Terrell Maurice Watts v. State of Alabama (Appeal from Jefferson Circuit Court: CC-22-1881)

Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

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

CR-2023-0820
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Terrell Maurice Watts

v.

State of Alabama

Appeal from Jefferson Circuit Court
(CC-22-1881)

KELLUM, Judge.

Terrell Maurice Watts was convicted of murder made capital

because it was committed by or through the use of a deadly weapon fired

or otherwise used within or from a vehicle. See § 13A-5-40(a)(18), Ala.
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Code 1975. The State did not seek the death penalty, and the trial court

sentenced Watts to life imprisonment without the possibility of parole.

The evidence adduced at trial indicated the following. In the early

morning hours of October 8, 2021, Marcus Nevel and Anthony Grayson

were driving around drinking alcohol in Grayson's automobile and

decided to purchase drugs. Grayson drove them to "Eastlake," where

they purchased crack cocaine, which they then ingested as they

continued drinking. (R. 162.) Around 1:30 a.m., after consuming all the

alcohol and cocaine they had, Grayson let Nevel drive Grayson's vehicle

because Grayson had "already been drinking" before he had picked up

Nevel and was too intoxicated to continue driving. (R. 164.) Nevel drove

them to a Shell gasoline station and convenience store to purchase beer,

where they saw Watts, who Nevel knew as a fellow drug user. Watts was

wearing a dark blue or black hoodie and dark jeans, he had a backpack

with him, and his hair was in "long dreads." (R. 167.) Watts asked Nevel

and Grayson to drive him somewhere to buy drugs, and they agreed.

After Nevel purchased the beer, Watts got into the backseat of the vehicle

behind Grayson, who was seated in the front passenger seat.

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Nevel drove them back to Eastlake, where they purchased more

crack cocaine and split it between the three of them. Nevel described

Watts as "real balanced" until "that first hit of dope," at which point, he

said, Watts became "paranoid" and began "hopping" around the backseat,

moving from the passenger side of the vehicle to the center of the vehicle

and back again. (R. 169-70.) Watts also asked Nevel and Grayson if they

had a gun in the car, and Nevel told Watts that they did not and that he

should calm down. When asked if there were only three people in the

vehicle at that point in time, Nevel said: "That's all it was all night." (R.

170.) After consuming the cocaine they had purchased, Watts wanted

more, and Nevel drove them back to Eastlake, where they purchased

more cocaine and, again, split the cocaine between the three of them.

After that cocaine was gone, Watts asked if Nevel knew where he could

purchase more cocaine with the $7.00 he had left. At this point, it was

around 4:30 a.m. Nevel then drove to an apartment complex where he

knew someone who might sell a small amount of cocaine at that hour.

When they arrived, it was still dark, but the parking lot had lights.

Watts gave Nevel his money and Nevel got out of the vehicle. Nevel said

that the light inside Grayson's vehicle did not illuminate when he exited

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the vehicle. Nevel walked inside a breezeway to the apartment where

his contact lived, but no one answered when he knocked on the door.

Nevel returned to the vehicle and Watts asked Nevel to try again; Nevel

did so, but again, no one answered. When he returned to the vehicle,

Nevel, without looking, reached into the backseat and handed the money

back to Watts. According to Nevel, Grayson was "out of it" in the front

passenger seat at the time. (R. 174.) Nevel testified that only he,

Grayson, and Watts were in the vehicle and that he saw no one walking

in the area at any point while they were at the apartments.

As Nevel put the key in the ignition, he heard a "boom" and Grayson

"jerked." (R. 175.) Nevel said that the shot "was real loud" and left his

"ears ringing." (R. 179.) Despite seeing a flash in the backseat of the

vehicle at the same time he heard the gunshot (R. 179), Nevel was unsure

exactly where the shot had originated because he was "spooked" (R. 175)

and "confused" (R. 181), so he began looking around, initially thinking

that someone outside the vehicle had fired into the vehicle. (R. 175.) He

saw no one. But he did see that the window of the front passenger-side

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door had shattered, 1 and he then looked in the backseat. According to

Nevel, Watts was the only person in the backseat and he had "a dumb

look on his face" and was saying, "Yeah, yeah." (R. 176.) At that point,

although he did not see a gun and had not seen Watts shoot Grayson,

Nevel realized that Watts must have been the shooter, and Nevel became

"scared for [his] life," not knowing if Watts was "going to shoot [him] in

the back of the head." (R. 176.) But Nevel refused to leave Grayson, so

he turned the key in the ignition and sped away, with Watts still in the

backseat.

Nevel drove to a nearby gasoline station and convenience store and,

when he turned on his blinker to make the turn into the parking area,

Watts told Nevel to keep driving. Nevel refused and drove to the front of

the convenience store, got out of the vehicle, and telephoned emergency

911. Watts took his backpack, exited the vehicle, and fled the scene.

When officers arrived at the gas station, Nevel was "in a state of shock"

(R. 195.) and was still intoxicated, and he indicated to police that he was

not sure whether the gunshot had come from inside or outside the vehicle,

1Testimony indicated that the windows of the vehicle were tinted

and that the adhesive of the tint held the window in place despite its
being shattered by the bullet.
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while simultaneously indicating that it "had" to have come from the

backseat passenger. (R. 199.) Nevel gave police a description of Watts

and later identified Watts in a photographic lineup (as well as at trial) as

the backseat passenger.

