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Bruce Lanier Austin v. State of Alabama

2026-08-21

Summary

Holding. The court affirmed Austin's convictions for capital murder and first-degree assault and upheld the sentences imposed for those offenses. However, the court remanded the case with instructions for the trial court to vacate Austin's conviction and sentence for discharging a firearm into an occupied vehicle because that conviction constituted a lesser-included offense of the capital murder charge, creating a double-jeopardy violation.

Bruce Lanier Austin was convicted of capital murder for shooting into an occupied vehicle, first-degree assault, and discharging a firearm into an occupied vehicle. On November 16, 2022, a shooting occurred on 80th Street in Birmingham; a bullet passed through the front passenger window of a red SUV, killing 14-year-old Moriah Quib-Marquez and severely injuring her mother, Rosa Quib-Chub. Evidence showed Austin was present at the scene with a rifle matching forensic evidence from the shooting. Austin claimed he fired only once and not at the vehicle. The trial court admitted photographs of the victim and the victim's injuries, denied his motion to suppress his custodial statement, and allowed victim-impact testimony regarding the permanent disability of the injured victim.

On appeal, Austin challenged the sufficiency of the evidence, the admission of photographs, his statement's admissibility, victim-impact testimony, and claimed cumulative error. The court found sufficient evidence that Austin fired the fatal shot into the occupied vehicle based on his presence at the scene, his admitted discharge of the rifle, forensic evidence linking his firearm to shell casings found at the scene, and the legal inference that use of a deadly weapon demonstrates intent to kill or cause serious injury. The court found the photographs relevant to showing injury severity and shooter intent, the Miranda waiver valid, and the challenged testimony properly admitted as evidence of serious physical injury.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Sufficiency of evidence for capital murder and assault convictions
  • Admissibility of photographs of victim and injuries
  • Validity of Miranda waiver and custodial statement
  • Permissibility of victim-impact testimony
  • Double jeopardy violation from convictions on capital murder and lesser-included firearm offense

Procedural posture

Austin appealed his convictions from Jefferson Circuit Court to the Alabama Court of Criminal Appeals.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Rel: August 21, 2026

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, 2025-2026

CR-2025-0978

Bruce Lanier Austin

v.

State of Alabama

Appeal from Jefferson Circuit Court

(CC-23-2208, CC-23-2209, and CC-23-2210)

WINDOM, Presiding Judge.

Bruce Lanier Austin appeals his convictions for murder made

capital because he committed the murder with the use of a deadly weapon

while the victim was inside a vehicle, see § 13A-5-40(a)(17), Ala. Code

1975; for first-degree assault, see § 13A-6-20(a)(1), Ala. Code 1975; and

CR-2025-0978

for discharging a firearm into an occupied vehicle, see § 13A-11-61, Ala.

Code 1975. Austin was sentenced to life in prison without the possibility

of parole for his capital-murder conviction, to 20 years in prison for his

assault conviction, and to 20 years in prison for his discharging-afirearm-into-an-occupied-vehicle conviction. The sentences were ordered

to be served concurrently.

On the morning of November 16, 2022, Wallace Franklin heard

several gunshots as he ate breakfast. Franklin, who lived near the

intersection of 80th Street and 5th Avenue in Birmingham, moved to a

monitor that displayed feeds from various security cameras he had

installed around his house. Franklin saw a small, gray vehicle drive by,

followed by a red sport-utility vehicle ("SUV"). The red SUV veered off

the road and struck a power pole. Finally, Franklin saw a black male,

dressed in a red and black jumpsuit and armed with an AK-47 rifle,

walking down the street from the direction of a nearby apartment

building.

Walter Cook was driving the gray vehicle captured by Franklin's

security cameras. Cook was driving down 80th Street that morning when

he heard a gunshot coming from the direction of a nearby apartment

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building. In the rearview mirror, he saw a red SUV veer off the road,

and, from his side mirror, he saw a black male wearing a red jumpsuit

and holding a rifle. Cook heard more gunshots and sped away before

calling emergency 911.

Edker Finton, who lived on 80th Street, described a scene similar

to Franklin and Cook. From his bedroom he heard a gunshot. Finton

went to the kitchen window, from which he saw a red SUV crash into a

power pole and a black male in a red jacket standing in the street firing

a long gun into the air at a 45-degree angle. Finton heard more gunshots

as he took cover. Finton saw no other individuals outside during the

shooting.

