S.T. responded, "I don't know. I don't know. I 

don't believe in the death penalty. I get that it's a part of our judicial 
CR-18-0599

17

system, but me personally, I can't—I don't want to impose death on 

anybody." (R. 700-01.) S.T. did, however, state that she could follow the 

trial court's instructions. (R. 701.)

In granting the State's challenge of S.T. for cause, the trial court 

ruled:

"I heard her answers and I heard the intensity about she 

didn't know if she could [follow the court's instructions] and 

that she's against the death penalty. I don't think that this 

juror can meet that level of commitment that the law requires 

on that. And as a consequence, I grant the State's motion to 

strike her for cause.

"And, again, I know what [defense counsel] said. I heard 

that as well. But I heard the other side of the equation and I 

was the one trying to kind of see, where is this lady's heart, 

what is it that she's thinking. And she's not in favor of the 

death penalty. And I don't think that she could compromise 

that. And if she—I just don't think she would. I don't think 

she would at all."

(R. 703.) Yeiter contends that S.T. gave "unequivocal statements that she 

could set aside her personal views and follow the law" and thus that "she 

was qualified to serve and could not be struck for cause." (Yeiter's brief, 

p. 56.) 

"'The test for determining whether a strike rises to the 

level of a challenge for cause is "whether a juror can set aside 

their opinions and try the case fairly and impartially, 

according to the law and the evidence." Marshall v. State, 598 

So. 2d 14, 16 (Ala. Cr. App. 1991). "Broad discretion is vested 
CR-18-0599

18

with the trial court in determining whether or not to sustain 

challenges for cause." Ex parte Nettles, 435 So. 2d 151, 153 

(Ala. 1983). "The decision of the trial court 'on such questions 

is entitled to great weight and will not be interfered with 

unless clearly erroneous, equivalent to an abuse of 

discretion.'" Nettles, 435 So. 2d at 153.'"

Thompson v. State, 153 So. 3d 84, 115-16 (Ala. Crim. App. 2012) (quoting 

Dunning v. State, 659 So. 2d 995, 997 (Ala. Crim. App. 1994)). And "[t]he 

qualification of a juror is a matter within the discretion of the trial court. 

Clark v. State, 443 So. 2d 1287, 1288 (Ala. Cr. App. 1983). The trial judge 

is in the best position to hear a prospective juror and to observe his or her 

demeanor.' Ex parte Dinkins, 567 So. 2d 1313, 1314 (Ala. 1990)."

Thompson, 153 So. 3d 84 at 116.

The trial court ruled based on its observation of prospective juror 

S.T. including the "intensity" of her responses. Yeiter has not shown that 

the trial court exceeded its broad discretion in granting the State's 

challenge for cause as to prospective juror S.T.

Prospective juror T.Y.: When the State asked a panel of 

veniremembers whether any of them would "automatically vote against 

the death penalty," T.Y. raised her hand. (R. 1177.) The trial court later 

brought T.Y. in for private questioning with counsel for Yeiter and for the 

State: 
CR-18-0599

19

"[PROSECUTOR]: [T.Y.], you responded, on a couple of 

questions you said you would have difficulty sitting in 

judgment of others.

"....

"[T.Y.]: Yes.

"[PROSECUTOR]: And you also said you would be unable to 

impose the death penalty if Mr. Yeiter is found guilty.

"[T.Y.]: Of course. ....

"[DEFENSE COUNSEL]: ... Now, Ms. [Y.], you have stated 

you do not favor the death penalty; is that correct?

"[T.Y.]: That's correct.

"[DEFENSE COUNSEL]: Okay. That is your personal 

feelings?

"[T.Y.]: Yeah. Religious beliefs and personal feelings. I work 

in Holman Correctional Facility where there are executions. I 

do not work in the executions place.

"[DEFENSE COUNSEL]: Okay. But you do accept the fact 

that our State has decided to make it part of the criminal 

justice system. You accept the fact it is part of the law.

"[T.Y.]: It is a part of the law.

"[DEFENSE COUNSEL]: And you understand that for our 

system to function, jurors, like you, must follow the law as the 

court sets it out. Do you understand that?

"[T.Y.]: I understand. 

"[DEFENSE COUNSEL]: Now, you're the judge of the facts, 
CR-18-0599

20

Judge Rice is the judge of the law. Do you agree with that?

"[T.Y.]: Uh-huh.

"[DEFENSE COUNSEL]: Okay. And you understand, if you 

were selected as a juror in the case, Judge Rice would tell you 

what the—tell you what law you were to apply concerning all 

aspects of this case including, if reached, punishment; the 

death penalty or life without parole. You understand he would 

be the one to instruct you under the law, correct?

"[T.Y.]: Yes, I do.

"[DEFENSE COUNSEL]: And you would be able to follow the 

court's instructions and put aside any personal feelings and 

do what—" 

(R. 1260-62.) The trial court, stating it was "just trying to move along," 

interrupted defense counsel and questioned T.Y.:

"THE COURT: ... As I understood, you have a religious 

conviction against imposing the death penalty?

"[T.Y.]: Yes, I do.

"THE COURT: Is there any circumstance in this case where, 

if it made it to that point where you were called upon to vote 

death or not, that you would just not ever be able to vote for 

[the] death penalty?

"[T.Y.]: I would not.

"THE COURT: Okay. Follow up on that?

"[PROSECUTOR]: No, Your Honor.

"[DEFENSE COUNSEL]: You could follow the law, though, 
CR-18-0599

21

correct? Whatever the law told you to do.

"[T.Y.]: Uh-huh.

"[DEFENSE COUNSEL]: So she just said that she could 

follow the law and that's a requirement of a juror. So if the 

court instructs her as to what—

"THE COURT: I'm the one that makes those decisions.

"My question is do you have—

"[T.Y.]: I will not vote death penalty at all.

"THE COURT: Follow up from defense in regard to that 

comment?

"[DEFENSE COUNSEL]: No, sir."

(R. 1262-63.)

The State then moved to strike T.Y. for cause. Given a chance to 

respond, defense counsel had "[n]o response." (R. 1263.) The trial court 

then granted the State's motion:

"It's obvious. She has a religious conviction and she says—I'm 

reading the demeanor and what she's saying and the 

intensity. It doesn't make any difference what it is, she doesn't 

have in her mind—or she has in her mind that she would 

never impose the death penalty. And that is a strike for cause 

and I grant the strike for cause."

(R. 1263-64.) 

Yeiter argues that the trial court erred by, he says, "preventing 
CR-18-0599

22

defense counsel from properly questioning T.Y. on her ability to follow 

the law, and subsequently extracting a prejudicial answer from her." 

(Yeiter's brief, p. 57.) Although we question whether Yeiter preserved 

this issue, it has no merit. 

First, as the above shows, the trial court gave defense counsel the 

chance to keep questioning T.Y., but counsel chose not to. Second, as with 

prospective juror S.T., the trial court's ruling was based on its 

observation of prospective juror T.Y., including the "intensity" of her 

responses and her demeanor. Yeiter has not shown that the trial court 

exceeded its broad discretion in granting the State's challenge for cause 

as to prospective juror T.Y. Thompson, 153 So. 3d at 115-16. See also

Johnson v. State, 820 So. 2d 842, 856 (Ala. Crim. App. 2000) ("Clearly, as 

evidenced by the above-referenced portions of the record, this juror 

unequivocally stated that he could not impose the death penalty under 

any circumstances. The trial court correctly granted the State's challenge 

for cause of this juror.").