Ashanti McKinney, a sergeant with the Jefferson County Sheriff's

Department, was traveling to the gas station in response to the 911 call

when he saw a man matching the description he had received over the

radio about three blocks away from the gas station. Sgt. McKinney

attempted to stop the man and question him, but the man ran away. A

few hours later, around 9:00 a.m., police apprehended Watts about seven

blocks from the gas station. At that time, Watts did not have any

weapons and he was not carrying a backpack. Watts was transported to

the Jefferson County Sheriff’s Office, where he gave a statement. The

statement was recorded and played for the jury, and this Court has

reviewed that recording. Watts denied shooting Grayson, claiming that,

while Nevel was away from the vehicle, a fourth man had entered the

backseat of the vehicle on the driver's side and attempted to sell him a

gun. Watts described the man as "chubby" with light brown skin and

hair similar to Watts's own, and Watts said he had previously seen the

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man around the apartment complex. (R. 512.) Watts said that it was

this fourth man who shot and killed Grayson, after which the man fled.

Police recovered a 9mm shell casing from the backseat of Grayson's

vehicle, but the murder weapon was never found. Grayson's blood was

found on the jeans Watts was wearing at the time of his arrest. It was

determined that the bullet that killed Grayson had been fired from inside

the vehicle and had exited through the front passenger-side window.

Grayson died from a gunshot wound to the head. The autopsy revealed

that the bullet entered Grayson's head in the upper, back, left side of his

skull and exited at his right temple. The trajectory of the bullet was "left

to right and slightly downward and ... slightly back to front." (R. 436.)

Stippling around the entrance wound indicated the shot had been fired

from between 3 and 18 inches away. Grayson had both alcohol and

cocaine in his system at the time of his death.

Watts testified on his own behalf at trial. His testimony was

substantially similar to the statement he gave to police. He also testified

that he was right-handed.

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After both sides rested and the trial court instructed the jury on the

applicable principles of law, the jury found Watts guilty of capital murder

as charged in the indictment. This appeal follows.

I.

Watts first contends, as he did in the trial court, that the legislature

intended § 13A-5-40(a)(18), Ala. Code 1975, to apply to drive-by shootings

and not to shootings where the shooter happens to be inside a vehicle and

the vehicle itself is not an instrumentality or otherwise involved in the

murder. Therefore, he maintains, § 13A-5-40(a)(18) does not apply to the

facts of his case and he should not have been convicted of capital murder.

In support of his claim, Watts relies on Act No. 2006-642, Ala. Acts 2006,

a joint resolution of the legislature, in which the Alabama Legislature

indicated that its intent in passing § 13A-5-40(a)(18), Ala. Code 1975, was

to prohibit gang-related "drive-by shootings" or those murders in which

the vehicle is an instrumentality in the murder, and he argues that §

13A-5-40(a)(18) should be construed in accordance with the legislature's

intent as expressed in the joint resolution and not the plain language of

the statute, which he concedes would place his crime squarely within its

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effect, because, he says, to do otherwise "makes no sense." (Watts's brief,

p. 39.) We disagree.

The Alabama Supreme Court has held that " '[a] resolution is not a

law but merely the form in which the legislature expresses an opinion.

The Legislature has no power to make laws by resolution.' " Wright v.

Childree, 972 So. 2d 771, 780 (Ala. 2006) (quoting Gunter v. Beasley, 414

So. 2d 41, 43 (Ala. 1982)). A statute cannot be amended by a joint

resolution of the legislature, see Opinion of the Justices No. 265, 381 So.

2d 183, 185 (Ala. 1980), and "[i]t is a well established principle of

statutory interpretation that '[w]here the meaning of the plain language

of the statute is clear, it must be construed according to its plain

language.' " Crawford v. State, 100 So. 3d 610, 614-15 (Ala. Crim. App.

2011) (quoting Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 504

(Ala. 1993)). Regardless of what the legislature's intent was post-

enactment (the joint resolution was passed 14 years after § 13A-5-

40(a)(18) was enacted), the plain language of §13A-5-40(a)(18) makes

Watts's shooting of Grayson while Watts was inside a motor vehicle a

capital crime. Therefore, this argument is meritless.

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II.

Watts contends that the trial court erred in denying his motion to

suppress the statement he made to police.

The record reflects that, after Watts was apprehended, he was

taken to the Jefferson County Sheriff's Office, where detectives Shane

Williams and Noah Parsons interviewed him and he gave a statement.

When Watts and the detectives first entered the room, Det. Williams

uncuffed Watts's hands so Watts could sit down. As he was cuffing one

of Watts's hands to the chair, Watts protested and Det. Williams said

that Watts was there "for a specific reason." In response, Watts said that

he thought he was just there to talk, and Det. Williams responded that

Watts was there to talk. Det. Parsons then informed Watts that they

were investigating a homicide and that Watts was a suspect. Det.

