from Jefferson Circuit Court (CC-11-2047)
appellant, Dontae Callen,  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.
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.
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.
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.
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.
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.
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.
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.
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
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."
discussing this standard of review, this Court in
Hall v. State, 820 So.2d 113
"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).
these principles in mind, we review the issues raised by
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.
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
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.)
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,
"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
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.
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
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 as that term had
been defined by the Alabama Supreme Court in Ex parte
Perkins, 851 So.2d 453 (Ala. 2002).
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.
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
___So. 3d at___.
the defendant bears the burden in proving an Atkins
"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
Smith v. State, [Ms. 1060427, May 25, 2007]___ So.
3d___, ___ (Ala. 2007). 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).
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.
"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
"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.
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?
"[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
"[Robbins]: If I could, we can back up. The actual --
what I put on Axis II to diagnosis deferred.
"[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
"[Prosecutor]: So, for that -- I'm sorry. I'm
"[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
"[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
(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.)
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
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
"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."
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. 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
"'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
___So. 3d at____.
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
"'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
"Mays v. Stephens, 757 F.3d 211, 218 n. 17 (5th
Cir. 2014)." ___So. 3d at___.
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.
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.
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.)
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.
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
"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  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).
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  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]
United State v. Wilson, 920 F.Supp.2d 287, 305
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.
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
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.
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.
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 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.)
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
"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
"[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
"[Prosecutor]: Bodily fluids?"
(2 Supple. R. 26-28.)
Cotton then testified as to what occurred after Callen had
been taken for the alternate-light test and returned to the
"[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
"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
"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.)
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
"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
718 So.2d at 729 (footnote omitted).
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.
"[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
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.
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. , 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. , 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
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).
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.
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.
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
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
"'"'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
"'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).
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
"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
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.
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.
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.
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. 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.
second warrant to obtain biological samples contained the
following information in an affidavit executed by Det.
"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
(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.
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
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 ...