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Callen v. State

Alabama Court of Criminal Appeals

April 28, 2017

Dontae Callen
v.
State of Alabama

         Appeal from Jefferson Circuit Court (CC-11-2047)

          WELCH, Judge.

         The appellant, Dontae Callen, [1] was convicted of murdering Bernice Kelly, Quortes Kelly, and 12-year-old Aaliyah Budgess during the course of an arson; of committing the murders by one act or pursuant to one scheme or course of conduct; and of murdering a child under the age of 14; all offenses defined as capital by §§ 13A-5-40(a)(9), (a)(10), and (a)(15), Ala. Code 1975. The jury, by a vote of 11 to 1, recommended that Callen be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Callen to death. This appeal followed.

         The State's evidence tended to show that around 4:00 a.m. on the morning of October 29, 2010, emergency personnel were dispatched to Bernice Kelly's apartment in response to a 911-emergency telephone call that there was a fire in her apartment. Lt. Warren Calvert, a member of the Birmingham Fire Department, testified that his unit was the first on the scene and that he observed smoke coming from one of the apartments on the lower level. He went to the apartment, he said, and tried to open the front door, but it was blocked. (R. 442.) Lt. Calvert said that he pulled an unconscious woman's body from behind the door and was then able to enter and search the apartment because, he said, people were yelling that more people were in the apartment. He found another body, a young female, in the bathroom, and he took her out of the apartment. At that time, Lt. Calvert said, another firefighter yelled at him to stop because he was covered in blood. He further testified that a third body, a male, was also recovered from the apartment. After they discovered that the victims were covered in blood, Lt. Calvert said, they called the police department. Lt. Fitzgerald Mosely, a fire investigator with the City of Birmingham, testified that he investigated the fire, that the fire was not accidental, and that it had multiple points of origin. He further testified that when the firemen arrived Bernice's body was on fire and they had to extinguish that fire to remove her body. Bernice was still alive and was taken to a local hospital where she died later that day.

         Dr. Gary Simmons, a forensic pathologist with the Jefferson County Coroner's Office, testified that Bernice Kelly had been stabbed 18 times in her upper body and died of multiple sharp-force trauma; Quortes Kelly had been stabbed 33 times in his upper body and died of multiple sharp-force trauma; and Aaliyah Budgess had been stabbed 25 times to her neck and head and died of multiple sharp-force trauma. None of the three victims had carbon monoxide in their lungs.

         Lisa Brown -- Bernice's daughter and Quortes's sister --testified that Bernice was Callen's great aunt and that Quortes and Aaliyah were Callen's cousins. Brown said that Aaliyah lived with Bernice so that she could go to a private school in the area and that Quortes also lived with Bernice. Faye Budgess, Bernice's sister, testified that on the evening of October 28, 2010, she was with Quortes, Callen, and Aaliyah at a neighbor's house watching television. She said that Quortes, Callen, and Aaliyah left at about 10:00 p.m. to return to Bernice's apartment. Budgess said that Callen had lived with Bernice until several months before the murders.

         Det. Warren Cotton, an investigator with the Birmingham Police Department, testified that he investigated the triple homicide and first came into contact with Callen at the hospital. Callen was nervous, Det. Cotton said, and had cuts on his body and a red substance in one of his ears. Det. Cotton requested that Callen be transported to the police station. At the police station, Det. Cotton said, Callen confessed that he stabbed all three victims, that he lit some clothes on fire with a lighter, and that when the fire started "getting big" he left the apartment through the back door. He said that Quortes was in a bedroom, his Aunt Bernice was near the front door, and Aaliyah was by the bathroom. Callen said that he threw the knife away down the street from the apartment.

         Officer Roxanne Murry, an evidence technician with the Birmingham Police Department, testified that she collected various items from the scene and near the scene of the triple homicide. Officer Murry said that in a sewer about one block from the triple homicide she collected two knives, a sandal, red-soaked clothes, and red-stained mittens.

         Nathan Rhea, a forensic scientist with the Alabama Department of Forensic Sciences, testified that he performed DNA testing on the red substance collected from one of Callen's ears and the items collected from the scene of the crime and from Callen's residence. Rhea testified that the substance in Callen's ear was blood and that it contained a mixture of Quortes's blood and Callen's blood. Rhea further testified that each of the three victims could have contributed to the blood discovered on one of the knives recovered in a sewer near the crime scene. Also, clothes taken from Callen's residence contained blood that matched Quortes's blood.

         In his defense, Callen presented the testimony of Beatrice Brown, Callen's grandmother. Brown testified that several months before the triple homicide Bernice told her that she could no longer financially support Callen and Callen moved in with her, her daughter, and her daughter's children. Brown also testified that Quortes often drank and had not worked in several years before his death.

         The jury convicted Callen of the three counts charged in the indictment. A separate sentencing hearing was held and the jury recommended, by a vote of 11 to 1, that Callen be sentenced to death. A presentence report was prepared, and a separate sentencing hearing was held before the circuit court. After weighing the aggravating circumstances and the mitigating circumstances, the circuit court followed the jury's recommendation and sentenced Callen to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-53, Ala. Code 1975.

         Standard of Review

         Because Callen has been sentenced to death, this Court must review the record for any "plain error." Rule 45A, Ala. R. App. P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

         In discussing this standard of review, this Court in Hall v. State, 820 So.2d 113 (Ala.Crim.App.1999), stated:

"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is 'particularly egregious' and if it 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala. Cr. App. 1997), aff'd, 723 So.2d 770 (Ala. 1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala. Cr. App. 1992), rev'd on other grounds, 620 So.2d 709 (Ala. 1993), on remand, 620 So.2d 714 (Ala. Cr. App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993)."

820 So.2d at 121-22. "We confine the operation of the plain-error rule to those cases where the error 'has or probably has adversely affected the substantial rights of the appellant.' ... We use it 'sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" Ex parte Hodges, 856 So.2d 936, 948 (Ala. 2003).

         With these principles in mind, we review the issues raised by Callen.

         Guilt-Phase Issues

         I.

         Callen argues that the circuit court erred in denying his application for youthful offender ("YO") treatment. In a two-paragraph argument in his brief, Callen asserts that his background strongly supported the granting of the application and that the circuit court erred in not giving a reason for denying his request for YO treatment.

         At the time of the murders, Callen was 18 years and 2 months old. The numerous Department of Human Resources ("DHR") documents contained in the record show that Callen had been neglected by his mother and father, that he frequently changed residences, and that he had no stable home environment.

         The record shows that Callen moved that he be granted YO treatment. The circuit court issued an order referring the case to the county probation office so that an investigation could be made into Callen's background. (C. 34.) A hearing was held on the application. (2 Supple. R. 6-13.) At that hearing the circuit court indicated that she was in possession of a report on Callen's background. At the conclusion of the hearing, the circuit court denied Callen's application. (2 Supple. R. 13.) In the order denying the application, the circuit court stated: "After considering the report filed by the Alabama Department of Probation and Paroles, argument by counsel, comments from the victims' family, and letter sent on behalf of the defendant, Youthful Offender [status] is denied." (C. 35.)