Yeiter is due no relief on this issue. 

IV. ALLEGED JUROR MISCONDUCT BY JUROR M.K.

During voir dire, the State asked prospective jurors if "any of you 
CR-18-0599

23

or any member of your immediate family ... [had] ever been arrested by 

any member or officer of the Escambia County Sheriff's Department." (R. 

958.) Yeiter argues that he was "deprived ... of his right 'to truthfully 

know jurors' biases' and, therefore, to a fair and impartial proceeding" 

because, he says, M.K., the foreperson of the jury, did not disclose that 

she had prior arrests in Escambia County. (Yeiter's brief, p. 67 (citations 

omitted).) Defense counsel raised this issue in a motion for a new trial, 

asserting that M.K. "failed to truthfully respond and did not disclose 

prior arrests." (C. 555.) At the hearing on the motion, Yeiter offered 

records that, he said, showed that M.K. had misdemeanor charges in 

Escambia County in 2010 for criminal trespass and harassment. (R. 

1983-84; Supp. C. 378-79.) According to defense counsel, the charges were 

later nolle prossed upon motion of the district attorney. The trial court 

denied Yeiter's motion, holding that, as for M.K.'s failure to disclose, "the 

court does not see that that rises to the level that would require a retrial." 

(R. 1985.) 

On appeal, Yeiter characterizes the two pages of records he offered 

at the hearing on the new-trial motion as "showing that M.K. had been 

arrested in Escambia County in 2010 and charged with criminal trespass 
CR-18-0599

24

and harassment." (Yeiter's brief, p. 68.) He asserts that although "those 

charges were subsequently nolle prossed upon motion of the district 

attorney, the question posed during voir dire concerned arrest history 

and M.K. no doubt should have responded affirmatively." (Yeiter's brief, 

pp. 68-69.) He argues that the trial court abused its discretion in denying 

his motion for a new trial "without conducting any of the requisite 

analysis." (Yeiter's brief, p. 69 (citing Porter v. State, 196 So. 3d 365, 371 

(Ala. Crim. App. 2015).) That analysis, Yeiter argues, should have 

included considering the factors stated in Ex parte Dobyne, 805 So. 2d 

763 (Ala. 2001), for determining whether a party was prejudiced by a 

prospective juror's failure to answer a question during voir dire. 

The State, on the other hand, argues that the trial court did not 

abuse its discretion. The State correctly notes that Yeiter had the burden 

of proving "the allegations of his motion—that the juror committed the 

alleged misconduct—to the satisfaction of the trial court." (State's brief, 

p. 29 (citing Dawson v. State, 710 So. 2d 472, 475 (Ala. 1997).) Citing the 

two pages of records that Yeiter offered, the State contends that Yeiter 

offered nothing—such a date of birth or Social Security number—to show 

that the records involved the same M.K. who served as the foreperson of 
CR-18-0599

25

his jury. The State also notes that Yeiter did not call M.K. as a witness 

at the hearing to verify that she was the person referenced in the "SJIS 

display" on the two pages of records or to ask her any questions about the 

circumstances of the alleged charges. (State's brief, p. 29.) Thus, the 

State argues that Yeiter simply failed to prove his claim and that the 

circuit court did not abuse its discretion in denying it.

"In Dobyne, the Alabama Supreme Court held:

"'The proper standard for determining 

whether juror misconduct warrants a new trial, as 

set out by this Court's precedent, is whether the 

misconduct might have prejudiced, not whether it 

actually did prejudice, the defendant. See Ex 

parte Stewart, 659 So. 2d 122 (Ala. 1993); 

Campbell v. Williams, 638 So. 2d 804 (Ala. 1994); 

Union Mortgage Co. v. Barlow, 595 So. 2d 1335 

(Ala. 1992), cert. denied, 506 U.S. 906, 113 S. Ct. 

301, 121 L. Ed. 2d 224 (1992). The "might-havebeen-prejudiced" standard, of course, casts a 

"lighter" burden on the defendant than the actualprejudice standard. See Tomlin v. State, [695 So.

2d 157, 170 (Ala. Crim. App. 1996)]. For a more 

recent detailed discussion of the burden of proof 

required to make a showing under the "mighthave-been-prejudiced" standard, see Ex parte 

Apicella, [809 So. 2d 865, 871 (Ala. 2001)] ("It is 

clear, then, that the question whether the jury's 

decision might have been affected is answered not 

by a bare showing of juror misconduct, but rather 

by an examination of the circumstances particular 

to the case." (Emphasis original.)).
CR-18-0599

26

"'It is true that the parties in a case are 

entitled to true and honest answers to their 

questions on voir dire, so that they may exercise 

their peremptory strikes wisely. See Fabianke v. 

Weaver, 527 So. 2d 1253 (Ala. 1988). However, not 

every failure to respond properly to questions 

propounded during voir dire "automatically 

entitles [the defendant] to a new trial or reversal 

of the cause on appeal." Freeman v. Hall, 286 Ala. 

161, 166, 238 So. 2d 330, 335 (1970); see also

Dawson v. State, [710 So. 2d 472,] 474 [ (Ala.

1997)]; and Reed v. State, [547 So. 2d 596 (Ala.

1989)]. As stated previously, the proper standard 

to apply in determining whether a party is entitled 

to a new trial in this circumstance is "whether the 

defendant might have been prejudiced by a 

veniremember's failure to make a proper 

response." Ex parte Stewart, 659 So. 2d at 124. 

Further, the determination of whether a party 

might have been prejudiced, i.e., whether there 

was probable prejudice, is a matter within the trial 

court's discretion. Eaton v. Horton, 565 So. 2d 183 

(Ala. 1990); Land & Assocs., Inc. v. Simmons, 562 

So. 2d 140 (Ala. 1989) (Houston, J., concurring 

specially).

" '"The determination of whether 

the complaining party was prejudiced 

by a juror's failure to answer voir dire

questions is a matter within the 

discretion of the trial court and will not 

be reversed unless the court has 

abused its discretion. Some of the 

factors that this Court has approved for 

using to determine whether there was 

probable prejudice include: 'temporal 

remoteness of the matter inquired 

about, the ambiguity of the question 
CR-18-0599

27

propounded, the prospective juror's 

inadvertence or willfulness in 

falsifying or failing to answer, the 

failure of the juror to recollect, and the 

materiality of the matter inquired 

about.'"

"'Union Mortgage Co. v. Barlow, 595 So. 2d at 

1342-43 (quoting Freeman v. Hall, supra (other 

citations omitted)).'

"805 So. 2d at 771-72 (footnote omitted). The Court went on in 

Dobyne to explain that

"'[t]he form of prejudice that would entitle a party 

to relief for a juror's nondisclosure or falsification 

in voir dire would be its effect, if any, to cause the 

party to forgo challenging the juror for cause or 

exercising a peremptory challenge to strike the 

juror. Ex parte Ledbetter, 404 So. 2d 731 (Ala.

1981); Warrick v. State, 460 So. 2d 320 (Ala. Crim.

