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Collins v. State

Alabama Court of Criminal Appeals

October 13, 2017

Sherman Collins
State of Alabama

         Appeal from Sumter Circuit Court (CC-12-109)

          WELCH, JUDGE.

         The appellant, Sherman Collins, was convicted of murdering Detrick Bell[1] 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 followed.

         The 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.

         Angela Jackson, [2] 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.[3] 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 shooting.

         Martez 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. 461.)

         Terrod 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[4] 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.

         Rodriguez 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.

         Tommy 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.

         Ronny 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. 869.)

         Investigator 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, Mississippi.
"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 outside.'
"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."

         (C. 158-60; 704-05.)

         The 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 1975.

         Standard of Review

         Because 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, states:

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

         In defining the scope of "plain error, " this Court in Hall v. State, 820 So.2d 113 (Ala.Crim.App.1999), stated:

"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.

         Collins 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.[5] 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 [1977]). 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.[6]

         With these principles in mind, we review the claims raised by Collins in his brief to this Court

         Guilt-Phase Issues


         Collins 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.

         The 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.

         On 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.)

         During the voir dire of the prospective jurors, defense counsel again raised the issue of a continuance. The following occurred:

"[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 work. ...
"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 an expert."

         (R. 43-48.)

         The 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."

         (C. 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.

         This 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 (Ala.Crim.App.1992).
"'"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 continuance.')."

Gobble v. State, 104 So.3d 920, 939-40 (Ala.Crim.App.2010).

         Collins 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.[7] 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.

         We are 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 part:

"[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).

         Here, 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 health.

         "[O]nly 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.


         Collins 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.

         The 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 suppress.

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 inculpatory statement."

         (R. 274-76.) During the testimony of Investigator Luther Davis of the Sumter County Sheriff's Office the following occurred:

"[Prosecutor]: Did you have an opportunity to interview [Collins] again?
"[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."

         (R. 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.)

         At the 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[8] 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 statement.

         Sherman 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.)

         At 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.)

         The following occurred:

"[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?
"[Harkness]: Correct.
"[Prosecutor]: Now that's when you had face-to-face contact with him?
"[Harkness]: Correct.
"[Prosecutor]: And are you telling the jury at that time that he informed you that he wanted to talk or make a statement?
"[Harkness]: He wanted to see what could be done for him."
"[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?
"[Harkness]: Yes.
"[Prosecutor]: You didn't go seek him out?
"[Harkness]: No.
"[Prosecutor]: Investigator Davis didn't go seek him out?
"[Harkness]: No.
"[Prosecutor]: He initiated that he wanted to speak initially it was to you?
"[Harkness]: Correct."

         (R. 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.

         In 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 added)."

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. 2002)."

Jones v. State, 987 So.2d 1156, 1164 (Ala.Crim.App.2006).

         Alabama 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 search)."

State v. Henning, 975 S.W.2d 290, 297-98 (Tenn. 1998).


         On 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."

         (Collins's brief, at pp. 48-49.)

         As 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 ___, ___ (Ala.Crim.App.2016).

         In 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 police."

451 U.S. at 484-85.

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

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

"The purpose of [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. [477], at 484-485 [(1981)] (whether accused "expressed his desire" for, or "clearly asserted" his right to, the assistance of counsel); Miranda v. Arizona, 384 U.S. [436], at 444-445 [(1966)] (whether accused "indicate[d] in any manner and at any stage of the process that he wish[ed] to consult with an attorney before speaking"). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, [451 U.S., ] at 485, 486, n. 9.'
"Smith v. Illinois, 469 U.S. at 95, 105 S.Ct. 490."

Eggers v. State, 914 So.2d 883, 899-900 (Ala.Crim.App.2004).

         The 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.

         Even if 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.

         Collins 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 Hook.

"[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 reinitiate communication."

Williams, 31 So.3d at 683.

         In Van Hook, the United States Court of Appeals for the ...

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