from Calhoun Circuit Court (CC-2011-493)
Dwayne Gaston was convicted of murder made capital because it
was committed during a kidnapping, see §
13A-5-40(a)(1), Ala. Code 1975, and during a robbery,
see § 13A-5- 40(a)(2), Ala. Code 1975. During
the penalty phase of Gaston's trial, the jury recommended
by a vote of 10 to 2 that Gaston be sentenced to death. The
circuit court followed the jury's recommendation, finding
that the aggravating circumstances outweighed the mitigating
circumstances in his case, and sentenced Gaston to death.
This appeal, which is automatic in a case involving the death
penalty, followed. See § 13A-5-53, Ala. Code
of Facts and Procedural History
evidence adduced at trial established that, on April 20,
2011, Gaston and Tyrone Thompson were at a friend's house
with Gaston's brother, Patrick Watkins, and Tyrone's
girlfriend, Cheryl Bush. According to Cheryl Bush, throughout
the night she saw Gaston and Tyrone "standing to the
side" and "whispering" to each other.
Eventually, Gaston, Watkins, Tyrone, and Bush left their
friend's house, dropping Watkins off "on the east
side" before taking Bush home. After dropping off
Watkins and Bush, Tyrone telephoned Kevin
Thompson and asked if he could stop by Kevin's
apartment that night. According to Kevin's sister, Rena
Curry, Tyrone had known Kevin for many years and Kevin had
been trying to "steer [Tyrone] on the right path"
in life. (R. 909.)
9:00 p.m. and 10:00 p.m., Kevin's neighbor, Martelli
Smith, noticed "two African-American males and one
Caucasian female" standing outside the apartment complex
near Kevin's silver Honda Civic automobile. (R. 934-35,
937, 939, 1005.) According to Smith, one male was "kind
of chubby, " while the other was "small and small
built." (R. 935.)
that time, Chris Wilkerson, Kevin's friend, was on the
phone with Kevin. Wilkerson testified that he heard someone
knock on Kevin's door and that he overheard Kevin say,
"I didn't know all of these people were coming with
you." (R. 923.) When the call suddenly disconnected,
Wilkerson called Kevin back and Kevin told him that he would
"call [him] right back." (R. 924.) Although
Wilkerson continued to try to reach Kevin until 1:00 a.m., he
testified that Kevin never answered his phone or called him
next day, when Kevin failed to report for work at Wellborn
Elementary School, his colleagues became worried, so his
school principal sent a school resource officer to
Kevin's apartment to check on him. Because the apartment
belonged to Kevin's sister, Rena Curry, however, the
resource officer telephoned her and told her that Kevin had
not shown up for work that day. Rena called her mother,
Frances Curry, and then tried to reach Kevin on his cellular
phone. When she could not reach Kevin on his cellular phone,
Rena drove to the apartment. Frances also drove to the
apartment and took alternate routes to determine whether
Kevin had had an automobile accident.
Rena and Frances arrived at Kevin's apartment, they
noticed that he was not at home and that his car was gone.
Rena and Frances found Kevin's front door unlocked, the
lights and air conditioning on, and a lit candle that
appeared to have burned all night. They also noticed that one
of his shoes was outside on the ground and a
"trail" or "skid mark" was nearby. (R.
716, 901, 943.) The matching shoe was found inside
Kevin's apartment by the front door. Kevin's mother
telephoned the police.
thereafter, Cpl. Bill Deleon arrived at Kevin's apartment
and noted that "[e]verything appeared to be normal"
and that nothing inside the apartment was
"ransacked." (R. 767, 773.) Cpl. Deleon testified
that he remembered speaking with family members and neighbors
but that he did not learn much other than someone mentioned
that they had "heard something" the night before.
that law-enforcement officials were not doing enough to
locate her son, Frances continued her search for Kevin.
During the course of her search, Frances contacted
Kevin's bank and learned that several withdrawals had
been made from Kevin's account the previous night at
various automatic-teller machines ("ATM"). Frances
again contacted the Jacksonville Police Department to inform
them of the unusual bank-account activity.
officers obtained surveillance footage from the credit unions
and banks located in the Anniston and Jacksonville areas
where unusual withdrawals had been made from Kevin's
account. That footage revealed that Kevin's debit card
was first used at 10:19 p.m. on April 20, 2011, at a drive-up
ATM in Jacksonville. The driver, later identified as Nicholas
Smith, wore a baseball cap with the letter "A, "
had a tattoo on his hand, and was driving Kevin's silver
Honda Civic. (R. 964.) The passenger, whom Gaston later
identified as himself, was dressed in a navy hoodie and white
hat, was wearing a gold six-point star ring, and was holding
a rifle with a camouflage pattern pointed at the backseat.
Smith made "nine or ten" attempts to withdraw money
before he succeeded. (R. 964-65.) He then made four
successive $100 withdrawals, leaving a balance of
approximately $80 in Kevin's account. The footage showed
Smith passing money to Gaston, who passed it to someone in
the backseat. (R. 967.)
minutes later, Smith drove across the road to the drive-up
ATM at the Fort McClellan Credit Union. Photographs from the
Anniston branch of the Fort McClellan Credit Union showed
that a silver vehicle and a dark-colored sport-utility
vehicle arrived at 12:13 a.m. on April 21, 2011. Smith and a
second individual were shown at the ATM. (R. 954, 956.) Rena
later recognized Tyrone as the second man in the footage.
Police interviewed Tyrone on April 21, 2011, but Tyrone
admitted only that he met Smith at the credit union after
Smith called to ask Tyrone "how to use a debit card at
the ATM." (R. 146-47.) Tyrone denied any knowledge of
to testimony at trial given by Whitney Ledlow and Jessica
Foster, Smith then went to the apartment shared by both
Ledlow and Foster. Ledlow and Foster testified that, when
Smith arrived at their apartment, he had a "gash"
on his face. (R. 1092, 1122.) Both women testified that they
saw blood inside Smith's Ford Explorer sport-utility
vehicle when they left to purchase alcohol around noon that
day. When they asked Smith about the blood, he became
"real nervous, " "wip[ed] everything down,
" and threw "a bunch of stuff in bags" in
their trash can.
to Ledlow, they both then left with Smith and drove the
Explorer to a nearby detail shop to have the interior
cleaned. John Robinson, the owner of the detail shop,
testified that, as he was cleaning Smith's Explorer, he
noticed "a lot of red splatters in different spots"
that "might have been blood." (R. 1149-50.)
they waited for Smith's car to be detailed, Smith,
Ledlow, and Foster went to Foster's mother's house in
Stringfellow where Kevin's car had been hidden the night
before. After deciding to strip Kevin's car, they picked
up Blake Hamilton and Teddy Smith and then returned to
Foster's mother's house to work on the car. While
Hamilton and Teddy removed parts, Foster and Ledlow searched
the interior for anything of value. They found a credit card,
a gold diamond cluster ring, and a Kodak brand camera. Ledlow
later pawned the diamond cluster ring for $200, which she
gave to Smith. At some point, Foster's mother walked
inside the garage and told everyone to leave. She then
contacted the police about the car.
