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Kennedy v. State

Alabama Court of Criminal Appeals

July 10, 2015

Carlos Edward Kennedy
State of Alabama

Page 508

          Appeal from Mobile Circuit Court. (CC-11-1569).

         JOINER, Judge. Windom, P.J., and Welch, Kellum, and Burke, JJ., concur.


Page 509

          JOINER, Judge.

         Carlos Edward Kennedy was convicted of one count of capital murder for killing Zoa White during the course of a first-degree burglary, see § 13A-5-40(a)(4), Ala. Code 1975. The State's evidence at trial tended to establish that, at some point between the late evening hours of June 27, 2010, and the early morning hours of June 28, 2010, White was brutally murdered in her home, which, the State argued, occurred during the course of a first-degree burglary and which, the State theorized, was accomplished by using a claw hammer. Although when questioned by law enforcement Kennedy initially denied having known White or having ever been in her house, the State presented evidence, which was confirmed by DNA analysis, indicating that Kennedy's blood was on several items in White's house and evidence, which was confirmed by a latent-fingerprint examination, indicating that two of Kennedy's palm prints were found in White's house.

         During the penalty phase of Kennedy's trial, the jury, by a vote of 11 to 1, recommended that Kennedy be sentenced to death. After receiving a presentence-investigation report and conducting a sentencing hearing, the circuit court followed the jury's advisory recommendation, finding that the aggravating circumstances outweighed the mitigating circumstances, and sentenced Kennedy to death. Kennedy did not file any Rule 24, Ala. R. Crim. P., posttrial motions. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-53, Ala. Code 1975.

         On appeal, Kennedy raises several issues. One issue, however, is dispositive of this appeal--namely, whether the circuit court committed reversible error when, after it initially determined that Kennedy could represent himself at trial, the circuit court rescinded that initial determination and revoked Kennedy's right of self-representation, finding that Kennedy had not knowingly, voluntarily, and intelligently waived his right to counsel and appointing counsel to represent Kennedy at trial.[1] For the reasons set forth below, we reverse and remand.

         Procedural History

         The resolution of the question Kennedy raises on appeal requires this Court to

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first set out the lengthy procedural history regarding Kennedy's request to represent himself at trial, the circuit court's initial determination that Kennedy could represent himself at trial, and the circuit court's subsequent decision to revoke Kennedy's right of self-representation.

         Kennedy, after having been indicted on March 26, 2011, appeared in the circuit court on July 11, 2011, with counsel for arraignment. At arraignment, Kennedy's counsel advised the circuit court that Kennedy " has decided he wants to represent himself" at trial. (R. 10.) The circuit court confirmed with Kennedy his request to represent himself at trial and " urge[d] [him] not to do that and [to] think very seriously about it because [he was] in a very bad situation." (R. 12.) Before it decided whether to honor Kennedy's request, however, the circuit court ordered that Kennedy undergo a psychological evaluation.

         On October 12, 2011, Doug McKeown, Ph.D., a licensed clinical psychologist, conducted a psychological examination on Kennedy. Dr. McKeown concluded that, although Kennedy had a history of marijuana and alcohol use, Kennedy was competent to stand trial, had " no indication or history of a mental health related disorder," had " [n]o indication of psychological defects or intellectual limitations," and had " no indication of a lack of capacity for appropriate decision making." (C. 87.)

         Thereafter, at a hearing held on December 15, 2011, Kennedy appeared without counsel in the circuit court.[2] At that hearing, the circuit court explained to Kennedy Dr. McKeown's findings and also addressed Kennedy's request to represent himself at trial. As to Kennedy's request to represent himself at trial, the following exchange occurred:

" The Court: Let me just try to be your best friend here. Why do you want to represent yourself? Let me back up a little bit. I was a lawyer for fourteen years. And I've been a judge for fourteen years. If I was charged with what you're charged with I would not represent myself. I don't--Let me tell you. Even if you know what to do, the fact that it's you and not somebody else, it just--your personal connection with the case is going to just destroy your judgment. That's the biggest problem. Just go ahead and just talk. Why do you want to represent yourself?
" [Kennedy]: Well, I just feel confident that I can do it myself.
" The Court: Okay. You're a well-spoken fellow. The problem is, like I say again, your hands are tied. Because it's when you're action--there are parts you play as yourself but then there are parts you play as a lawyer. And it's just hard to separate the two. And what I would like you to think about it this. Let me appoint you a lawyer and why don't you work with him? And if you don't think that lawyer is working with you--let's say you have a theory of how the case is supposed to go, what you would like to be done, witnesses you would like to be called or things you'd like to do--first of all, you need somebody on the outside tracking down witnesses; let's say to get witness statements for you. I know very little about the case and right now I don't ... want to know more. Let's say that you need a fingerprint expert. You need a lawyer to go hire that fingerprint expert. For instance, talk to that person about what was found by the