         "The trial court has almost absolute discretion in ruling on applications for youthful offender status, and the actions of the trial judge are presumptively correct in the absence of a showing to the contrary." Carden v. State, 621 So.2d 342, 345 (Ala.Crim.App.1992). "All that is required is that the trial court undertake an examination of the defendant sufficient to enable it to make an intelligent determination as to whether, in its discretion, the defendant is eligible for treatment as a youthful offender." Hyde v. State, 778 So.2d 199, 225 (Ala.Crim.App.1998). "[T]he trial judge is not required to state his reason for denying youthful offender status." Garrett v. State, 440 So.2d 1151, 1152-53 (Ala.Crim.App.1983).

"Gamble has failed to show that the trial court abused its discretion in denying his application for youthful offender treatment. As we stated in Miller v. State, 650 So.2d 940 (Ala. Cr. App. 1993), rev'd on other grounds, 650 So.2d 947 (Ala. 1994), '"the nature of the fact situation on which the charge is based may be a sufficient reason for denying youthful offender status."' 650 So.2d at 945, quoting Ex parte Farrell, 591 So.2d 444, 449 (Ala. 1991) (emphasis in Farrell). 'Moreover, where the record does not support the contention that youthful offender status was denied solely on the basis of the crime charged, this court will not reverse the trial court's decision to deny youthful offender status.' Miller, 650 So.2d at 945. There is nothing in the record to support Gamble's contention that he was improperly denied youthful offender treatment solely on the basis of the crime he was charged with, and there is nothing in the record to indicate that the trial court's decision was arbitrary or was an abuse of discretion. Thus, we find no error here."

Gamble v. State, 791 So.2d 409, 419-20 (Ala.Crim.App.2000).

          Here, the record shows that the circuit court conducted an investigation and chose not to grant Callen's application for YO treatment. Nothing in the record suggests that the application was denied solely on the basis of the crimes charged. The circuit court did not abuse its considerable discretion in denying Callen's application for YO treatment, and Callen is due no relief on this claim.

         II.

         Callen next argues that the circuit court erred in declining to find that his intellectual disabilities rendered him ineligible to be sentenced to death pursuant to the United States Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304 (2002). Specifically, Callen argues that the United States Supreme Court's holding in Hall v. Florida, 572 U.S.___, 134 S.Ct. 1986 (2014), requires courts to use the standard error of measurement ("SEM") when considering an IQ score, and, he says, the circuit court failed to consider the SEM in assessing his IQ.

         The record reflects that in April 2013 the circuit court ordered that Callen be evaluated to determine his competency to stand trial and his mental state at the time of the offense. (C. 56-58.) The circuit court also ordered that Callen be evaluated to determine "the presence of mental retardation for potential Atkins hearing." (C. 79-81.) In accordance with Atkins, the circuit court ordered that a hearing be held. (C. 86; R. 18-143.) After the hearing, the circuit court issued an order finding that Callen was not intellectually disabled[2] as that term had been defined by the Alabama Supreme Court in Ex parte Perkins, 851 So.2d 453 (Ala. 2002).

         In Ex parte Perkins, the Alabama Supreme Court adopted the most liberal definition of intellectual disability as defined by those states that had enacted legislation prohibiting the execution of an intellectually disabled defendant. To meet the definition of intellectual disability under Perkins, the defendant must: (1) have significantly subaverage intellectual functioning (an IQ of 70 or below); (2) have significant defects in adaptive behavior; and (3) those two factors must have manifested themselves before the defendant attained the age of 18.

         In Smith v. State, [Ms. 1060427, May 25, 2007]___ So. 3d___ (Ala. 2007), the Supreme Court further addressed its holding in Ex parte Perkins:

"In Ex parte Perkins, [851 So.2d 453 (Ala. 2002), ] we concluded that the 'broadest' definition of mental retardation consists of the following three factors: (1) significantly subaverage intellectual functioning (i.e., an IQ of 70 or below); (2) significant or substantial deficits in adaptive behavior; and (3) the manifestation of these problems during the defendant's developmental period (i.e., before the defendant reached age 18). 851 So.2d at 456. All three factors must be met in order for a person to be classified as mentally retarded for purposes of an Atkins claim. Implicit in the definition is that the subaverage intellectual functioning and the deficits in adaptive behavior must be present at the time the crime was committed as well as having manifested themselves before age 18. This conclusion finds support in examining the facts we found relevant in Ex parte Perkins and Ex parte Smith [, [Ms. 1010267, March 14, 2003] So.3d (Ala. 2003), ] and finds further support in the Atkins decision itself, in which the United States Supreme Court noted: 'The American Association on Mental Retardation (AAMR) defines mental retardation as follows: "Mental retardation refers to substantial limitations in present functioning."' 536 U.S. at 308 n. 3, 122 S.Ct. 2242 (second emphasis added). Therefore, in order for an offender to be considered mentally retarded in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18."

___So. 3d at___.

         Moreover, the defendant bears the burden in proving an Atkins claim.

"In the context of an Atkins [v. Virginia, 536 U.S. 304 (2002), ] claim, the defendant has the burden of proving by a preponderance of the evidence that he or she is mentally retarded and thus ineligible for the death penalty. See Morrow v. State, 928 So.2d 315, 323 (Ala.Crim.App.2004); see also Holladay v. Campbell, 463 F.Supp.2d 1324, 1341 n. 21 (N. D. Ala. 2006) (interpreting Alabama law to require that the defendant prove mental retardation by a preponderance of the evidence)."[3]

Smith v. State, [Ms. 1060427, May 25, 2007]___ So. 3d___, ___ (Ala. 2007).[4] Black's Law Dictionary defines "preponderance of the evidence" as:

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

Black's Law Dictionary 1373 (10th ed. 2014).

         At the Atkins hearing, Callen presented the testimony of Dr. Ron Meredith, a licensed psychologist. Dr. Meredith testified that he evaluated Callen, that he spent more than 10 hours with Callen, that he obtained a mental-health history, that his partner, Dr. Barry Adams, administered the Wechsler Adult Intelligence Scale IV ("WAIS IV") test to Callen, that Dr. Adams administered the Adapted Behavioral Assessment System II test to Callen, and that he reviewed various records from Callen's history. Dr. Meredith testified

"The results were a verbal comprehension index of 70, which places him -- places Mr. Callen below ninety-eight percent of the standardization population, and places him in a mild range of mental retardation, or the extremely low range.
"He performed seventy-five on the full scale IQ, which placed him at the fifth percentile. So, he scored lower than 95 percent of the population.
"But when you interpret that particular score, you have to also look at the standard error of measurement. Because these tests are not in any way without error, and the standard error of measurement in this case was 2.12 points. So, probably he scored about 73 on the full scale.
"Now, in the development of the Wechsler Adult Intelligence Scale IV, they have come out with a new measure of general ability. And that measure takes out two confounding facts. One is immediate memory, and the other one is perceptual reasoning or perceptual speed.
"When you take those two scores out he scored a 73 with a standard error of measurement of 2.6, which would have resulted in a score 70.4 points, which places him right on the cusp of borderline intelligence and the extremely low range of intellectual functioning."