Smith, Ledlow, and Foster picked up Smith's Explorer,
they parked the vehicle in the parking lot of a hospital in
Anniston. They then attempted to find a trailer to dispose of
Kevin's car. When they were unable to find one, they
considered setting Kevin's vehicle on fire. In the end,
they drove another vehicle to Carrollton, Georgia, checked
into the Royal Inn motel, and drove to a nearby Wal-Mart
where they threw several items, including Kevin's
checkbook, into a trash can. The next morning, Foster,
Ledlow, and Smith were detained at Hartsfield Jackson Airport
in Atlanta, Georgia.
told police where Smith had told them Kevin's body was
located. Specifically, she told them that Kevin's body
had been disposed of down an embankment near a set of
guardrails on U.S. Highway 278. Based on that description,
Investigator Seth Rochester of the Cherokee County
Sheriff's Office was able to locate Kevin's body in
the early morning hours of April 23, 2011. Dirt and leaves
along the roadway appeared disturbed, as though "some
type of struggle or fight had occurred" at the
guardrail. (R. 831, 1842.) Police officers also noticed what
appeared to be two knee prints in the dirt. They also found
tire tracks, cigarette butts, and several cans near the
climbing down the steep embankment, police discovered
Kevin's body facedown at the "edge of the tree line
where he [was] caught up in some brush, " with his body
"smeared with mud and dirt." (R. 869, 1836.)
Kevin's wrists were bound with duct tape and his injuries
Ward, a state medical examiner with the Alabama Department of
Forensic Sciences, performed the autopsy on Kevin's body.
Dr. Ward noted a cut across the front of the neck, which was
deep enough to have compromised the windpipe and left jugular
vein. This injury caused blood to aspirate into Kevin's
lungs. He also suffered four haphazard stab wounds to the
left side of his chest--two pierced the heart and all four
pierced the left lung. Dr. Ward stated that the orientation
of the wounds suggested that Kevin's assailants were
standing while he was in a submissive position on the ground.
He sustained a contusion to the entire left side of his face,
consistent with punching or kicking. In Dr. Ward's
opinion, this injury was caused by a "tremendous"
amount of force. (R. 753.) Kevin bore superficial abrasions
on his extremities, which could have been caused by falling;
bruises to his wrists, which were consistent with his wrists
being bound by duct tape; and defensive wounds to his palms.
Dr. Ward stated that, although the stab wounds and injury to
the throat were severally fatal, Kevin's death was not
quick because he did not sustain arterial bleeding. In Dr.
Ward's opinion, he would have been aware of his injuries
and would have experienced significant pain.
their investigation, law-enforcement officers learned that
Gaston had been with Tyrone the night Kevin went missing.
Police officers were able to locate Gaston at his
father's home, and Gaston agreed to accompany them to the
police station for questioning. At that time, Taesha Pulliam,
Gaston's on-and-off girlfriend, gave them a
camouflage-patterned .50 caliber black-powder rifle Gaston
had previously placed in her car.
being advised of his Miranda rights, Gaston initially
denied any knowledge of or involvement in Kevin's
disappearance and death. Over the course of the
interrogation, however, Gaston admitted that he was involved
in the kidnapping and robbery of Kevin.
to Gaston, after he and Tyrone dropped off Watkins and Bush,
they drove to Tyrone's house in Nicholas Smith's
Explorer and waited for Smith. When Smith arrived with Kevin,
driving Kevin's car, the four men drove Kevin's car
to an ATM. Gaston noted that Kevin rode in the back because
Gaston was "too long" to sit comfortably in the
stated that Smith already had Kevin's debit card and that
he "swiped it" at one of the ATMs in the area, and
withdrew "two or three hundred" dollars. (Supp. III
R. 94.)Smith then gave Gaston $40. Gaston further
stated that when they attempted to withdraw money from the
second ATM, the transaction was denied. At that point, Gaston
and Tyrone separated from Kevin and Smith. When Gaston and
Tyrone reunited with Smith after midnight that night and
unsuccessfully tried to withdraw money from a third ATM at
the Fort McClellan Credit Union, Gaston said, Kevin was no
longer with them.
law-enforcement officers showed Gaston the security footage
they obtained, Gaston identified himself in the front
passenger seat with Smith in the driver seat. He also
admitted that he had his camouflage-patterned rifle at that
time but insisted that he was aiming the weapon at both Kevin
and Tyrone and that he was "just the gun man."
(Supp. III R. 95.) According to Gaston, at some point Tyrone
asked him to shoot Kevin because he was concerned that Kevin
could identify Tyrone as one of the individuals who robbed
him. Gaston stated, however, that he refused to do so.
told law-enforcement officers that the men drove down
"[s]ome black dark ass road" and parked near a
guardrail. (Supp. III R. 75, 84, 87.) Gaston claimed he was
unaware that Kevin was bound in the trunk until Smith and
Tyrone removed him and placed him on the side of the road.
Gaston told police he saw Smith and Tyrone "tussle"
with Kevin, hitting him several times. According to Gaston,
Smith stabbed Kevin and Kevin screamed. Smith then returned
to the vehicle with a bloody, black-handled
drove Kevin's car to Foster's mother's house in
Stringfellow while Tyrone and Smith followed in Smith's
Explorer. After leaving Kevin's car at Foster's
mother's house, Tyrone drove Gaston, who sat in the
backseat of the Explorer, to Taesha Pulliam's house.
13, 2011, Gaston was indicted on one count of murder made
capital because it was committed during a kidnapping,
see § 13A-5-40(a)(1), Ala. Code 1975, and one
count of murder made capital because it was committed during
a robbery, see § 13A-5-40(a)(2), Ala. Code
1975. After attorneys David L. Johnston, Jr., and Tom Harmon
were appointed to represent him, Gaston entered a plea of not
guilty and a plea of not guilty by reason of mental disease
or defect on both counts.
trial commenced on September 28, 2015, and seven days later
the jury found him guilty of both charges. During the penalty
phase, the jury found by special verdict forms that the State
had established two aggravating factors beyond a reasonable
doubt: (1) that Gaston committed the capital offenses while
under a sentence of imprisonment and (2) that the capital
offenses were especially heinous, atrocious, or cruel when
compared to other capital offenses. On October 7, 2015, the jury
recommended by a vote of 10 to 2 that Gaston be sentenced to
November 12, 2015, the circuit court accepted the jury's
recommendation and sentenced Gaston to death. In doing so,
the circuit court found that the mitigating
circumstancesin Gaston's case were substantially
outweighed by the aggravating circumstances. Thereafter,
Gaston filed a timely notice of appeal.
appeal from his convictions and sentence, Gaston raises
numerous issues, including some that were not raised in the
trial court. Because Gaston has been sentenced to death,
however, this Court must review the circuit court proceedings
under the plain-error doctrine. See Rule 45A, Ala.
R. App. P.
"'"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
"Ex parte Brown, 11 So.3d 933, 935-36 (Ala.