App. 1984); and Leach v. State, 31 Ala. App. 390, 

18 So. 2d 285 (1944). If the party establishes that 

the juror's disclosure of the truth would have 

caused the party either to (successfully) challenge 

the juror for cause or to exercise a peremptory 

challenge to strike the juror, then the party has 

made a prima facie showing of prejudice. Id. Such 

prejudice can be established by the obvious 

tendency of the true facts to bias the juror, as in 

Ledbetter, supra, or by direct testimony of trial 

counsel that the true facts would have prompted a 

challenge against the juror, as in State v. 

Freeman, 605 So. 2d 1258 (Ala. Crim. App. 1992).'

"805 So. 2d at 772-73."

Porter v. State, 196 So. 3d 365, 368-69 (Ala. Crim. App. 2015).
CR-18-0599

28

In Porter, this Court held that the trial court had not properly 

applied the Dobyne factors in its analysis of whether the defendant might 

have been prejudiced by juror R.R.'s failure to respond that he had a 

conviction for DUI when the prosecutor asked "whether any prospective 

juror had 'been arrested, charged or convicted of a crime." 196 So. 3d at 

367, 371. This Court also noted that defense counsel stated in an 

affidavit "that knowledge of juror R.R.'s arrest history would have 

prompted him to ask further questions and to seriously consider 

challenging him for cause or exercising a peremptory strike." 196 So. 3d 

at 371. 

The two-page record that Yeiter offered in support of his jurormisconduct claim includes the same name as M.K., lists two 

misdemeanor charges, and lists as the date of the charges August 2010. 

The record also includes "NOL PRS/DA MOTION," which presumably 

means, as Yeiter's counsel asserted at the hearing, that the charges were 

nolle prossed on the motion of the district attorney. The record includes

several codes, but Yeiter offered no evidence to explain what the codes 

mean. 

Unlike the broad question asked by the prosecutor in Porter, the 
CR-18-0599

29

question here concerned only a prior arrest. So far as we can determine, 

however, the two-page record does not show that M.K. was arrested on 

the 2010 misdemeanor charges. What's more, Yeiter's attorney did not 

include an affidavit stating that knowledge of the 2010 charges "would 

have prompted him to ask further questions and to seriously consider 

challenging [M.K.] for cause or exercising a peremptory strike." 196 So. 

3d at 371. Nor can we say that the limited record Yeiter offered shows 

"the obvious tendency of the true facts to bias the juror." 196 So. 3d at 

369. Thus, Porter does not support Yeiter's claim. 

Based on the limited evidence Yeiter offered in support of his claim, 

we cannot say that the trial court should have analyzed the Dobyne

factors, nor can we say that the trial court abused its discretion in 

denying the claim. Yeiter is due no relief.

V. ADMISSION OF YEITER'S STATEMENT TO THE POLICE

Yeiter argues that the trial court erred in admitting his November 

3, 2014, statement to Deputy Billy Blair and Investigator Adam Johnson, 

employees with the Escambia County Sheriff's Office. (Yeiter's brief, p. 

48.) Before trial, Yeiter moved to suppress the statement. (C. 303.) The 

trial court held a hearing on the motion at which Deputy Blair and 
CR-18-0599

30

Investigator Johnson testified. At that hearing, the State offered a 

recording and a transcript of the statement and a waiver-of-rights form 

signed by Yeiter, Blair, and Johnson. (Supp. C. 214-15.) After the 

hearing, the trial court denied the motion, and the trial court admitted 

the statement over Yeiter's objection at trial.4

Yeiter argues that his "inculpatory statement" was "elicited after 

[he] invoked his right to counsel and did not reinitiate contact with 

authorities." (Yeiter's brief, p. 49.) He argues that the admission of the 

statement "violated his rights against self-incrimination and to counsel 

and his rights to due process, a fair trial, and a reliable conviction and 

sentence under the Fifth, Sixth, Eighth, and Fourteenth Amendments of 

the United States Constitution and Alabama law." (Yeiter's brief, pp. 53-

54.) He contends that the admission of his statement was reversible error 

4On original submission, this Court agreed with Yeiter's argument

that, during the State's case-in-chief in the guilt phase, the trial court 

erred by not redacting evidence of prior bad acts from Yeiter's statement

to law enforcement, and we reversed his conviction and sentence. 

(Yeiter's brief, p. 11.) On certiorari review, the Alabama Supreme Court 

reversed our judgment and held that any error in the admission of that 

statement was harmless beyond a reasonable doubt. State v. Yeiter, [Ms. 

SC-2022-0417, Sept. 2, 2022] ___ So. 3d ___, ___ (Ala. 2022). 
CR-18-0599

31

under the principles recognized in Edwards v. Arizona, 451 U.S. 477 

(1981). (Yeiter's brief, p. 48.) 

Yeiter gave a statement on November 3, 2014, in Deputy Blair's 

office, which was located "across from the county jail." (R. 180.) The 

statement began with Yeiter stating his name, his date of birth, and his 

highest level of education, a G.E.D. Then this happened:

"INVESTIGATOR JOHNSON: Okay. I guess you know 

what we want to talk to you about but before we do I have to 

read you your rights.

"[YEITER]: Sure. 

"INVESTIGATOR JOHNSON: And I'm going to show it 

to you while I read it and we'll go over it. If you have any 

questions just stop me and we'll go over any part of it.

"You must understand your rights before we ask you any 

questions. You have the right to remain silent. Anything that 

you say can be used against you in court. You have the right 

to talk to a lawyer for advice before being questioned. You 

have the right to have him with you during questioning. If you 

cannot afford a lawyer and want one a lawyer will be 

appointed for you by the court. If you decide to answer 

questions now without a lawyer present you will still have the 

right to stop the questioning at anytime. You also have the 

right to stop the questioning at any time til you speak to a 

lawyer.

"[YEITER]: I guess I'm going to need a lawyer because 

they going to give me one when I go over there regardless if I 

need one or not.
CR-18-0599

32

"INVESTIGATOR JOHNSON: Well, they are going to 

give you an attorney but you don't have to have one to speak 

with us but that's your rights. It's up to you.

"[YEITER]: Well, the more I speak to y'all the more I 

incriminate myself, right? 

"INVESTIGATOR JOHNSON: Well, I mean we've got 

our case proven but we would like to hear your side of the 

story.

"[YEITER]: Yeah, I can. I mean ...

"INVESTIGATOR JOHNSON: I mean but before—

before I can ask you any questions about your side of the story 

I have to read you your rights. 

"[YEITER]: I'll sign it. 

"INVESTIGATOR JOHNSON: You sure?

"[YEITER]: Yeah. 

"INVESTIGATOR JOHNSON: I mean that's up to you.

"Okay. Date, time, sign it and print. I'm tell [sic] you the 

date. Today's date—

"[YEITER]: Can you answer me one question. I'm going 

to sign this.

"INVESTIGATOR JOHNSON: Okay.

"[YEITER]: I want one—Hang on.

"INVESTIGATOR JOHNSON: Today's date is 

November 3rd, and the time is 10:31.
CR-18-0599

33

"The second part is a waiver of rights. It says, I do not 

want a lawyer at this time. I understand and know what I'm 

doing. No promises or threats have been made to me and no 

pressure or force of any kind as been used against me. I hereby 

voluntarily and intentionally waive my rights, and I'm willing 

to make a statement or answer questions.