Page 511

State and whether it's yours or not, that type of thing. Or. DNA expert, the same thing. You just can't do that from inside a jail cell. You've got to have somebody on the outside making those kind of decisions for you. There's a lot to be done in a very little time frame. You're just going to be--even if you were a thirty year, the smartest lawyer in the country, you just can't do from inside a jail cell. It would be impossible to do that. Do you get what I'm saying?
" [Kennedy]: I understand.
" The Court: I mean, the State of Alabama in a lot of ways, if people will take advantage of it, we have money available that we want to try to give you the best defense--we want to give you the best defense there is. But you've got to let us help you. Are you willing to do that? Listen. It's not like you're getting married without any chance of getting a divorce. The old days you couldn't get a divorce. If you get involved and you say I just don't like these lawyers, we can't work together, they're not listening to my input on the thing, you know how to write me. You write me a letter and we'll talk about it. But I'm just afraid that--Let me ask you this. Do you want to win or do you just want to go and be executed?
" [Kennedy]: I would like to--First of all I believe--first of all I believe this has--this is somewhat--I want to win but also at the same time I want to save my reputation. I don't just want to-
" The Court: Well, if you want to win you want to [be] exonerated or whatever, then you don't want to represent yourself. The reason I asked you that is if you wanted to commit suicide, which some people do, they just want to throw their life away and say let's get it over it, then it may be the best thing to do. But if you want to win or have a chance at winning, the chance of winning is with a lawyer. Because like I said, not only do they know the law and the courtroom but you need somebody on the outside doing the work that you can't do. Like I say, talking to witnesses, getting their statements written down, hiring experts, doing that kind of thing that you just don't have the ability to do in jail, because you can't--you're in a little cell and you can't get out and track down witnesses to get their statements. I don't have any doubt you have the intelligence to do it. It's just because you're confined. You can't do it.
" ....
" The Court: Yes. In fact, it's going to probably be more difficult to save your reputation by you representing yourself. I mean, just because you hire a lawyer that's no--or I appoint you a lawyer, doesn't mean anything. It means you're smart is what it means. But like I said, you can proceed down this road and if you decide it's not the right way to go then you write me up and say, 'Judge, I can't work with these people; they're not doing what I say.' But let's just say you talk to one of them and say, 'Hey, if you would talk to this person they can give you some information that will help me.' And then the lawyer goes to talk to that person and they say, yeah, I think that might be helpful. So they take the person's statement. They make sure they're subpoenaed to be here at trial. That's real helpful to you. But you can't do that. You could subpoena them, yeah. But you might have drug down here and they may not say what you think they're going to say. So there are just a lot of things that you don't have the ability to do because your hands are tied from being in jail. But if you're dead set on it I just need to go through some of the legal procedure and make sure you understand.

Page 512

" [Kennedy]: Right. I'm fine with defending myself."

(R. 29-34.) The circuit court then asked Kennedy about his background and education. Kennedy explained that he had graduated from a private high school in Mobile and also attended the University of Mississippi for two years. Kennedy further, explained, that, since 2000, he had been " [w]orking with [his] father installing satellite dishes" (R. 35) and that he knows some computer programming.

         After engaging Kennedy in this colloquy, the circuit court commented that Kennedy is an " above average intelligent person and ... understand[s] what's going on here." (R. 36.) The circuit court then questioned Kennedy about his case, and Kennedy confirmed to the circuit court that he understood that he could have counsel appointed to represent him, that he would be limited in his ability to prepare for his case because he was being held in the county jail, that there are rules of procedure with which he would need to comply, and that the circuit court was not going to " give [him] a lot of slack." (R. 39.)

         Thereafter, Kennedy asked the circuit court to allow him to withdraw his plea of not guilty by reason of mental disease or defect and to allow him to enter only a plea of not guilty; the circuit court did so. The circuit court then instructed Kennedy to compile a list of witnesses he wanted to subpoena for trial and told him to send that list to the circuit clerk's office. Kennedy then requested that the circuit court provide him with a transcript from his preliminary hearing and bond hearing and also requested that the State provide him with discovery. After a brief discussion about Kennedy's request for a transcript and discovery, the circuit court provided Kennedy with a copy of the Alabama Criminal Code, which the circuit court earmarked to highlight the Code section under which Kennedy was charged, and the circuit court, out of an " abundance of caution," rearraigned Kennedy.

         That same day, the circuit court memorialized that hearing in a written order, in which the circuit court granted Kennedy's request to represent himself at trial, finding:

" [Kennedy] can read, write, and understand the English language. In fact, [Kennedy] is well spoken and advised the Court that he had graduated from a private high school in Mobile County and completed two years of college at the University of Mississippi. After fully explaining the disadvantages of proceeding pro se (as his own lawyer) the Court finds that [Kennedy] has knowingly, intelligently, and voluntarily waived his right to legal counsel. The Court advised [Kennedy] that the State is seeking to impose the death penalty. The Court advised [Kennedy] that should he change his mind and desire to be represented by legal counsel or to have the assistance of legal counsel as a 'back up' the Court will appoint a qualified lawyer to assist him."

