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Gaston v. State

Alabama Court of Criminal Appeals

March 16, 2018

Jovon Dwayne Gaston
State of Alabama

         Appeal from Calhoun Circuit Court (CC-2011-493)

          JOINER, JUDGE.

         Jovon 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 1975.

         Statement of Facts and Procedural History

         The 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[1] 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.)

         Between 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.)

         Around 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 back.

         The 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.

         When 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.

         Shortly 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. (R. 768.)

         Concerned 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.

         Law-enforcement 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.)

         Six 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 Kevin's disappearance.

         According 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.

         According 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.)

         While 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.

         After 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.

         Foster 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 guardrail.

         After 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 were substantial.

         Emily 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.

         Through 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.

         After being advised of his Miranda[2] 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.

         According 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 backseat.

         Gaston 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.)[3]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.

         When 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.

         He then 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 knife.[4]

         Gaston 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.

         On May 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.

         Gaston's 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[5] and (2) that the capital offenses were especially heinous, atrocious, or cruel when compared to other capital offenses.[6] On October 7, 2015, the jury recommended by a vote of 10 to 2 that Gaston be sentenced to death.

         On 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 circumstances[7]in Gaston's case were substantially outweighed by the aggravating circumstances. Thereafter, Gaston filed a timely notice of appeal.

         Standard of Review

         On 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 (1999)."'
"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 plain-error rule
"'"'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 (1995).'
"Centobie v. State, 861 So.2d 1111, 1118 (Ala.Crim.App.2001)."

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.



         Gaston 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.

         The 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.)

         Despite 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.)

         On 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.)

         On 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.)

         Around 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.)

         On August 12, 2014, he also filed a pro se motion to dismiss the charges against him. (C. 129-33.) In his pro se motion, Gaston wrote:

"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."

         (C. 129-32.) That motion was denied by the circuit court as an improper pro se motion on August 15, 2014. (C. 134.)

         Finally, 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 you."

Id. (emphasis added.) Nothing in the record indicates whether the circuit court took any action on this last pro se letter.


         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.)[9] This Court has previously stated:

"'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 (1989).
"'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 (Ala.Crim.App.1998).

"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 view, stated:
"'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 [953] 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 1999).'

"State v. Wabashaw, 274 Neb. 394, 403, 740 N.W.2d 583, 593 (2007). The Connecticut Supreme Court has stated:

"'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 stated:

"'[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 (1976)."

Boyle v. State, 154 So.3d 171, 190-92 (Ala.Crim.App.2013) (emphasis added).

         As 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.


         Second, 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. App. P.

         In his 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.

         Attached 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 me." Id.

         This 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 562 (1975)."

Simons v. State, 217 So.3d 16, 21 (Ala.Crim.App.2016). Additionally,

"[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 (Ala.Crim.App.2004).

         Based 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.


         Next, 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.)


         First, 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.

         This 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 (Ala.Crim.App.2014).

         In this 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 motion.[11]


         Gaston 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 [1243] at 1245 [(Ala. 1985)] (quoting Barker [v. Wingo], 407 U.S. [514] at 530 [(1982)]). We examine each factor in turn."

         With these principles in mind, we analyze Gaston's speedy-trial claim.

         1. Length of Delay

         Gaston 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. [647] 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 enquiry.").'"

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 presumptively prejudicial).

         Here, 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.

         2. Reasons for the Delay

         Gaston 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. Id.

         Because 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.

         On May 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.)[12]

         During 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 explained:

"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."

         (R. 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.)

         Over 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.)

         Eight 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 explained:

"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 delayed.
"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."

         (R. 44-46.)[13] When the court asked Gaston's defense counsel for a response, the following exchange occurred:

"[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 agreement, Tom?
"[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 that."

         (R. 47-48, 50.) Following this discussion, the circuit court set Gaston's trial date for September 28, 2015. (R. 58.)

         This 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 (Ala.Crim.App.1981)).'"

Boyle, 154 So.3d 171 at 193 (quoting Ex parte Walker, 928 So.2d at 265).

         Based 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), [14] 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.)

         It 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 favor.

         3. Assertion of Right

         Gaston 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 before trial)."

Ex parte Walker, 928 So.2d at 265-66.

         In the 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.

         4. Prejudice to Defendant

         Gaston 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.

         In 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)."

         Gaston contends that all three of the harms listed by the Barker court are present here. We disagree.

         First, 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.

         Second, 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).

         Third, 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.

         Applying 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.


         Gaston 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.

         Because 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 understand that?
"[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?"

         (R. 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.[16] 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.

         Those 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 that correctly?
"(Heads nodding.)"

         (R. 346.) The State did not ask any additional follow-up questions at that time. Id.

         This 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 ___.

         In the 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.

         Next, 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.


         Gaston 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.

         This 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 claim.'
"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 ...

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