"But even though you sign this saying you waive your 

rights and you want to talk to me you can stop at any time. 

You understand?

"[YEITER]: Yeah.

"INVESTIGATOR JOHNSON: Sign, date and time. 

Same date, and time is 10:32 now.

"Are you on any medication?

"[YEITER]: Nah. I don't want to pay for it.

"INVESTIGATOR JOHNSON: Sir?

"[YEITER]: Y'all going to have to hang on.

"INVESTIGATOR JOHNSON: Okay.

"CAPTAIN BLAIR: Have you got a question of us, Mr. 

Yeiter?

"[YEITER]: Couple of them. Just hold on.

"INVESTIGATOR JOHNSON: We'll hold on. You want 

a tissue?"

(Supp. C. 216-19 (emphasis added).) Yeiter then asked about whether his 

sons were okay and whether anyone had picked up his younger son from 
CR-18-0599

34

school on the day he shot Phillips and left town. He also asked about 

whether his wife Kimberly was "okay." (Supp. C. 220.) Investigator 

Johnson responded that he had talked "with all three of them and they 

are all okay." (Id.) Yeiter then told the officers, "Okay. That's all I need 

to know. What do you want to know?" (Supp. C. 221.) He then

participated in the interview with the officers. 

Citing the emphasized language above, Yeiter contends that he 

made "an unequivocal assertion of the right to counsel," and he asserts 

that his statement that "the more I speak to y'all the more I incriminate 

myself, right" "only reinforced his initial request for counsel. (Yeiter's 

brief, pp. 50-51.) Yeiter asserts that he "clearly 'expressed his desire to 

deal with the police only through counsel'" but that "the officers 

disregarded his requests and pushed forward, encouraging him to sign 

the waiver so they could talk to him." (Yeiter's brief, p. 50 (quoting 

Edwards, 451 U.S. at 484).) We disagree. 

"During a custodial interrogation, if the suspect 

unequivocally requests counsel at any time before or after the 

suspect waives his Miranda [v. Arizona, 384 U.S. 436 (1966),]

rights, 'the interrogation must cease until an attorney is 

present.' Miranda, 384 U.S. at 474. If the suspect makes an 

equivocal reference to an attorney after waiving his Miranda

rights, the interrogating officer has no obligation to stop 

questioning the suspect and the officer is not required to ask 
CR-18-0599

35

questions to clarify whether the suspect actually wants an 

attorney. Davis v. United States, 512 U.S. 452, 459-62, 114 

S. Ct. 2350, 129 L. Ed. 2d 362 (1994). However, if a suspect 

makes an equivocal reference to an attorney before waiving 

his Miranda rights, the interrogating officer is required to ask 

questions to clarify the reference until the suspect either 

clearly invokes his right to counsel or waives it. See State v. 

Collins, 937 So. 2d 86, 93 (Ala. Crim. App. 2005) (holding that 

'[b]ecause [the defendant] did not waive her Miranda rights 

before she asked the questions about obtaining a lawyer, the 

ambiguity of her questions required the interrogating officer 

to ask follow-up questions to clarify the ambiguity')."

Thompson v. State, 97 So. 3d 800, 806-07 (Ala. Crim. App. 2011).

"In determining whether a suspect's statement was an 

unequivocal invocation of his right to counsel, we are guided 

by the following principles:

" '"The applicability of the '"rigid"

prophylactic rule' of Edwards [v. Arizona, 451 U.S. 

477, 101 S. Ct. 1880 (1981),] requires courts to 

'determine whether the accused actually invoked

his right to counsel.' Smith v. Illinois, [469 U.S. 91, 

95, 105 S. Ct. 490, 492, 83 L. Ed. 2d 488 (1984)] 

(emphasis added), quoting Fare v. Michael C., 442 

U.S. 707, 719 [99 S. Ct. 2560, 2569, 61 L. Ed. 2d 

197] (1979). To avoid difficulties of proof and to 

provide guidance to officers conducting 

interrogations, this is an objective inquiry. See 

Connecticut v. Barrett, supra, 479 U.S. [523], at 

529 [107 S. Ct. [828] at 832 (1987)]. Invocation of 

the Miranda right to counsel 'requires, at a 

minimum, some statement that can reasonably be 

construed to be an expression of a desire for the 

assistance of an attorney.' McNeil v. Wisconsin, 

501 U.S. [171] at 178 [111 S. Ct. [2204] at 2209 

(1991).] ....
CR-18-0599

36

" '"... As we have observed, 'a statement 

either is such an assertion of the right to counsel 

or it is not.' Smith v. Illinois, 469 U.S., at 97-98 

[105 S. Ct., at 494] (brackets and internal 

quotation marks omitted). Although a suspect 

need not 'speak with the discrimination of an 

Oxford don,' post, at 476, 114 S. Ct., at 2364 

(Souter, J., concurring in judgment), he must 

articulate his desire to have counsel present 

sufficiently clearly that a reasonable police officer 

in the circumstances would understand the 

statement to be a request for an attorney."'

"Ex parte Cothren, 705 So. 2d 861, 864 (Ala. 1997) (quoting 

Davis [v. United States], 512 U.S. [452,] 458-59 [(1994)]).

"Furthermore, a suspect's reference to an attorney is 

equivocal if '"a reasonable officer in light of the circumstances 

would have understood only that the suspect might be 

invoking the right to counsel."' Cothren, 705 So. 2d at 864 

(quoting Davis, 512 U.S. at 459). '[T]he proper standard to be 

used in resolving this issue is an objective one—whether a 

police officer in the field reasonably could have concluded from 

the circumstances that a suspect was not absolutely refusing 

to talk without the assistance of an attorney.' Cothren, 705 

So. 2d at 866-67.

"Equivocal has been defined as:

"'"'Having different significations equally 

appropriate or plausible; capable of double 

interpretation; ambiguous,' 5 Oxford English 

Dictionary 359 (2d ed., J.A. Simpson & E.S.C. 

Weiner, eds., 1989); and as: 'Having two or more 

significations; capable of more than one 

interpretation; of doubtful meaning; ambiguous,'
CR-18-0599

37

Webster's Third International Unabridged 

Dictionary 769 (1986)."'

"Cothren, 705 So. 2d at 866 (quoting Coleman v. Singletary, 

30 F.3d 1420, 1425 (11th Cir. 1994))."

Thompson, 97 So. 3d at 807-08.

