from Sumter Circuit Court (CC-12-109)
appellant, Sherman Collins, was convicted of murdering
Detrick Bell for pecuniary gain, an offense defined as
capital by § 13A-5-40(a)(7), Ala. Code 1975, and
conspiracy to commit murder, a violation of 13A-4-3, Ala.
Code 1975. The jury recommended, by a vote of 10 to 2, that
Collins be sentenced to death. The circuit court sentenced
Collins to death for the capital-murder conviction and to 120
months for the conspiracy conviction. (C. 407.) This appeal
State's evidence tended to show the following. At around
midnight on June 17, 2012, 12 people telephoned emergency 911
to report a shooting at the Morning Star Community Center
("Center") in Cuba. Law-enforcement personnel were
dispatched to the Center and discovered the body of Detrick
"Speedy" Bell in the parking lot near the door. Dr.
Steven Dunton, a pathologist with the Alabama Department of
Forensic Sciences, testified that Bell died as a result of a
gunshot wound to his head. The bullet, Dr. Dunton said, was
so large a caliber that, when it exited Bell's skull, it
removed one-third of his brain.
Jackson,  Collins's girlfriend at the time of
the shooting, testified that in June 2012 she and Collins
were living in New Orleans and that her twin sister, Keon
Jackson, was dating Kelvin Wrenn and was living at
Wrenn's house in Sumter County. Angela testified that Keon
asked Angela to come for Father's Day weekend in June
2012, that she had visited her sister at Wrenn's house
about five times, that the last time she came to visit
Collins was with her, and that her mother, her daughter, her
son, her niece, and Collins drove to Sumter County and
arrived at Wrenn's house on June 15 at around midnight
the Friday before Father's Day. Wrenn arrived home late
that night and was angry with Keon and asked them to leave
his house. They all went to Meridian, Mississippi, and
obtained a room at the Ramada Inn motel. The next day, on
Saturday afternoon, Angela said, she and Collins went to
Wrenn's house for a barbecue. Wrenn got mad at Keon, she
said, and told them all to go back to New Orleans and to take
Keon with them. Later on Saturday night, Angela said, Collins
and Wrenn went to a rap concert at the Center while she and
Keon packed Keon's things. Angela testified that she
heard a gunshot while Collins was at the Center and she and
Keon tried to get to the Center to see what had happened.
When the traffic prevented them from getting to the Center
they went back to Wrenn's house and found Collins waiting
for them. They returned to the motel in Mississippi and the
next morning returned to New Orleans. Angela said that she
had borrowed Keon's cellular telephone and that when they
reached New Orleans Wrenn called and talked to Collins.
Angela said that Collins was wearing a rust-colored shirt or
burnt-orange shirt and blue jeans on the evening of the
Rodgers testified that he was at the Center at the time of
the shooting and that about 40 or 50 people were present.
Near the end of the concert he left the Center and walked
outside toward Bell and Terrod Sturdivant and heard a
gunshot. He testified that he could not see who shot Bell
because it was too dark, but, he said, he did see that the
gunman was wearing an orange shirt and jeans and that he
walked away up a hill as everyone was running around him. He
said that no one had been arguing, that there had been no
altercation, and that the shooting was not provoked. (R.
Sturdivant testified that Bell was one of his closest friends
and that they went to the Center together that night.
Sturdivant said that his cellular telephone rang at the end
of the concert, that he walked outside to answer it, and that
Bell was behind him. Grant Kimbrough came outside after he
finished performing and Bell and Kimbrough talked about
Kimbrough's performance. Sturdivant testified:
"Sherman [Collins] walked out in the group where we was.
Bam [Kimbrough] stopped him. Introduced us. Said this is his
cousin Speedy [Bell]. Said this is his little homeboy Terrod.
Speedy shook his hand. I told him 'what up.' I turned
around to go answer my phone. A couple of steps,
gunshot." (R. 483.) After he turned to answer his phone,
he said, the shot happened "fast." (R. 487.) He did
not see the shooter, he said, but he did see Collins walking
away from the Center. Collins was wearing an orange shirt
with a "Reese's" brand name and blue jeans. He
stayed with Bell until he died and then he and several others
went to find Kimbrough. He said that on the day of the
shooting he had been in jail for a charge of unlawful
distribution and had been released at around 4:30 p.m.
Brunson testified that Wrenn was his brother and that Bell
was his friend and that he was at the Center at the time of
the shooting. Brunson testified that he was in charge of
security for the concert and that he had also rented the
venue for the concert. He said that he saw Collins at
Wrenn's house earlier that day at a barbecue, that he
lived next door to his brother Wrenn, and that his house is
about one mile or a mile and a half from the Center. He said
that Collins came to the Center with Wrenn and that Collins
was wearing an orange shirt with "Reese's" on
it. Brunson said that he asked Collins to work security after
Wrenn asked him if Collins could work security. (R. 558.) He
said that he was inside the building when the shooting
occurred but that he heard the shot and ran outside. When he
got to the parking lot, he said, he saw Bell on the ground.