2008)(quoting Hall v. State, 820 So.2d 113, 121-22
(Ala.Crim.App.1999)). See also Ex parte Walker, 972
So.2d 737, 742 (Ala. 2007); Ex parte Trawick, 698
So.2d 162, 167 (Ala. 1997); Harris v. State, 2 So.3d
880, 896 (Ala.Crim.App.2007); and Hyde v. State, 778
So.2d 199, 209 (Ala.Crim.App.1998)('To rise to the level
of plain error, the claimed error must not only seriously
affect a defendant's "substantial rights, " but
it must also have an unfair prejudicial impact on the
jury's deliberations.'). Although the failure to
object in the trial court will not preclude this Court from
reviewing an issue under Rule 45A, Ala. R. App. P., it will
weigh against any claim of prejudice made on appeal. See
Dotch v. State, 67 So.3d 936, 965
(Ala.Crim.App.2010)(citing Dill v. State, 600 So.2d
343 (Ala.Crim.App.1991)). Additionally, application of the
"'"'is to be "used sparingly, solely
in those circumstances in which a miscarriage of justice
would otherwise result."'" Whitehead v.
State, [777 So.2d 781], at 794 [(Ala.Crim.App.1999],
quoting Burton v. State, 651 So.2d 641, 645
(Ala.Crim.App.1993), aff'd, 651 So.2d 659 (Ala. 1994),
cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862
"Centobie v. State, 861 So.2d 1111, 1118
Phillips v. State, [Ms. CR-12-0197, December 18,
2015] So.3d ___, ___ (Ala.Crim.App.2015). With these
principles in mind, we address Gaston's claims on appeal.
argues that the circuit court violated his constitutional
rights under the Sixth Amendment to the United States
Constitution in at least two distinct ways. (Gaston's
brief, pp. 57-64.) First, Gaston contends that the circuit
court violated his Sixth Amendment right to counsel by
denying his repeated requests to dismiss his counsel and to
have new counsel appointed. (Gaston's brief, pp. 61-64.)
Second, he argues that the circuit court violated his Sixth
Amendment right to self-representation by denying what he
says were his "clear and unequivocal" requests to
represent himself at his capital-murder trial. (Gaston's
brief, pp. 57-61.) Because of the nature of Gaston's
arguments, a brief recitation of the facts underlying his
claims is necessary.
record indicates that attorneys David L. Johnston, Jr., and
Thomas W. Harmon were appointed to represent Gaston during
his capital-murder trial. On April 12, 2012, Gaston filed a
pro se letter with the circuit court asking the court to
dismiss his appointed counsel for "lack of attention
[in] representing" him. (C. 59, R. 15-16.) A hearing was
held on May 4, 2012, during which the circuit judge asked
Gaston if he wanted to dismiss his appointed counsel. (R.
16.) Gaston stated that he did not. (R. 16.) During that same
hearing, the circuit court noted that Gaston was represented
by counsel and advised Gaston that any additional filings he
made going forward should be made through his appointed
counsel. (R. 25.)
this warning, Gaston continued to file pro se motions and
letters addressed to the clerk, the trial judge, and the
district attorney, in which he continued to express his
general dissatisfaction with his counsel. In November 2012,
Gaston submitted another pro se letter to the circuit court
in which he stated that his lawyer had repeatedly lied to him
and asked the court to grant his request for bond so that he
could hire a new lawyer. (C. 88-89.) That request was denied
on January 9, 2013. (C. 92.)
February 12, 2013, Gaston filed a pro se letter with the
circuit court in which he asked the court to dismiss his
defense counsel. (C. 95.) In his letter, Gaston stated that
he believed his counsel was not "representing [him]
properly" and that he believed they were hiding
something from him. On March 13, 2013, the circuit court
denied that request. (C. 99.)
April 3, 2014, Gaston filed another pro se letter in which
he, once again, stated that he wanted to fire his defense
attorney because, he said, his counsel had a poor work ethic
and had been lying to Gaston and his family. (C. 111.) He
also indicated that he could represent himself. Although not
entirely clear from the record, it appears that Gaston
submitted an attachment with that letter in which he
specifically asked the court to appoint him new counsel and
indicated that, if it failed to do so, he would like to
represent himself. (C. 113.) On April 30, 2014, the circuit
court issued an order denying Gaston's request. (C. 120.)
that time, Gaston filed a pro se motion for a speedy trial, a
pro se letter asking the circuit court to allow him to
conduct discovery, and a pro se letter asking District
Attorney Brian McVeigh to provide him with the evidence in
the district attorney's file for Gaston's review. (C.
121, 122, 123-24.) In a letter attached to his pro se motion
for a speedy trial, Gaston stated that he had "been
informed that [his] attorneys do not seek to represent [him]
anymore so [he would] file [his] own said motions." (C.
122.) That motion was denied by the circuit court as an
improper pro se motion on August 15, 2014. (C. 135.)
August 12, 2014, he also filed a pro se motion to dismiss the
charges against him. (C. 129-33.) In his pro se motion,
"1) I am locked up because my lawyers have no intentions
of proving my innocence cause they are all in with the
district attorney. My attorney wins and the district attorney
win both get paid on my behalf. I cannot stop that don't
care. I just want some justice. Everybody has said I'm
innocent why are they still against me? Why the judge
[won't] allow me to dismiss and get rid of my attorney
for someone who gone do right? It's not right all."
129-32.) That motion was denied by the circuit court as an
improper pro se motion on August 15, 2014. (C. 134.)
in late 2014, Gaston filed another pro se letter with the
court in which he expressed his disappointment with the way
his defense counsel were representing him and explained that
he did not want Johnston or Harmon to continue to represent
him. (C. 136.) Gaston wrote:
"You keep telling me that I have counsel when I'm
trying to tell you I don't[;] they have told my mother
that they no longer want to represent me and I will have to
go in front of the judge to be appointed new counsel. ... If
I had proper counsel I would not have to keep presenting
motions to you[;] my counsel would do their job. Even if
David L. Johnston Jr. and Thomas W. Harmon do wish to
represent me I no longer want them too, cause they tell my
family they off my case, but you think they are, I
don't need them on my case half doing stuff[.] I need
straight up people or I wish to represent myself. Cause
right now I know they are angry with me, they ain't
coming to see me, they ain't fi[l]ing my motions you can
see that so they ain't representing me, so 41 months
later they don't know nothing or can tell me nothing
[won't] help me or come to see me, so really I do not
trust my life in their hands at a trial with them [lying]
saying they are [not] representing me to my momma but to the
courts they representing me, so 41 month later they don't
know nothing or can tell me nothing, want to help me and come
to see me, so really I do not trust my life in their hands at
a trial with them [lying] saying they are not representing me
to my momma but to the courts they representing me. I can
only [feel] they using me for a check, but I respect their
game. I just want to be handled properly with and by my
counsel so if it's not through them two can you [acquire]
me two more attorneys please so I can get in court. Thank
Id. (emphasis added.) Nothing in the record
indicates whether the circuit court took any action on this
last pro se letter.
Gaston contends that the circuit court violated his Sixth
Amendment right to counsel by denying his repeated requests
to dismiss his counsel and to have new counsel appointed.
(Gaston's brief, pp. 61-64.) This Court has previously
"'While an indigent defendant may have the right to
be represented by counsel, he has no absolute right to be
represented by any particular counsel or by counsel of his
choice. Briggs v. State, 549 So.2d 155 (Ala. Cr.
App. 1989). The essential aim of the Sixth Amendment is to
guarantee an effective advocate, not counsel preferred by the
defendant. Wheat v. United States, 486 U.S. 153, 108
S.Ct. 1692, 100 L.Ed.2d 140 (1988). The Sixth Amendment does
not guarantee a defendant a meaningful relationship, rapport,
or even confidence in court-appointed counsel. Morris v.
Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610
(1983); Siers v. Ryan, 773 F.2d 37 (3d Cir. 1985),
cert. denied, 490 U.S. 1025, 109 S.Ct. 1758, 104 L.Ed.2d 194
"'The decision to substitute or to remove
court-appointed counsel and to appoint new counsel for an
accused rests within the sound discretion of the trial court.
Boldin v. State, 585 So.2d 218 (Ala. Cr. App. 1991);
Cox v. State, 489 So.2d 612 (Ala. Cr. App. 1985). In
order to prevail on a motion for substitution of counsel, the
accused must show a demonstrated conflict of interest or the
existence of an irreconcilable conflict so great that it has
resulted in a total lack of communication that will prevent
the preparation of an adequate defense. Boldin v.
State; Cox v. State.'
"Snell v. State, 723 So.2d 105, 107
"Alabama has little law on the circumstances that
warrant a hearing on a defendant's request to substitute
counsel, so we have looked to other courts for guidance. The
Florida Supreme Court, in what appears to be the prevailing
"'This Court has consistently found a ... hearing
unwarranted where a defendant presents general complaints
about defense counsel's trial strategy and no formal
allegations of incompetence have been made. See Davis v.
State, 703 So.2d 1055, 1058-59 (Fla. 1997); Gudinas
[v. State], 693 So.2d  at 962 n.12 [ (Fla. 1997) ];
Branch v. State, 685 So.2d 1250, 1252 (Fla. 1996).
Similarly, a trial court does not err in failing to conduct
a[n] ... inquiry where the defendant merely expresses
dissatisfaction with his attorney. See Davis, 703
So.2d at 1058-59; Branch, 685 So.2d at 1252;
Dunn v. State, 730 So.2d 309, 311-12 (Fla. 4th DCA
"State v. Wabashaw, 274 Neb. 394, 403, 740
N.W.2d 583, 593 (2007). The Connecticut Supreme Court has
"'The defendant contends that even if the trial
court was not required to appoint new counsel, it was at the
very least required to inquire into the defendant's
request. We are unpersuaded. "Where a defendant voices a
'seemingly substantial complaint about counsel, ' the
court should inquire into the reasons for
dissatisfaction." McKee v. Harris, [649 F.2d
927], 933 [(2d Cir. 1981)], quoting United States v.
Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied,
410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587, reh. denied, 411
U.S. 941, 93 S.Ct. 1891, 36 L.Ed.2d 404 (1973).'
"State v. Gonzalez, 205 Conn. 673, 685, 535
A.2d 345, 352 (1987). The Texas Court of Criminal Appeals has
"'[A]ppellant maintains that the failure of the
court to hold a hearing on his motion to dismiss counsel
denied his procedural and substantive due process rights. We
disagree. We have found no case law mandating the trial court
to sua sponte hold a hearing on this matter.'
"Malcom v. State, 628 S.W.2d 790, 792 (Tex.
Crim. App. 1982). See United States v. Smith, 282
F.3d 758, 764 (9th Cir. 2002) ('[T]he failure to conduct
a hearing [on the motion to substitute counsel] is not itself
an abuse of discretion.'); United States v.
Calabro, 467 F.2d 973, 986 (2d Cir. 1972) ('If a
court refuses to inquire into a seemingly substantial
complaint about counsel when he has no reason to suspect the
bona fides of the defendant, or if on discovering justifiable
dissatisfaction a court refuses to replace the attorney, the
defendant may then properly claim denial of his Sixth
Amendment right.'). See also Carl T. Drechsler,
Withdrawal, Discharge, or Substitution of Counsel in
Criminal Case as Ground for Continuance, 73 A.L.R.3d 725
Boyle v. State, 154 So.3d 171, 190-92
(Ala.Crim.App.2013) (emphasis added).
outlined above, Gaston filed several pro se letters with the
circuit court asking the court to dismiss Johnston and Harmon
and to appoint new counsel. Although we acknowledge that in
each of those pro se letters Gaston made it clear that he
believed Johnston and Harmon were providing inadequate
representation, were being untruthful with him, were trying
to avoid answering questions he had about his case, and were
colluding with the district attorney's office, nothing in
the record supports those accusations. Importantly, Gaston
has failed to show the existence of "a demonstrated
conflict of interest or the existence of an irreconcilable
conflict so great that it has resulted in a total lack of
communication that will prevent the preparation of an
adequate defense, " which this Court has held to be key
in prevailing on a motion for substitution of counsel.
See Boyle, 154 So.3d at 191. Additionally, in
looking to other courts for guidance, we agree that mere
distrust or dissatisfaction with appointed counsel is not
enough to require the trial court to conduct a hearing on a
motion to dismiss appointed counsel. See id. Thus,
Gaston is not entitled to relief on this claim.
Gaston contends that the circuit court violated his Sixth
Amendment right to self-representation by denying his
repeated requests to represent himself before his
capital-murder trial began. (Gaston's brief, pp. 57-61.)
According to Gaston, he repeatedly informed the circuit court
through a series of pro se letters that he was dissatisfied
with his appointed defense counsel and that he wanted to
represent himself. Id. Relying on the United States
Supreme Court's decision in Faretta v.
California, 422 U.S. 806 (1975), Gaston contends that he
made his request clear and that the circuit court should have
held a hearing to determine whether Gaston
"'knowingly, intelligently, and voluntarily waived
his right to counsel.'" (Gaston's brief, p. 60
(quoting Kennedy v. State, 186 So.3d 507, 521
(Ala.Crim.App.2015)).) According to Gaston, had the circuit
court held such a hearing, it would have been clear that he
was knowingly, intelligently, and voluntarily waiving his
right to counsel, and the court would have been required to
honor his request to let him represent himself. Id.
This argument was not raised at the trial level and will thus
be reviewed for plain error. See Rule 45A, Ala. R.
brief on appeal, Gaston contends that three of his pro se
letters to the circuit court support his argument.
(Gaston's brief, p. 61 (citing C. 111, 113, 136).) The
first letter he references in his brief on appeal is the pro
se letter he filed with the circuit court on April 3, 2014,
in which he stated that his defense counsel, David L.
Johnston, Jr., and Thomas W. Harmon, were not providing
adequate representation and that he was frustrated with the
number of times his case had been continued. (C. 111-12.)
Although he stated that he could represent himself, he did
not explicitly state that he wanted to represent himself at
that time. Id.
to that letter was another letter addressed to the circuit
judge in which Gaston, once again, complained about the
representation he had been receiving from his appointed
defense counsel. (C. 113.) He asked the court to appoint new
counsel and stated that, if new counsel could not be
appointed, then he wanted to represent himself. (C. 113.)
Finally, the last letter Gaston references in his brief is a
pro se letter he appeared to have filed in late 2014 in which
he expressed his disappointment with the way in which his
defense counsel were representing him. (C. 136.) Although the
purpose of the letter appears to be a request to have new
counsel appointed, Gaston does state: "I need straight
up people [working on my case] or I wish to represent myself
cause right now I know [my defense counsel are] angry with
Court has previously stated:
"'In Faretta v. California, 422 U.S. 806
(1975), the Supreme Court held that a defendant has a Sixth
Amendment right to represent himself in a criminal case.'