Around that time, Austin called his girlfriend, Valerie Garrison,

asking her to pick him up from his mother's apartment, which was

located near the scene of the shooting. Garrison, who lived nearby, heard

gunshots as she walked out of her house. As Garrison approached the

intersection of 80th Street and 5th Avenue in her black Chrysler 200

vehicle, she saw Austin walking toward her. Austin was wearing a red,

black, and white jumpsuit. He got into her vehicle, and they left.

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Officer Johnathan Robbins of the Birmingham Police Department

was the first to respond to the shooting. Off. Robbins saw only one bullet

defect to the red SUV -- in the front passenger window -- but the damage

inside the SUV was catastrophic. The bullet had struck 14-year-old

Moriah Quib-Marquez in the head, killing her instantly, before striking

Rosa Quib-Chub, her mother, in the head, leaving her permanently

disabled. Off. Robbins was able to open the rear passenger door, allowing

Marta Quib-Chub, Rosa's sister-in-law, and several children to escape

the crashed SUV.

Justin Blair, a crime-scene technician, observed a bullet strike in

the passenger-side window of the red SUV, numerous 7.62x39 mm shell

casings along 80th Street, a live 7.62x39 mm round on the sidewalk at

526 80th Street, a 9 mm casing in the roadway, and additional 7.62x39

mm casings and a projectile at 79th Street and 5th Avenue. In total, 23

shell casings were discovered at the scene.

The investigation into the shooting quickly turned to Garrison's

home and a search for her vehicle. Around 3:00 p.m. that same day,

Austin was found with Garrison's vehicle and detained. A search

warrant was executed on Garrison's house, which yielded a 7.62x39 mm

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shell casing from the roadway in front of Garrison's house. An unfired

7.62x39 mm round was discovered in Garrison's vehicle on the front

passenger floorboard.

Forensic testing showed that all the fired 7.62x39 mm casings had

been fired from a single firearm and that the two unfired 7.62x39mm

rounds found at the scene, which contained light firing-pin indentations,

were also struck by that same firearm's firing pin. Testing further

showed that the shell casing found in the roadway in front of Garrison's

home had been fired from the same firearm used at the scene of the

shooting and that the unfired round collected from the front passenger

floorboard of Garrison's vehicle contained firing-pin indentations from

that same firearm. A bullet fragment found inside the red SUV was

consistent with a 7.62x39 mm bullet jacket.

At trial, Austin testified that he had been in conflict with Torrence

Craig because Craig had been selling drugs near the apartment of

Austin's mother. Austin confronted Craig, telling him to sell drugs

somewhere else. According to Austin, he felt threatened by Craig because

Craig, in the days leading up to the shooting, had been driving by his

mother's apartment. On the morning of November 16, Austin called

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emergency 911 to report that he was being threatened. Austin left his

mother's apartment that morning armed with a rifle, which he claimed

was for protection. Austin testified that, as he walked down the street,

he saw three vehicles approach the area, and then heard gunshots.

Austin stated that his rifle was loaded with only one round; Austin

admitted to firing that round but stated that he did not fire at the red

SUV and that the red SUV had struck the power pole before he fired his

rifle. Austin admitted that he was the individual walking down the street

in Franklin's surveillance video and that he got into Garrison's vehicle.

He testified that he did not realize that anyone had been shot.

On appeal, Austin argues: 1) that the sufficiency and weight of the

evidence do not establish that he committed the offenses; 2) that the

circuit court erred in admitting highly prejudicial photographs into

evidence; 3) that the circuit court erred in denying his motion to suppress

his custodial statement; 4) that the circuit court erred in allowing

improper victim-impact testimony at trial; and 5) that the cumulative

effect of the errors deprived him of a fair trial.

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I.

Austin contends that the evidence was insufficient to sustain his

convictions. Specifically, Austin argues that the State failed to prove that

he had the intent to kill or to cause serious physical injury to the

occupants of the red SUV or that he was the individual responsible for

shooting into that occupied vehicle. Austin claims that, even if he fired

the shot that killed Moriah and injured Rosa, the evidence, at most,

shows that he acted recklessly.

Concerning the standards governing this Court's review of the

sufficiency of the evidence, this Court has held:

"In deciding whether there is sufficient evidence to

support the verdict of the jury and the judgment of the trial

court, the evidence must be reviewed in the light most

favorable to the prosecution. Cumbo v. State, 368 So. 2d 871

(Ala. Cr. App. 1978), cert. denied, 368 So. 2d 877 (Ala. 1979).