Nixon testified that he was at the Center when the shooting
occurred because his nephew, James Brunson, contacted him and
asked him to help with security for the concert. Nixon said
that he arrived at the Center at about 8:00 p.m. and that he
was carrying mace, a baton, and a .40 caliber Ruger brand
handgun. Everything had been going okay, he said, until he
heard the gunshot. There had been no arguments, no
disagreement, and no fights. He was close to the main
highway, he said, when he heard the shot, and he ran back
toward the crowd. Nixon said that he saw a man wearing an
orange shirt pass him walking in the opposite direction. When
he got near the door of the Center, he saw a young man lying
by the doorway, and he telephoned emergency 911. The crowd,
he said, was chaotic, and he tried to get everyone to go
inside. No one listened, he said, so he pulled his pistol and
shot into the air about five or six times.
Willingham, owner of Willingham Sports in Demopolis testified
that on July 22, 2011, he sold a .22 caliber revolver to
Kelvin Wrenn and that on August 6, 2011, he sold a .454
"Raging Bull" handgun to Wrenn. (R. 869.) The
"Raging Bull" gun, he said, was rare and "was
the largest handgun ever made. It's a -- it's a
revolver. Weighs about four pounds. It's got two latches.
It's made by Taurus. The bullets are even like four
dollars a piece. It's a very large handgun." (R.
Luther Davis with the Sumter County Sheriff's Office
testified that he was assigned to investigate the shooting at
the Center. He said that police discovered Wrenn's
vehicle in a ditch near the Center and that he interviewed
Wrenn. Davis testified that, when he interviewed Wrenn on
June 18, Wrenn said that he had conspired with Collins to
kill Bell. Davis also testified that Collins confessed to him
that Wrenn had told him that a man named "Speedy"
had robbed his brother and that if he would kill
"Speedy" he would give him $2, 000. Collins
confessed that he shot "Speedy" in the head and
walked away after the shooting. Collins made the following
statement to police:
"We arrived at [Keon Jackson's] house Friday night
and woke up around 8 a.m. Saturday morning. Keon's
boyfriend, Kelvin Wrenn, had made it home from driving his
truck. Kevin got into an argument with Angela about her son
on the last visit in Alabama where a gun came up missing.
Kelvin was really mad so we left and got a hotel in Meridian,
"Angela and I came back to the house and Kelvin was
having a BBQ. A couple of guys came over to the BBQ and we
drank liquor but I didn't know their names.
"Kelvin and I was getting ready to go to a rap concert
and he was telling me about a man named Speedy that robbed
his brother. Kelvin told me that he would give me $2, 000
dollars to kill Speedy. Kevin gave me a small gun and he had
a big Magnum pistol.
"When we pulled up to the center, Kevin gave me the
Magnum pistol and he kept the smaller pistol. There was a man
at the door named Bam who knew we had the guns on us. Bam
told the security guard that we were security guards so he
didn't pat us down when we walked in the center.
"We sat around and drank liquor for about an hour and a
half. A few minutes later, Speedy came in the Center. Kelvin
asked someone that was sitting beside him was that Speedy.
The guy said yes. Kelvin then said, '[T]hat's the
nigger that robbed my brother. Take care of him when we get
"Speedy walked outside and we went behind him. Speedy
was talking to a group of guys and Kelvin said,
'[T]hat's the nigger right there, two grand.' I
shot Speedy in the head and walked away. I threw the gun in
the woods next to the Center.
"I walked to the road and called my girlfriend to come
pick me up. My girlfriend and I rode to Meridian,
Mississippi. I talked to Kelvin on the phone and I told him
where I threw the gun. That was the last time I talked to
Kelvin. I never got paid $2, 000 for the murder. I went back
to New Orleans and got picked up on my birthday [June 26] by
the U.S. Marshall for murder."
jury found Collins guilty of murdering Bell for pecuniary
gain. A separate sentencing hearing was held. The jury
recommended, by a vote of 10 to 2, that Collins be sentenced
to death. The circuit court directed that a presentence
investigation report be prepared. A sentencing hearing was
held before the circuit court. The circuit court sentenced
Collins to death on the capital-murder conviction and to 10
years' imprisonment on the conspiracy conviction. This
appeal, which is automatic in a case involving the death
penalty, followed. See § 13A-5-53, Ala. Code
Collins has been sentenced to death, this Court must search
the record of the trial proceedings for "plain
error." See Rule 45A, Ala. R. App. P. Rule 45A,
"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."
defining the scope of "plain error, " this Court in
Hall v. State, 820 So.2d 113 (Ala.Crim.App.1999),
"Plain error is defined as error that has 'adversely
affected the substantial right of the appellant.' 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.
was convicted of both capital murder and the noncapital
offense of conspiracy to commit murder. The plain-error
standard of review does not apply to our review of
Collins's conspiracy conviction. In Ex parte
Woodall, 730 So.2d 652 (Ala. 1998), the Alabama Supreme
Court addressed this Court's review of a capital
conviction and a noncapital conviction in the same appeal.