Tomlin v. State, 601 So.2d 124, 128 (Ala. 1991). The
right to self representation does not attach until it is
asserted 'clearly and unequivocally.' See Faretta
v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
Simons v. State, 217 So.3d 16, 21
"[a]n accused 'may waive his ... right to counsel
... after the court has ascertained that the defendant
knowingly, intelligently, and voluntarily desires to forgo
that right.' Rule 6.1(b), Ala. R. Crim. P. This right is
constitutionally guaranteed by the Sixth Amendment to the
United States Constitution and by Art. I, § 6, of the
Alabama Constitution of 1901. See also Faretta v.
California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975); Tomlin v. State, 601 So.2d 124, 128
(Ala. 1991); Parker v. State, 455 So.2d 111, 112-13
(Ala.Crim.App.1984); Luckie v. State, 55 Ala.App.
642, 644, 318 So.2d 337, 339, cert. denied, 294 Ala. 764, 318
So.2d 341 (1975)."
White v. State, 900 So.2d 1249, 1254
on the letters discussed above, Gaston's expression of
his dissatisfaction with his defense attorneys and his desire
to have new counsel appointed--and not to represent
himself--appear to have been the primary purpose of his
communication with the court. In fact, in two of the letters
discussed above, Gaston indicates that he would seek to
represent himself going forward only in the event the court
failed to appoint new counsel. The record indicates that
Johnston and Harmon were never replaced and that they
represented Gaston during all the proceedings in his
capital-murder case. Importantly, there is nothing in the
record indicating that Gaston reasserted his request to serve
as his own counsel after it became clear that new counsel
would not be appointed. As noted above, a request to
represent one's self must be made "clearly and
unequivocally." Faretta, 422 U.S. at 835, 95
S.Ct. 2525. Gaston has not met this standard and, thus, this
claim does not rise to the level of plain error.
Gaston argues that the State delayed his trial for four years
without good reason violating his right to a speedy trial
under the Sixth Amendment to the United States Constitution.
(Gaston's brief, pp. 64-70.) Although he filed his two
speedy-trial motions pro se, Gaston contends that this should
not be held against him. (Gaston's brief, pp. 69-70.)
Additionally, Gaston argues that, despite his repeated
requests for a speedy trial, the "inexcusable four-year
wait" between his indictment in May 2011 and his trial
in September 2015 was unjustified and presumptively
prejudicial. (Gaston's brief, p. 64.) Applying the
four-factor speedy-trial inquiry from the United States
Supreme Court case Barker v. Wingo, 407 U.S. 514');">407 U.S. 514');">407 U.S. 514');">407 U.S. 514
(1972), Gaston contends that his right to a speedy trial was
violated and, thus, that his conviction is due to be
reversed. (Gaston's brief, pp. 64-69.)
although not a model of clarity, Gaston appears to argue that
the fact that he filed his speedy-trial motions pro se should
not be held against him. (Gaston's brief, pp. 69-70.) The
record shows that the circuit court denied Gaston's
second motion for a speedy trial for the following reason:
"Defendant is represented by counsel and this Court will
not entertain pro se motions of a defendant who is
represented by counsel. Any motions of Defendant should be
filed by his attorney." (C. 135.) According to Gaston,
the circuit court abused its discretion by denying his second
pro se motion on that basis because, he says, his lawyers
were not adequately representing him and, thus, as far as he
was concerned, he was not represented by counsel.
(Gaston's brief, p. 70.) This claim is without merit.
Court has previously stated:
"Although Rule 31(a), Ala. R. App. P., prohibits a party
represented by counsel from filing a pro se brief, there is
no specific rule addressing such a matter in the trial
courts. However, disregarding a defendant's pro se
pleading or motion is not generally subject to criticism when
the defendant is represented by counsel. See Pardue v.
State, 571 So.2d 320, 329-30 (Ala.Crim.App.1989),
reversed on other grounds, 571 So.2d 333 (Ala. 1990).
Although no Alabama appellate court decisions specifically
address the particular issue raised in this case, courts in
other jurisdictions have held that a defendant is not
entitled to file pro se pleadings or motions when represented
by counsel. See Hutchinson v. Florida, 677 F.3d
1097, 1107 (11th Cir. 2012); Martin v. State, 797
P.2d 1209, 1217 (Alaska Ct. App.1990) ('The trial court
therefore has the authority to require a defendant who is
represented by counsel to act through counsel.'). See
also cases cited in Salser v. State, 582 So.2d 12,
14 (Fla. Dist. Ct. App. 1991). The only exception to this
rule applies to pro se motions requesting discharge of
counsel. See Finfrock v. State, 84 So.3d 431, 433-34
(Fla. Dist. Ct. App. 2012)."
Trimble v. State, 157 So.3d 1001, 1006-07
case, Gaston was represented by appointed counsel when he
filed both of his pro se speedy-trial motions. Because he was
represented by counsel, he had no right to have his pro se
motions considered by the court. Therefore, the circuit court
was within its discretion to deny Gaston's second pro se
contends that all four factors in the speedy-trial inquiry
found in the United States Supreme Court's decision,
Barker v. Wingo, 407 U.S. 514');">407 U.S. 514');">407 U.S. 514');">407 U.S. 514, 92 S.Ct. 2182');">92 S.Ct. 2182, 33
L.Ed.2d 101 (1972), weigh in his favor. In Barker,
the Court set out the following four factors to be weighed
when determining whether an accused has been denied his
constitutional right to a speedy trial: (1) the length of the
delay; (2) the reasons for the delay; (3) the accused's
assertion of his or her right to a speedy trial; and (4) the
degree of prejudice suffered by the accused due to the delay.
In Ex parte Walker, 928 So.2d 259, 263 (Ala. 2005),
the Alabama Supreme Court stated:
"'A single factor is not necessarily determinative,
because this is a "balancing test, in which the conduct
of both the prosecution and the defense are
weighed."' Ex parte Clopton, 656 So.2d
 at 1245 [(Ala. 1985)] (quoting Barker [v.
Wingo], 407 U.S.  at 530 [(1982)]). We examine each
factor in turn."
these principles in mind, we analyze Gaston's
Length of Delay
argues, and the State agrees, that the four-year delay
between his indictment in May 2011 and his trial beginning in
September 2015, was presumptively prejudicial. In Alabama,
"'[t]he length of delay is measured from the date of
the indictment or the date of the issuance of an arrest
warrant--whichever is earlier--to the date of the
trial.'" Boyle v. State, 154 So.3d 171, 192
(Ala.Crim.App.2013) (quoting Ex parte Walker, 928
So.2d at 264). Additionally,
"'[a] finding that the length of delay is
presumptively prejudicial "triggers" an examination
of the remaining three Barker factors. [Doggett
v. United States, ] 505 U.S.  at 652 n.1, 112 S.Ct.