Parsons placed a waiver-of-rights form on the table in front of Watts and

advised Watts of his rights under Miranda v. Arizona, 384 U.S. 436

(1966). Watts indicated that he understood his rights. Det. Parsons then

asked Watts: "With those rights in mind, do you wish to make a

statement today? Without your attorney present?" In response, Watts

mumbled, as best we can discern: "(No or nah), all I did is come down

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here and ask to talk, I mean, I ... ." At that point, Det. Williams said:

"Well, yeah, I mean, if you want to talk, then let's talk, but we're talking

about old boy got shot in the head in a car." Det Williams then asked

Watts how it happened, and Watts responded, telling the detectives

about the alleged fourth person in the vehicle. The interview continued,

with Watts answering each of the questions posed by the detectives and

oftentimes talking over the detectives in an apparent effort to get his

point across and have the detectives believe his version of events. At one

point, the detectives left the room as if the interview was over, but Watts

called them back in and the interview continued. Watts never signed the

waiver-of-rights form.

In his motion to suppress and at the suppression hearing, Watts

argued that he did not waive his Miranda rights. His argument was two-

fold. First, he argued that his response of "no or nah" when asked if he

wanted to make a statement without a lawyer was a clear and

unequivocal assertion of his Miranda rights that required the detectives

to cease questioning immediately. Second, Watts argued in the

alternative that, even if his response of "no or nah" -- because it was

followed immediately by Watts's statement that he was there to talk --

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was an ambiguous or equivocal assertion of his Miranda rights, the

detectives were required to clarify his response before questioning him,

which they did not do. According to Watts, his response, to the extent it

was ambiguous, made it unclear whether he "knowingly and intelligently

waived or exercised his Constitutional rights." (C. 200.) The State

argued, on the other hand, that Watts's response of "no or nah" should

not be construed as an assertion of his Miranda rights because he also

stated that he had come to talk and, in fact, did speak to the detectives,

and according to the State, Watts waived his Miranda rights and did so

voluntarily.

At the suppression hearing, both Det. Parsons and Det. Williams

testified that they did not interpret Watts's response of "no or nah" as an

indication that Watts did not want to speak with them because Watts

stated immediately thereafter that he had come there to talk with them.

Det. Parsons testified, however, that he would have clarified Watts's

response if Det. Williams had not immediately begun questioning Watts.

In denying Watts's motion to suppress, the trial court considered

the totality of the circumstances and determined that Watts had, in fact,

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waived his Miranda rights, and it concluded that his waiver and

subsequent statement were voluntary.

A.

Watts first reasserts on appeal his argument that he did not waive

his Miranda rights. As he did in the trial court, Watts maintains that his

response when asked if he wanted to speak to the detectives without an

attorney was ambiguous and necessitated a clarification before the

detectives questioned him.2 He also argues that the trial court erred in

looking to the totality of the circumstances in determining that he had

waived his Miranda rights because, he says, the totality-of-the-

circumstances analysis applies only in determining whether a waiver is

voluntary, not in determining whether there was a waiver at all. In

support of both of these arguments, he relies on E.C. v. State, 623 So. 2d

364 (Ala. Crim. App. 1992).

In E.C., this Court held that when a suspect, after waiving his

Miranda rights, makes an ambiguous or equivocal request for an

attorney, all questioning must cease and the police must clarify the

2Watts does not pursue on appeal his argument that his response

was a clear and unequivocal assertion of his Miranda rights.
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ambiguous statement, and that any statement taken without such

clarification violates Miranda. This Court also held that " '[t]he totality

of the circumstances test, which is used to determine whether an accused

has "knowingly and voluntarily" waived his Miranda rights, has no role

in the determination of whether an accused's request for counsel ... is

clear or equivocal.' " 623 So. 2d at 368 (internal citations omitted). E.C.,

however, was decided before the United States Supreme Court's

decisions in Davis v. United States, 512 U.S. 452 (1994), and Berghuis v.

Thompkins, 560 U.S. 370 (2010), and, in light of those decisions, it is no

longer good law.

In Davis, supra, the United States Supreme Court held:

"[I]f a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of
the circumstances would have understood only that the
suspect might be invoking the right to counsel, our precedents
do not require the cessation of questioning. See ibid. ('[T]he
likelihood that a suspect would wish counsel to be present is
not the test for applicability of Edwards'); Edwards v. Arizona,
supra, 451 U.S. [477,] 485, 101 S.Ct. [1880] 1885 [(1981)]
(impermissible for authorities 'to reinterrogate an accused in
custody if he has clearly asserted his right to counsel')
(emphasis added).

"Rather, the suspect must unambiguously request
counsel. 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. [91,] 97-98, 105 S.Ct. [490,] 494 [(1984)] (brackets

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and internal quotation marks omitted). Although a suspect
need not 'speak with the discrimination of an Oxford don,'
post, 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. If the statement fails to meet the requisite level of
clarity, Edwards does not require that the officers stop
questioning the suspect."

512 U.S. at 459. In Davis, the Court recognized not only that an

ambiguous or equivocal assertion of a Miranda right does not necessitate

the cessation of questioning, but that whether the assertion was, in fact,

ambiguous or equivocal is to be determined by what a reasonable police

officer under the circumstances would understand the assertion to be.