The Court stated:
"Because the defendant in this case was sentenced to
death, we have complied with our obligation [to conduct] a
plain-error review. However, with respect to his attempted
murder conviction, for which he received a sentence of less
than death, we do not believe the defendant is entitled to
benefit from our plain error review. We have found no Alabama
decision dealing with the particular situation present here:
a case in which plain error necessitated a reversal on a
capital conviction and death sentence but in which the
defendant was also sentenced to a term of imprisonment on
another conviction. However, the defendant's sentence of
imprisonment for his conviction of attempted murder does not
implicate the same heightened degree of concern for
reliability that attended his sentence of death for the
capital conviction. It is well established that where a
defendant receives only a prison sentence the plain-error
doctrine is not applicable and an appellate court will not
consider an alleged error that the defendant failed to
preserve by making a proper and timely objection in the trial
court. See Biddie v. State, 516 So.2d 846 (Ala.
1987); Harris v. State, 347 So.2d 1363 (Ala. Cr.
App. 1977), cert. denied, 347 So.2d 1368 (Ala. 1978 ).
Indeed, it has been said that the plain-error doctrine
'applies to death penalty cases, but not to other
convictions.' Pugh v. State, 355 So.2d 386, 389
(Ala. Cr. App.), cert. denied, 355 So.2d 392 (Ala. 1977)
(citations omitted) (emphasis added).
"Had the defendant been convicted and sentenced to a
term of imprisonment on the attempted murder count but either
acquitted or sentenced to life imprisonment without the
possibility of parole on the capital murder count, the
plain-error doctrine would not have applied. Thus, we would
not have even considered the error upon which we have
predicated our reversal of his capital conviction and death
sentence: the State's questioning of the defendant
regarding his character and the subsequent introduction of
evidence of specific incidents tending to indicate a
propensity for violence. No objection to that questioning was
raised at trial. The defendant should not be put in a more
favorable position with respect to our review of his
noncapital conviction simply because he was also found guilty
of a capital offense and was sentenced to death."
730 So.2d at 665.
these principles in mind, we review the claims raised by
Collins in his brief to this Court
argues that the circuit court violated his rights to due
process and to a fair trial by denying his motions to
continue his trial to a later date.
record shows that Collins was indicted in September 2012. In
the summer of 2014, both Collins and the State agreed that
the case would be tried in December 2014. During a pretrial
hearing on October 9, 2014, Collins moved for a continuance
so that counsel could procure some records from the State of
Louisiana. The circuit court noted that the defense had had
two years to obtain those records and that they had until
December to obtain those records. Collins also argued that he
had just obtained a copy of a videotaped reenactment of the
murder the State intended to present at trial. The State
opposed the continuance and told the court that it would not
introduce the videotape reenactment at trial. (1 Supp. R.
57.) The circuit court denied the motion for a continuance.
November 29, 2014, Collins filed a motion entitled
"Motion to Reassert the Motion for a Continuance
Previously Made by the Defendant." (C. 166-69.) In this
motion, counsel argued that Collins had been treated at
Charity Hospital in New Orleans, Louisiana, and that his
attempts to obtain Collins's records from that hospital
had been unsuccessful because the hospital had been destroyed
by Hurricane Katrina in 2005. Counsel also argued that
Collins had attended Booker T. Washington High School in New
Orleans and that his attempts to procure records from the
school had likewise been unsuccessful because the high school
had also been destroyed by Hurricane Katrina. In support of
this motion, Collins argued that the State had informed
Collins that it intended to rely on the aggravating
circumstance that the murder was especially heinous,
atrocious, or cruel compared to other capital offenses and
that in order to counter that aggravating circumstance,
Collins now intended to retain the services of a neurologist.
Collins also stated that his mental-health expert had a
scheduling conflict and that he needed to retain the services
of a new expert. The State agreed to not assert this
aggravating circumstance, and Collins said that he would not
need the services of a neurologist. (R. 48.)
the voir dire of the prospective jurors, defense counsel
again raised the issue of a continuance. The following
"[Defense counsel]: We have had a great deal of
difficulty. The hospital, Charity Hospital, no longer exists.
The high school that Mr. Collins graduated from along with
his records no longer exist. We're attempting to track
those down and that is an ongoing process. To proceed without
that information would violate the standard for effective
assistance of counsel given the fact that the State has
chosen to seek Mr. Collins's death in this matter.
"Also, Your Honor, the Court has approved funds for a
mental health expert in this case and the defense counsel had
contacted an expert in this case to do an evaluation. A
couple of weeks after the initial contact -- in fact, think
it was last week -- no -- week before last that the mental
health expert advised counsel that he would be unavailable
and would be unable to be at trial and to assist in the
preparation of the defense.
"At this point, Judge, we tried to make other contacts.