Conflicting evidence presents a jury question not subject to

review on appeal, provided the state's evidence establishes a

prima facie case. Gunn v. State, 387 So. 2d 280 (Ala. Cr.

App.), cert. denied, 387 So. 2d 283 (Ala. 1980). The trial

court's denial of a motion for a judgment of acquittal must be

reviewed by determining whether there existed legal evidence

before the jury, at the time the motion was made, from which

the jury by fair inference could have found the appellant

guilty. Thomas v. State, 363 So. 2d 1020 (Ala. Cr. App. 1978).

In applying this standard, the appellate court will determine

only if legal evidence was presented from which the jury could

have found the defendant guilty beyond a reasonable doubt.

Willis v. State, 447 So. 2d 199 (Ala. Cr. App. 1983); Thomas v.

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State. When the evidence raises questions of fact for the jury

and such evidence, if believed, is sufficient to sustain a

conviction, the denial of a motion for a judgment of acquittal

by the trial court does not constitute error. Young v. State,

283 Ala. 676, 220 So. 2d 843 (1969); Willis v. State."

Breckenridge v. State, 628 So. 2d 1012, 1018 (Ala. Crim. App. 1993).

Furthermore,

" '[c]ircumstantial evidence is not inferior

evidence, and it will be given the same weight as

direct evidence, if it, along with the other evidence,

is susceptible of a reasonable inference pointing

unequivocally to the defendant's guilt. Ward v.

State, 557 So. 2d 848 (Ala. Cr. App. 1990). In

reviewing a conviction based in whole or in part on

circumstantial evidence, 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.

Cumbo v. State, 368 So. 2d 871 (Ala. Cr. App.

1978), cert. denied, 368 So. 2d 877 (Ala. 1979).'

"Ward [v. State], 610 So.2d [1190,] at 1191-92 [(Ala. Crim.

App. 1992)]."

Lockhart v. State, 715 So. 2d 895, 899 (Ala. Crim. App. 1997).

" ' "Intent, ... being a state or condition of the mind, is rarely,

if ever, susceptible of direct or positive proof, and must

usually be inferred from the facts testified to by witnesses and

the circumstances as developed by the evidence." ' French v.

State, 687 So. 2d 202, 204 (Ala. Cr. App. 1995), rev'd on other

grounds, 687 So. 2d 205 (Ala. 1996) (quoting McCord v. State,

501 So. 2d 520, 528 29 (Ala. Cr. App. 1986)).

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" ' "The question of intent is hardly ever capable of

direct proof. Such questions are normally

questions for the jury. McMurphy v. State, 455 So.

2d 924 (Ala. Crim. App. 1984); Craig v. State, 410

So. 2d 449 (Ala. Crim. App. 1981), cert. denied, 410

So. 2d 449 (Ala. 1982)." Loper v. State, 469 So. 2d

707, 710 (Ala. Cr. App. 1985). "Where one assaults

another by the use of a deadly weapon, the law will

infer from that fact that he designed to accomplish

the probable and natural results of his act, in the

absence of proof to the contrary." Snipes v. State,

364 So. 2d 424, 426 (Ala. Cr. App. 1978).'

"Oryang v. State, 642 So. 2d 989, 994 (Ala. Cr. App. 1994)."

Wilson v. State, 777 So. 2d 856, 932-33 (Ala. Crim. App. 1999).

A person commits the offense of capital murder if he or she commits

a murder "by or through the use of a deadly weapon while the victim is

in a vehicle." § 13A-5-40(a)(17). A person commits murder when he or

she intends to cause the death of another person and causes the death of

that person or another person. § 13A-5-40(b). A person commits firstdegree assault if he or she "[w]ith intent to cause serious physical injury

to another person, he or she causes serious physical injury to any person

by means of a deadly weapon or a dangerous instrument." § 13A-6-20(a)(1). Finally, § 13A-11-61(a) provides: "No person shall shoot or

discharge a firearm … into any occupied … automobile … in this state."