(R. 2128-29.) In relation to the adaptive-functioning prong of the Perkins inquiry, Dr. Meredith testified that he examined Callen's school records and that an adaptive test had been performed on Callen. It was his opinion that Callen met all the "requirements of Atkins" and that he is intellectually disabled. (R. 69-70.)

         Gilbert Robbins, a mental-health counselor, testified that he performed psychological tests on Callen when Callen was 16 years old and determined that Callen's full-scale IQ was 69. He also testified that based on the margin of error, Callen's IQ could be anywhere between 65 to 75. On cross-examination of Robbins, the following occurred:

"[Prosecutor]: Can you tell us about, as far as a diagnoses would be, where would mental retardation fall into? Was that an Axis II diagnosis?
"[Robbins]: Yes.
"[Prosecutor]: All right. And in this case, instead of making that diagnosis, you listed it as something that would have to be ruled out. You didn't diagnose it. Instead you wrote: Rule out borderline intellectual functioning and mild mental retardation?
"[Robbins]: If I could, we can back up. The actual -- what I put on Axis II to diagnosis deferred.
"[Prosecutor]: Okay.
"[Robbins]: Which means I was leaving it up to another mental health professional to come up with Axis II diagnosis. There wasn't enough evidence to support a diagnosis of any kind.
"[Prosecutor]: So, for that -- I'm sorry. I'm interrupting you.
"[Robbins]: The rule-outs were: Borderline intellectual functioning, mild mental retardation, which basically there was some evidence to suggest, but, again, I couldn't be sure.
"[Prosecutor]: So, as far as mental retardation goes, you thought at that time that further testing would be required to say there was any mental retardation?
"[Robbins]: Further testing, as well as a review of additional records."

(R. 122-23.) The report completed by Gilbert Robbins stated in part: "Below average intelligence; however, he was also noted to have low motivation and appeared quite angry." (C. 1031.) Robbins testified that when taking the intelligence test Callen lacked motivation and enthusiasm, that he appeared to attempt his best, thus, the results were "offered with caution." (R. 121.)

         The record also reflects that, based on school records, Callen made mostly Cs and Ds, he attended school until the 11th grade; and he was expelled in the 11th grade for domestic violence. There are also numerous Department of Human Resources ("DHR") documents in the record. One document states: "[Callen] functions as a normal 16 year old and does not have any significant behavior problems, although his mother and father state that [Callen] does have behavioral issues." (C. 985; 987; 989.) DHR records also show that Callen frequently missed school because he "did not have the proper clothes." (C. 1001.) Another DHR document entitled "Placement Request" indicates that the individual completing the form checked that Callen was not "mentally retarded." (C. 1008.) DHR records also contain a psychological evaluation conducted on Callen when he was in the sixth grade. This evaluation showed that Callen was functioning at "about his grade level" and was in the low average range of intelligence. (C. 1025.) The clinical psychologist who conducted this evaluation did not conclude that Callen was intellectually disabled. (C. 1027.) A review of the transcript of Callen's statement to police reflects that Callen was at times articulate and appeared to fully comprehend his situation.

         The circuit court found that Callen failed to prove the three prongs set out in Atkins and Perkins by a preponderance of the evidence and that Callen was eligible to receive the death penalty. (C. 92-94.) In its order, the circuit court stated:

"Dr. Ron Meredith, a Doctor of Psychology and Clinical Psychologist, who was qualified as an expert, testified that he spent at least 10 hours with [Callen] at the Jefferson County jail in preparation for the trial of this matter. His partner, Dr. Barry Adams, administered the Wechsler Adult Intelligence Scale IV test (also called the WAIS IV). [Callen's] results were a full scale IQ score of 75 and General Ability score of 73. Dr. Meredith testified that with Standard Error of Measurement and Full Scale IQ scores ranged from 71-80. These scores put [Callen] in the 'borderline' area of mental ability. Dr. Meredith further stated that taking those scores in connection with his testing of [Callen's] adaptive behavior and a thorough review of the defendant's school and DHR (Department of Human Resources) records in his opinion, Dontae Callen is mentally retarded.
"Mr. Jerome Robbins testified that at the age of 16 [Callen] was evaluated by him by request of the Alabama Department of Human Resources. (His results were reviewed and used by Dr. Meredith in arriving at his above mentioned opinion.) Mr. Robbins testified that his results showed [Callen] to have a Full Scale IQ of 69. However, Mr. Robbins on his report specified that his results were offered 'with caution.' In court, Mr. Robbins stated that he added 'with caution' because he wasn't confident with his test results due to [Callen's] attitude during the testing. Under cross-examination he testified that the results could have been higher had [Callen] been more interested.
"The three-pronged test for determining mental retardation in a criminal court as set out by Atkins [v. Virginia, 536 U.S. 304 (2002), ] and [Ex parte] Perkins[, 851 So.2d 453 (Ala. 2002), ] is not such that only one of the prongs need to be proven. All of the prongs must be proven by a preponderance of the evidence. Since [Callen's] own expert scored [Callen's] Full Scale IQ as 75 this court finds that evidence fails to meet the burden of proof.
"Based on the above this court finds that the defense failed to prove by a preponderance of the evidence that [Callen] is mentally retarded. Therefore, [Callen] is eligible to proceed to trial on the capital murder charges and if convicted of that charge will face the possible punishment of either death or life imprisonment without the possibility of parole."

(C. 93-94.)

         As stated above, Callen argues that the circuit court's ruling finding that Callen was not intellectually disabled violates the Supreme Court's holding in Hall v. Florida.[5] In discussing Hall, this Court in Reeves v. State, [Ms. CR-13-1504, June 10, 2016]___ So. 3d___ (Ala.Crim.App.2016), stated:

"[I]n Hall v. Florida, 572 U.S.___, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), the United States Supreme Court recognized that IQ test scores, alone, are not determinative of intellectual disability or even of the intellectual-functioning prong of intellectual disability because IQ testing has a margin of error or standard error of measurement ('SEM'). The Court held unconstitutional Florida's strict IQ score cutoff of 70 for establishing intellectual disability. The Florida Supreme Court had held that a person who attained an IQ score above 70 was, as a matter of law, not intellectually disabled and was prohibited from presenting any further evidence to support a claim of intellectual disability. See Hall v. State, 109 So.3d 704 (Fla. 2012), citing Cherry v. State, 959 So.2d 702, 712-13 (Fla. 2007). In holding this strict IQ score cutoff of 70 unconstitutional, the United States Supreme Court recognized that IQ test scores are 'imprecise' and have a '"standard error of measurement"' that 'is a statistical fact [and] a reflection of the inherent imprecision of the test itself.' Hall, 572 U.S. at___, 134 S.Ct. at 1995. The Court noted that the SEM, which the Court recognized to be plus or minus five points on standard IQ tests, 'reflects the reality that an individual's intellectual functioning cannot be reduced to a single numerical score, ' Hall, 572 U.S. at___, 134 S.Ct. at 1996, and that, therefore, IQ test scores are not 'final and conclusive evidence of a defendant's intellectual capacity, ' and 'should be read not as a single fixed number but as a range.' Hall, 572 U.S. at___, 134 S.Ct. at 1995.
"Because of the inherent imprecision in IQ testing, the Court noted, '[f]or professionals to diagnose -- and for the law then to determine --whether an intellectual disability exists once the SEM applies and the individual's IQ score is 75 or below the inquiry would consider factors indicating whether the person had deficits in adaptive functioning.' Hall, 572 U.S. at___, 134 S.Ct. at 1996. In other words, 'an individual with an IQ test score "between 70 and 75 or lower, " Atkins, [536 U.S.] at 309 n. 5 [122 S.Ct. 2242 n. 5], may show intellectual disability by presenting additional evidence regarding difficulties in adaptive functioning.' 572 U.S. at___, 134 S.Ct. at 2000. The Court concluded that
"'when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.
"'It is not sound to view a single factor as dispositive of a conjunctive and interrelated assessment. See DSM-5 [Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition], at 37 ("[A] person with an IQ score above 70 may have such severe adaptive behavior problems ... that the person's actual functioning is comparable to that of individuals with a lower IQ score.").'
"572 U.S. at___, 134 S.Ct. at 2001. See also Brumfield v. Cain, ___ U.S.___, ___, 135 S.Ct. 2269, 2278, 192 L.Ed.2d 356 (2015) (holding that the petitioner was entitled to a hearing on his intellectual-disability claim because, when accounting for the SEM, his IQ score of 75 was 'squarely in the range of potential intellectual disability')."

___So. 3d at____.

         The Reeves court further held that the definition of intellectual disability adopted in Ex parte Perkins was consistent with the United States Supreme Court's decision in Hall v. Florida. This court stated:

"The Alabama Supreme Court's definition of intellectual disability adopted in Ex parte Perkins[, 851 So.2d 453 (Ala. 2002), ] comports with both Atkins [v. Virginia, 536 U.S. 304 (2002), ] and Hall [v. Florida, 572 U.S.___, 134 S.Ct. 1986 (2014)]. Although the definition references an IQ score of 70, that referenced score is not a strict cutoff for intellectual disability, and Alabama does not preclude a court's consideration of the SEM when considering a person's IQ score. See Lane v. State, [Ms. CR-10-1343, April 29, 2016]___ So. 3d___ (Ala.Crim.App.2016) (opinion after remand by the United States Supreme Court). Nor does Alabama preclude a person from presenting additional evidence regarding intellectual disability merely because that person attained an IQ score above 70. Indeed, this Court, subsequent to Ex parte Perkins, twice recognized that a person may be intellectually disabled even if that person attains an IQ score above 70 on a test, see Jackson v. State, 963 So.2d 150 (Ala.Crim.App.2006) (holding that Rule 32 petitioner was intellectually disabled even though he achieved a score above 70 on one of four IQ tests he had taken), and Tarver v. State, 940 So.2d 312, 318 (Ala.Crim.App.2004) (remanding for a hearing to determine intellectual disability where record indicated that Rule 32 petitioner had IQ scores of 76, 72, and 61), and we three times recognized the SEM in evaluating an Atkins claim. See Smith v. State, 112 So.3d 1108 (Ala.Crim.App.2012); Byrd v. State, 78 So.3d 445 (Ala.Crim.App.2009); and Brown v. State, 982 So.2d 565 (Ala.Crim.App.2006). Additionally, in Ex parte Smith, [Ms. 1010267, March 14, 2003]___ So. 3d___, ___ (Ala. 2003), the Alabama Supreme Court noted that an IQ score of 72 'seriously undermines any conclusion that [a person] suffers from significantly subaverage intellectual functioning as contemplated under even the broadest definitions, ' but it did not hold that an IQ score of 72 precludes a finding that a person suffers from significantly subaverage intellectual functioning or precludes a finding of intellectual disability. Both this Court's and the Alabama Supreme Court's post-Atkins opinions make clear that a court should look at all relevant evidence in assessing an intellectual-disability claim and that no one piece of evidence, such as an IQ test score, is conclusive as to intellectual disability."

___So. 3d at___. In rejecting the defendant's argument that the circuit court erred in not considering the SEM, the Reeves court stated:

"Nothing in the circuit court's order indicates that the court did not consider the SEM in evaluating Reeves's claim. Although the circuit court did not specifically mention the SEM in its order, it did state that it had considered all the evidence presented at the evidentiary hearing and that evidence included testimony about the SEM.
"We further reject Reeves's argument that the circuit court was required to find that he suffered from significantly subaverage intellectual functioning because, he says, all of his IQ scores fell within the range of significantly subaverage intellectual functioning when the SEM is considered one of his IQ scores was below 70 even without consideration of the SEM. As noted above, in Hall [v. Florida, 572 U.S.___, 134 S.Ct. 1986 (2014)], the United States Supreme Court recognized that an IQ score, alone, is not determinative of intellectual disability or even of the intellectual-functioning prong of intellectual disability. The Court explained that because of the imprecision in intelligence testing, an IQ score should be considered a range, not a fixed number. Subsequently, the United States Court of Appeals for the Fifth Circuit explained:
"'The consideration of SEM as discussed by the Supreme Court, however, is not a one-way ratchet. The imprecision of IQ testing not only provides that IQ scores above 70 but within the SEM do not conclusively establish a lack of significantly subaverage general intellectual functioning, but also that IQ scores below 70 but within the SEM do not conclusively establish the opposite. In other words, a sentencing court may find a defendant to have failed to meet the first prong of the AAMR's [American Association of Mental Retardation] definition of intellectual disability even if his IQ score is below 70 so long as 70 is within the margin of error and other evidence presented provides sufficient evidence of his intellectual functioning.'

"Mays v. Stephens, 757 F.3d 211, 218 n. 17 (5th Cir. 2014)." ___So. 3d at___.[6]

         As stated in Reeves, nothing in the circuit court's order indicates that it failed to consider the standard error of measurement ("SEM"). In fact, the circuit court's order specifically references the SEM that was discussed in Dr. Meredith's testimony. After considering the evidence presented at the Atkins hearing and the record, this Court agrees with the circuit court that Callen failed to meet his burden of proving by a preponderance of the evidence that he was ineligible to be sentenced to death because he is intellectually disabled. See State v. Dunn, 41 So.3d 454, 472-73 (La. 2010) ("After examining all available information, including the experts' conclusions, lay testimony, anecdotal evidence, and school and work records, it is clear defendant has not met his burden to show, by a preponderance of the evidence, that he is mentally retarded. ... In this instance, it is clear defendant suffers from low intellectual functioning, but, based upon all the evidence before us, we do not find defendant has met his burden to establish the trial court erred in finding he is not mentally retarded."). Callen is due no relief on this claim.

         III.

         Callen next argues that the circuit court erred in denying his motion to have an attorney present during his mental examination. Callen argues that the Atkins hearing is a critical stage of the proceedings against him and that he was entitled to the assistance of counsel. He relies on a decision of the United States Court of Appeals for the Tenth Circuit in Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012), to support his argument.