There's no one available given the holiday and the short
notice to conduct a necessary evaluation and aid the defense
in the preparation not only for trial but for the mitigation
"In a -- further, Your Honor, we were at the motion
hearing that occurred, I believe, it was the Thursday before
Thanksgiving week, the prosecution disclosed possible
aggravators they intend to seek. Among those aggravators was
number eight under the aggravation statute which was the
capital offense was especially heinous, atrocious or cruel as
compared to other capital offenses under § 13A-9-49(8)[,
Ala. Code 1975].
"The Court: Response from the prosecution?
"[Prosecutor]: Your Honor, the first ground, I guess,
they're raising is with respect to the records at Charity
Hospital. I guess, Your Honor, what my concern is they're
not even saying what type of treatment.
"[Prosecutor]: In other words, I guess he's saying
it's got something to do with mitigation. They say
'treat.' I mean, if he's treated for a broken
leg, it hasn't got a thing to do with anything.
"I'll also point out to the Court, Your Honor, that
it's been two years and four months since they were
appointed and retained in this case. So, you know, they
certainly have had time to get any records that exist at
Charity Hospital. The same with the school records, Your
Honor. We're talking about two years and four months. I
don't know what is meant by all resources haven't
been exhausted, but if you hadn't done it in two years
and four months, I don't know why we should believe that
they're going to do anything now that they haven't
done in two years and four months.
"With respect to the other grounds they raised, Your
Honor, with respect to a mental health expert, they filed
this motion on the 29th, Saturday, but yet they claim that
this supposed expert -- and, Your Honor, as you know, the
State is not involved in the motions for ex parte funds, so
we weren't aware of this effort that they say they've
made to retain this supposed mental health expert. Despite
the fact that we filed a motion for discovery asking for the
names of those experts which had not been furnished to us.
But they're saying they filed a motion on Saturday the
29th, despite the fact he told them on the 21st he
couldn't be here. I don't know why we're waiting
until the Saturday before trial to try to raise this issue.
But again, your Honor, [they have] had two years and four
months to retain an expert if that's what they wanted to
do and I don't know why they would be waiting until the
11th hour to do that.
"With respect to the last ground, Your Honor, on the
cruel and heinous, if the Court was inclined to grant a
continuance on that ground and that ground alone, we probably
could agree to withdraw that. I'd like to know what the
Court's position would be before I had to make that
decision. But if that would be a ground that the Judge would
be inclined to grant on the need for a neurologist on that
ground or that aggravated circumstance, I'd like, Your
Honor, to consider whether or not we could take that and
agree that we wouldn't pursue that aggravating factor if
that would be the only basis that the Court would be inclined
to grant it. Otherwise we object to it.
"[Defense counsel]: ... As to the issue of the heinous,
if the State doesn't want to assert it, we don't need
record reflects that in Collins's pretrial motion for the
appointment of a mental-health expert Collins made no
argument that he had ever suffered from any mental-health
problems or that he had even been treated for any head or
brain injury; he merely stated:
"Failure of this Court to order funds for a mental
health expert for [Collins] will violate his Fifth, Sixth,
and Fourteenth Amendment rights to confront the evidence
against him and to receive the effective assistance of
counsel and due process of the law.
"The undersigned believes that the services of a trained
mental health expert for purposes of this case can be
obtained for a fee of approximately $10, 000.00. Considering
the gravity of the charges which [Collins] faces, such a
modest expenditure of State funds is warranted in the
interest of justice."
457-58.) In an abundance of caution, the circuit court
granted the motion and allowed Collins $10, 000 for the
services of a mental-health expert.
Court has consistently held that matters of trial scheduling
are typically within the discretion of the circuit court.
"'"[I]n Alabama, our courts have always held it
is discretionary with the trial court whether it should halt
or suspend the trial to enable a party to secure or produce
witness in court.... And, in the exercise of that discretion
the trial court is not to be reversed save for gross abuse of
discretion." Alonzo v. State ex rel. Booth, 283
Ala. 607, 610, 219 So.2d 858, 861 (1969), cert. denied, 396
U.S. 931, 90 S.Ct. 269, 24 L.Ed.2d 229 (1969). In Ex
parte Saranthus, 501 So.2d 1256 (Ala. 1986), the Alabama
Supreme Court addressed the issue of a pretrial continuance:
"'"A motion for a continu a nc e is addressed
to the discretion of the court and the court's ruling on
it will not be disturbed unless there is an abuse of
discretion. Fletcher v. State, 291 Ala. 67, 277
So.2d 882 (1973). If t h e follo wing princi p l e s are
satisfied, a trial court should grant a motion for
continuance on the ground that a witness or evidence is
absent: (1) the expected evidence must be material and
competent; (2) there must be a probability that the evidence
will be forthcoming if the case is continued; and (3) the
moving party must have exercised due diligence to secure the
evidence. Knowles v. Blue, 209 Ala. 27, 32, 95 So.
481, 485-86 (1923)."
"'Saranthus, 501 So.2d at 1257.
"'There are no mechanical tests for deciding when a
denial of a continuance is so arbitrary as to violate due
process. The answer must be found in the circumstances
present in every case, particularly in the reasons presented
to the trial judge at the time the request is denied.'
Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841,
11 L.Ed.2d 921 (1964)." Glass v. State, 557
So.2d 845, 848 (Ala. Cr. App. 1990).
"'"The reversal of a conviction because of the
refusal of the trial judge to grant a continuance requires
'a positive demonstration of abuse of judicial
discretion.' Clayton v. State, 45 Ala.App. 127,
129, 226 So.2d 671, 672 (1969)." Beauregard v.
State, 372 So.2d 37, 43 (Ala. Cr. App. 1979). A
"positive demonstration of abuse of judicial
discretion" is required even where the refusal to grant
the continuance is "somewhat harsh" and this Court
does not "condone like conduct in future similar
circumstances." Hays v. State, 518 So.2d 749,
759 (Ala. Cr. App. 1985), affirmed in part, reversed on other
grounds, 518 So.2d 768 (Ala. 1986).'
"McGlown v. State, 598 So.2d 1027, 1028-29
"'"Trial judges necessarily require a great
deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and
jurors at the same place at the same time, and this burdens
counsels against continuances except for compelling reasons.
Consequently, broad discretion must be granted trial courts
on matters of continuances."'
"Price v. State, 725 So.2d 1003, 1061
(Ala.Crim.App.1997), quoting Morris v. Slappy, 461
U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). See
also Sullivan v. State, 939 So.2d 58, 66
(Ala.Crim.App.2006) ('"As a general rule,
continuances are not favored, " In re R.F., 656
So.2d 1237, 1238 (Ala. Civ. App. 1995), and "[o]nly
rarely will [an] appellate court find an abuse of
discretion" in the denial of a motion for a
Gobble v. State, 104 So.3d 920, 939-40
argues that he was denied the opportunity to present
high-school and medical records. However, evidence of
Collins's grades in high school was presented at the
penalty phase. Fred Stemley, Collins's cousin, testified
that he and Collins grew up together, that Collins was an
honor student and a "very smart kid, " that Collins
played two sports in high school, and that Collins guided him
and helped him. Elvin Collins, Collins's brother,
testified that Collins did well in school. Dorothy Landry,
Collins's mother, testified that Collins caused no
problems growing up, that "he helped other people in
school, " that when Collins attended Booker T.
Washington High School and he was an "A" student,
that Collins played football and basketball in high school,
that Collins excelled at sports and received many trophies,
and that Collins graduated with honors and his name was in
the newspaper. Also, nothing in the record states why
counsel was attempting to obtain the records from Charity
Hospital. Indeed, nothing in the record suggests that Collins
that ever been treated for any head or brain injury. In fact,
the record shows that Collins was a high achiever, that
Collins made excellent grades in high school, that Collins
graduated with honors, and that Collins was highly
intelligent. No witness at the sentencing hearing testified
that Collins had any mental-health problems or had ever
suffered any head injury.
aware of the recent decision of the United States Supreme
Court in McWilliams v. Dunn, ___ U.S. ___, 137 S.Ct.
1790 (2017), in which that Court reversed McWilliams's
capital-murder conviction and death sentence after finding
that the circuit court erred in denying him a mental-health
expert to assist in his defense. The Supreme Court stated, in
"[N]o one denies that the conditions that trigger
application of Ake [v. Oklahoma, 470 U.S. 68 (1985)]
are present. McWilliams is and was an 'indigent
defendant, ' 470 U.S., at 70. See supra, at
1794. His 'mental condition' was 'relevant to ...
the punishment he might suffer, ' 470 U.S., at 80. See
supra, at 1794-1795. And, that 'mental
condition, ' i.e., his 'sanity at the time of the
offense, ' was 'seriously in question.' 470
U.S., at 70. See supra, at 1794-1795. Consequently, the
Constitution, as interpreted in Ake, required the
State to provide McWilliams with 'access to a competent
psychiatrist who will conduct an appropriate examination and
assist in evaluation, preparation, and presentation of the
defense, ' 470 U.S., at 83."
___ U.S. At ___, 137 S.Ct. at 1798 (emphasis added).
as stated above, absolutely nothing in the record suggests
that Collins had any type of mental illness. In all of
defense counsel's arguments concerning the motion for a
continuance, counsel never argued that an expert was needed
because there were reasons to doubt Collins's mental
rarely will [an] appellate court find an abuse of
discretion" in the circuit court's failure to grant
a continuance. Sullivan v. State, 939 So.2d 58, 66
(Ala.Crim.App.2006). This is not one of those rare cases.
Collins failed to establish a "positive demonstration of
abuse of judicial discretion." See McGlown v.
State, 596 So.2d 1027, 1029 (Ala.Crim.App.1992).