The Davis rule was interpreted by this Court as applying only to an

ambiguous assertion of a Miranda right made after the suspect had

waived his Miranda rights. See State v. Collins, 937 So. 2d 86, 92-93

(Ala. Crim. App. 2005) (holding that " 'Davis was limited to a post-waiver

ambiguous invocation of rights,' " and that " 'an officer faced with an

ambiguous response to an initial advisement of Miranda rights, i.e., at

the pre-waiver stage, is limited to posing questions designed to clarify the

suspect's ambiguous response' " (citations omitted)), cited with approval

in Yeiter v. State, [Ms. CR-18-0599, June 28, 2024] ___ So. 3d ___ (Ala.

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Crim. App. 2024); Keaton v. State, 375 So. 3d 44 (Ala. Crim. App. 2021);

Belcher v. State, 341 So. 3d 237 (Ala. Crim. App. 2020); Steele v. State,

334 So. 3d 558 (Ala. Crim. App. 2020); Lockhart v. State, 163 So. 3d 1088

(Ala. Crim. App. 2013); and Thompson v. State, 97 So. 3d 800 (Ala. Crim.

App. 2011). However, in Berghuis, supra, the United States Supreme

Court applied the Davis rule to an ambiguous assertion of a Miranda

right made before waiver. In addition, the Court in Berghuis considered

the totality of the circumstances in determining whether the defendant

had waived his right to remain silent, specifically holding that a waiver

of Miranda rights "may be implied through 'the defendant's silence,

coupled with an understanding of his rights and a course of conduct

indicating waiver.' " 560 U.S. at 384 (quoting North Carolina v. Butler,

441 U.S. 369, 373 (1979) (emphasis added). Berghuis is controlling here.

In Berghuis, Van Chester Thompkins was arrested and questioned

by police. Police advised him of his Miranda rights and presented him

with a waiver-of-rights form, which he declined to sign. Testimony was

conflicting as to whether Thompkins ever indicated that he understood

his rights. Police then interrogated Thompkins for three hours, during

which time Thompkins was " '[l]argely' silent," although he did answer a

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few questions with either yes or no. 560 U.S. at 375. Of particular

import, toward the end of the interrogation, when asked if he "pray[ed]

to God to forgive you for shooting that boy down," Thompkins said "yes."

Id. at 376. At no point during the interrogation did Thompkins say that

he wanted to remain silent, that he did not want to speak with the police,

or that he wanted an attorney.

The United States Supreme Court first rejected Thompkins's

argument that his prolonged silence during the interrogation was an

invocation of his right to remain silent, holding that an invocation of a

Miranda right must be unambiguous. The Court explained:

"A requirement of an unambiguous invocation of Miranda
rights results in an objective inquiry that 'avoid[s] difficulties
of proof and ... provide[s] guidance to officers' on how to
proceed in the face of ambiguity. Davis, 512 U.S., at 458-459,
114 S.Ct. 2350. If an ambiguous act, omission, or statement
could require police to end the interrogation, police would be
required to make difficult decisions about an accused's
unclear intent and face the consequence of suppression 'if they
guess wrong.' Id., at 461, 114 S.Ct. 2350. Suppression of a
voluntary confession in these circumstances would place a
significant burden on society's interest in prosecuting
criminal activity. See id., at 459-461, 114 S.Ct. 2350; Moran
v. Burbine, 475 U.S. 412, 427, 106 S.Ct. 1135, 89 L.Ed.2d 410
(1986). Treating an ambiguous or equivocal act, omission, or
statement as an invocation of Miranda rights 'might add
marginally to Miranda's goal of dispelling the compulsion
inherent in custodial interrogation.' Burbine, 475 U.S., at
425, 106 S.Ct. 1135. But 'as Miranda holds, full

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comprehension of the rights to remain silent and request an
attorney are sufficient to dispel whatever coercion is inherent
in the interrogation process.' Id., at 427, 106 S.Ct. 1135; see
Davis, supra, at 460, 114 S.Ct. 2350.

"Thompkins did not say that he wanted to remain silent
or that he did not want to talk with the police. Had he made
either of these simple, unambiguous statements, he would
have invoked his ' "right to cut off questioning." ' [Michigan v.]
Mosley, [423 U.S. 96,] 103, 96 S.Ct. 321 [(1975)] (quoting
Miranda, supra, at 474, 86 S.Ct. 1602). Here he did neither,
so he did not invoke his right to remain silent."

560 U.S. at 381-82.

Second, the Court considered whether Thompkins had, in fact,

waived his right to remain silent:

"Even absent the accused's invocation of the right to remain
silent, the accused's statement during a custodial
interrogation is inadmissible at trial unless the prosecution
can establish that the accused 'in fact knowingly and
voluntarily waived [Miranda] rights' when making the
statement. [North Carolina v.] Butler, 441 U.S. [369,] 373,
99 S.Ct. 1755 [(1979)]. The waiver inquiry 'has two distinct
dimensions': waiver must be 'voluntary in the sense that it
was the product of a free and deliberate choice rather than
intimidation, coercion, or deception,' and 'made with a full
awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it.' Burbine,
supra, at 421, 106 S.Ct. 1135.