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Here, the State presented evidence indicating that Austin was

walking down 80th Street with a rifle at the time of the shooting. Austin

admitted to firing his rifle but claimed that he shot only once and that he

did not shoot at the red SUV. However, a shell casing discovered in front

of Garrison's house was determined to have been fired from the same

firearm that fired the shots resulting in the numerous shell casings found

at the scene, and an unfired round discovered in Garrison's vehicle

contained firing-pin indentations that matched the firearm used at the

scene. The evidence established that Austin discharged a firearm in the

red SUV's direction and that no other individuals were seen around the

red SUV at the time of the shooting. Austin's intent to kill and intent to

cause serious physical injury could have been reasonably inferred by the

jury from his use of a deadly weapon, see Ex parte Burgess, 827 So. 2d

193, 199-200 (Ala. 2000), and, under Alabama law, Austin's intent to kill

or harm could be transferred to his actual victims. See, e.g., Ex parte

Phillips, 287 So. 3d 1179, 1193 (Ala. 2018). Thus, there was sufficient

evidence before the jury to sustain Austin's convictions.

With respect to Austin's attack on the weight of the evidence, this

claim is unpreserved for appellate review. In order to preserve a

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challenge to the weight of the evidence, Austin was required to have filed

a motion for a new trial in which he raised the issue. Austin did not file

a motion for a new trial and, thus, did not preserve this issue for appellate

review. Zumbado v. State, 615 So. 2d 1223, 1241 (Ala. Crim. App. 1993)

("The issue of the weight of the evidence is preserved by a motion for a

new trial, stating 'that the verdict is contrary to law or the weight of the

evidence.' See A.R.Cr.P. 24.1(c)(1)."). See also Underwood v. State, 834

So. 2d 819, 822 (Ala. Crim. App. 2001) ("Underwood did not file a motion

for a new trial in which he raised [the issue of the weight of the evidence];

therefore, he has not preserved this issue for appellate review.").

Moreover, even if this argument had been preserved for appeal, it

is without merit. Once a prima facie case has been submitted to the jury,

the credibility of the witnesses and any conflicts in the evidence are for

the jury to judge and determine. This Court will not disturb the verdict

"except in extreme situations in which it is clear from the record that the

evidence against the accused was so lacking as to make the verdict wrong

and unjust." May v. State, 710 So. 2d 1362, 1372 (Ala. Crim. App. 1997)

(citing Deutcsh v. State, 610 So. 2d 212, 1234-35 (Ala. Crim. App. 1992)).

This case does not present one of the "extreme situations in which it is

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clear from the record that the evidence against the accused was so lacking

as to make the verdict wrong and unjust." Id. Therefore, Austin is not

entitled to relief on this claim.

II.

Austin argues that the circuit court erred in admitting two

photographs, State's Exhibits 25 and 76, into evidence because, he says,

they were unnecessary and unduly prejudicial.

" 'The question of admissibility of evidence is generally left to the

discretion of the trial court, and the trial court's determination on that

question will not be reversed except upon a clear showing of abuse of

discretion.' " Kennedy v. State, 929 So. 2d 515, 519 (Ala. Crim. App. 2005)

(quoting Ex parte Loggins, 771 So. 2d 1093, 1103 (Ala. 2000)).

" 'Generally photographs are admissible into evidence in

a criminal prosecution "if they tend to prove or disprove some

disputed or material issue, to illustrate or elucidate some

other relevant fact or evidence, or to corroborate or disprove

some other evidence offered or to be offered, and their

admission is within the sound discretion of the trial judge." '

Bankhead v. State, 585 So. 2d 97, 109 (Ala. Crim. App. 1989),

remanded on other grounds, 585 So. 2d 112 (Ala. 1991), aff'd

on return to remand, 625 So. 2d 1141 (Ala. Crim. App. 1992),

rev'd, 625 So. 2d 1146 (Ala. 1993), quoting Magwood v. State,

494 So. 2d 124, 141 (Ala. Crim. App. 1985), aff'd, 494 So. 2d

154 (Ala. 1986), cert. denied, 479 U.S. 995 (1986).

' Photographic exhibits are admissible even though they may

be cumulative, demonstrative of undisputed facts, or

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gruesome.' Williams v. State, 506 So. 2d 368, 371 (Ala. Crim.

App. 1986)(citations omitted). '[P]hotographic evidence, if

relevant, is admissible even if it has a tendency to inflame the

minds of the jurors.' Ex parte Siebert, 555 So. 2d 780, 784

(Ala. 1989). ' The fact that a photograph is gruesome and

ghastly is no reason to exclude it from the evidence, so long as

the photograph has some relevancy to the proceedings, even

if the photograph may tend to inflame the jury.' Bankhead,

585 So. 2d at 109-10.

" ' This court has held that autopsy

photographs, although gruesome, are admissible

to show the extent of a victim's injuries.' Ferguson

v. State, 814 So. 2d 925, 944 (Ala. Crim. App.