Therefore, we cannot say that the circuit court abused its
considerable discretion in denying Collins's motion for a
continuance. Collins is due no relief on this claim.
next argues that the circuit court erred in allowing his
confession to be admitted into evidence because, he says, the
State failed to establish that it was admissible.
record shows that Collins moved to suppress his statement to
law enforcement. In the motion, Collins also moved that the
statement not be referenced in voir dire or opening
statements because, he said, the confession was the result of
"inducements or threats by law enforcement, " and
no reference to the confession should be allowed until
"independent proof of the corpus delicti" of the
charged offense had been established. (C. 185-86.) A hearing
was held on the motion. (R. 230-80.) Collins made the same
arguments at the hearing as he made in the motion to
At the suppression hearing, defense counsel argued:
"Judge ... it's well established that a statement
made on -- because of an offer of a lesser time is indeed a
violation of the Constitution and would be inadmissible. The
defendant has indicated that the statement was made at the
request of law enforcement, that they offered him a ten-year
sentence, that he would be out in two or three years.
"Now as to the other issue involved in our motion,
motion in limine, which goes to the issue of the
admissibility of the statement based upon the State's
lack of proof of an independent corpus delicti of a
particular crime. Your Honor, it's long been published in
the Alabama courts that the State must offer independent
proof of the corpus delicti of the charged offense to
authorize the admission of the defendant's confession or
274-76.) During the testimony of Investigator Luther Davis of
the Sumter County Sheriff's Office the following
"[Prosecutor]: Did you have an opportunity to interview
"[Davis]: Yes, I did.
"[Prosecutor]: And who initiated that?
"[Davis]: Sherman Collins.
"[Prosecutor]: And do you recall when that was?
"[Davis]: It's gon[na] be on August the 4th.
"[Prosecutor]: Explain for the jury and for the Court,
Investigator Davis, how that came to be.
"[Davis]: Sherman Collins was in his cell and requested
to speak to --
"[Defense counsel]: Objection, Your Honor. It's
hearsay because he's stating, I guess, that somebody told
him that somebody wanted. Hearsay is the objection."
687-87.) Collins also objected and argued that his statement
was obtained through inducement and offer of reward and that
the State failed to prove the corpus delicti before
introducing Collins's statement. (R. 696.) In the motion
for a new trial, Collins's only argument in regard to his
confession was that he was "denied a fair and impartial
trial as a result of the trial court allowing the prosecution
to introduce Mr. Collins's statement to law enforcement
without the proof of the corpus delicti necessary to sustain
a conviction of capital murder." (C. 485.)
suppression hearing Investigator Davis testified that he
first came into contact with Collins when he was sent to
Louisiana to escort Collins back to Alabama. Investigator
Davis said that he and two other officers picked Collins up
in New Orleans and drove him to Sumter County, where he was
placed in the county jail. (Other testimony established that
Collins was first placed in the Sumter County jail but moved
to the Marengo County jail as a security measure. He was
taken back to Sumter County jail about two weeks later. (2
S.R. 39.)) Investigator Davis said that on July 11, 2012, he
and an Alabama Bureau of Investigation ("ABI")
agent attempted to question Collins at the Marengo County
jail and read him his Miranda rights, but
Collins refused to sign the Miranda form, and all
questioning ceased. He said he could not recall if Collins
invoked his right to counsel at the July 11 interview. He did
not talk to Collins for about one month or until August 4,
2012, he said, when Chief Deputy Calvin Harkness informed him
that Collin wanted to talk to him. He said that the interview
started at about 11:00 p.m. the night of August 4 and it
lasted about two hours. (R. 245.) The police did not have
video equipment at that time, he said, so the confession was
not videotaped. (R. 247.) He read Collins his
Miranda rights, and Collins signed a
waiver-of-rights form. (R. 233.) Investigator Davis said that
after Collins signed the waiver form he interviewed Collins
and handwrote what Collins said to him and that Collins
signed that handwritten statement. He testified that he did
not force Collins in any way to make the statement and he did
not promise Collins anything in exchange for making the
Collins testified for purposes of the suppression hearing. He
said that he was arrested in New Orleans on June 16, 2012,
and was transported to Sumter County about seven days later.
He said that while he was being transported police did not
attempt to interview him but that after he was taken from
Sumter County to the Marengo County jail Investigator Davis
and an ABI agent tried to interview him. He said that he
refused to talk to them and asked for an attorney. (R. 257.)
Collins testified: "I said I didn't want to talk
because I didn't know the circumstances of the situation
that I was in and I'd rather talk to an attorney before I
even said something to them." (R. 257.) He said that he
was then put in a cell in Marengo County for two weeks until
his bond hearing. After the hearing, he said, he was taken to
the Sumter County jail where Investigator Davis tried to
interview him again. (R. 258.) Collins said that he refused
to talk and again asked for an attorney. He was in a cell for
about two weeks and then was brought to court for a bond
hearing. He said that no police attempted to talk with him at
that time. However, he said, after his court appearance
police tried to talk with him but he refused. Collins denied
that he requested to talk with Chief Deputy Harkness and said
that Investigator Davis came to his cell and told him that he
was supposed to be moved to another jail, "or something,
" and did he want to make a statement. He said that he
was told by Investigator Davis that if he cooperated he would
get a "10-year deal" and would probably serve only
about three or four months. (R. 262.) Collins said that the
only reason he signed the statement was that he was tired of
being isolated and had been promised that he would get 10
years. He said that the entire contents of the statement were
"made up" and that he "never said anything
about that." (R. 271.)
trial, Chief Deputy Calvin Harkness testified that in 2012 he
was the chief deputy with the Sumter County Sheriff's
Office. He said that he was working late one evening, after
10:00 p.m., when he received a telephone call from the jailer
that Collins wanted to see him. At first, he said, he did not
think anything of it but then he called the jailer and had
Collins brought upstairs from the jail to this office.