"....

"The prosecution ... does not need to show that a waiver
of Miranda rights was express. An 'implicit waiver' of the
'right to remain silent' is sufficient to admit a suspect's

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statement into evidence. Butler, supra, at 376, 99 S.Ct. 1755.
Butler made clear that a waiver of Miranda rights may be
implied through 'the defendant's silence, coupled with an
understanding of his rights and a course of conduct indicating
waiver.' 441 U.S., at 373, 99 S.Ct. 1755. The Court in Butler
therefore 'retreated' from the 'language and tenor of the
Miranda opinion,' which 'suggested that the Court would
require that a waiver ... be "specifically made." ' Connecticut
v. Barrett, 479 U.S. 523, 531-532, 107 S.Ct. 828, 93 L.Ed.2d
920 (1987) (Brennan, J., concurring in judgment).

"If the State establishes that a Miranda warning was
given and the accused made an uncoerced statement, this
showing, standing alone, is insufficient to demonstrate 'a
valid waiver' of Miranda rights. Miranda, supra, at 475, 86
S.Ct. 1602. The prosecution must make the additional
showing that the accused understood these rights. See
Colorado v. Spring, 479 U.S. 564, 573–575, 107 S.Ct. 851, 93
L.Ed.2d 954 (1987); Barrett, supra, at 530, 107 S.Ct. 828;
Burbine, 475 U.S., at 421-422, 106 S.Ct. 1135. Cf. Tague v.
Louisiana, 444 U.S. 469, 469, 471, 100 S.Ct. 652, 62 L.Ed.2d
622 (1980) (per curiam) (no evidence that accused understood
his Miranda rights); Carnley v. Cochran, 369 U.S. 506, 516,
82 S.Ct. 884, 8 L.Ed.2d 70 (1962) (government could not show
that accused 'understandingly' waived his right to counsel in
light of 'silent record'). Where the prosecution shows that a
Miranda warning was given and that it was understood by the
accused, an accused's uncoerced statement establishes an
implied waiver of the right to remain silent.

"Although Miranda imposes on the police a rule that is
both formalistic and practical when it prevents them from
interrogating suspects without first providing them with a
Miranda warning, see Burbine, 475 U.S., at 427, 106 S.Ct.
1135, it does not impose a formalistic waiver procedure that a
suspect must follow to relinquish those rights. As a general
proposition, the law can presume that an individual who, with
a full understanding of his or her rights, acts in a manner

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inconsistent with their exercise has made a deliberate choice
to relinquish the protection those rights afford. See, e.g.,
Butler, supra, at 372-376, 99 S.Ct. 1755; [Colorado v.]
Connelly, supra, [479 U.S. 157,] 169-170, 107 S.Ct. 515
[(1986)] ('There is obviously no reason to require more in the
way of a "voluntariness" inquiry in the Miranda waiver
context than in the [due process] confession context'). ...

"The record in this case shows that Thompkins waived
his right to remain silent. There is no basis in this case to
conclude that he did not understand his rights; and on these
facts it follows that he chose not to invoke or rely on those
rights when he did speak. First, there is no contention that
Thompkins did not understand his rights; and from this it
follows that he knew what he gave up when he spoke. See id.,
at 421, 106 S.Ct. 1135. There was more than enough evidence
in the record to conclude that Thompkins understood his
Miranda rights. Thompkins received a written copy of the
Miranda warnings; Detective Helgert determined that
Thompkins could read and understand English; and
Thompkins was given time to read the warnings. Thompkins,
furthermore, read aloud the fifth warning, which stated that
'you have the right to decide at any time before or during
questioning to use your right to remain silent and your right
to talk with a lawyer while you are being questioned.' Brief
for Petitioner 60 (capitalization omitted). He was thus aware
that his right to remain silent would not dissipate after a
certain amount of time and that police would have to honor
his right to be silent and his right to counsel during the whole
course of interrogation. Those rights, the warning made clear,
could be asserted at any time. Helgert, moreover, read the
warnings aloud.

"Second, Thompkins' answer to Detective Helgert's
question about whether Thompkins prayed to God for
forgiveness for shooting the victim is a 'course of conduct
indicating waiver' of the right to remain silent. Butler, supra,
at 373, 99 S.Ct. 1755. If Thompkins wanted to remain silent,

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he could have said nothing in response to Helgert's questions,
or he could have unambiguously invoked his Miranda rights
and ended the interrogation. The fact that Thompkins made
a statement about three hours after receiving a Miranda
warning does not overcome the fact that he engaged in a
course of conduct indicating waiver. Police are not required
to rewarn suspects from time to time. Thompkins' answer to
Helgert's question about praying to God for forgiveness for
shooting the victim was sufficient to show a course of conduct
indicating waiver. This is confirmed by the fact that before
then Thompkins had given sporadic answers to questions
throughout the interrogation.

