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MACEWAN v. STATE2/28/1997
l." Dubose v. State, 662 So.2d 1156, 1182 (Ala. Cr. App. 1993), aff'd, 662 So.2d 1189 (Ala. 1995), quoting Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). The appellate courts of this state have upheld the denial of a jury selection expert. See Duren v. State, 507 So.2d 111, 119 (Ala. Cr. App. 1986), aff'd, 507 So.2d 121 (Ala. 1987), cert. denied, 484 U.S. 905, 108 S.Ct. 249, 98 L.Ed.2d 206 (1987).
MacEwan merely asserts that a jury selection consultant was needed because of the emotional nature of the case. She has failed to demonstrate either that there was a reasonable probability that a jury selection expert would have been of assistance to her defense or that the denial of a consultant deprived her of a fair trial. The trial court did not err in denying MacEwan's request for a jury selection consultant.
III.
MacEwan argues that the trial court erred in denying her motion for a judgment of acquittal because, she contends, the evidence presented by the State at trial was insufficient to support submitting the case to a jury for a determination on her capital murder charge under § 13A-5-40(a)(15), Ala. Code 1975, which required a showing that she intentionally murdered a child who was under 14 years of age. MacEwan correctly argues that the evidence presented at trial was largely circumstantial. Despite this, our review of the record reveals that the State did, in fact, present adequate evidence to submit the capital murder case to the jury.
"In reviewing a conviction based on circumstantial evidence, this court must view that evidence in a 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."
Cumbo v. State, 368 So.2d 871, 874 (Ala. Cr. App.); cert. denied, 368 So.2d 877 (Ala. 1979), citing United States v. Black, 497 F.2d 1039 (5th Cir. 1974). Additionally, circumstantial
evidence may form the proof of the corpus delicti; if facts are presented from which a jury may draw a reasonable inference that a crime has been committed, the case must be submitted to the jury. Breeding v. State, 523 So.2d 496, 500 (Ala. Cr. App. 1987).
The State established that Sydney was two and a half years old and because of her age and illness was incapable of feeding herself or administering any of her own medication. Also no one but MacEwan was with Sydney during the time the fatal dose of Benadryl would have to have been administered. Dallas Sita testified for the State that MacEwan had told him he would never see Sydney again if he left the apartment. Sita's testimony also suggested that, when she talked to him after the child's death, MacEwan was cognizant of the fact that she had given Sydney "a lot" more than her usual dose of Benadryl. Sita also testified that he found an empty eight-ounce bottle of Benadryl in MacEwan's apartment and that it had been nearly full when he last saw Sydney alive. The forensic witnesses for the State established that Sydney's death was caused by an overdose of Benadryl.
If the jury believed the State's evidence, it could have reasonably concluded that MacEwan killed Sydney. The evidence presented by the State was adequate to support the trial court's determination that MacEwan's capital murder charge should be submitted to the jury and that her motion for a judgment of acquittal should be denied.
IV.
MacEwan argues that the statute under which she was convi
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