Collins told him, he said, that he wanted to "see what
could be done for him" and he "wanted to talk or
make a statement." (R. 806.)
"[Prosecutor]: And did I understand you at some point
you had someone bring Sherman Collins up from the jail up to
where your office was?
"[Prosecutor]: Now that's when you had face-to-face
contact with him?
"[Prosecutor]: And are you telling the jury at that time
that he informed you that he wanted to talk or make a
"[Harkness]: He wanted to see what could be done for
"[Prosecutor]: If I could, Senior Officer Harkness, let
me back up one second. So this interview, would I be correct,
it was initiated by Sherman Collins?
"[Prosecutor]: You didn't go seek him out?
"[Prosecutor]: Investigator Davis didn't go seek him
"[Prosecutor]: He initiated that he wanted to speak
initially it was to you?
806-14.) He further testified that when Collins told him he
wanted to make a statement he sent Collins back to the jail
until he could reach Investigator Davis. When Collins asked
to speak with police, Harkness said, he did not appear to be
distressed or upset. Chief Deputy Harkness called
Investigator Davis because Davis was leading the
investigation. He said that he was present when Collins was
read his Miranda rights, that Collins signed a
waiver-of-rights form indicating that he wished to provide a
statement, and that he heard Collins confess to killing
Detrick Bell for $2, 000.
reviewing a circuit court's ruling on a motion to
suppress a confession 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
718 So.2d at 729 (footnote omitted).
"In order for a statement to be admissible, '[t]he
trial judge need only be convinced from a preponderance of
the evidence to find a confession to have been voluntarily
made.' Jackson v. State, 516 So.2d 726, 741
(Ala.Crim.App.1985), citing Harris v. State, 420
So.2d 812, 814 (Ala.Crim.App.1982) (emphasis added). See also
Ex parte Williams, 627 So.2d 999, 1003 (Ala. 1993).
Moreover, in cases involving conflicting evidence on the
issue of voluntariness, the trial court's determination
is entitled to great weight on appeal. D.M.M. v.
State, 647 So.2d 57, 60 (Ala.Crim.App.1994).
'"'Where the evidence of voluntariness is
conflicting, and even where there is credible testimony to
the contrary, the trial judge's finding of voluntariness
must be upheld unless palpably contrary to the weight of the
evidence.'"' Dixon v. State, 588 So.2d
903, 908 (1991) (quoting Carr v. State, 545 So.2d
820, 824 (Ala.Crim.App.1989)) (emphasis added). See also
Ex parte Jackson, 836 So.2d 979, 982 (Ala.
Jones v. State, 987 So.2d 1156, 1164
follows the majority view that an appellate court may examine
the entire record when considering the correctness of a
circuit court's ruling on a motion to suppress. "In
reviewing a trial court's ruling on a motion to suppress,
this Court may consider the evidence adduced both at the
suppression hearing and at the trial." Smith v.
State, 797 So.2d 503, 526 (Ala.Crim.App.2000).
"[M]ost state courts addressing the issue, again in a
variety of contexts, also have held that an appellate court
may consider the entire record when reviewing the correctness
of a trial court's ruling on a pretrial motion to
suppress. State v. Randall, 94 Ariz. 417, 385 P.2d
709, 710 (Ariz. 1963) (warrantless arrest); State v.
Whitaker, 215 Conn. 739, 578 A.2d 1031, 1033 (Conn.
1990) (voluntariness of confession); People v.
Gilliam, 172 Ill.2d 484, 670 N.E.2d 606, 614, 218
Ill.Dec. 884 (Ill. 1996) (voluntariness of statement);
Lamb v. State, 264 Ind. 563, 348 N.E.2d 1, 3 (Ind.
1976) (voluntariness of statement); State v.
Jackson, 542 N.W.2d 842, 844 (Iowa 1996) (inventory
search); State v. Chopin, 372 So.2d 1222, 1224, n. 2
(La. 1979) (investigatory stop); State v. Parkinson,
389 A.2d 1, 10 (Me. 1978) (warrantless arrest); State v.
Sharp, 217 Mont. 40, 702 P.2d 959, 961 (Mont. 1985)
(investigatory stop); State v. Huffman, 181 Neb.
356, 148 N.W.2d 321, 322 (Neb. 1967) (warrantless search);
State v. Martinez, 94 N.M. 436, 612 P.2d 228, 231
(N.M.1980) (warrantless arrest and search); Commonwealth
v. Chacko, 500 Pa. 571, 459 A.2d 311, 318, n. 5 (Pa.