"Third, there is no evidence that Thompkins' statement
was coerced. See Burbine, supra, at 421, 106 S.Ct. 1135.
Thompkins does not claim that police threatened or injured
him during the interrogation or that he was in any way
fearful. The interrogation was conducted in a standard-sized
room in the middle of the afternoon. It is true that apparently
he was in a straight-backed chair for three hours, but there is
no authority for the proposition that an interrogation of this
length is inherently coercive. Indeed, even where
interrogations of greater duration were held to be improper,
they were accompanied, as this one was not, by other facts
indicating coercion, such as an incapacitated and sedated
suspect, sleep and food deprivation, and threats. Cf. Connelly,
479 U.S., at 163-164, n.1, 107 S.Ct. 515. ... In these
circumstances, Thompkins knowingly and voluntarily made a
statement to police, so he waived his right to remain silent.

560 U.S. at 382-87. The Court then concluded:

"In order for an accused's statement to be admissible at
trial, police must have given the accused a Miranda warning.
See Miranda, 384 U.S., at 471, 86 S.Ct. 1602. If that condition
is established, the court can proceed to consider whether there
has been an express or implied waiver of Miranda rights. Id.,
at 476, 86 S.Ct. 1602. In making its ruling on the

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admissibility of a statement made during custodial
questioning, the trial court, of course, considers whether there
is evidence to support the conclusion that, from the whole
course of questioning, an express or implied waiver has been
established. Thus, after giving a Miranda warning, police
may interrogate a suspect who has neither invoked nor
waived his or her Miranda rights."

Id. at 388 (emphasis added).

Here, Watts did not state that he did not want to talk to the

detectives, that he wanted to remain silent, or that he wanted an

attorney. When asked if he wanted to speak with detectives without an

attorney, he provided an ambiguous response, stating "no or nah" but

then stating that he had come to talk to them. Watts never

unambiguously invoked his Miranda rights and, under Davis and

Berghuis, the detectives were not required to clarify Watts's ambiguous

pre-waiver response before questioning him. Watts also did not sign the

waiver-of-rights form or otherwise expressly waive his Miranda rights.

However, under Davis and Berghuis, we have no trouble concluding, as

the trial court did, that Watts implicitly waived his Miranda rights, and

we reach that conclusion, as the trial court correctly did, by considering

the totality of the circumstances as instructed by Davis and Berghuis.

First, there is no indication that Watts did not understand his

22
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Miranda rights. In fact, after being advised of his rights, Watts told the

detectives that he understood them. Second, Watts engaged in a course

of conduct during the interview indicating a waiver. He readily answered

the detectives' questions, oftentimes talking over the detectives in an

apparent effort to get his point across and have the detectives believe his

version of the events. When the detectives left the room as if the

interview was over, Watts called them back to speak some more. If Watts

did not want to speak with the detectives, he would not have so willingly

and eagerly answered their questions. Third, there is no evidence

indicating that Watts's statement was coerced, and he does not argue

otherwise. The interview was conducted in what appears to be a

standard-sized room, containing a desk and multiple chairs, and the

record indicates that it lasted about an hour. Under these circumstances,

the trial court correctly concluded that Watts had implicitly waived his

Miranda rights.

B.

Second, Watts contends on appeal that, even if he did waive his

Miranda rights, that waiver was not voluntary because, he says, he was

intoxicated and had not slept in two days; he repeatedly stated he was

23
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there to talk, thus indicating that he "believed he was having a

conversation and was not giving an official statement"; and he never

signed a waiver-of-rights form. (Watts's brief, p. 48.) As the State points

out in its brief, Watts did not present these specific arguments to the trial

court in his motion to suppress or at the suppression hearing. The focus

of Watts's arguments in the trial court was on whether he had waived his

Miranda rights at all, not on whether any waiver was voluntary.

Therefore, these specific arguments were not properly preserved for

review. See, e.g., Newsome v. State, 570 So. 2d 703, 716 (Ala. Crim. App.

1989) ("Review on appeal is limited to review of questions properly and

timely raised at trial.").

In any event, after reviewing the record and the recording of

Watts's statement to police, we find no evidence indicating that his

waiver of rights, albeit implicit, was involuntary. Watts was coherent

and animated when answering the detectives' questions, and, although

he indicated that he believed the formalities the detectives observed --

handcuffing him to the chair and advising him of his Miranda rights --

were not necessary, it is obvious that his belief was based on his repeated

assertions of innocence and not because he did not understand what was

24
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happening. In addition, while the record indicates that Watts, Nevel, and

Grayson had shared cocaine between 1:30 a.m. and 4:30 a.m., Watts did

not give his statement to police until several hours later. Moreover, the

fact that Watts did not sign the waiver-of-rights form in no way indicates

that his implicit waiver of his rights was not voluntary, especially in light

of the fact the detectives began questioning Watts without ever asking

him to sign the waiver form. We agree with the trial court that Watts's

waiver of his Miranda rights, and his subsequent statement, were

voluntary.

Therefore, the trial court properly denied Watts's motion to

suppress his statement.

III.

Watts contends that the trial court erred in not instructing the jury

on reckless manslaughter and criminally negligent homicide as lesser-

included offenses of the capital-murder charge.

" '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

25
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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) (opinion on

return to remand and on application for rehearing).

During the charge conference, Watts requested instructions on

reckless manslaughter and criminally negligent homicide 3 as lesser-

3Watts also requested an instruction on reckless murder, but he

does not argue on appeal that the trial court erred in denying that
request.