2000), aff'd, 814 So. 2d 970 (Ala. 2001).

' "[A]utopsy photographs depicting the character

and location of wounds on a victim's body are

admissible even if they are gruesome, cumulative,

or relate to an undisputed matter." ' Jackson v.

State, 791 So. 2d 979, 1016 (Ala. Crim. App. 2000),

quoting Perkins v. State, 808 So. 2d 1041 (Ala.

Crim. App. 1999), aff'd, 808 So. 2d 1143 (Ala.

2001), judgment vacated on other grounds, 536

U.S. 953,(2002), on remand to, 851 So. 2d 453 (Ala.

2002). ' [A]utopsy photographs depicting the

internal views of wounds are likewise admissible.'

Broadnax v. State, 825 So. 2d 134, 159 (Ala. Crim.

App. 2000), aff'd, 825 So. 2d 233 (Ala. 2001). See

also Dabbs v. State, 518 So. 2d 825 (Ala. Crim.

App. 1987); Hamilton v. State, 492 So.2d 331 (Ala.

Crim. App. 1986); Fike v. State, 447 So. 2d 850

(Ala. Crim. App. 1983); and McKee v. State, 33

Ala. App. 171, 31 So.2d 656 (1947) (all holding that

photographs of internal injuries were properly

admitted although they were gruesome)."

Eggers v. State, 914 So. 2d 883, 914-15 (Ala. Crim. App. 2004).

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In this case, the photographs at issue were State's Exhibit 25, which

showed Moriah deceased inside the red SUV, and State's Exhibit 76,

which showed part of Moriah's hair and scalp on the vehicle's floorboard.

Those photographs were discussed before trial when the circuit court

addressed Austin's motion in limine to exclude the photographs from

trial. The circuit court denied Austin's motion and ruled that the

photographs were admissible. During trial, the State moved to admit the

photographs into evidence through the crime-scene technician. Austin

objected "to 25 once again, for the record." (R. 435.) The circuit court

overruled the objection.

Initially, this Court notes that Austin did not object at trial to the

admission of State's Exhibit 76. "The general rule is that an adverse

ruling on a motion in limine does not preserve the issue for appellate

review unless an objection is made at the time the evidence is

introduced." Moody v. State, 888 So. 2d 532, 582 (Ala. Crim. App. 2003).

"[U]nless the trial court's ruling on the motion in limine is absolute or

unconditional, the ruling does not preserve the issue on appeal." Perry

v. Brakefield, 534 So. 2d 602, 606 (Ala. 1988). As noted, Austin did not

object in any way to State's Exhibit 76 when the State offered it into

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evidence at trial. Additionally, the record does not indicate that the

circuit court's ruling on the motion in limine was absolute or

unconditional. Accordingly, Austin's argument on appeal as to that

exhibit is not preserved for appellate review.

In any event, after reviewing the photographs and the testimony at

trial, this Court finds that the photographs were relevant and probative.

They aided the jury in understanding what had occurred and in showing

that a victim had sustained a terminal blow to the head via a "highvelocity rifle bullet." (R. 518.) By showing the severity of the injuries, the

photographs aided the jury in determining the shooter's intent. Although

unpleasant, the photographs were not repetitive or unduly gruesome and

did not appear to be offered to overwhelm the jury or to incite the jury's

passions. Therefore, we conclude that the circuit court did not abuse its

discretion when it admitted the photographs into evidence.

III.

Austin argues that the circuit court erred by denying his motion to

suppress his custodial statement because, he says, "the State failed to

establish a knowing, voluntary, and intelligent waiver of his Miranda [v.

Arizona, 384 U.S. 436 (1966),] rights." (Austin's brief, at 27.) Austin

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claims that ambiguity existed regarding whether he initially invoked his

right to remain silent and that his "mumbling" indicated that he was not

clearly reading or demonstrating an understanding of his rights.