1983) (voluntariness of statement); State v.
Keeling, 89 S.D. 436, 233 N.W.2d 586, 590, n. 2 (S.D.
1975) (pretrial identification); State v. Bruno, 157
Vt. 6, 595 A.2d 272, 273 (Vt. 1991) (investigatory stop);
Carroll v. State, 938 P.2d 848, 850 (Wyo. 1997)
(warrantless arrest); Henry v. State, 468 So.2d 896,
899 (Ala.Crim.App.1984) (voluntariness of statement);
Sayers v. State, 226 Ga.App. 645, 487 S.E.2d 437,
438 (Ga.App. 1997) (investigatory stop); State v.
Kong, 77 Hawaii'I 264, 883 P.2d 686, 688 (Hawaii
App. 1994) (voluntariness of statement); State v.
Sims, 952 S.W.2d 286, 290 (Mo. App. 1997) (pretrial
identification); Woodson v. Commonwealth, 25 Va.App.
621, 491 S.E.2d 743, 745 (Va.App. 1997) (warrantless
State v. Henning, 975 S.W.2d 290, 297-98 (Tenn.
appeal, Collins first argues that his confession was
inadmissible because, he says, the State obtained
Collins's statement in violation of Edwards v.
Arizona, 451 U.S. 477 (1981). Specifically, Collins
argues that the only testimony indicating that Collins
reinitiated contact with police was the hearsay testimony
that a jailer told a police officer that Collins wanted to
speak to Investigator Davis and that, according to this
Court's holding in Robinson v. State, 698 So.2d
1160 (Ala. Crim. 1996), hearsay testimony alone is not
sufficient to satisfy the State's burden of proving that
Collins reinitiated contact with police after invoking his
right to counsel. Collins argues in brief:
"It is clear that Mr. Collins did not directly contact
Harkness, but reached him only through jail staff. The sole
evidence offered by the State regarding the crucial moment
when Mr. Collins allegedly reinitiated contact with police
was Harkness's hearsay testimony concerning comments made
by an unknown jail employee and Davis's duplicative
hearsay within hearsay."
brief, at pp. 48-49.)
noted above, Collins made no Edwards objection at
trial. Accordingly, "the State's alleged violation
of Edwards is not properly preserved and will be
reviewed only for plain error." Osgood v.
State, [Ms. CR-13-1416, October 21, 2016] ___ So.3d ___,
Edwards, the United States Supreme Court held that,
"when 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');">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.
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.
parte Williams, 31 So.3d 670, 676 (Ala. 2009).
"The purpose of [the Edwards 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.
Eggers v. State, 914 So.2d 883, 899-900
State first argues that there is no evidence indicating that
Collins invoked his right to counsel except the testimony of
Collins; therefore, Edwards has no application to
the facts of this case. However, the testimony concerning
Collins's invocation of his right to counsel is
conflicting. Collins testified that he invoked his right to
counsel on August 4, 2012, after he was transported from New
Orleans to Alabama. Collins testified: "I said I
didn't want to talk because I didn't know the
circumstances of the situation that I was in and I'd
rather talk to an attorney before I even said something to
them." (R. 257.) At the suppression hearing Investigator
Davis testified that he could not recall if Collins had
invoked his right to counsel. However, at trial Davis
testified that Collins did not invoke his right to counsel at
that time. (R. 683.) Thus, there is conflicting evidence
about whether Collins requested counsel.
Collins had invoked his right to counsel, there is sufficient
evidence in the record to establish that Collins reinitiated
contact with police after invoking that right. As stated
above, Collins relies on Robinson v. State. In
Robinson, this Court reversed Robinson's
conviction after finding that Robinson's statement was
taken in violation of Edwards. This Court stated:
"The only testimony that supports the contention that
[the defendant] initiated further contact was given by
Detective Fisher, who stated that he 'didn't go and
talk to [the defendant] because someone told me that [the
defendant] -- someone in the jail, and I'm not really
sure, honestly, I'm not -- that [the defendant] requested
to talk to me.'" 698 So.2d at 1164.
ignores cases subsequent to Robinson. In Ex
parte Williams, 31 So.3d 670 (Ala. 2009), a majority
of the Alabama Supreme Court relying, in large part, on the
United States Court of Appeals' decision in Van Hook
v. Anderson, 488 F.3d 411 (6th Cir. 2007), held that
once a defendant has invoked his right to counsel a defendant
may reinitiate contact with police through a third party. The
Williams Court adopted the test in Van
"[W]e agree with the majority opinion in Van Hook
[v. Anderson, 488 F.3d 411 (6th Cir. 2007), ] that under
Edwards [v. Arizona, 451 U.S. 477 (1981), ] an
accused can initiate further interrogation through a third
party. We recognize that Edwards and the Supreme
Court decisions both pre- and post-Edwards
established a bright-line rule preventing police from
reinitiating contact with an accused; however, those cases
also recognized that an accused can later decide to
Williams, 31 So.3d at 683.
Van Hook, the United States Court of Appeals for the