         The record shows that the circuit court's Atkins order directing that Callen be evaluated by Dr. Glen King was issued on May 3, 2013. (C. 84.) Dr. King evaluated Callen on May 13, 2013. It was not until May 14, 2013, that Callen moved to have an attorney present during that mental evaluation. This motion was filed one day after Callen had been examined. The circuit court denied the motion but noted that it would have denied the motion even if it had been filed before Callen had been evaluated. (C. 88.)

         First, the motion to have counsel present at the mental evaluation, filed after Callen had been evaluated by Dr. King, was untimely. Moreover, the case relied on by Callen, Hooks, involved the right to counsel at an Atkins proceeding. That court held: "[T]he right to effective assistance of counsel extends to jury-based Atkins proceedings of the kind employed in Oklahoma." 689 F.3d at 1183. It is unclear from that opinion whether the Tenth Circuit would extend the right to counsel to the actual mental examination before a mental-health expert, an examination that takes places before the Atkins trial.

         The Tennessee Supreme Court in State v. Martin, 950 S.W.2d 20 (Tenn. 1997), discussed the problems in extending the right to counsel to a mental-health examination:

"Both the United States and Tennessee Constitutions require the presence of counsel to represent a defendant not only at trial but also at 'critical stages' of the proceedings 'where counsel's absence might derogate from the accused's right to a fair trial.' The purpose underlying the right is to 'preserve the defendant's basic right to a fair trial as affected by his [or her] right meaningfully to cross examine the witnesses ... and to have effective assistance of counsel at the trial itself.' United States v. Wade, 388 U.S. 218, 226-27, 87 S.Ct. 1926, 1931-32, 18 L.Ed.2d 1149 (1967).
"The defendant asserts that the court-ordered mental examination was a 'critical stage' of the proceedings requiring the presence of counsel under the United States and Tennessee Constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. The State maintains that the mental examination is not a 'critical stage' of the proceedings and moreover, that counsel's presence would impair or limit the effectiveness of the examination.
"In Estelle v. Smith, [451 U.S. 454 (1981)], the Supreme Court held that the Sixth Amendment right to counsel was violated when the defendant 'was denied the assistance of his attorneys in making the significant decision of whether to submit to the [psychiatric] examination and to what end the psychiatrist's findings could be employed.' Although the court said that the psychiatric interview 'proved to be a "critical stage" against' the defendant, its holding was limited to the question of whether the defendant was entitled to consult with counsel prior to the examination. The court did not find a Sixth Amendment right to have counsel at the examination and, in fact, noted with apparent approval the Court of Appeals' finding that 'an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination.' 451 U.S. at 470-71, 101 S.Ct. at 1877, n. 14.
"In later clarifying Estelle, the court stressed that 'for a defendant charged with a capital crime, the decision whether to submit to a psychiatric examination designed to determine his future dangerousness is "literally a life and death matter" which the defendant should not be required to face without "the guiding hand of counsel."' Satterwhite v. Texas, 486 U.S. 249, 254, 108 S.Ct. 1792, 1796, 100 L.Ed.2d 284 (1988). Similarly, the court said that '[w]hile it may be unfair to the state to permit a defendant to use psychiatric testimony without allowing the state a means to rebut that testimony, it certainly is not unfair to the state to provide counsel with notice before examining a defendant concerning future dangerousness.' Powell v. Texas, 492 U.S. 680, 685, 109 S.Ct. 3146, 3150, 106 L.Ed.2d 551 (1989); see also State v. Bush, 942 S.W.2d 489 (Tenn. 1997).
"While the United States Supreme Court has not directly addressed the issue, a substantial majority of state and federal jurisdictions have held that a defendant does not have the right to counsel during a psychiatric examination. In United States v. Byers, [740 F.2d 1104 (D.C. Cir. 1984)], for instance, the court distinguished the need for counsel before an examination, as opposed to during the examination itself, by pointing out that before examination
"'[the defendant] was confronted by the procedural system at the point at which he had to decide whether to raise the insanity defense, a determination that would have several legal consequences, including the likelihood of a court order that he undergo a psychiatric examination....
"'But at the psychiatric interview itself, [the defendant] was not confronted by the procedural system; he had no decisions in the nature of legal strategy or tactics to make-not even, as we have seen, the decision whether to refuse, on Fifth Amendment grounds, to answer the psychiatrist's questions. The only conceivable role for counsel at the examination would have been to observe....
"740 F.2d at 1118-1119.
"Similarly, numerous courts have considered the 'pragmatic' effect that counsel's presence, instead of rendering assistance, would impede or inhibit the examination. Moreover, a number of courts have stressed that the defendant's rights to a fair trial and to confrontation are sufficiently preserved by counsel's opportunity to interview the witnesses, review the results and information generated by the examination, conduct cross-examination of the psychiatric witnesses, and introduce defense witnesses. See, e.g., State v. Schackart, [175 Ariz. 494');">175 Ariz. 494, ] 858 P.2d [639] at 646-47 [(1993)].
"Accordingly, we agree with the courts which have distinguished the 'critical stage' prior to a psychiatric examination from the examination itself. We are convinced that the examination differs in purpose and procedure from other stages of the adversarial system, and that counsel's physical presence in a strictly passive, observational capacity, is not necessary to protect the defendant's related rights to a fair trial and to confront witnesses. In particular, the defendant has access to the information and results generated by the mental examination, as well as the right to interview, subpoena, and cross-examine the experts with regard to their methodology, opinions, and results.
"Thus, we conclude that the Sixth Amendment of the U.S. Constitution and article I, § 9 of the Tennessee Constitution do not require the presence of counsel during a court-ordered mental examination. It follows that the trial court's order, which did not specifically permit counsel to attend and monitor the mental examination, did not violate the defendant's right to counsel."

State v. Martin, 950 S.W.2d 20, 25-27 (Tenn. 1997).

         Since the United States Supreme Court release of Atkins, one federal court has declined to extend the right to counsel to the actual mental evaluation for the reasons set out by the Tennessee Supreme Court:

"[T]he court finds compelling the Government's representation that, according to its experts, 'the presence of third parties during examinations can be disruptive and have adverse effects on the performance and outcome of the evaluation.' (Gov't Mem. at 32.) The Second Circuit and district courts in this Circuit have repeatedly denied requests by counsel to be present at mental examinations because of these precise effects. See, e.g., Hollis [v. Smith], 571 F.2d [685] at 692 [(2nd Cir. 1978)]('It is difficult to imagine anything more stultifying to a psychiatrist, as dependent as he is upon the cooperation of his patient, than the presence of a lawyer objecting to the psychiatrist's questions and advising his client not to answer this question and that.'); United States v. Baird, 414 F.2d 700, 711 (2d Cir. 1969) ('[T]he presence of a third party, such as counsel ..., at [a mental] examination tends to destroy the effectiveness of the interview.'); Marsch v. Rensselaer Cty., 218 F.R.D. 367, 371 (N.D.N.Y. 2003) ('In federal court, [] the attendance of a subject's counsel or other observer is generally prohibited unless required by unusual circumstances.'); Equal Emp't Opportunity Comm'n v. Grief Bros. Corp., 218 F.R.D. 59, 63-64 (W.D.N.Y. 2003) ('[F]ederal law generally rejects requests that a party's attorney attend a [mental] examination.'); Baba-Ali v. City of N.Y., No. 92-CV-7957 (DAB)(THK), 1995 WL 753904, at (S.D.N.Y. Dec. 19, 1995) ('The weight of authority is clearly against the presence of counsel at a [mental] examination.')."