At a hearing on the motion to suppress, Detective Nicholas Clark

testified that he began the interview by providing Austin with a form

containing his Miranda rights. Initially, Austin stated that he had done

nothing and had nothing to say. Detective John Finke then informed

Austin that he was going to be charged with capital murder and "went to

put the handcuffs back on so [Austin] could be transported to the jail on

a 48-hour hold." (R. 47.) Austin reversed course and informed the

detectives that he did want to make a statement. Austin was again

presented with his Miranda rights and asked to read the admonition that

stated that he understood his rights and was giving a voluntary

statement. When Austin was reading aloud, "he was kind of mumbling

and mostly reading to himself." (R. 48.) To make sure that Austin

understood his rights, the admonition was read to Austin. Austin signed

a form indicating that he understood his rights and that he wished to

waive those rights and provide a voluntary statement. The interview was

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recorded and reviewed by the circuit court. Austin did not present any

evidence during the suppression hearing.

The circuit court issued a written order denying Austin's motion to

suppress. In its order, the circuit court summarized the events contained

on the recording of the interview:

"Detective Nicholas Clark and Detective John Finke

entered the interview room. Det. Clark stated that they

wanted to talk to the Defendant about an incident that

occurred that morning. The Defendant stated that he didn't

know anything about an incident. Det. Clark verified the

Defendant's name, date of birth, address and phone number.

Det. Finke removed the Defendant's handcuffs.

"Detective Clark read the Defendant State's Exhibit #1.

The Defendant again stated that he didn't know about an

incident and didn't know what happened. The Defendant

then stated that he didn't want to make a statement. Det.

Clark ended the interview at 6:25 pm.

"Det. Finke told the Defendant that he was being

charged with Capital Murder, that the incident was caught on

video and that they knew that it was the Defendant. Det.

Finke began to handcuff the Defendant. The Defendant then

stated, 'let me tell yall', 'never mind I'll tell yall', 'I changed

my mind' and 'I'll talk'. Det. Finke stated that the Defendant

had said that he didn't want to talk, they put the handcuffs

on the Defendant, and then the Defendant stated that he

wanted to talk. Det. Finke told the Defendant they needed to

make sure that the Defendant was giving a statement of his

own free will.

"Det. Finke then asked the Defendant to listen to Det.

Clark about the Miranda waiver. Det. Clark asked the

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Defendant to read the bottom portion of State's Exhibit #1 out

loud. The Defendant began to read, then asked for the

Defendant's (bottom) portion to be read to him aloud. Det.

Finke then read the bottom portion out loud. Det. Clark asked

the Defendant if he understood his rights; the Defendant

stated yes. Det. Clark asked the Defendant if he wanted to

talk; the Defendant stated yes. The Defendant then signed

and dated the Miranda waiver form at 6:29 p.m.

"The Defendant then gave a statement to the detectives.

The Defendant admitted to being in the area of the homicide,

and being in possession of a rifle. The Defendant stated that

he had been followed for weeks and that people were shooting

near his home. The Defendant stated that those people

surrounded him at a house near the homicide, fired shots at

him and the Defendant fired the rifle in the air. The

Defendant stated that he didn't shoot into a car. The

Defendant stated he got into a black car and drove to a

location where he threw the rifle out of the car. The interview

was concluded at 7:03 p.m.

"At the suppression hearing, Det. Clark testified that no

threats were made to the Defendant prior to the Defendant

giving his statement. Det. Clark testified that he was not

aware of any interviews other than his and Det. Finke's. The

State of Alabama stated they were not seeking to introduce

any other statements made by the Defendant; the statement

given to Detectives Clark and Finke were the only statements

they were aware of."

(C. 35-37.)

For a confession to be properly admitted, the State must prove that

the defendant was informed of his Miranda rights and that he or she

knowingly and voluntarily waived those rights. Maxwell v. State, 828

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So. 3d 347, 354 (Ala. Crim. App. 2000). In determining whether a

confession is voluntary, the circuit court's finding of voluntariness need

be supported only by a preponderance of the evidence. Robitaille v. State,

971 So. 2d 43, 55 (Ala. Crim. App. 2005). The circuit court's decision will

not be disturbed on appeal unless it is manifestly contrary to the great

weight of the evidence. Hodges v. State, 926 So. 2d 1060, 1073 (Ala. Crim.

App. 2005). In reviewing the correctness of the circuit court's ruling on a

motion to suppress, this Court makes all reasonable inferences and

credibility choices in support of the decision of the circuit court. Ex parte

Bridgett, 1 So. 3d 1057, 1065 (Ala. 2008).

Here, the circuit court plainly concluded, based on its review of the

testimony and its own personal observations of Austin in the recorded

interview, that Austin's Miranda waiver was knowing and voluntary.

