Home >

April 19, 2011
For More Information, contact:
Luther Strange
Joy Patterson (334) 242-7491
Alabama Attorney General
Suzanne Webb (334) 242-7351
Page 1 of 1


(MONTGOMERY) – Attorney General Luther Strange announced that the
Alabama Court of Criminal Appeals upheld the murder conviction of a Union
Springs man on Friday. Kwesi Martez Allen, 21, was found guilty by a Bullock
County jury in May of 2010 for the murder of Wilfred Heaird.
Evidence presented at trial stated that Allen and his mother were at the
Ponderosa Club in Union Springs. According to the court record, Allen’s
mother got into a fight with another woman, and after the fight was broken up,
Allen left the club. Allen came back holding a silver gun and shot and killed the
victim Heaird, when he was aiming at someone else.
The case was prosecuted at trial by Bullock County District Attorney Ben
Reeves’ Office. Allen was convicted and sentenced to life imprisonment, and
subsequently sought to have his conviction reversed on appeal.
The Attorney General’s Appeals Division handled the case during the
appeals process, arguing for the Alabama Court of Criminal Appeals to affirm
the conviction. The Court did so in a decision issued on Friday, April 15.
Attorney General Strange commended Assistant Attorney General Beth Slate Poe
of the Attorney General’s Appeals Division for her successful work in this case.

*For additional information regarding this case, a copy is attached of the memorandum opinion
of the Alabama Court of Criminal Appeals.