United State v. Wilson, 920 F.Supp.2d 287, 305 (E.D.N.Y. 2012).

         For the above reasons, we hold that the circuit court did not err in denying Callen's motion to have counsel present at his mental examination. Callen is due no relief on this claim.

         IV.

         Callen next argues that the circuit court erred in allowing one of his statements to police to be introduced into evidence because, he argues, he did not voluntarily reinitiate contact with police. Specifically, he asserts that the admission of the statement violated the United States Supreme Court's ruling in Edwards v. Arizona, 451 U.S. 477 (1981). He further argues that his statement was not knowing and voluntary and that he was coerced by police misconduct to confess.

         The record reflects that Callen moved to suppress his statements to police and argued that the statements were obtained by "illegal and unconstitutional means, by fraud, promises or inducements, without the benefit of counsel, resulting from illegal and improper promises, representations or threats." (R. 183.) A hearing was held on the motion. (2 Supple. 5-69.) The circuit court granted the motion, in part, and excluded Callen's first statement but allowed the second statement to be admitted into evidence. (C. 97.) The circuit court found that Callen had voluntarily initiated contact with police before he made his second statement; therefore, that statement was admissible.

         In Callen's second statement, he confessed that he stabbed all three victims, that he lit some clothes on fire with a lighter, and that when the fire started "getting big" he left the apartment through the back door. He said that Quortes was in a bedroom, his aunt was near the front door, and Aaliyah was by the bathroom.[7]

         The record shows that sometime after 7:00 a.m. on the morning of October 29, 2010, police came into contact with Callen at the hospital where Bernice had been taken. Callen was nervous and had cuts on his body and a red substance in one of his ears. He was taken to police headquarters for questioning. At around 10:00 a.m. police took Callen's clothing and shoes for forensic testing and gave him clothing to wear. Police said that they had no slippers so they put a bag on the floor for Callen to put his feet on. At around 10:15 a.m., Callen was given his Miranda[8] warnings and signed a waiver-of-rights form. (2 Supple. C. 25.) Police stopped questioning Callen after he asked to talk to someone several times and then asked for an attorney. Callen was in handcuffs, one officer said, because they did not want him to destroy possible evidence. Callen was left alone in the interrogation room. When he was alone, Callen sang to himself and muttered "Shit" and "You killed three people." About 20 minutes later, Callen threw up and was taken to get water. He asked for an attorney, and one officer told Callen that he would get counsel when he had been processed. Sometime around 4:00 p.m., Callen was given a meal. As an officer was giving him the food, he said to Callen: "You're lucky we're feeding you and not putting your head down and chopping your head off." (2 Supple. 106-07.) After this statement Callen appeared unfazed and asked for a cigarette. One officer also told Callen that a triple homicide was a capital-murder offense and that he faced either life imprisonment without parole or death. At around 4:30 p.m. Callen was taken to be examined using an alternative light source to search for the presence of blood. When Callen was returned to the interrogation room, he asked to "speak to someone." At 5:05 p.m., Callen was given his Miranda warnings for the second time and signed a waiver-of-rights form. (2 Supple. C. 26.)

         At the motion-to-suppress hearing, Det. Warren Cotton, a police officer with the Birmingham Police Department, testified that at the hospital he asked Callen for basic information and whether Callen had seen the victims before the fire. He said that Callen appeared to be very nervous and had cuts on his hand and that he contacted his office and told them that "we had a person of interest at the hospital" and that he "needed somebody to come and transport" him. Two detectives, he said, came to the hospital and transported Callen to the police station. (2 Supple. R. 16.) Det. Cotton said that he next saw Callen in an interview room. He testified:

"[Det. Cotton]: Before questioning we advised [Callen] that we needed to ask him some questions about this case. We advised him that it was the law that we had to advise him of his Constitutional rights.
"He was then read these [Miranda] rights. After I read it, I asked him to read the paragraph out loud to me that's towards the bottom of the Miranda waiver.
"After he read that he was asked if he understood everything? He agreed, yes. I told him if he agreed that he understood everything and he wanted to answer questions from us that we would need his signature. He signed it, dated it and noted the time, also.
"[Prosecutor]: Did you threaten or coerce him to get him to waive his Miranda rights?
"[Det. Cotton]: No, sir, I didn't.
"[Prosecutor]: Did you say things would be easier or harder on him if [he] waived his Miranda rights?
"[Det. Cotton]: No, sir.
"[Prosecutor]: Did you offer him a reward or a hope of a reward if he would waive his Miranda rights?
"[Det. Cotton]: No, sir.
"[Prosecutor]: Did he signify a waiver of his Miranda rights both orally and by signing the Miranda waiver form?
"[Det. Cotton]: Yes, sir."

(2 Supple. R. 18-19.) Det. Cotton further testified that he noticed what appeared to be blood in one of Callen's ears and he asked if police could obtain a swab of that substance. He said that Callen refused and that police then obtained a search warrant to obtain that sample. (2 Supple. R. 23.) During his first statement, Det. Cotton said, Callen told police that he did not want to talk anymore. (2 Supple. R. 26.) Det. Cotton testified that they continued to question him because Callen did not specifically ask to talk to an attorney but that when he did specifically ask, they stopped questioning Callen.

"[Prosecutor]: All right. At the moment that y'all clarified that he was requesting a lawyer, did y'all quit asking him about this case?
"[Det. Cotton]: We did, yes, sir.
"[Prosecutor]: All right. After he asked for a lawyer, after y'all quit talking to him about this case, he still remained in the interview room, right?
"[Det. Cotton]: Yes.
"[Prosecutor]: Did y'all feed him?
"[Det. Cotton]: Yes, sir, we did.
"[Prosecutor]: All right. And did y'all execute the search warrant partially in the room and partially in other parts of the building?
"[Det. Cotton]: Yes, sir.
"[Prosecutor]: Can you describe when he leaves the room, especially the couple of times you come to talk to him and you say 'let's take a walk' or 'it's time to take a walk, ' where did y'all go?
"[Det. Cotton]: When we got the search warrants certain aspects of a search warrant had to be executed in our evidence tech lab.
"At that time, during the interview, we were on the 5th floor. Our evidence tech lab is the floor below us on the 4th floor where they keep all of the equipment.
"When [Callen] was escorted out, he was escorted to the evidence tech lab. During that time we -- or the technicians, they did an ALS-type test on him with the --
"[Prosecutor]: Let's go back, because ALS is kind of like FBI and CIA. You know what it means, but the record needs to be clear. What's ALS?
"[Det. Cotton]: Alternate Light Source is what it stands for. Basically what it does is it detects blood and other things.
"[Prosecutor]: Bodily fluids?"