2686, 120 L.Ed.2d 520 [(1992)] ("[A]s the term is used
in this threshold context, 'presumptive prejudice'
does not necessarily indicate a statistical probability of
prejudice; it simply marks the point at which courts deem the
delay unreasonable enough to trigger the Barker
154 So.3d at 192-93 (quoting Walker, 928 So.2d at
263-64). This Court has previously found that a delay of 48
months, or 4 years, between the time of a defendant's
arrest or indictment and his trial is presumptively
prejudicial and will trigger an examination of the remaining
Barker factors. See Boyle, 154
So.3d at 193. We have also found delays shorter than that to
be presumptively prejudicial. See State v. Van
Wooten, 952 So.2d 1176 (Ala.Crim.App.2006)
(declaring 29-month delay presumptively prejudicial); Ex
parte Anderson, 979 So.2d 777 (Ala. 2007) (noting that
delays of less than 26 months have been found to be
Gaston was indicted and arrested in May 2011, and was later
tried in the beginning of September 2015. There was more than
a 50-month delay between Gaston's indictment and his
trial. Under the principles of law discussed above, we agree
with Gaston and the State that the length of this delay was
presumptively prejudicial. We must now examine the remaining
three Barker factors.
Reasons for the Delay
contends that the State chose to delay his trial.
(Gaston's brief, pp. 66.) Specifically, Gaston argues
that, the State's delayed decision in choosing to try him
after it had tried Nicholas Smith was not a sufficient
justification for delaying his trial for four years.
of the nature of Gaston's claims here, a brief recitation
of the procedural history underlying those claims is
necessary. On July 6, 2011--approximately 71 days after he
was arrested--Gaston filed a pro se letter to the circuit
court in which he asserted his right to a speedy trial. (C.
3, 41.) It is unclear from the record whether the circuit
court ruled on this motion.
14, 2012, a status conference was held during which the State
and Gaston's defense team informed the court about the
progress of discovery and also discussed when they would be
prepared to try Gaston's capital-murder case. (R. 13-26.)
During that status conference, the prosecutor explained that
the State had been complying with the circuit court's
discovery order and that it was still waiting on an
additional forensic DNA report and any information or
material the defense might have had concerning Gaston's
educational background and mental-health issues. (R. 17.)
Upon request by both the State and the defense, the circuit
court issued an order that day granting the State's
motion for Gaston to undergo a mental evaluation and
continuing all criminal proceedings against Gaston until that
evaluation had been completed. (C. 66-68.)
that same conference, the prosecutor expressed concern over
when Gaston could be tried because he was one of three
codefendants that the State intended to try for Kevin
Thompson's murder. (R. 20.) Specifically, the prosecutor
"Your Honor, Judge Howell has Nicholas Noelani Smith and
Judge Jones has Tyrone Thompson. And my concern is there have
been discussions, and I think Mr. Johnston may have been
party to them, with comments as to who would be first and who
would be second and third. And at this point it's really
not known how we will proceed, depending upon how trial weeks
bear out next year, when those DNA reports come in, but Judge
Jones has let me know that the point at which those DNA
reports finally come in that she would be pushing the defense
to try her case and move it quickly in an effort to try to
address all the codefendants in a timely manner. But she has
put them on notice that once that comes through they need to
be ready within--I think she told them within six months to a
year to be looking at that case. And that's--Mr. Lawton
and Ms. Vernon represents that particular defendant. And Mr.
Quinlan and Mr. Clay represent Mr. Smith. And yours was the
third status conference set, so we've had status
conferences on the other two codefendants and I have
announced the same to the judges in those cases."
21-22.) When asked by the court if there was any reason why
Gaston's case could not be tried within 6 to 12 months of
receiving that evidence, the prosecutor stated there was none
and Gaston's defense counsel agreed, stating that that
timeframe was "more than reasonable for the
defense." (R. 22-23.) The State even emphasized its
desire to have all three codefendants ready to try as soon as
possible so that the State could "try these cases
quickly." (R. 20.)
two years later, on August 12, 2014, Gaston filed his second
pro se speedy-trial motion with the circuit court. (C. 121.)
That motion was denied on August 15, 2014. (C. 135.)
months later, on April 15, 2015, the circuit court held
another status conference on the State's motion for a
status conference during which the State explained why
Gaston's case still had not been tried. The State
"If the Court will allow--and Mr. Johnston and Mr.
Harmon should advise me if I say anything
inaccurate--we're coming up on the end of this summer two
years since we tried and convicted Nicholas Smith, one of the
three people that were charged in this case. Our second case
that we scheduled and planned on trying was against Tyrone
Thompson. Mr. Smith was with Judge Howell. Mr. Thompson is
with Judge Jones. And our plan was to try this defendant
third. We just have not been able to get a court date on
Tyrone Thompson due to plenty of factors involving his
request of an Atkins [v. Virginia, 536 U.S. 304
(2002)] evaluation and other problems. There have been
numerous ex parte hearings. So to be honest with the Court I
don't know what all the factors are and why that has been
"The other day I got a letter from Mr. Gaston. It was
not a speedy trial request, but it had some of the same
verbiage that one might have in it. So that letter, my
frustration at being unable to get a court date for a second
trial, and some discussions that I've had with Ms. Curry
regarding her frustration at wanting to have her day in
Court, which every victim has a right to do, led me to
contact defense counsel and ask [District Attorney Lynn]
Hammond to file this motion with the Court.
"So basically I'm asking the Court for two things
today: Can I have a trial date? And would this Court put us
on pace to make sure that we're in compliance with all
discovery and mitigation requests so that we could be ready
for that trial date?
"We talked briefly, Ms. Hammond and I, that our target
date would be the September 28th trial week. But obviously
since I'm the one asking I would submit to any date the
Court would give me, but I'm just tired of waiting. And
that's through no fault of these lawyers. They have been
under the understanding their guy would be third, and those
circumstances have changed for me."
44-46.) When the court asked Gaston's
defense counsel for a response, the following exchange
"[DEFENSE COUNSEL:] On behalf of Mr. Gaston and Mr.
Harmon, the September date is certainly within reach as far
as the guilt phase would be--and I've explained to Ms.
Hammond in conversations when this came up about I believe
seven to 10 days ago about moving us ahead of Mr. Thompson as
far as the trial calendar would go. But I will have to check
with Joann Terrell and Stan Brodski, the folks who agreed to
do the mitigation work. There's been preliminary
discussions that they may be available at that late September
date. I'm going to confirm with them that they would be
and that any work that needed to be done in this case could
be done by then. I'm confident that Tom and I can be
ready on the guilt part of it by then.
"There have been some issues with Mr. Gaston as far as
Bar complaints. We are going to endeavor to work through
those, and we will report to the Court immediately if that
becomes an issue again. And if there are issues with
communication stemming from those complaints--is that our
"[DEFENSE COUNSEL:] I mean, if this was simply a
non-death case, we're ready. We can be ready in
September, that is not a problem. That's what we can tell
the Court today.
"[PROSECUTOR:] And, Judge, I think I would be willing to
say to move this logjam--it's not any fault of this
Court, but to get some movement in these cases I would be
willing to shift around other trials to facilitate
47-48, 50.) Following this discussion, the circuit court set
Gaston's trial date for September 28, 2015. (R. 58.)
Court has previously stated:
"'Courts assign different weight to different
reasons for delay. Deliberate delay is "weighted
heavily" against the State. [Barker v. Wingo, ]
407 U.S. [514, ] 531 [(1982)]. Deliberate delay includes an
'attempt to delay the trial in order to hamper the
defense' or '"to gain some tactical advantage
over (defendants) or to harass them."' 407 U.S. at
531 & n.32 (quoting United States v. Marion, 404
U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)).