501 Washington Avenue Montgomery, AL 36130 (334) 242-7300
www.ago.state.al.us Rel: 04/15/2011
Notice: This unpublished memorandum should not be cited as precedent. See Rule 54, Ala.R.App.P. Rule 54(d),
states, in part , that this memorandum “shall have no precedential value and shal l not be cited in arguments or
briefs and shal l not be used by any cour t within this state, except for the purpose of establishing the application
of the doctrin e of law o f the case, res judicata , collateral estoppel, double jeopardy, or procedura l bar. “
Court of Criminal Appeals
State of Alabama
Judicial Building, 300 Dexter Avenue
P. O. Box 301555
Montgomery, A L 36130-1555
Presiding Judge Clerk
J . ELIZABETH KELLU M Assistant Clerk
LILE S C. BURK E (334) 229-0751
J . MICHAEL JOINER Fax (334) 229-0521
CR-09-1395 Bullock Circuit Court CC-09-67
Kwesi Martez Allen v. Stat e of Alabam a
WELCH, Presiding Judge.
Kwesi Martez Allen was convicte d of murder , a violatio n
of ß 13A-6-2, Ala . Code 1975. The tria l court sentenced Allen
to serve a ter m of lif e imprisonment. The tria l court ordered
Alle n to pa y al l appropriat e assessments, ordered Alle n to pa y
a $2,000 fine, and ordere d Allen to pa y restitution . Allen
file d a motio n for a new trial , which was denied . This appeal
followed .
Alle n does not challeng e the sufficiency of th e evidence;
therefore , a brie f recitation of th e fact s will suffice.
1 Marquita Dent testified to the following . On November
15, 2008, Dent arrived at the Ponderosa Club i n Unio n Springs
at approximately 10:30 p.m. At some point in the evening,
Dent saw Erica Harris and Edith Allen, Allen’s mother, get
int o a fight . Eric Harris, Erica Harris’s brother, and Alle n
disbanded the fight . Dent testified that Allen said, “Ain’t
nobody going to do nothing to my mama.” (R. 137.) Dent saw
Alle n leave the club and come back i n holdin g a silver gun.
Alle n pointed the gun toward the dance floor. Dent saw
Wilfre d Heaird standing near Eric Harris, and when Alle n fired
the gun, Heaird fell to the ground. Dent ran t o Heaird, who
was her uncle, and reached under him to help him up. Dent
testifie d that she realized that her hands were covered i n
blood, and she testified that Heaird did not move or say
The State presented evidence that Heaird died as a resul t
of the gunshot wound which he received.
Eric a Harris testified that she saw Alle n wearing a re d
shir t on the night of the shooting, but she di d no t see who
shot Heaird. Gregory Robbins testified that he was at the
Ponderosa Club on the nigh t of the shootin g and that he saw a
man with a red shir t with a gun but di d no t see the shooting
itself . Kathy Swanson testifie d that she was at th e Ponderosa
Club on the nigh t of the shootin g and that she saw a man with
a red shir t and “do ” ra g on hi s hea d fire a gun, and she next
saw Wilfred Heaird after he fel l to the ground.
Lieutenant Louis Murray with the Union Springs Police
Department testified that on the night of the shooting, he
went to Allen’s house because he received information that
Alle n was a suspect and that Allen might be wearing a re d
shirt . Lt. Murra y testifie d that when he arrested Allen that
he had on “a red shirt , blue jeans with some type of tennis
shoe print on the back of the pants. He had a long silver
necklace around hi s neck , and he had on lik e a white ‘do’ rag
on his head. ” (R. 65.) Lt. Murra y testifie d that Allen also
had a cel l phone on hi s bel t when he was arrested.
Alle n argues that the Stat e “improperly and intentionally
elicite d testimony of law enforcement that the defendant
2 exercise d hi s righ t to remain silent.” (Appellant’s brie f at
14.) However, Allen failed to object to these statements at
trial . (R. 55-56, 64, 68.)
“‘”[T]o preserve an issue for appellat e review, i t
must be presented to the tria l court by a timel y and
specifi c motion setting out the specifi c grounds i n
support thereof. … An issue raised for th e firs t
time on appeal i s no t correctl y before this court.”
Buice v. State, 574 So. 2d 55, 57
(Ala.Cr.App.1990).’ McKinney v. State, 654 So.2d
95, 99 (Ala.Cr.App.1995). ‘Even constitutional
issue s must first be correctly raised in the tria l
court before they will be considered on appeal.’
Adams v. City of Pelham, 651 So.2d 55, 56
Merchant v. State, 724 So. 2d 65, 66 (Ala. Crim. App. 1998).
Therefore, because Allen presents this argument for the
firs t time on appellat e review, i t i s no t properl y before this
Court and may not be considered. Further, Allen’s argument
that this error should be reviewed under the plain error
standard of review i s withou t merit because this standard of
review only applies i n cases wherein the death penalty has
been imposed. See Rule 45A, Ala . R. App. P.
II .
Alle n argues that the tria l court erred when i t admitte d
int o evidence photographs of images contained in Allen’s
cellula r telephone. In support of this claim Allen argues:
the photographs shown to the jur y were not fai r and accurate
depiction s of what the testifying police officer actually
observed, so the State should have provided additional
testimony to ensure the reliabilit y of the evidenc e under the
“silen t witness” theory; the polic e officer’s testimony was
not qualified or competent with respect to the photographs;
the State did not explain “why i t took so long for th e
photographs to be taken of the cel l phone images, or i f the
images captured on the cel l phone was an accurate depiction of
what was intended by that photographer” (Appellant’s brie f at
p. 25); there was no testimony that the photographi c images on
the cell phone were accurate depictions of what they were
3 purported to be ; and the probativ e value of the photographs
was outweighed by their prejudice. None of the foregoing
arguments was raised at trial ; therefore, they have not been
preserved for revie w on appeal.
Lt . Murray testified that he examined photographic images
found i n Allen’ s cellular telephone, and th e images depicted
a silver gun and a black gun, a silver necklace, jewelry,
pants, and a re d shirt. 1 Lt. Murra y testified that someone a t
the police department took photographs of the images on th e
cel l phone. When the Stat e presented to Lt . Murray one of th e
photographs for hi s identification at trial , Allen objected on
the grounds that the pictur e was “double hearsay, a pictur e of
a picture.” (R. 74.) The tria l court asked the Stat e to have
the witness identif y the photograph , and Lt . Murray testified
that the photograp h depicted what he actually saw on Allen’s
cel l phone. Lt. Murray then acknowledged that in the
photograph of th e cell-phon e image the shir t did no t appea r to
be red, bu t that the shir t appeared to be red i n th e image
contained in the cel l phone. When the State offered the
photograph into evidence, Allen renewed his objection . The
tria l court overruled the objection and admitted the
photograph. When the State questioned Lt. Murray about
another photograph, this one depictin g two guns taken from an
image i n Allen’ s cell phone, Allen said, “We object again.
It’ s hearsay.” (R. 76.) The trial court overruled the
objectio n and admitte d the photograph.
Allen’ s only objection at tria l — that the photograph
was “double hearsay,” or a photograph of a photograph — di d
not preserve fo r revie w any o f th e ground s of objectio n he now
raise s on appeal.
“‘We note initiall y that specific objections ar e
necessary to preserve error. Gibbs v. State, 342
So. 2d 448 (Ala.Cr.App.1977). Specific grounds of
objection s waive al l ground s not specified , and th e
tria l court will not be put i n erro r on grounds not
assigned. Hargrove v. State, 344 So. 2d 826
1The State argued that Allen was wearin g the same necklace
and items of clothing on the night of the shooting, and
witnesses testified Allen had fire d a silve r gun.
4 (Ala.1977). The tria l court must be apprised of th e
basi s for the objection with sufficient
particularit y to allow an informed decision to be
made on the particula r legal issues involved. Bland
v. State, 395 So. 2d 164, 168 (Ala.Cr.App.1981). A
tria l court need not cas t about fo r tenabl e grounds
fo r an objectio n to evidence . Watkins v. State, 219
Ala . 254, 122 So. 610 (1929).'”
Bethune v. State, 502 So. 2d 386, 389 (Ala. Crim. App. 1986),
quoting Wyrick v. State, 409 So. 2d 969, 974 (Ala. Crim. App.
1981). We note that Allen had file d a pretrial motion i n
limine , seeking exclusion of several photographs. However,
Alle n raised differen t grounds pretria l than he does on appeal
and, in any case, “[t]he general rule is that an adverse
rulin g on a motion i n limin e does not preserv e the issu e fo r
appellat e review unless an objection i s made at the time the
evidence i s introduced. ” Moody v. State, 888 So. 2d 532, 582
(Ala. Crim. App. 2003).
Therefore, Allen’s argument i s no t properl y before this
Court for review .
For the reasons set fort h above, the judgment of th e
tria l court i s due to be affirmed.
Windom, Kellum, Burke, and Joiner , JJ., concur.