Under those principles, Yeiter made, at most, an equivocal 

reference to an attorney when he stated, "I guess I'm going to need a 

lawyer because they going to give me one when I go over there regardless 

if I need one or not." His statement, "Well, the more I speak to y'all the 

more I incriminate myself, right?"—either alone or when considered as a 

follow-up statement—also was not an unequivocal request for an 

attorney. Thompson, 97 So. 3d at 808 (finding equivocal the statements 

"I guess I got to call an attorney if I needed one, right? Is this the time 

now when I need to?"); see also Petersen v. State, 326 So. 3d 535, 581 

(Ala. Crim. App. 2019) (finding equivocal the statements "Probably 

should talk to my mom and my lawyer before I go into or know what the 

charges are I don't know," "I guess I have to talk to my lawyer," "Maybe 

[I want to talk to an attorney], I don't know I'm not—attorney—
CR-18-0599

38

apparently I did—I don't know ...," and "need an attorney"). The trial 

court did not err in admitting Yeiter's statement.5

VI. REFUSAL TO INSTRUCT THE JURY ON PROVOCATION 

MANSLAUGHTER

Yeiter argues that the trial court erred by not instructing the jury 

on provocation or "heat-of-passion" manslaughter (Issue II.A. in Yeiter's 

brief) and manslaughter due to voluntary intoxication (Issue II.B. in 

Yeiter's brief). Yeiter preserved only Issue II.A. as to provocation 

manslaughter; we thus review only that issue.

"The offense of 'heat-of-passion' manslaughter is defined 

in § 13A-6-3(a)(2), Code of Alabama 1975,[6] as follows:

5What's more, as Yeiter explained in his statement, he had multiple 

prior convictions and was thus experienced with the criminal justice 

system.

6The version of § 13A-6-3, Ala. Code 1975, quoted here was in effect 

when Yeiter committed the offense. Section 13A-6-3, Ala. Code 1975, has 

been amended since then. See Act No. 2023-387, Ala. Acts 2023; Act No. 

2024-103, Ala. Acts 2024. See also Minnifield v. State, 941 So. 2d 1000, 

1001 (Ala. Crim. App. 2005) ("It is well settled that the law in effect at 

the time of the commission of the offense controls the prosecution. See 

Davis v. State, 571 So. 2d 1287, 1289 (Ala. Crim. App. 1990) ('A 

defendant's sentence is determined by the law in effect at the time of the 

commission of the offense.'); Hardy v. State, 570 So. 2d 871 (Ala. Crim.

App. 1990) (unless otherwise stated in the statute, the law in effect at the 

time the offense was committed controls the offense); and Jefferson v. 

City of Birmingham, 399 So. 2d 932 (Ala. Crim. App. 1981) (law in effect 

at the time of the offense governs prosecution).").
CR-18-0599

39

"'(a) A person commits the crime of manslaughter if:

"'....

"'(2) He causes the death of another person under 

circumstances that would constitute murder under Section 

13A-6-2; except, that he causes the death due to sudden heat 

of passion caused by provocation recognized by law, and 

before a reasonable time for the passion to cool and for reason 

to reassert itself.'

"The defendant must present evidence of legal 

provocation to require a charge on heat of passion.

"'"'Manslaughter is the unlawful killing of a 

human being without malice; that is, the 

unpremeditated result of passion-heated blood—

caused by a sudden, sufficient provocation. And 

such provocation can, in no case, be less than 

assault, either actually committed, or menaced 

under such pending circumstances as reasonable 

to convince the mind that the accused has cause 

for believing, and did believe, he would be 

presently assaulted, and that he struck, not in 

consequence of a previously formed design, 

general or special, but in consequence of the 

passion suddenly aroused by the blow given, or 

apparently about to be given ....'"'

"Easley v. State, 246 Ala. 359, 362, 20 So. 2d 519, 522 (1944), 

quoting Reeves v. State, 186 Ala. 14, 16-17, 65 So. 160 (1914)."

Harris v. State, 683 So. 2d 26, 28 (Ala. Crim. App. 1996).

Yeiter asserts that he shot Phillips "after a heated struggle in which 

Mr. Phillips had threatened lethal violence." (Yeiter's brief, p. 22.) He 
CR-18-0599

40

notes that the trial court denied defense counsel's request for a charge on 

provocation manslaughter as a lesser-included offense. (C. 497; R. 1715.)

Yeiter argues:

"At trial, the defense relied on the theory that Mr. Yeiter 

was provoked by Mr. Phillips, urging the jury in its opening 

statement that the ultimate question in the case would 'get 

down to the why.' (R. 1358.) Consistent with this theory, the 

defense relied on evidence of a scuffle between Mr. Yeiter and 

Mr. Phillips before the shooting occurred (R. 1390-92, 1403, 

1408, 1613-14), during which Mr. Phillips said he was going 

to get his gun. (R. 1610-11, 1613-14, 1741). Additional 

testimony from Mr. Phillips's niece, Toni Casey, and a 

recording of her 911 call, indicated that the Phillips [family] 

had 'mentally abused' Mr. Yeiter leading up to the incident 

and had finally pushed him over the edge. (R. 1417-18, 1491, 

1739.)

"From these facts, the jury could have concluded that 

Mr. Yeiter did not have the specific intent to kill Mr. Phillips 

but instead acted under sufficient provocation to negate 

intent. ..."

(Yeiter's brief, pp. 25-26.) Yeiter cites Fuller v. State, 231 So. 3d 1207, 

1218 (Ala. Crim. App. 2015), for its statements that manslaughter is "the 

unlawful killing of a human being without malice; that is, the 

unpremeditated result of passion—heated blood—caused by a sudden, 

sufficient provocation" and that "the mere appearance of imminent 

assault may be sufficient to arouse heat of passion." Fuller does not 

support Yeiter's position, however, because there was no evidence here of 
CR-18-0599

41

"a sudden, sufficient provocation" or "the mere appearance of imminent 

assault." 

"'A person accused of the greater offense has a right to 

have the court charge on lesser included offenses when there 

is a reasonable theory from the evidence supporting those 

lesser included offenses.' MacEwan v. State, 701 So. 2d 66, 69 

(Ala. Crim. App. 1997). An accused has the right to have the 

jury charged on '"any material hypothesis which the evidence 

in his favor tends to establish."' Ex parte Stork, 475 So. 2d 

623, 624 (Ala. 1985). '[E]very accused is entitled to have 

charges given, which would not be misleading, which correctly 

state the law of his case, and which are supported by any 

evidence, however[ ] weak, insufficient, or doubtful in 

credibility,' Ex parte Chavers, 361 So. 2d 1106, 1107 (Ala.

1978), 'even if the evidence supporting the charge is offered by 

the State.' Ex parte Myers, 699 So. 2d 1285, 1290-91 (Ala.

1997), cert. denied, 522 U.S. 1054, 118 S. Ct. 706, 139 L. Ed.

2d 648 (1998). However, '[t]he court shall not charge the jury 

with respect to an included offense unless there is a rational 

basis for a verdict convicting the defendant of the included 

offense.' § 13A-1-9(b), Ala. Code 1975. 'The basis of a charge 

on a lesser-included offense must be derived from the evidence 

presented at trial and cannot be based on speculation or 

conjecture.' Broadnax v. State, 825 So. 2d 134, 200 (Ala. Crim.

App. 2000), aff'd, 825 So. 2d 233 (Ala. 2001), cert. denied, 536 

U.S. 964, 122 S. Ct. 2675, 153 L. Ed. 2d 847 (2002). '"A court 

may properly refuse to charge on a lesser included offense only 

when (1) it is clear to the judicial mind that there is no 

evidence tending to bring the offense within the definition of 

the lesser offense, or (2) the requested charge would have a 

tendency to mislead or confuse the jury."' Williams v. State, 

675 So. 2d 537, 540-41 (Ala. Crim. App. 1996), quoting 

Anderson v. State, 507 So. 2d 580, 582 (Ala. Crim. App.