Negligent delay is weighted less heavily against the State
than is deliberate delay. Barker, 407 U.S. at 531;
Ex parte Carrell, 565 So.2d [104, ] 108 [(Ala.
1990)]. Justified delay--which includes such occurrences as
missing witnesses or delay for which the defendant is
primarily responsible--is not weighted against the State.
Barker, 407 U.S. at 531; Zumbado v. State,
615 So.2d 1223, 1234 (Ala.Crim.App.1993) ('"Delays
occasioned by the defendant or on his behalf are excluded
from the length of delay and are heavily counted against the
defendant in applying the balancing test of
Barker."') (quoting McCallum v.
State, 407 So.2d 865, 868
Boyle, 154 So.3d 171 at 193 (quoting Ex parte
Walker, 928 So.2d at 265).
on the events outlined above, nothing in the record suggests
that the State deliberately or negligently delayed
Gaston's trial. In fact, at one of the first status
conferences in May 2012, the State clearly indicated that it
wanted to try Gaston's case quickly and that it intended
to be ready for trial 6 to 12 months after receiving the last
discovery it needed, including forensic reports and a report
on Gaston's mental health. Gaston was evaluated in June
2012 (Supp. I C. 10),  forensic reports from both the
Alabama Department of Forensic Sciences and the FBI were
disclosed in January 2013, (C. 93-94), and discovery was
ongoing until May 2015. (C. 150.) Finally, Gaston's
forensic or psychological assessment and background check
were not completed until after June 2015. (C. 151-52.)
appears that the primary reason for the delay in trying
Gaston's case stemmed from issues that the State was
experiencing with the criminal proceedings against Tyrone
Thompson. Evidently frustrated with the progress of that case
and determined to have Gaston tried in a timely manner, both
the State and the defense agreed that Gaston's trial
needed to be moved ahead of Tyrone's trial and ultimately
agreed to try Gaston's case in September 2015. Those
circumstances appeared to have been beyond the State's
control. Thus, this factor does not weigh in Gaston's
Assertion of Right
argues, and the State agrees, that Gaston's repeated
requests for a fast and speedy trial weighs in his favor.
(Gaston's brief, pp. 66-67, and State's brief, pp.
61.) The Alabama Supreme Court has previously stated:
"[C]ourts applying the Barker factors are to
consider in the weighing process whether and when the accused
asserts the right to a speedy trial, 407 U.S. at 528-29, 92
S.Ct. 2182, and not every assertion of the right to a speedy
trial is weighted equally. Compare Kelley v. State,
568 So.2d 405, 410 (Ala.Crim.App.1990) ('Repeated
requests for a speedy trial weigh heavily in favor of an
accused.'), with Clancy v. State, 886 So.2d 166,
172 (Ala.Crim.App.2003) (weighing third factor against an
accused who asserted his right to a speedy trial two weeks
before trial, and stating: '"The fact that the
appellant did not assert his right to a speedy trial sooner
'tends to suggest that he either acquiesced in the delays
or suffered only minimal prejudice prior to that
date.'"') (quoting Benefield v. State,
726 So.2d 286, 291 (Ala.Crim.App.1997), additional citations
omitted), and Brown v. State, 392 So.2d 1248, 1254
(Ala.Crim.App.1980) (no speedy-trial violation where
defendant asserted his right to a speedy trial three days
Ex parte Walker, 928 So.2d at 265-66.
present case, the record shows that, on July 6,
2011--approximately 71 days after he was arrested--Gaston
filed a pro se letter to the circuit court in which he
asserted his right to a speedy trial. (C. 3, 41.) It is
unclear from the record whether the circuit court granted or
denied that motion. The next time Gaston asserted his right
to a speedy trial was in a pro se speedy-trial motion filed
on August 12, 2014--a little more than one year before his
trial. (C. 121.) That motion was denied on August 15, 2014.
(C. 135.) Because Gaston moved for a speedy trial twice--once
71 days after his arrest and again more than one year before
his trial--this factor weighs in favor of Gaston.
Prejudice to Defendant
contends that the substantial and repeated delays in his
trial proceedings prejudiced him. (Gaston's brief, pp.
67-69.) Citing the types of harm that can result from the
delay of a defendant's trial found in Barker,
supra, Gaston specifically contends that this final
factor weighs in his favor because, he says, this delay
caused him significant anxiety and distress and resulted in
witnesses' memories fading. Id.
Ex parte Walker, 928 So.2d 259, 267-68 (Ala. 2005),
the Alabama Supreme Court wrote:
"The United States Supreme Court has recognized three
types of harm that may result from depriving a defendant of
the right to a speedy trial: '"oppressive pretrial
incarceration, " "anxiety and concern of the
accused, " and "the possibility that the
[accused's] defense will be impaired" by dimming
memories and loss of exculpatory evidence.' Doggett
[v. United States], 505 U.S. [647, ] 654, 112 S.Ct. 2686');">112 S.Ct. 2686
[(1992)] (quoting Barker [v. Wingo], 407 U.S. [514,
] 532, 92 S.Ct. 2182');">92 S.Ct. 2182 [ (1972) ], and citing Smith v.
Hooey, 393 U.S. 374, 377-79, 89 S.Ct. 575, 21 L.Ed.2d
607 (1969); United States v. Ewell, 383 U.S. 116,
120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). 'Of these
forms of prejudice, "the most serious is the last,
because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system."'
505 U.S. at 654, 112 S.Ct. 2686');">112 S.Ct. 2686 (quoting Barker, 407
U.S. at 532, 92 S.Ct. 2182');">92 S.Ct. 2182)."
contends that all three of the harms listed by the
Barker court are present here. We disagree.
Gaston contends that he suffered from "oppressive
pretrial incarceration" because while he was
incarcerated, he says, he was "greatly distressed that
he could not care for his family, including his young son,
who were suffering emotionally, medically, and
financially." (Gaston's brief, pp. 67-68.) There is
nothing in the record to support this contention.
Gaston contends that his letters to the circuit judge and
district attorney demonstrate that he was suffering from
anxiety because he stated in those letters that he was
"tired of this" and was "losing his
mind." (Gaston's brief, p. 68 (quoting C. 175).)
Although we acknowledge that Gaston's letters do contain
references to the anxiety he claims he was suffering, nothing
else in the record supports this contention. See Scheuing
v. State, 161 So.3d 245, 291 (Ala.Crim.App.2013)
(finding no prejudice because that there was no evidence to
support appellant's assertion that he suffered from
anxiety and emotional stress).
Gaston generally argues that the four-year delay resulted in
the failure of law-enforcement officers to remember their
investigation and failure of other witnesses to remember
evidence concerning the guilt and relative culpability of
Nicholas Smith and Tyrone Thompson in Kevin's murder.
Gaston contends this ultimately impaired his defense at
trial. (Gaston's brief, pp. 68-69.) Gaston, however, has
not demonstrated how the delay actually impaired his defense.
Because Gaston has failed to establish that he suffered
actual prejudice as a result of the delay, this factor does
not weigh in his favor.
the factors set out by the United States Supreme Court in
Barker, supra, we cannot say that Gaston
was denied his constitutional right to a speedy trial.