After initially refusing to speak with detectives, Austin changed his

mind, stating that he was willing to talk to the detectives. Austin was

advised of his rights and signed a waiver before making a statement. The

record contains sufficient evidence that Austin's statement was

voluntarily given.1 Because the record does not show that the circuit

1This Court has reviewed the recorded interview.

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court's denial of the motion was " ' "manifestly contrary to the great

weight of the evidence," ' " Austin is not entitled to any relief on this claim.

Richardson v. State, 819 So. 2d 91, 98 (Ala. Crim. App. 2001) (citations

omitted).

IV.

Austin argues that the circuit court erred by allowing what he

contends was improper victim-impact testimony during the trial.

Specifically, Austin refers to testimony given by Rosa's husband, Ruben

Quib-Chub, in which he relayed the lasting effects of her head injury.2

Ruben testified:

"She doesn't speak. She doesn't think. She doesn't do

anything. She does not drive. She can't even hug my children

anymore. I don't know if she doesn't think about the kids or

can't think about the kids. The way I see it is she's like a baby

that's two or three years old that I have to do -- and help do

everything with around the house."

(R. 316.)

During trial, Austin objected to Ruben's testimony on the ground

that he was not a doctor and could not give his opinion as a lay person

2Due to her condition, Rosa was unable to testify at trial, but she

was present in the courtroom.

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about serious physical injury.3 This objection is not sufficient to preserve

the specific challenge on appeal -- that the testimony was improper

victim-impact testimony. Therefore, Austin's's argument is not

preserved for appeal. See Pate v. State, 601 So. 2d 210, 213 (Ala. Crim.

App. 1992) ("An issue raised for the first time on appeal is not subject to

appellate review because it has not been properly preserved and

presented."); Culp v. State, 710 So. 2d 1357, 1359 (Ala. Crim. App. 1996)

(" 'The statement of specific grounds of objection waives all grounds not

specified, and the trial court will not be put in error on grounds not

assigned at trial.' " (citation omitted)); Bell v. State, 435 So. 2d 772 (Ala.

Crim. App. 1983) (holding that a defendant is bound by the grounds of

objection stated at trial and may not expand those grounds on appeal).

Moreover, even if this issue had been preserved, the testimony did

not constitute improper victim-impact testimony. The testimony offered

by Ruben regarding the nature of Rosa's injuries was relevant given that

3This Court notes that this objection has no merit. A lay witness

can testify to establish the element of serious physical injury. Expert

medical testimony is not a prerequisite to establishing serious physical

injury. See Hopson v. State, 292 So. 3d 407 (Ala. Crim. App. 2019).

Further, Ruben did not testify to matters requiring the expertise of a

medical professional.

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Austin was charged with first-degree assault. Ruben's testimony spoke

directly to an element of a crime with which Austin was charged, namely,

whether Austin caused serious physical injury with a deadly weapon.

Thus, the testimony given by Ruben about Rosa's injuries was not victimimpact testimony. See Gissendanner v. State, 949 So. 2d 956, 965 (Ala.

Crim. App. 2006).

V.

Austin claims that he is entitled to a new trial based on what he

contends was the cumulative effect of errors by the circuit court. Austin

did not raise this argument in a motion for a new trial. Thus, this issue

is not preserved for appellate review. Fortner v. State, 582 So. 2d 581,

587 (Ala. Crim. App. 1990) (holding that the issue of cumulative error

was not preserved when defendant failed to object in the trial court or

make a motion for a new trial); Taylor v. State, 600 So. 2d 1080, 1081

(Ala. Crim. App. 1992) (" 'It is for the trial court … to consider and correct,

in the first instance, any error which may have been committed or any

deficiency in the proceedings.' " (quoting Willis v. State, 500 So. 2d 1324,

1324 (Ala. Crim. App. 1986))).

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Moreover, as discussed above, the circuit court did not err as Austin

has argued. None of the arguments Austin has raised individually

require reversal. " 'Because we find no error in the specific instances

alleged by the appellant, we find no cumulative error.' " Chandler v.

State, 615 So. 2d 100, 110 (Ala. Crim. App. 1992) (quoting Fisher v. State,

587 So. 2d 1027, 1039 (Ala. Crim. App. 1992)). Therefore, Austin is not

entitled to relief on this claim.

VI.

This Court is obligated to take notice that, although the issue not

argued by Austin on appeal or mentioned by the State in its brief,

Austin's convictions for both murder made capital because Austin

murdered Moriah while she was in a vehicle and for discharging a

firearm into an occupied vehicle violate principles of double jeopardy.