(2 Supple. R. 26-28.)

         Det. Cotton then testified as to what occurred after Callen had been taken for the alternate-light test and returned to the interrogation room:

"[Prosecutor]: Tell the Judge about what took place prior to the Miranda waiver?
"[Det. Cotton]: Prior to the Miranda waiver we initially conducted the alternate light source test down in our technician's lab.
"During that whole process [Callen] got real upset and began crying. Eventually we got through with the process of the testing and we went back up to the 5th floor to the interview room.
"Once we brought him upstairs and sat him down in the interview room, he was still visibly upset, nervous. His voice was cracking and he was crying.
"He asked me a question. He asked me was he going to die? I told him that was not in my control. I don't make that decision. The only thing I do is collect evidence and present it to the [district attorney's] office and to the Court.
"From that point he stated that he wanted to talk to somebody. I said well just hold up now. Clarify who you want to talk to? I said, initially when my sergeant came in you instructed him that you didn't want to talk to anybody. That you wanted a lawyer?
"I said, now you're saying you want to talk to one of the detectives in the case? He stated yes. I said okay.
"I told him, I said, I can't initiate a conversation with you because you've asked for a lawyer.
"....
"When I advised him I told him that, you now, of course he had asked for a lawyer. I couldn't initiate conversation with him. The only way that we could talk to him is that he would have to initiate and approach us in stating that he wanted to talk and he wanted to waive his rights. He
agreed that he wanted to talk to us.
"From that point, me and Investigator [Cynthia] Morrow, we went back into the interview room. I told him that we had to go through the format again. I had to read him his rights and advise him, which we advised him of his rights. I signed it. He read out loud the second paragraph. I asked him if he understood everything and he stated yes.
"I told him that if he wanted to talk to us and understood his rights, we needed him to sign this form, date it and time it, which he did."

(2 Supple. R. 30-33.)

         In evaluating a circuit court's ruling admitting into evidence a defendant's statement to law enforcement, we apply the standard articulated by the Alabama Supreme Court in McLeod v. State, 718 So.2d 727 (Ala. 1998):

"For a confession, or an inculpatory statement, to be admissible, the State must prove by a preponderance of the evidence that it was voluntary. Ex parte Singleton, 465 So.2d 443, 445 (Ala. 1985). The initial determination is made by the trial court. Singleton, 465 So.2d at 445. The trial court's determination will not be disturbed unless it is contrary to the great weight of the evidence or is manifestly wrong. Marschke v. State, 450 So.2d 177 (Ala.Crim.App.1984)....
"The Fifth Amendment to the Constitution of the United States provides in pertinent part: 'No person ... shall be compelled in any criminal case to be a witness against himself....' Similarly, § 6 of the Alabama Constitution of 1901 provides that 'in all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself.'
These constitutional guarantees ensure that no involuntary confession, or other inculpatory statement, is admissible to convict the accused of a criminal offense. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968).
"It has long been held that a confession, or any inculpatory statement, is involuntary if it is either coerced through force or induced through an express or implied promise of leniency. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). In Culombe, 367 U.S. at 602, 81 S.Ct. at 1879, the Supreme Court of the United States explained that for a confession to be voluntary, the defendant must have the capacity to exercise his own free will in choosing to confess. If his capacity has been impaired, that is, 'if his will has been overborne' by coercion or inducement, then the confession is involuntary and cannot be admitted into evidence. Id. (emphasis added).
"The Supreme Court has stated that when a court is determining whether a confession was given voluntarily it must consider the 'totality of the circumstances.' Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139-40, 22 L.Ed.2d 433 (1969); Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968); see Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967). Alabama courts have also held that a court must consider the totality of the circumstances to determine if the defendant's will was overborne by coercion or inducement. See Ex parte Matthews, 601 So.2d 52, 54 (Ala.) (stating that a court must analyze a confession by looking at the totality of the circumstances), cert. denied, 505 U.S. 1206, 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992); Jackson v. State, 562 So.2d 1373, 1380 (Ala.Crim.App.1990) (stating that, to admit a confession, a court must determine that the defendant's will was not overborne by pressures and circumstances swirling around him); Eakes v. State, 387 So.2d 855, 859 (Ala.Crim.App.1978) (stating that the true test to be employed is 'whether the defendant's will was overborne at the time he confessed') (emphasis added)."

718 So.2d at 729 (footnote omitted).

         We agree with the circuit court that the first statement was lawfully suppressed because Callen made an equivocal request for counsel and police continued to question him without clarifying Callen's request. See Thompson v. State, 97 So.3d 800, 806-07 (Ala.Crim.App.2011). However, when considering whether the second statement was admissible we look to the United States Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477 (1981):

"[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."

451 U.S. at 484-85.

"Subsequent to Edwards [v. Arizona, 451 U.S. 477 (1981), ] a plurality of the Court in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), addressed what constituted, under Edwards, 'initiation' by the accused of conversation with law enforcement. Questions by the accused regarding 'the routine incidents of the custodial relationship, ' for example, asking to use the bathroom or the telephone, are not valid initiations by the accused. 462 U.S. at 1045, 103 S.Ct. 2830. Instead, the accused must 'evince[ ] a willingness and a desire for a generalized discussion about the investigation.' 462 U.S. at 1045-46, 103 S.Ct. 2830."

Ex parte Williams, 31 So.3d 670, 676 (Ala. 2009).

"The purpose of this rule is to protect an accused in police custody from '"badger[ing]" or "overreaching" -- explicit or subtle, deliberate or unintentional -- [that] might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.' Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).
"'This "rigid" prophylactic rule, Fare v. Michael C., 442 U.S. 707, 719 (1979), embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. See, e.g., Edwards v. Arizona, supra, 451 U.S. [477], at 484-485 [(1981)] (whether accused "expressed his desire" for, or "clearly asserted" his right to, the assistance of counsel); Miranda v. Arizona, 384 U.S. [436], at 444-445 [(1966)] (whether accused "indicate[d] in any manner and at any stage of the process that he wish[ed] to consult with an attorney before speaking"). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, [451 U.S., ] at 485, 486, n. 9.'

"Smith v. Illinois, 469 U.S. at 95, 105 S.Ct. 490." Eggers v. State, 914 So.2d 883, 899-900 (Ala.Crim.App.2004).

         "The facts that the appellant was handcuffed, was not given anything to eat or drink, and did not make a telephone call, while factors to consider in the totality of the circumstances, did not render the appellant's confession involuntary." Battle v. State, 645 So.3d 344, 345 (Ala.Crim.App.1994). A statement is not rendered involuntary because police tell a defendant that he or she faces the death penalty if convicted. See Brooks v. State, 973 So.2d 380, 392 (Ala.Crim.App.2007). "'The fact that a defendant may suffer from a mental impairment or low intelligence will not, without other evidence, render a confession involuntary.'" Thompson v. State, 153 So.3d 84, 110 (Ala.Crim.App.2012), quoting Baker v. State, 557 So.2d 851, 853 (Ala.Crim.App.1990). "The Alabama courts have recognized that subnormal tendencies of the accused are but one factor to review in the totality of the circumstances surrounding the confession." Harkey v. State, 549 So.2d 631, 633 (Ala.Crim.App.1989).