Accordingly, he is not entitled to relief on this claim.
argues that the circuit court erred by excluding for cause
five potential jurors who, he says, correctly objected to
imposing accessorial liability for capital murder without
proof of intent to kill. (Gaston's brief, pp. 70-74.)
According to Gaston, allowing the State to strike those
jurors on that basis was erroneous because, he argues, in
posing its questions to the veniremembers, the State
misstated Alabama law on accomplice liability by failing to
explain that, in order to be convicted of capital murder, the
accomplice must share the principal's intent to kill.
(Gaston's brief, p. 72.) As a result, Gaston says that
his convictions and death sentence are due to be overturned.
(Gaston's brief, pp. 73- 74.) Gaston did not object to
the State's strikes of the five jury veniremembers; thus,
we will review this claim for plain error. See Rule
45A, Ala. R. App. P.
of the nature of Gaston's claim, a brief recitation of
the facts underlying the claim is necessary here. During voir
dire, veniremembers were divided into three panels: A, B, and
C. (R. 308, 420, and 531.) The State presented each panel
with the following hypothetical to determine whether
veniremembers could hold an accused accountable for a
victim's death under an accomplice-liability theory:
"[PROSECUTOR:] The closest example that I can give
without getting into the facts of this case is a bank
robbery. Okay? If I have a gunman that goes into a bank and
holds a teller at bay and gets money from the teller, okay,
and I have a getaway drive and I have a lookout, all those
people under Alabama law are treated the same. Does everybody
"[PROSECUTOR:] All right. If the gunman shoots and kills
the clerk, the getaway driver and the lookout are treated the
same. Anybody have a problem with that?"
345, see also R. 448-49, and 559-60.) Gaston notes
that a total of nine veniremembers indicated that they would
object to imposing liability on the getaway driver and
lookout for the robber's killing of the clerk under an
accomplice liability theory. On appeal, however, he argues
that the circuit court erred in granting the State's
motion to remove five of those veniremembers for cause based
on their responses to the State's hypothetical.
veniremembers were C.A., T.B., S.C., T.D., and J.D., all of
whom were from Panel A. (R. 345-46.) After identifying those
jurors, the State then clarified:
"For those of you that answered you would not be able to
hold the codefendants, the getaway driver and the lookout, to
the same standard as the shooter in that case, am I saying
346.) The State did not ask any additional follow-up
questions at that time. Id.
Court has previously stated:
"'To successfully remove a juror for cause the
challenge must be based on the statutory grounds set out in
§ 12-16-150, Ala. Code 1975, or related to a matter that
imports absolute bias on the part of the juror. See
Tomlin v. State, 909 So.2d 213, 235-36
(Ala.Crim.App.2002), rev'd on other grounds, 909 So.2d
283 (Ala. 2003).'"
Russell v. State, [Ms. CR-13-0513, Sept. 8, 2017]
___ So.3d ___, ___ (Ala.Crim.App.2017) (quoting Sneed v.
State, 1 So.3d 104, 137 (Ala.Crim.App.2007)).
Importantly, this Court has also previously recognized that
the trial judge is given much discretion in determining
whether a potential juror should be struck for cause. See
Sneed, 1 So.3d at 136. A review of the record on appeal
demonstrates that none of the five veniremembers were removed
for cause under any of the statutory exclusions of §
12-16-150, Ala. Code 1975. Thus, the State's challenge to
each of the five jurors listed above must have been related
to a "matter that imports absolute bias on the
part" of each of them. Russell, ___ So.3d at
present case, when given the opportunity to strike jurors for
cause, the State moved to strike those five veniremembers for
the following reasons. First, the State moved to strike T.D.
based on his response to the accomplice-liability
hypothetical, and the trial judge noted that the juror had
already been removed because he "had indicated that he
was in the middle of a panic attack and that for ... medical
reasons that [T.D.] would be dismissed." (R. 641.)
Defense counsel stated he had no objection and also noted
that T.D. had also "said he couldn't give the case
the necessary attention." (R. 641.) It is well settled
that the circuit judge has broad discretion in excusing
veniremembers based on sickness or personal reasons. See
Brown v. State, 11 So.3d 866, 891 (Ala.Crim.App.2007)
(holding that the circuit court did not abuse its broad
discretion in removing a juror because of her medical
condition). Additionally, removal of a juror on the basis
that he stated that he would not be able to give the trial
his full attention has also been deemed proper. See
Carroll v. State, 701 So.2d 47, 52 (Ala.Crim.App.1996)
(holding that striking of potential juror because he
indicated that he could not give the trial his complete
attention was permissible.) Thus, Gaston has failed to
demonstrate how the circuit court's decision to remove
T.D. constituted error, much less plain error, in this case.
when the State moved to strike S.C., C.A., T.B., and J.D. for
cause based on their indication that they could not hold an
accomplice liable for the acts of a principal, defense
counsel again stated that he had no objection and said,
"We agree with that, Your Honor." (R. 641.)
According to Gaston, dismissal of these jurors constituted
plain error because, he says, they all correctly objected to
imposing accessorial liability for capital murder without
proof of intent to kill. Although Gaston correctly notes that
the prosecutor's hypothetical did not mention proof of
intent to kill, Gaston did not object to the hypothetical at
trial. Because the State was pursuing a theory of accomplice
liability and, given the circuit court's broad discretion
in removing jurors for cause, S.C., C.A., T.B., and
J.D.'s admissions that they would not be able to find a
defendant guilty under the theory of accomplice liability as
explained by the prosecutor was an adequate basis for their
removal based on bias; their removal did not constitute plain
error. For the foregoing reasons, he is not entitled to
relief on this issue.
argues that the State failed to use its peremptory strikes in
a racial- and gender-neutral manner in violation of
Batson v. Kentucky, 476 U.S. 79');">476 U.S. 79 (1986), and
J.E.B. v. Alabama, 511 U.S. 127 (1994). Because
Gaston did not raise either of these claims at trial, we
question whether they are properly before this Court.
Court has stated:
"[A] review of caselaw indicates that 'both the
federal and state courts have consistently held that the
failure to make a timely [Batson or J.E.B.]
objection effectively waives any arguments based on
improprieties in jury selection which the defendant might
urge pursuant to Batson [or J.E.B.].'
Brian J. Serr & Mark Maney, Racism, Peremptory
Challenges and the Democratic Jury: The Jurisprudence of a
Delicate Balance, 79 J. Crim. L. and Criminology 1, 19
(1988). The Eleventh Circuit has explained:
"'In United States v. Rodriguez, 917 F.2d
1286 (11th Cir. 1990), this court recognized that the Supreme
Court's Batson[ v. Kentucky, 476 U.S. 79');">476 U.S. 79 (1986),
] analysis envisioned a "timely objection" and thus
held that "an inquiry into the government's exercise
of its peremptory challenges is initiated by a
defendant's timely objection." Rodriguez,
917 F.2d at 1288 n.4. The failure to make a timely
Batson objection results in a waiver of the
"United States v. Cashwell, 950 F.2d 699, 704
(11th Cir. 1992)."
White v. State, 179 So.3d 170, 198
(Ala.Crim.App.2013)(questioning whether plain-error review
was proper as to ...