Austin was charged with capital murder as follows:

"The Grand Jury of said county charge that, before the

finding of this indictment, BRUCE LANIER AUSTIN, whose

name is to the Grand Jury otherwise unknown, did

intentionally cause the death of MORIAH QUIB-MARQUEZ,

to-wit: by shooting her with a firearm, while said MORIAH

QUIB-MARQUEZ was in a vehicle, in violation of Section

13A-5-40(a)(17), of the Code of Alabama against the peace and

dignity of the State of Alabama. "

(C. 175 (capitalization in original).)

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Austin was charged with discharging a firearm into an occupied

vehicle as follows:

"The Grand Jury of said county charge that, before the

finding of this indictment, BRUCE LANIER AUSTIN, whose

name is to the Grand Jury otherwise unknown, did,

intentionally, knowingly, recklessly, or with criminal

negligence, shoot or discharge a firearm into an automobile

while the said automobile was occupied by ROSA MARQUEZ

SANCHEZ and/or MORIAH QUIB-MARQUEZ, in violation of

Section 13A-11-61, of the Code of Alabama, against the peace

and dignity of the State of Alabama."

(C. 177 (capitalization in original).)

"It is well settled that '[a] defendant cannot be convicted

of both a capital offense and a lesser offense that is included

in the capital charge.' Adams v. State, 955 So. 2d 1037, 1098

(Ala. Crim. App. 2003). See also Turner v. State, 924 So. 2d

737 (Ala. Crim. App. 2002). Section 13A-1-8(b), Ala. Code

1975, provides, in pertinent part:

" '(b) When the same conduct of a defendant

may establish the commission of more than one

offense, the defendant may be prosecuted for each

such offense. He may not, however, be convicted

of more than one offense if:

" '(1) One offense is included in the other, as

defined in Section 13A-1-9[, Ala. Code 1975].'

"Such a double-jeopardy transgression implicates the

jurisdiction of the trial court and must be noticed by this

Court regardless of whether it was raised. See, e.g., Straughn

v. State, 876 So. 2d 492 (Ala. Crim. App. 2003) (opinion on

return to remand and on application for rehearing); Borden v.

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State, 711 So. 2d 498 (Ala. Crim. App. 1997), aff'd, 711 So. 2d

506 (Ala. 1998); and Rolling v. State, 673 So. 2d 812 (Ala.

Crim. App. 1995)."

Buford v. State, 891 So. 2d 423, 435-36 (Ala. Crim. App. 2004). See also

Heard v. State, 999 So. 2d 992 (Ala. 2007).

Based on the indictments, as well as our review of the record, it is

clear that Austin's conviction for discharging a firearm into an occupied

vehicle was a lesser-included offense of murder made capital by

discharging a weapon into an occupied vehicle. The single act of

discharging a firearm into an occupied vehicle underlying the indictment

for capital murder was the same act that formed the basis for the

separate indictment charging Austin with discharging a firearm into an

occupied vehicle.4 Therefore, Austin's convictions for both capital murder

and the lesser-included offense of discharging a firearm into an occupied

vehicle violated double-jeopardy principles, and the circuit court lacked

jurisdiction to adjudge him guilty of both offenses. See Brooks v. State,

973 So. 2d 380 (Ala. Crim. App. 2007) (holding that convictions for both

4If there had been evidence indicating that more than one bullet

struck the red SUV, the additional strike would constitute a separate act,

and a separate conviction for discharging a firearm into an occupied

vehicle would not necessarily run afoul of principles of double jeopardy.

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murder made capital because it was committing during the course of

burglary and for burglary violated double-jeopardy principles); Carruth

v. State, 927 So. 2d 866 (Ala. Crim. App. 2005) (holding that convictions

for both capital murder and the lesser-included offenses of robbery and

burglary violated principles of double jeopardy); and McElyea v. State,

892 So. 2d 993 (Ala. Crim. App. 2004) (holding that conviction for capital

murder during a robbery and conviction for robbery violated principles of

double jeopardy).

For the reasons stated above, this Court affirms Austin's capitalmurder and first-degree-assault convictions, as well as the sentences

imposed for those convictions. However, we remand this case for the

circuit court to vacate Austin's conviction and sentence for discharging a

firearm into an occupied vehicle. Due return shall be made to this Court

within 42 days of the date of this opinion.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

Kellum, Minor, and Anderson, JJ., concur. Cole, J., concurs in the

result.

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