1987)."

Clark v. State, 896 So. 2d 584, 641 (Ala. Crim. App. 2000).
CR-18-0599

42

In Bohannon v. State, 222 So. 3d 457 (Ala. Crim. App. 2015), this 

Court stated:

"Here, there was no rational basis that would support a 

jury instruction on heat-of-passion manslaughter. Three 

cameras recorded the shootings. Rarely does a reviewing court 

have the means to review this issue with such clarity. It is 

clear from the videotapes that one victim did initially gently 

shove Bohannon; however, that act is not sufficient to 

constitute legal provocation for heat-of-passion 

manslaughter. After one victim shoved Bohannon, both 

victims turned their backs to Bohannon and started to walk 

toward their vehicle when Bohannon grabbed his gun from 

the back waistband of his pants and rushed after the two 

victims with his gun pointed at them. The victims then ran 

away from Bohannon and attempted to hide.

" '"Manslaughter is the unlawful killing of a 

human being without malice; that is, the 

unpremeditated result of passion-heated blood—

caused by a sudden, sufficient provocation. And 

such provocation can, in no case, be less than 

assault, either actually committed, or menaced 

under such pending circumstances as reasonable 

to convince the mind that the accused has cause 

for believing, and did believe, he would be 

presently assaulted, and that he struck, not in 

consequence of a previously formed design, 

general or special, but in consequence of the 

passion suddenly aroused by the blow given, or 

apparently about to be given ...."'

"Easley v. State, 246 Ala. 359, 362, 20 So. 2d 519, 522 (1944), 

quoting Reeves v. State, 186 Ala. 14, 16–17, 65 So. 160 (1914).

"'Alabama courts have, in fact, recognized three 

legal provocations sufficient to reduce murder to 
CR-18-0599

43

manslaughter: (1) when the accused witnesses his 

or her spouse in the act of adultery; (2) when the 

accused is assaulted or faced with an imminent 

assault on himself; and (3) when the accused 

witnesses an assault on a family member or close 

relative.'

"Spencer v. State, 58 So. 3d 215, 245 (Ala. Crim. App. 2008).

"'A minor or technical assault or battery is 

insufficient, but a blow inflicting considerable pain 

or injury ordinarily is sufficient Easley v. State, 

246 Ala. 359, 20 So. 2d 519 (1945); Buffalow v. 

State, 219 Ala. 407, 122 So. 633 (1929). Mere 

abusive or opprobrious words or insulting gestures 

are insufficient. Cates v. State, 50 Ala. 166 (1874); 

Easley v. State, supra; Weaver v. State, 1 Ala. App. 

48, 55 So. 956, rehearing denied, 2 Ala. App. 98, 56 

So. 749 (1911). In a mutual fight where no more 

than ordinary battery was intended, the blows 

may constitute provocation, but use of deadly 

weapon or undue advantage is usually murder. 

Diamond v. State, 219 Ala. 674, 123 So. 55 (1929); 

Lanier v. State, 31 Ala. App. 242, 15 So. 2d 278 

(1943).'

"Commentary to § 13A-6-3, Ala. Code 1975.

"In Living v. State, 796 So. 2d 1121 (Ala. Crim. App.

2000), this Court found that the circuit court did not err in 

refusing to give a jury instruction on heat-of-passion 

manslaughter after the victim had shoved the defendant. We 

stated:

" '"[A]n extreme emotional or mental disturbance, 

without legally recognized provocation, will not 

reduce murder to manslaughter." MacEwan v. 

State, 701 So. 2d [66,] 70 [(Ala. Crim. App. 1997)] 
CR-18-0599

44

(quoting Gray v. State, 482 So. 2d 1318, 1319 (Ala.

Crim. App. 1985)). Moreover, [the victim] shoving 

[the defendant] during an argument does not 

constitute legal provocation for heat-of-passion 

manslaughter. "A minor technical assault which 

did not endanger life or inflict serious physical 

injury or inflict substantial and considerable pain 

would not amount to sufficient provocation."

Shultz v. State, 480 So. 2d 73, 76 (Ala. Crim. App.

1985). Because no evidence of adequate legal 

provocation was presented at trial, the trial court 

did not err in refusing to instruct the jury on heatof-passion manslaughter.'

"796 So. 2d at 1130. See also Woolf v. State, 220 So. 3d 338 

(Ala. Crim. App. 2014)."

Bohannon, 222 So. 3d at 510-11.

The evidence at trial showed that Yeiter was the initial aggressor, 

"grabb[ing] the glasses off [Phillips's] face" (R. 1391); that he walked 

away from the initial confrontation and drove a half-mile to his house to 

get his shotgun; that he drove back to the church; and that he shot 

Phillips while Phillips was sitting inside his idling truck unarmed and 

with his seatbelt buckled. (Supp. C. 234.) Yeiter told the police that it was 

"premeditated murder" and that he "thought about it all the way [home] 

and all the way back." (Supp. C. 233.) Yeiter's request for a charge on

heat-of-passion manslaughter had no support in the law or the evidence.
CR-18-0599

45

Thus, the trial court did not err in refusing Yeiter's request for a charge 

on heat-of-passion manslaughter, and Yeiter is due no relief. 

VII. EXCLUSION OF TESTIMONY FROM JEWELL PHILLIPS

Yeiter argues that the trial court erred in not allowing Jewell 

Phillips—who was married to Phillips for over 50 years—to testify at the 

penalty phase that, in her opinion, Phillips would not have wanted Yeiter 

sentenced to death. (Yeiter's brief, p. 37.)

During the penalty phase, Yeiter called Jewell as a witness. (R. 

1808.) In response to defense counsel's question,7 Jewell testified: "I don't 

want him to have the death penalty. I don't believe in it." (R. 1838.) Jewell

testified that she "still love[d] Brett Yeiter" and that she thought 

executing him "would cause [her] family ... more pain." (R. 1838.) 

The State objected when defense counsel asked Jewell whether 

Phillips would "want the death penalty" for Yeiter. (R. 1839.) The trial 

court sustained the objection: "That is the mental operation of somebody 

else and under our rules of evidence, that is not permitted." (R. 1839.) 

On appeal, Yeiter argues that "[u]nder Alabama law, a victim's 

7The State objected to the question at first. (R. 1810.) After a 

lengthy discussion outside the presence of the jury, the State withdrew 

its objection. (R. 1833.) 
CR-18-0599

46

family member may recommend leniency or request a lesser sentence 

during the sentencing hearing and this recommendation should be 

considered as a [nonstatutory] mitigating factor." (Yeiter's brief, p. 38.) 

For many reasons Yeiter asserts that the trial court erred.