26
CR-2023-0820

included offenses of the capital-murder charge, arguing that there had

been no eyewitness testimony as to "the manner" in which the shot that

killed Grayson was fired. (R. 609.) Specifically, he argued:

"In this case, we don't know whether the gun was fired
intentionally, recklessly, with extreme indifference, or
negligently. The manner in which the firearm was used, there
has been no testimony. And so I think that all of those [lesser-
included offenses] fit.

"....

"... Nobody testified I saw a man pull the trigger and --
I mean, there was testimony a gun was passed around.[4] And
the detective in his interview more or less stated, he may have
said it on the stand as well, but there was -- he talked about,
you know, he could understand it being an accident. But
regardless, the main witness, Mr. Nevel, has always said that
he didn't look back. He didn't see the shot. You know that it
occurred, but he can't -- no one can say the manner in which
the shot occurred."

(R. 610-11.) When the trial court mentioned that there had been evidence

indicating that "everyone was doing drugs" and may have been

intoxicated, the State argued that there was no evidence indicating that

intoxication played a part in the murder and that, even if it did, it was

inconsistent with the defense's theory that a fourth man had entered the

4Watts testified at trial that, when the alleged fourth man entered

the vehicle, Watts touched the gun, but there was no testimony that the
gun was passed around.
27
CR-2023-0820

vehicle and shot Grayson. (R. 615.) Defense counsel also asserted that

"this is not an intoxication-type case. I mean, people were intoxicated.

But we're not putting on a defense that that's what" happened. (R. 617.)

Defense counsel then reiterated that the basis of his request for

instructions on lesser-included offenses was that "[n]obody has testified

as to how the gun went off." (R. 618.) The trial court denied Watts's

request for instructions on lesser-included offenses.

On appeal, Watts argues that evidence of his cocaine intoxication

supported his request for instructions on reckless manslaughter and

criminally negligent homicide. Of course, that was not the basis for

Watts's request at trial. As noted, the sole basis for Watts's request at

trial was that there was no eyewitness testimony as to "the manner" in

which the gun was fired. In other words, he argued at trial that the lack

of evidence supported giving instructions on lesser-included offenses. He

also specifically told the trial court that intoxication was not the defense

theory. A party cannot assume inconsistent positions at trial and on

appeal. See, e.g., Clark v. State, 896 So. 2d 584 (Ala. Crim. App. 2000).

In any event, Watts's was not entitled to jury instructions on reckless

28
CR-2023-0820

manslaughter and criminally negligent homicide based on his alleged

cocaine intoxication.

In Ex parte McWhorter, 781 So. 2d 330 (Ala. 2000), the Alabama

Supreme Court explained:

" ' "While voluntary intoxication is
never a defense to a criminal charge, it
may negate the specific intent essential
to a malicious killing and reduce it to
manslaughter. § 13A-3-2, Code of
Alabama (1975) (Commentary).
' "When the crime charged involves a
specific intent, such as murder, and
there is evidence of intoxication, the
trial judge should instruct the jury on
the lesser included offense of
manslaughter." Gray v. State, 482 So.
2d 1318, 1319 (Ala. Cr. App. 1985).'
McNeill v. State, 496 So. 2d 108, 109
(Ala. Cr. App. 1986)."

" '[McConnico v. State,] 551 So. 2d [424,] 426 [(Ala.
Crim. App. 1988)]. However, to negate the specific
intent required for a murder conviction, the degree
of the accused's intoxication must amount to
insanity.'

"Smith v. State, 756 So. 2d 892, 906 (Ala. Crim. App. 1997)
(on return to remand). This Court, likewise, has held that the
intoxication necessary to negate specific intent and, thus,
reduce the charge, must amount to insanity. Ex parte
Bankhead, 585 So. 2d 112, 120-21 (Ala. 1991). See, also,
Crosslin v. State, 446 So. 2d 675 (Ala. Crim. App. 1983)."

29
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781 So. 2d at 341. See also Belcher v. State, 341 So. 3d 237 (Ala. Crim.

App. 2020); Floyd v. State, 289 So. 2d 337 (Ala. Crim. App. 2017); and

Smith v. State, 246 So. 3d 1086 (Ala. Crim. App. 2017).

There was evidence indicating that Watts had ingested cocaine in

the hours leading up to the murder and that he was acting "paranoid"

and "hopping" around in the backseat after his "first hit" of cocaine, which

the record indicates was about three hours before the murder. Yet, there

was no evidence as to the quantity of cocaine that Watts ingested during

the hours he was with Nevel and Grayson or any other evidence as to

what effect the cocaine had on Watts at the time of the murder. In

addition, Watts's statement to police and his testimony at trial, in which

he recalled in detail the events of the night of the murder, are "wholly

inconsistent with being intoxicated to the point of insanity." Smith, 246

So. 3d at 1099. Even viewing the evidence in the light most favorable to

Watts, as we must, there was no evidence indicating that Watts was

intoxicated to a degree that amounted to insanity. Therefore, the trial

court did not err in not instructing the jury on reckless manslaughter and

criminally negligent homicide.

IV.