         This Court has carefully examined the videotape of Callen's statements to police and the transcript of his statement to police. There is no evidence indicating that Callen was induced or threatened to confess. In fact, it appears that Callen confessed because of remorse for his actions. Callen was given water and was fed. Callen was handcuffed because police did not want him to wipe his hands and destroy possible evidence. Callen voluntarily reinitiated contact with police after initially requesting counsel and Callen's conduct showed a "willingness and a desire for a generalized discussion about the investigation." Ex parte Williams, 31 So.3d at 676.

         For the foregoing reasons, the circuit court did not err in denying Callen's motion to suppress his confession; thus, Callen is due no relief on this claim.

         V.

         Callen argues that the circuit court erred in allowing the jury to view a videotape of Callen's statement to police because, he says, the video showed him wearing prison clothes and handcuffs and was approximately 50 minutes in length. By allowing the jury to see him in handcuffs and a prison uniform, he says, the circuit court destroyed his presumption of innocence.

         This issue is raised for the first time on appeal; therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

"This Court has recognized that there is a distinction between the jury's observing a defendant wearing handcuffs in the courtroom for his or her trial and the jury's observing the defendant wearing handcuffs in a videotape that is shown to the jury during trial. We have stated:
"'"'The presumption of innocence, although not articulated in the Constitution, is a basic component of our system of criminal justice.' United States v. Dawson, 563 F.2d 149, 151 (5th Cir. 1977) (citations omitted). A government entity violates that presumption of innocence when it 'compels an accused to stand trial before a jury while dressed in identifiable prison garb.' United States v. Birdsell, 775 F.2d 645, 652 (5th Cir. 1985)."
"'United States v. Pryor, 483 F.3d 309, 311 (5th Cir. 2007). However, we have not extended the violation of the presumption of innocence to the viewing of the defendant on a videotape while he is in handcuffs."

Shaw v. State, 207 So.3d 79, 97 (Ala.Crim.App.2014).

         More importantly, Callen did not object. In declining to find plain error when a defendant was tried while wearing prison clothing, the United States Court of Appeals for the Tenth Circuit stated:

"This Court, in Hernandez v. Beto, 443 F.2d 634, 636-37 (5th Cir.), cert. denied, 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971), determined that trying a defendant in prison clothing infringes his fundamental right to the presumption of innocence. That right is only infringed, however, when a state compels an accused to stand trial before a jury while dressed in identifiable prison garb. Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1696, 48 L.Ed.2d 126 (1976). If, for whatever reason, the defendant fails to object to his attire, the presence of compulsion necessary to establish a constitutional violation is negated. Id. at 512-13, 96 S.Ct. at 1696-97. Accordingly, a 'defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.' Hernandez v. Beto, 443 F.2d at 637.
"...In any event, the failure to object negates the presence of compulsion and, thus, there was no plain error. See also Gray v. Estelle, 538 F.2d 1190, 1190-91 (5th Cir. 1976)."

United States v. Birdsell, 775 F.2d 645, 652 (10th Cir. 1985).

         As was the case in Birdsell, Callen's failure to object "negates the presence of compulsion and, thus, there was no plain error." 775 F.2d at 652. For the reasons stated above, we find no plain error in Callen's appearance in the video in handcuffs and prison clothes. Accordingly, Callen is due no relief on ths claim.

         VI.

         Callen argues that the circuit court erred in denying his motion to suppress biological samples taken from Callen before 1:50 p.m. on the day that he was arrested. Specifically, he argues that the samples were taken without a valid search warrant.

         Callen moved to suppress "all items seized and taken from [him] prior to 1:50 on October 29, 2010, while [he] was in custody at the Birmingham Police Department Administration building." (C. 555.) He argued that the warrant had been subsequently voided and that there was no probable cause to issue the warrant. The circuit court ruled that the officer's action in taking swabs from Callen was done in good faith and that the exception to the warrant requirement applied in this case. The court also found that probable cause existed for the issuance of the warrant.

         The record shows that three warrants were issued by the same judge, Judge Teresa Pulliam, within hours on October 29, 2010. The first warrant to examine Callen's person and to obtain biological samples was issued at 11:50 p.m.; the second warrant to search Callen's house was issued at 12:25 p.m.; and the third warrant to obtain biological samples was issued at 1:50 p.m. It appears that the first warrant was destroyed and is not in the record.[9] However, the record shows that the affidavit in support of the third warrant was similar to the affidavit in support of the first warrant -- the warrant at issue here.

         The second warrant to obtain biological samples contained the following information in an affidavit executed by Det. Cynthia Morrow:

"On October 29, 2010, the Birmingham Fire Department responded to a call at the above listed location and upon arrival discovered the residence engulfed in flames and proceeded to extinguish the fire. After extinguishing the fire, firefighters discovered three bodies. Blood samples were collected from within the residence by Birmingham technicians. Two unknown individuals were pronounced dead and one female was transported to University Hospital, Birmingham, Alabama, where she later died. While interviewing Dontae Callen he stated that he was at the location several hours prior to the incident. Also while Detective Cotton was interviewing Dontae Callen he observed what appeared to be a red liquid substance inside of his ear. Detective Cotton noticed numerous puncture wounds and scratches on the right side of his neck."

(C. 583.) At the conclusion of this warrant, Judge Pulliam made the following handwritten notation:

"Original search warrant was sworn to and issued to Det. [Cynthia] Morrow at 11:50 a.m. on this date. This search warrant was later voided as there was information contained there, that was later proven to be unreliable. This search warrant was subsequently issued based on same information stating probable cause as first, minus this information."

(C. 587.) It appears that the reason that Judge Pulliam stated that the first warrant was void was that it contained some information that had proven to be unreliable.

         However, an entire warrant will not be invalidated merely because it contains some unreliable information. "'Suppression is required only when it appears that "with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause."'" Villemez v. State, 555 So.2d 342, 345 (Ala.Crim.App.1989).

"Probable cause must be determined by an analysis of 'the totality of the circumstances.' Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In determining whether to issue a search warrant, the issuing magistrate is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of the person supplying the information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates; Hyde v. State, 534 So.2d 1132 (Ala. Cr. App. 1988). Our duty as a reviewing court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates; McCray v. State, 501 So.2d 532 (Ala. Cr. App. 1986); Hyde v. State."

Marks v. State, 575 So.2d 611, 614-15 (Ala.Crim.App.1990).

         The information contained in the second warrant for biological samples established that three of Callen's relatives had been stabbed, that Callen was one of the last people to have been seen with the victims, that Callen had a red liquid substance in one of his ears following the stabbings, that Callen had numerous puncture wounds and scratches on his body, and that Callen's injuries were observed within hours of the murders. As the trial judge and the circuit judge who ...


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