This Court addressed an almost identical claim in Smith v. State, 

[Ms. CR-17-1014, Sept. 2, 2022] ___ So. 3d ___ (Ala. Crim. App. 2022), 

cert. denied (No. SC-2022-1033, June 23, 2023):

"Smith argues that the trial court 'improperly 

prohibited [him] from introducing a victim's family member's 

request for leniency' during the sentencing phase. (Smith's 

brief, p. 36.) Specifically, Smith argues that the trial court 

erred when it prevented Bobby Bennett, the brother of David 

Bennett, from testifying that he was in favor of Smith's being 

sentenced to life imprisonment without the possibility of 

parole. (Smith's brief, p. 36.) According to Smith, 'victim 

requests for leniency are admissible' and the trial court erred 

in not allowing the jury to consider Bobby's testimony as a 

mitigating circumstance. Thus, Smith says the trial court 

denied him 'his right to present mitigating evidence and 

receive an individualized sentencing determination under 

Lockett [v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 

(1978)], Tennard [v. Dretke, 542 U.S. 274, 124 S. Ct. 2562, 159 

L. Ed. 2d 384 (2004)], and [Ex parte] Carroll[, 852 So. 2d 833 

(Ala. 2002)], and his rights to have mitigation found and 

considered, a complete defense, due process, a fair trial, and a 

reliable sentence.' (Smith's brief, pp. 38-39.)

"This Court, however, rejected this precise claim in 

Barbour v. State, 673 So. 2d 461 (Ala. Crim. App. 1994):

" '"In Payne [v. Tennessee, 501 
CR-18-0599

47

U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 

720 (1991)], the court held that if the 

State 'chooses to permit the admission 

of victim impact evidence and 

prosecutorial argument on the subject, 

the Eighth Amendment erects no per se 

bar.' McMillian v. State, 594 So. 2d 

1253, 1275 (Ala. Cr. App. 1991). Payne 

did not address the issue in this case, 

whether a request for leniency by the 

victim's family can properly be 

considered as a mitigating 

circumstance.

" '"The United States Supreme 

Court in Eddings v. Oklahoma, 455 

U.S. 104 [102 S. Ct. 869, 71 L. Ed. 2d 1] 

(1982), held that the sentencer in 

capital cases must be permitted to 

consider any relevant mitigating factor 

touching the defendant's character and 

record.

" '"The Court is aware of three 

cases which address the specific issue 

presented. In Floyd v. State, 497 So. 2d 

1211 (Fla. 1986), the court held the 

testimony of the murder victim's 

daughter that she and the victim 

opposed capital punishment was 

mitigating evidence. However, on 

retrial of the case, the trial judge 

refused to allow the victim's daughter 

to testify to her opinion as to whether 

Floyd should be executed and the 

Florida Supreme Court held that the 

trial judge did not abuse his discretion. 

Floyd v. State, 569 So. 2d 1225 (1990), 
CR-18-0599

48

cert. denied, 501 U.S. 1259, 111 S. Ct. 

2912 [115 L. Ed. 2d 1075] (1991). The 

Tenth Circuit Court of Appeals held 

that a victim's relative was properly 

prohibited from expressing her opinion 

that the death penalty should not be 

imposed in Robison v. Maynard, 829 

F.2d 1501 (10th Cir. 1987) (applying 

Oklahoma law). See Robison v. 

Maynard, 943 F.2d 1216 (10th Cir. 

1991) (the court reached the same 

conclusion upon consideration after 

Payne v. Tennessee, 501 U.S. 808, 111 

S. Ct. 2597, 115 L. Ed. 2d 720 (1991) 

was decided). See Kathryn E. Bartolo, 

Payne v. Tennessee: The Future Role of 

Victim's Statements of Opinion in 

Capital Sentencing Proceedings, 77 

[Iowa] L. Rev. 1217 (1992).

" '"The Alabama Supreme Court 

recently held that the defendant's 

'Eighth Amendment rights were 

violated if the trial judge ... considered 

the portions of the victim impact 

statement wherein the victim's family 

members offered their 

characterizations or opinions of ... the 

appropriate punishment.' Ex parte 

McWilliams, 640 So. 2d 1015 (Ala. 

1993).

" '"The Court held that opinions of 

family members as to the appropriate 

punishment either for the death 

penalty, Ex parte McWilliams, or 

against the death penalty, Robison I & 

II, are inadmissible. The reasoning of 
CR-18-0599

49

the Court in Robison I is persuasive. 

The Court reasoned that such opinion 

evidence is not relevant because 

mitigating evidence is composed of 

evidence of the defendant's character 

or record or any of the circumstances of 

the offense, and the witnesses' opinion 

of the appropriate punishment is not 

relevant to either. In Robison II the 

court further explained its holding in 

Robison I, and, notwithstanding that 

the jury is the sentencing authority in 

Oklahoma, the court's reasoning is also 

persuasive. The court said that the 

proffered testimony 'was calculated to 

incite an arbitrary response [from the 

jury], thus it was properly excluded.'

Robison II at 1217."

"'The trial court's ruling was correct for the 

reasons stated by the Alabama Supreme Court in 

McWilliams v. State, 640 So. 2d 1015, 1017 (Ala. 

1993). The court stated:

" '"In Booth v. Maryland, 482 U.S. 

496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 

(1987), the United States Supreme 

Court vacated a death sentence, 

holding that it violated the defendant's 

Eighth Amendment rights for the 

sentencer to consider victim impact 

statements in sentencing the 

defendant to death. The victim impact 

statements in that case contained the 

same types of information as were in 

the statements in the present case. In 

Payne v. Tennessee, 501 U.S. 808, 111 

S. Ct. 2597, 115 L. Ed. 2d 720 (1991), 
CR-18-0599

50

the Supreme Court partially overruled 

Booth. The Court in Payne held that 

the defendant's Eighth Amendment 

rights were not violated by the trial 

court's consideration of statements 

regarding the victims and the impact of 

their deaths upon the family members. 

The victim impact statements in Payne

did not contain characterizations or 

opinions about the defendant, the 

crime, or the appropriate punishment. 

That portion of Booth that proscribed 

the trial court's consideration of that 

type of statement was, therefore, left 

intact by Payne.

" '"We conclude that 

McWilliams's Eighth Amendment 

rights were violated if the trial judge in 

this case considered the portions of the 

victim impact statements wherein the 

victim's family members offered their 

characterizations or opinions of the 

defendant, the crime, or the 

appropriate punishment."

"'(Emphasis added.)'

"Barbour, 673 So. 2d at 468-69.

"Here, Bobby's proposed testimony that Smith should be 

sentenced to life imprisonment without the possibility of 

parole is precisely the type of testimony that Payne, Booth, 

and McWilliams prohibit. The opinion of a victim's family 

member as to what punishment the defendant should receive 

is impermissible, whether favorable to the defendant or not.7

Thus, the trial court did not err in refusing to allow Smith to 

present Bobby's testimony as to what he believed the proper 
CR-18-0599

51

punishment in this case should be. Accordingly, Smith is not 

entitled to relief on this claim.

"_______________

"7Notably, the trial court did let Bobby testify to the fact 

that his family had forgiven Smith—a fact that the jury could 

consider when assessing the penalty-phase evidence."

Smith, ___ So. 3d at ___.

As recognized in Smith, Alabama law prohibited Jewell's testimony 

about what punishment she thought Phillips would want Yeiter to 

receive. Thus, the trial court did not err in disallowing that testimony, 

and Yeiter is due no relief on this claim.

VIII. CAPITAL-SENTENCING SCHEME

In its brief the State notes that the trial court's sentencing "order 

does not indicate the existence or non-existence of aggravating and 

mitigating circumstances or make specific findings of fact" about the 

aggravating circumstances as required by § 13A-5-47, Ala. Code 1975. 