(C. 90.)

         Kennedy later wrote a letter addressed to the circuit court asking why, after having read the Code section provided to him by the circuit court, his indictment did not charge him with both burglary and capital murder. In response to that letter, which the circuit court treated as a motion, (supplemental record on appeal, C. 38), the circuit court conducted a hearing, which was held on January 19, 2012.

         At that hearing, the circuit court addressed Kennedy's letter and explained to him that burglary was an element of the charged offense of capital murder and denied Kennedy's motion. Additionally, the circuit court addressed its previously issued

Page 513

order, which instructed the State to amend Kennedy's capital-murder indictment to include the specific Code section under which Kennedy was charged, and thereafter read the amended indictment to Kennedy.

         At that time, the circuit court also addressed Kennedy's request for discovery and ordered the State to provide Kennedy with discovery at the next hearing. Additionally, the circuit court addressed a motion filed by Kennedy " about DNA evidence." In addressing that motion, the circuit court explained to Kennedy that it would be difficult for him to get DNA evidence examined because of his incarceration. The circuit court also explained that it could grant a request from Kennedy for funds to hire an expert witness. The circuit court cautioned, however, that it would not recommend an expert for Kennedy to hire. Thereafter, the circuit court again urged Kennedy to reconsider his decision to represent himself at trial and asked that Kennedy allow the circuit court to appoint him counsel; Kennedy declined.

         After Kennedy again expressed his desire to represent himself at trial, the circuit court again asked Kennedy about his education and background and again advised him of the dangers and disadvantages of self-representation. In so advising, the circuit court explained that, although it would provide Kennedy a copy of the Alabama Rules of Evidence and could " answer some questions about procedures," it would not give Kennedy legal advice or " bend over backwards because [Kennedy was] a layperson." (R. 60.) The circuit court then asked Kennedy if he was attempting to commit suicide by insisting on representing himself at trial. Kennedy explained to the circuit court that he was not attempting to commit suicide and that he believed he could adequately represent himself at trial.

         On February 2, 2012, in open court, the State provided Kennedy with discovery. After the State provided Kennedy with discovery, the circuit court provided Kennedy with a copy of the Alabama Rules of Court, a book containing the procedural rules used in Alabama courts.

         Thereafter, on March 1, 2012, the circuit court conducted another hearing with Kennedy and explained to him the following:

" The Court: We set today as a deadline for you to tell me about either whether you wanted me to appoint counsel or whether you wanted to continue to represent yourself. But let me tell you this. I've been looking--I've got hundreds of cases. So I don't know them all very well. I know just a little bit. Yours is what's called a circumstantial evidence case. Circumstantial evidence is the same evidence-is the same type evidence as eyewitness. But circumstantial evidence relies a lot on experts as kind of we talked before. And in a case where a lawyer was representing you, the lawyer would be hiring a DNA expert, et cetera. You still want to represent yourself? Is that--Even after all the warnings I've given you is that-
" [Kennedy]: Correct.
" The Court: Okay. And I've told you though you need probably to hire outside experts to take statements, et cetera. Let me ask you this. To me, it makes a lot of sense for me to appoint--there are a lot of different terms, amicus counsel is the legal term, a shadow counsel is the other, but an outside lawyer that wouldn't try your case; you could try your case, whatever you wanted to do, but to do at least the outside work to hire a DNA person, have the sample, to act as your assistant outside of court so they can get some things done for you

Page 514

so you could have the tools you need at trial to defend yourself. Does that make sense to you?
" [Kennedy]: Yeah, it does."

(R. 76-77.) Thereafter, the circuit court introduced Jason Darley to Kennedy and, over Kennedy's objection, appointed Darley to serve as Kennedy's " shadow counsel." The circuit court, however, assured Kennedy that Darley would not be " running [the] case" but could, instead, help Kennedy obtain expert witnesses. Kennedy told the circuit court that he would rather not have Darley involved in the case. In response, the circuit court again asked Kennedy if he was on a " suicide mission" and asked Kennedy for a reason as to why he did not want Darley to serve as his " shadow counsel." Kennedy explained that he had " reasons" and that those reasons went " to [his] defense and [he was] not really going to express that until trial." (R. 81.) Thereafter, the following exchange occurred:

" The Court: Okay. But you've told me before about needing outside witnesses and experts hired. We talked about that before. And I've kind of explained to you that procedure. And you can't do it because you're locked up.
" [Kennedy]: And all that crossed my mind until I got the discovery and the court reporting.
" The Court: Right. But after reading the discovery, didn't you understand that you need to hire some people or some people need to be hired to come in and testify as experts or to do some work?
" [Kennedy]: Actually I decided not to because of the discovery.
" The Court: Okay. You decided not to do that because of the discovery.
" Okay. What I'm going to do then, after you looking through all the documents and all you don't think you need any ...

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