30
CR-2023-0820

Finally, Watts contends, as he did in his motions for a judgment of

acquittal made at the close of the State's case and at the close of all the

evidence, that the evidence was insufficient to sustain his capital-murder

conviction, because, he says, the State failed to prove that he was the one

who shot Grayson or, in the alternative, the State failed to prove that he

had the intent to kill.

" ' "In determining the sufficiency of the evidence to
sustain a conviction, a reviewing court must accept as true all
evidence introduced by the State, accord the State all
legitimate inferences therefrom, and consider all evidence in
a light most favorable to the prosecution." ' Ballenger v. State,
720 So. 2d 1033, 1034 (Ala. Crim. App. 1998), quoting
Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim. App. 1984),
aff'd, 471 So. 2d 493 (Ala. 1985). ' "The test used in
determining the sufficiency of evidence to sustain a conviction
is whether, viewing the evidence in the light most favorable
to the prosecution, a rational finder of fact could have found
the defendant guilty beyond a reasonable doubt." ' Nunn v.
State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997), quoting
O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992).
' "When there is legal evidence from which the jury could, by
fair inference, find the defendant guilty, the trial court should
submit [the case] to the jury, and, in such a case, this court
will not disturb the trial court's decision." ' Farrior v. State,
728 So. 2d 691, 696 (Ala. Crim. App. 1998), quoting Ward v.
State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990). 'The role of
appellate courts is not to say what the facts are. Our role ...
is to judge whether the evidence is legally sufficient to allow
submission of an issue for decision [by] the jury.' Ex parte
Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."

Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003).

31
CR-2023-0820

"In reviewing a conviction based on circumstantial
evidence, this court must view that evidence in the light most
favorable to the prosecution. The test to be applied is whether
the jury might reasonably find that the evidence excluded
every reasonable hypothesis except that of guilt; not whether
such evidence excludes every reasonable hypothesis but guilt,
but whether a jury might reasonably so conclude. United
States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States
v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United
States, 293 F.2d 445 (5th Cir. 1961).

" '[W]e must keep in mind that the test to be
applied is not simply whether in the opinion of the
trial judge or the appellate court the evidence fails
to exclude every reasonable hypothesis but that of
guilt; but rather whether the jury might so
conclude. Harper v. United States, 405 F.2d 185
(5th Cir. 1969); Roberts v. United States, 416 F.2d
1216 (5th Cir. 1969). The procedure for appellate
review of the sufficiency of the evidence has been
aptly set out in Odom v. United States, 377 F.2d
853, 855 (5th Cir. 1967):

" ' "Our obligation, therefore, is to
examine the record to determine
whether there is any theory of the
evidence from which the jury might
have excluded every hypothesis except
guilty beyond a reasonable doubt. Rua
v. United States, 5 Cir., 1963, 321 F.2d
140; Riggs v. United States, 5 Cir.,
1960, 280 F.2d 949. In Judge
Thornberry's words,

" ' " '... the standard utilized by this
Court is not whether in our opinion the
evidence and all reasonable inferences
therefrom failed to exclude every

32
CR-2023-0820

hypothesis other than guilt, but rather
whether there was evidence from
which the jury might reasonably so
conclude.' Williamson v. United
States, 5th Cir., 1966, 365 F.2d 12, 14.
(Emphasis supplied)."

" 'The sanctity of the jury function demands that
this court never substitute its decision for that of
the jury. Our obligation is [to] examine the welter
of evidence to determine if there exists any
reasonable theory from which the jury might have
concluded that the defendant was guilty of the
crime charged.' McGlamory, 441 F.2d at 135 and
136."

Cumbo v. State, 368 So. 2d 871, 874-75 (Ala. Crim. App. 1978).

Although no one saw Watts shoot Grayson, Nevel testified that

there were only three people inside the vehicle and that he saw no one

walking in the area when they were at the apartments where the

shooting occurred. The bullet that killed Grayson took a slightly back-

to-front trajectory and Nevel testified that he saw the flash of the gun in

the backseat. Watts was in the backseat, and although he was initially

sitting behind Grayson, he was later moving around. After Nevel heard

the shot and saw the flash, he looked outside the vehicle, but again saw

no one in the area. He then looked in the backseat and saw only Watts,

who had "a dumb look on his face" and was saying, "Yeah, yeah." (R.

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CR-2023-0820

176.) Nevel then drove to a nearby gas station, at which point Watts fled.

A man matching Watts's description later ran from police. When viewed

in the light most favorable to the State, there was sufficient evidence

from which the jury could have reasonably concluded that the evidence

excluded every reasonable hypothesis but that of Watts's guilt.

Moreover, the jury could reasonably infer that Watts had the intent to

kill from his use of a deadly weapon. See, e.g., Harris v. State, [Ms. CR-

2022-0934, February 9, 2024] ___ So. 3d ___, ___ (Ala. Crim. App. 2022)

(holding that the defendant's "intent to kill could be inferred from his use

of a deadly weapon").

The evidence was sufficient to sustain Watts's capital-murder

conviction, and the trial court did not err in denying Watts's motions for

a judgment of acquittal.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

Windom, P.J., and McCool, Cole, and Minor, JJ., concur.

34