(State's brief, p. 54 n.8.) The State cites cases in which this Court has 

remanded the case for the trial court to make such findings. See, e.g., 

Phillips v. State, 287 So. 3d 1063, 1157 (Ala. Crim. App. 2015) 

(remanding for the trial court to clarify whether it found the existence or 

nonexistence of each statutory and non-statutory mitigating 
CR-18-0599

52

circumstance); Floyd v. State, 289 So. 3d 337, 446 (Ala. Crim. App. 2017) 

(remanding for the trial court to make findings about the especially 

heinous, atrocious, or cruel aggravating circumstance). The State is 

correct. More than that, however, the record shows that, in treating the 

jury's verdict as binding rather than advisory, the trial court applied the 

wrong capital-sentencing scheme. 

On original submission, we noted:

"The trial court repeatedly stated that it had to follow 

the jury's verdict. (See R. 1934 ('[There is no] judicial override. 

The court has absolutely no discretion. Therefore I see no need 

to delay formal sentencing from the court. Because all I'm 

doing is pronouncing the sentence imposed by the jury.'); R. 

1784 ('[J]udicial override ... no longer exists.'); R. 1813 ('Now, 

with the statute as it presently exists, the jury makes the 

decision.').) Although both the State and Yeiter agreed with 

the trial court, this position is erroneous.

"Act No. 2017-131, Ala. Acts 2017, amended §§ 13A-5-

45, 13A-5-46, and 13A-5-47, Ala. Code 1975, eliminated 

judicial override, and placed the final sentencing decision in 

the hands of the jury. That Act, however, did not apply 

retroactively to Yeiter, who was charged with capital murder 

before April 11, 2017—the effective date of the Act. See § 2, 

Act No. 2017-131, Ala. Acts 2017 ('This act shall apply to any 

defendant who is charged with capital murder after the 

effective date of this act and shall not apply retroactively to 

any defendant who has previously been convicted of capital 

murder and sentenced to death prior to the effective date of 

this act.'). Under the versions of §§ 13A-5-45, 13A-5-46, and 

13A-5-47 applicable to Yeiter, the judge, not the jury, had the 

final sentencing decision."
CR-18-0599

53

Yeiter, ___ So. 3d at ___ n.2. 

This Court has repeatedly held that Act No. 2017-131, Ala. Acts 

2017, does not apply to a defendant like Yeiter who was charged with 

capital murder before April 11, 2017, the effective date of Act No. 2017-

131, but convicted and sentenced after that date.8 See, e.g., Sykes v. 

State, [Ms. CR-2022-0546, May 3, 2024] ___ So. 3d ___, ___ (Ala. Crim. 

App. 2024) ("The new capital sentencing scheme is triggered by the date 

on which a defendant is charged with capital murder."); Dearman v. 

State, [Ms. CR-18-0060, Aug. 5, 2022] ___ So. 3d ___ (Ala. Crim. App. 

2022); Young v. State, 375 So. 3d 813 (Ala. Crim. App. 2021), cert. denied

(No. 1210291, Oct. 21, 2022); and Belcher v. State, 341 So. 3d 237 (Ala. 

Crim. App. 2020), cert. denied (No. 1200374, May 21, 2021). Thus, the 

trial court erred in concluding that Act No. 2017-131 applies to Yeiter.

The procedure the trial court used here satisfied former § 13A-5-45, 

Ala. Code 1975. But for treating the jury's verdict as binding rather than 

as an advisory verdict, the procedure likewise complied with former § 

8A complaint charging Yeiter was filed on October 27, 2014. Law 

enforcement arrested Yeiter in November 2014, and a grand jury indicted 

him in January 2015. See Rule 1.4(b), Ala. R. Crim. P. ("'Charge' means 

a complaint, indictment, or information."). 
CR-18-0599

54

13A-5-46, Ala. Code 1975. The procedure did not, however, comply with 

former § 13A-5-47, which provided:

"(a) After the sentence hearing has been conducted, and 

after the jury has returned an advisory verdict ... the trial 

court shall proceed to determine the sentence.

"(b) Before making the sentence determination, the trial 

court shall order and receive a written presentence 

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. The report and any evidence submitted in 

connection with it shall be made part of the record in the case.

"(c) Before imposing sentence the trial court shall permit 

the parties to present arguments concerning the existence of 

aggravating and mitigating circumstances and the proper 

sentence to be imposed in the case. The order of the 

arguments shall be the same as at the trial of a case.

"(d) Based upon the evidence presented at trial, the 

evidence presented during the sentence hearing, and the 

presentence 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 13A5-51, and any additional mitigating circumstances offered 

pursuant to Section 13A-5-52. The trial court shall also enter 

written findings of facts summarizing the crime and the 

defendant's participation in it.

"(e) In deciding upon the sentence, the trial court shall 
CR-18-0599

55

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, 

.... While the jury's recommendation concerning sentence 

shall be given consideration, it is not binding upon the court."

Thus, we must vacate the trial court's order sentencing Yeiter to

death and remand this case for the trial court to impose a new sentence 

after following the procedure outlined in former § 13A-5-47. Rather than 

conducting a new penalty-phase proceeding before a jury, the trial court 

should treat the jury's penalty-phase verdict as an advisory verdict under 

former § 13A-5-46. The trial court also should:

(1) Under former § 13A-5-47(b), "order and receive a written 

presentence investigation report" and allow "the parties ... to 

respond to it and to present evidence to the court about any part 

of the report which is the subject of factual dispute";9

(2) Under former § 13A-5-47(c), "permit the parties to present 

arguments concerning the existence of aggravating and 

mitigating circumstances and the proper sentence to be 

imposed in the case";

(3) Under former § 13A-5-47(d), "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 

9The trial court did not order a presentence report because the court 

thought that the jury's penalty-phase verdict was binding. (See, e.g., R. 

1933 ("[T]here is no need for a presentence report.").) 
CR-18-0599

56

additional mitigating circumstances offered pursuant to 

Section 13A-5-52" and "also enter written findings of facts 

summarizing the crime and the defendant's participation in it."

(4) As to the aggravating circumstance that the murder "was 

especially heinous, atrocious, or cruel compared to other capital 

offenses," § 13A-5-49(8), Ala. Code 1975, "'make specific 

findings of fact explaining why this aggravating circumstance 

was applicable' under the standard set forth in Ex parte Kyzer[, 

399 So. 2d 330 (Ala. 1981), abrogated on other grounds by Ex 

parte Stephens, 982 So. 2d 1148 (Ala. 2006),]" Floyd, 289 So. 3d 

at 446 (quoting Miller v. State, 913 So. 2d 1148, 1152 (Ala. 

Crim. App. 2004)); and

(5) Pronounce Yeiter's sentence in open court, see Ex parte Kelley, 

246 So. 3d 1068 (Ala. 2015).

CONCLUSION

Because the trial court applied the wrong capital-sentencing 

scheme, we vacate its order sentencing Yeiter to death, and we remand 

this case for the trial court to apply the correct sentencing scheme as 

stated above and to impose a new sentence. Due return should be filed in 

this court no later than 120 days from the date of this opinion. 

REMANDED WITH INSTRUCTIONS. 

Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.